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EXHIBIT 2.2
Draft dated February 24, 1998
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FIRST SUPPLEMENTAL INDENTURE
BETWEEN
EL PASO NATURAL GAS COMPANY
AND
THE CHASE MANHATTAN BANK,
AS TRUSTEE
DATED AS OF _________ ___, 1998
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TABLE OF CONTENTS
ARTICLE I
SCOPE OF THIS SUPPLEMENTAL INDENTURE..............................................................................2
SECTION 1.1 Changes, etc. Applicable Only to the 1998A Debentures................................2
ARTICLE II
AMENDMENTS TO THE SUBORDINATED INDENTURE; DEFINITION OF TERMS.....................................................2
SECTION 2.1 Amendment to Section 1.1 of the Subordinated Indenture...............................2
SECTION 2.2 Defined Terms........................................................................8
ARTICLE III
1998A DEBENTURE FORM..............................................................................................9
SECTION 3.1 Form of 1998A Debenture..............................................................9
ARTICLE IV
GENERAL TERMS AND CONDITIONS OF THE 1998A DEBENTURES..............................................................9
SECTION 4.1 Designation, Title and Terms.........................................................9
SECTION 4.2 Amendments to Section 3.5 of the Subordinated Indenture.............................10
SECTION 4.3 Amendment to Section 3.7 of the Subordinated Indenture..............................11
SECTION 4.4 Changes to Section 5.1(a) and 5.1(b) Events of Default..............................12
SECTION 4.5 1998A Debenture Events of Default...................................................13
SECTION 4.6 Amendment to Section 5.13 of the Subordinated Indenture.............................13
SECTION 4.7 Modification of Section 10.6 of the Subordinated Indenture..........................14
ARTICLE V
REDEMPTION AND EXCHANGE OF THE 1998A DEBENTURES..................................................................15
SECTION 5.1 Optional Redemption................................................................15
SECTION 5.2 Redemption upon Occurrence of Trust Tax Event.......................................16
SECTION 5.3 Exchange of Trust Securities for Debentures.........................................16
SECTION 5.4 Interest on Converted 1998A Debentures..............................................16
SECTION 5.5 No Sinking Fund.....................................................................17
ARTICLE VI
CONVERSION OF 1998A DEBENTURES...................................................................................17
SECTION 6.1 Conversion Rights...................................................................17
SECTION 6.2 Conversion Procedures...............................................................17
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SECTION 6.3 Expiration of Conversion Rights.....................................................19
SECTION 6.4 Conversion Price Adjustments........................................................19
SECTION 6.5 Fundamental Change..................................................................24
SECTION 6.6 Notice of Adjustments of Conversion Price...........................................25
SECTION 6.7 Prior Notice of Certain Events......................................................26
SECTION 6.8 Dividend Reinvestment and Other Plans...............................................27
SECTION 6.9 Certain Additional Rights...........................................................27
SECTION 6.10 Reservation of Common Stock; Taxes..................................................28
SECTION 6.11 Trustee Not Responsible for Determining Conversion Price
or Adjustments......................................................................28
ARTICLE VII
EXTENSION OF INTEREST PAYMENT PERIOD.............................................................................29
SECTION 7.1 Extension of Interest Payment Period................................................29
SECTION 7.2 Additional Sums.....................................................................29
ARTICLE VIII
LIMITATION OF TRANSACTIONS, COVENANTS AS TO TRUST; CERTAIN
CONVERSIONS DEEMED PAYMENT..............................................................................30
SECTION 8.1 Limitation of Transactions..........................................................30
SECTION 8.2 Covenants As To Trust...............................................................30
SECTION 8.3 Certain Conversions Deemed Payment..................................................31
ARTICLE IX
MISCELLANEOUS....................................................................................................32
SECTION 9.1 Conflict of Any Provision with Trust Indenture Act of 1939..........................32
SECTION 9.2 New York Law to Govern..............................................................32
SECTION 9.3 Counterparts........................................................................32
SECTION 9.4 Effect of Headings..................................................................32
SECTION 9.5 Severability of Provisions..........................................................32
SECTION 9.6 Successors and Assigns..............................................................32
SECTION 9.7 Benefit of First Supplemental Indenture.............................................33
SECTION 9.8 Acceptance by Trustee...............................................................33
SECTION 9.9 Ratification of Subordinated Indenture; First Supplemental Indenture
Controls; Scope of Subordinated Indenture...........................................33
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FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE dated as of _________ ___, 1998 (the
"First Supplemental Indenture"), to the Indenture, dated as of _________ ___,
1998 (the "Subordinated Indenture"), is between EL PASO NATURAL GAS COMPANY, a
Delaware corporation (hereinafter called the "Company"), and THE CHASE
MANHATTAN BANK, a New York banking corporation (hereinafter called the
"Trustee").
RECITALS OF THE COMPANY:
WHEREAS, the Company has duly authorized the execution and delivery of
the Subordinated Indenture to provide for the issuance from time to time of its
debentures, notes, bonds or other evidences of indebtedness (hereinafter called
the "Securities") to be issued in one or more fully registered series, as in
the Subordinated Indenture provided; and
WHEREAS, the Company desires and has requested the Trustee to join it
in the execution and delivery of this First Supplemental Indenture in order to
establish and provide for the issuance by the Company of a series of Securities
designated as its ____% Subordinated Convertible Debentures due 2028 (the
"1998A Debentures"), a specimen copy of which is attached hereto as Exhibit A,
on the terms set forth herein; and
WHEREAS, Section 9.1 of the Subordinated Indenture provides that a
supplement to the Subordinated Indenture may be entered into by the Company and
the Trustee without the consent of any holder of any Securities to, inter alia,
establish the form of securities of any series pursuant to Section 2.1 of the
Subordinated Indenture and to establish the terms of securities of any series
pursuant to Section 3.1 of the Subordinated Indenture, provided certain
conditions are met; and
WHEREAS, the conditions set forth in the Subordinated Indenture for
the execution and delivery of this First Supplemental Indenture have been
complied with; and
WHEREAS, all things necessary to make this First Supplemental
Indenture a valid agreement of the Company and the Trustee, in accordance with
its terms, and a valid amendment of, and supplement to, the Subordinated
Indenture have been done.
NOW, THEREFORE:
There is hereby established a series (as that term is used in Article
II of the Subordinated Indenture) of Securities to be issued under the
Subordinated Indenture, which series of Securities shall have the terms set
forth herein and in the 1998A Debentures, and in consideration of the premises
and the purchase and acceptance of the 1998A Debentures by the holders thereof,
the Company mutually covenants and agrees with the Trustee, for the equal and
proportionate benefit of all holders of the 1998A Debentures, that the
Subordinated Indenture is supplemented and amended, to the extent and for the
purposes expressed herein, as follows:
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ARTICLE I
SCOPE OF THIS SUPPLEMENTAL INDENTURE
SECTION 1.1 Changes, etc. Applicable Only to the 1998A Debentures.
Except for the changes to the Subordinated Indenture effected by
Section 4.2 of this First Supplemental Indenture that shall be applicable to
all Securities issued under the Subordinated Indenture, other than as may be
expressly stipulated to the contrary in a supplemental indenture thereto, the
changes, modifications and supplements to the Subordinated Indenture effected
by this First Supplemental Indenture shall be applicable only with respect to,
and govern the terms of, the 1998A Debentures, which shall be limited in
aggregate principal amount to (a) $____________ plus (b) such additional
aggregate principal amount (which may not exceed $_____________ principal
amount) of 1998A Debentures as shall be purchased in connection with the
exercise by the Underwriters on the Option Closing Date (as such term is
defined in the Underwriting Agreement) pursuant to the Underwriting Agreement
dated __________ ___, 1998 (the "Underwriting Agreement") among the Company, El
Paso Energy Capital Trust I and Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities
Corporation, Xxxxxxx, Sachs & Co. and Xxxxxx Xxxxxxx Xxxx Xxxxxx, and shall not
apply to any other Securities which may be issued under the Subordinated
Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
ARTICLE II
AMENDMENTS TO THE SUBORDINATED INDENTURE; DEFINITION OF TERMS
SECTION 2.1 Amendment to Section 1.1 of the Subordinated Indenture.
Section 1.1 of the Subordinated Indenture is hereby amended by adding
the following definitions in their proper alphabetical order:
"Additional Interest" means the interest, if any, that shall accrue on
any interest on the 1998A Debentures that is in arrears for one or more
quarterly interest payment periods or not paid during any Extension Period,
which in either case shall accrue at the stated rate per annum specified or
determined as specified in such 1998A Debenture and compounded quarterly.
"Additional Sums" means, with respect to the Trust Securities, the
additional amounts as may be necessary in order that the amount of
Distributions then due and payable by the Trust on the outstanding Trust
Preferred Securities and Trust Common Securities shall not be reduced as a
result of any additional taxes, duties and governmental charges to which the
Trust has become subject.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of the Common Stock receive only cash, the amount
of cash received by the holder of one
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share of Common Stock and (ii) in the event of any other Non-Stock Fundamental
Change or any Stock Fundamental Change, the average of the Closing Prices for
the Common Stock during the 10 Trading Days prior to and including the record
date for the determination of the holders of Common Stock entitled to receive
such securities, cash, or other property in connection with such Non-Stock
Fundamental Change or Stock Fundamental Change or, if there is no such record
date, the date upon which the holders of the Common Stock shall have the right
to receive such securities, cash, or other property (such record date or
distribution date being referred to as the "Entitlement Date"), in each case as
adjusted in good faith by the Company to appropriately reflect any of the
events referred to in Section 6.4 of the First Supplemental Indenture.
"Capital Stock" means, with respect to any Person, any and all shares,
interests, participations, rights in or other equivalents (however designated)
of such Person's capital stock, and any rights (other than debt securities
convertible into capital stock), warrants or options exchangeable for or
convertible into such capital stock.
"Change in 1940 Act Law" means, as a result of the occurrence on or
after the date of the original issuance of the Trust Preferred Securities of a
change in law or regulation or a change in interpretation or application of law
or regulation by any legislative body, court, governmental agency or regulatory
authority, the Trust is or will be considered an "investment company" which is
required to be registered under the 1940 Act.
"Closing Price" means, with respect to any shares of Capital Stock, on
any day the reported last sale price on such day or, in case no sale takes
place on such day, the average of the reported closing bid and asked prices in
each case on the New York Stock Exchange Composite Tape or, if the Capital
Stock is not then traded on the New York Stock Exchange, on the principal
national securities exchange or quotation system on which such Capital Stock is
listed or admitted to trading or quoted or, if not listed or admitted to
trading on any national securities exchange or quotation system, the average of
the closing bid and asked prices of such Capital Stock in the over-the-counter
market on the day in question as reported by the National Quotation Bureau
Incorporated, or a similar generally accepted reporting service, or, if not so
available in such manner, as furnished by the National Association of
Securities Dealers member firm selected from time to time by the Board of
Directors for that purpose or, if not so available in such manner, as otherwise
determined in good faith by the Board of Directors.
"Common Stock" includes any stock of any class of Capital Stock of any
Person which has no preference in respect of dividends or of amounts payable in
the event of any voluntary or involuntary liquidation, dissolution or
winding-up of such Person and which is not subject to redemption by such
Person. However, subject to the provisions of Section 6.4 of the First
Supplemental Indenture, shares issuable on conversion of 1998A Debentures shall
include only shares of the class designated as Common Stock of the Company at
the date of this instrument or shares of any class or classes resulting from
any reclassification or reclassifications thereof and which have no preference
in respect of the payment of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding-up of the
Company and which
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are not subject to redemption by the Company; provided, that if at any time
there shall be more than one such resulting class, the shares of each such
class then so issuable shall be substantially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Conversion Agent" has the meaning specified in Section 6.2(a) of the
First Supplemental Indenture.
"Conversion Date" has the meaning specified in Section 6.2(a) of the
First Supplemental Indenture.
"Conversion Expiration Date" has the meaning specified in Section 6.3
of the First Supplemental Indenture.
"Conversion Price" has the meaning specified in Section 6.1 of the
First Supplemental Indenture.
"Current Market Price" means the average of the last reported sale
price, regular way, for the 10 Trading Days (as defined herein) ending on the
date of determination, or, if no sale takes place on any such day, the average
of the reported closing bid and asked prices on such day(s), regular way, in
either case as reported on New York Stock Exchange Composite Tape, or, if such
Common Stock is not listed or admitted to trading on New York Stock Exchange
Composite Tape on any such day, on the principal national securities exchange
or quotation system on which such Common Stock is listed or admitted to
trading, or, if not listed or admitted to trading or quoted on any national
securities exchange or quotation system, the average closing bid and asked
prices of such Common Stock in the over-the-counter market for the 10 Trading
Days in question as reported by the National Quotation Bureau Incorporated, or
a similar generally accepted reporting service, or, if not so available in such
manner, as furnished by any member firm of the National Association of
Securities Dealers, Inc. selected from time to time by the Board of Directors
of the Company for that purpose or, if not so available in such manner, as
otherwise determined in good faith by the Board of Directors of the Company. As
used herein, the term "Trading Day" shall mean a day on which the principal
national securities exchange on which the Common Stock is listed or admitted to
trading is open for the transaction of business or, if the Common Stock is not
listed or admitted to trading on any national securities exchange, a Business
Day.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, dated ___________, 1998, as the same may be modified, amended or
supplemented in accordance with the applicable provisions thereof, including
all exhibits thereto, including, for all purposes of the Declaration, any such
modification, amendment or supplement, and the provisions of the Trust
Indenture Act that are deemed to be a part of and govern the Declaration.
"Entitlement Date" has the meaning specified in the definition of
"Applicable Price."
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"Expiration Time" has the meaning set forth in Section 6.4 of the
First Supplemental Indenture.
"Extension Period" has the meaning set forth in the form of 1998A
Debenture attached as Exhibit A hereto.
"First Supplemental Indenture" means the First Supplemental Indenture
hereto, dated as of March __, 1998, between the Company and the Trustee,
which supplements this Indenture to the extent specified therein.
"Fundamental Change" means the occurrence of any Transaction or event
in connection with a plan pursuant to which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for, or
constitute solely the right to receive securities, cash, or other property
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, continuance, combination, reclassification,
recapitalization, holding Company reorganization pursuant to Section 251(g) of
the Delaware General Corporation Law or otherwise), provided that, in the case
of a plan involving more than one such Transaction or event, for purposes of
adjustment of the Conversion Price, such Fundamental Change shall be deemed to
have occurred when substantially all of the Common Stock shall be exchanged for,
converted into, or acquired for or constitute solely the right to receive
securities, cash, or other property, but the adjustment shall be based upon the
consideration that a holder of Common Stock received in such Transaction or
event as a result of which more than 50% of the Common Stock shall have been
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property.
"Liquidation Amount" means an amount with respect to the assets of the
Trust equal to $50 per Trust Security.
"1940 Act" means the Investment Company Act of 1940, as amended from
time to time, or any successor legislation.
"1998A Debentures" means the Company's ___% Subordinated Convertible
Debentures due 2028.
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Stock Fundamental Change.
"Notice of Conversion" means the notice given (i) by a Holder of 1998A
Debentures to the Conversion Agent directing the Conversion Agent to convert
such 1998A Debentures into Common Stock on behalf of such Holder or (ii) by a
holder of Trust Preferred Securities to the Conversion Agent under the
Declaration directing such Conversion Agent to exchange such Trust Preferred
Securities for 1998A Debentures and to convert such Debentures into Common
Stock on behalf of such holder.
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"Purchaser Stock Price" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for the Common Stock received in such
Stock Fundamental Change for the ten consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 6.4.
"Property Trustee" means the property trustee of the Trust appointed
pursuant to Section 6.3 of the Declaration.
"Purchased Shares" has the meaning specified in Section 6.4(e) of the
First Supplemental Indenture.
"Purchaser Stock Price" means, with respect to any Stock Fundamental
Change the average of the Closing Prices for the Common Stock received in such
Stock Fundamental Change for the 10 consecutive Trading Days prior to and
including the Entitlement Date, as adjusted in good faith by the Company to
appropriately reflect any of the events referred to in Section 6.4 of the First
Supplemental Indenture.
"Reference Date" has the meaning specified in Section 6.4 of the First
Supplemental Indenture.
"Reference Market Price" initially means $______ (which is an amount
equal to [66 2/3]% of the last reported sale price for the Common Stock on The
New York Stock Exchange Composite Tape on ____________, 1998), and in the event
of any adjustment of the Conversion Price other than as a result of a Non-Stock
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the 1998A
Debentures.
"Rights Agreement" means the Amended and Restated Shareholder Rights
Agreement, dated July 23, 1997, between the Company and The First National Bank
of Boston, as rights agent, or any successor to such Rights Agreement.
"Stock Fundamental Change" means either (i) any Fundamental Change
that is a holding company reorganization (whether effected in accordance with
Section 251(g) of the Delaware General Corporation Law or otherwise) provided
that immediately after such Fundamental Change the Common Stock of the holding
company in such Transaction is admitted for listing on a national securities
exchange or for quotation on the Nasdaq National Market or (ii) any Fundamental
Change in which more than 50% of the value (as determined in good faith by the
Board of Directors in a Board Resolution) of the consideration received by
holders of Common Stock consists of Common Stock that for each of the 10
consecutive Trading Days prior to the Entitlement Date has been admitted for
listing or admitted for listing subject to notice of issuance on a national
securities exchange or quoted on the Nasdaq National Market; provided, however,
that a Fundamental Change that is not a holding company reorganization described
in clause (i) above shall not be a Stock Fundamental Change if either (a) the
Company continues to exist after the occurrence of such Fundamental Change and
the outstanding Trust Preferred Securities continue to exist as outstanding
Trust Preferred Securities or (b) not later than the occurrence of such
Fundamental Change, the outstanding Trust Preferred Securities are converted
into or exchanged for shares of convertible Preferred Stock of an entity
succeeding to the business of the Company or a subsidiary thereof, which
convertible Preferred Stock has powers, preferences, and relative,
participating, optional, or other rights, and qualifications, limitations, and
restrictions, substantially similar to those of the Trust Preferred Securities.
"Tax Action" means (a) an amendment to, change in or announced
proposed change in the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or therein, (b)
a judicial decision interpreting, applying or clarifying such laws or
regulations, (c) an administrative pronouncement or action that represents an
official position (including a clarification of an official position) of the
governmental authority or regulatory body making such administrative
pronouncement or taking such action, or (d) a threatened challenge asserted in
connection with an audit of the Company or any of its subsidiaries, or the
Trust, or a
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threatened challenge asserted in writing against any other taxpayer that has
raised capital through the issuance of securities that are substantially
similar to the 1998A Debentures, or the Trust Preferred Securities, which
amendment or change is adopted or which decision, pronouncement or proposed
change is announced or which action, clarification or challenge occurs on or
after the date of the prospectus related to the issuance of the Trust Preferred
Securities.
"Trading Day" means a Monday, Tuesday, Wednesday, Thursday and Friday,
other than any day on which securities are not traded on the applicable
securities exchange in the applicable securities market.
"Transaction" has the meaning specified in Section 6.5 of the First
Supplemental Indenture.
"Trust" means El Paso Energy Capital Trust I, a Delaware business
trust and an Affiliate of the Company and any successor to such trust in
accordance with the Declaration.
"Trust Common Security" means the common securities representing
undivided subordinated beneficial ownership interests in the assets of the
Trust with a Liquidation Amount of $50 per Trust Common Security, issued by the
Trust.
"Trust Investment Company Event" means that the Company shall have
requested and received and shall have delivered to the Property Trustee an
Opinion of Counsel (as defined in the Declaration) from a firm having a
national tax and securities practice and that is experienced in 1940 Act
matters (which Opinion of Counsel shall not have been rescinded by such law
firm) to the effect that as a result of a Change in 1940 Act Law, there is more
than an insubstantial risk that the Trust is or, within 90 days after such
date, will be considered an "investment company" which is required to be
registered under the 1940 Act.
"Trust Preferred Securities" means the preferred undivided beneficial
ownership interests in the assets of the Trust with a Liquidation Amount of $50
per Trust Preferred Security, issued by the Trust.
"Trust Securities" means the Trust Common Securities and the Trust
Preferred Securities.
"Trust Special Event" means a Trust Tax Event or a Trust Investment
Company Event.
"Trust Tax Event" means that the Company shall have requested and
received and shall have delivered to the Property Trustee an Opinion of Counsel
(as defined in the Declaration) from a firm having a national tax and
securities practice (which Opinion of Counsel shall not have been rescinded by
such law firm) that there has been a Tax Action which relates to any of the
items described in (i) through (iii) below, and that there is more than an
insubstantial risk that (i) the Trust is or, within 90 days after such date,
will be subject to United States federal income tax with respect to income
accrued or received on the 1998A Debentures, (ii) the Trust is or, within 90
days after such date, will be subject to more than a de minimis amount of other
taxes, duties, assessments or
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other governmental charges or (iii) interest payable by the Company on the
1998A Debentures is not or, within 90 days after such date, will not be
deductible by the Company for United States federal income tax purposes.
"Underwriters" with respect to the Trust Preferred Securities, means
Xxxxxxxxx, Xxxxxx & Xxxxxxxx Securities Corporation, Xxxxxxx, Sachs & Co. and
Xxxxxx Xxxxxxx Xxxx Xxxxxx.
"Underwriting Agreement" shall have the meaning set forth in Section
1.1 of the First Supplemental Indenture.
SECTION 2.2 Defined Terms
For all purposes of this First Supplemental Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(i) the terms which are defined in the Subordinated Indenture have
the same meanings when used in this First Supplemental Indenture;
(ii) the terms defined in this Article have the meaning assigned to
them in this Article and include the plural as well as the singular;
(iii) all other terms used herein which are defined in the Trust
Indenture Act, whether directly or by reference therein, have the meanings
assigned to them therein;
(iv) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles in the United States of America, and, except as otherwise herein
expressly provided, the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder shall mean such
accounting principles as are generally accepted in the United States of America
at the date of such computation;
(v) a reference to a Section or Article is to a Section or Article
of this First Supplemental Indenture unless otherwise specified;
(vi) the words "herein" "hereof" and "hereunder" and other words of
similar import refer to this First Supplemental Indenture as a whole and not to
any particular Article, Section or other subdivision;
(vii) headings are for convenience of reference only and do not
affect interpretation; and
(viii) the following terms have the meanings given to them in the
Declaration: (i) Additional Amounts; (ii) Administrative Trustee; (iii) Trust
Common Securities Guarantee; and (iv) Trust Preferred Securities Guarantee.
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ARTICLE III
1998A DEBENTURE FORM
SECTION 3.1 Form of 1998A Debenture.
The 1998A Debentures, with the form of the Trustee's Certificate of
Authentication to be endorsed thereon, shall be substantially in the form of
Exhibit A to this First Supplemental Indenture.
ARTICLE IV
GENERAL TERMS AND CONDITIONS OF THE 1998A DEBENTURES
SECTION 4.1 Designation, Title and Terms.
There is hereby authorized a series of Securities designated the
"____% Convertible Subordinated Debentures due 2028," limited in aggregate
principal amount to (a) $ plus (b) such aggregate principal amount (which may
not exceed $__________ principal amount) of additional 1998A Debentures as
shall be purchased by the Underwriters on the Option Closing Date pursuant to
the Underwriting Agreement, which amount shall be as set forth in any written
order of the Company for the authentication and delivery of 1998A Debentures
pursuant to Section 3.3 of the Subordinated Indenture. All of the 1998A
Debentures issued pursuant to this First Supplemental Indenture shall be deemed
to have been issued as of, and shall begin to accrue interest as specified
herein from, the Closing Date (as such term is defined in the Underwriting
Agreement). The 1998A Debentures will be issued only in registered form without
coupons and only in denominations of $50 and any integral multiple thereof. The
1998A Debentures will mature on , 2028 and bear interest at a rate of ____% per
annum from _____________, 1998, or from the most recent Interest Payment Date
to which interest has been paid or duly provided for, payable quarterly in
arrears on __________, __________, __________ and __________ of each year,
commencing ________________, 1998. The interest so payable, and punctually paid
or duly provided for, on any Interest Payment Date will, as provided in the
Subordinated Indenture, be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of
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business on the Regular Record Date for such interest, which shall be the
fifteenth day of the month of such Interest Payment Date (that is, each
__________ 15, __________ 15, __________ 15 and __________ 15). Interest on the
1998A Debentures will be computed on the basis of a 360-day year comprised of
twelve, 30-day months.
Principal of, and premium, if any, and interest on the 1998A
Debentures will be payable, 1998A Debentures may be presented for conversion
and transfers of the 1998A Debentures will be registrable at the office or
agency of the Company in the Borough of Manhattan, The City of New York, and
transfers of the 1998A Debentures will also be registrable at such other office
or agency of the Company as may be maintained for such purpose. In addition,
payment of interest may be made, at the option of the Company, by (i) check
mailed to the address of the Person entitled thereto as shown on the Security
Register or (ii) by wire transfer in immediately available funds at such place
and to such account as may be designated to the Paying Agent by the Person
entitled thereto as specified in the Security Register no later than the
applicable Record Date.
The Securities will be redeemable as provided in Article V.
The Securities will be convertible as provided in Article VI.
The Securities will be subject to repurchase by the Company, at the
option of the Holders, as provided in the form of Debenture attached as Exhibit
A.
SECTION 4.2 Amendments to Section 3.5 of the Subordinated Indenture.
Section 3.5 of the Subordinated Indenture is hereby amended by
deleting the last paragraph thereof and by substituting the following in lieu
thereof:
Each Global Security authenticated under this Indenture shall
be registered in the name of the Depositary designated for such Global
Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security
shall constitute a single Security for all purposes of this Indenture.
Any exchange of a Global Security for other Securities may be
made in whole or in part, and all Securities issued in exchange for a
Global Security or any portion thereof shall be registered in such
names as the Depositary for such Global Security shall direct.
If at any time the Depositary for the Securities notifies the
Company that it is unwilling or unable to continue as Depositary for
the Securities or if at any time the Depositary for the Securities
shall no longer be qualified to serve as the Depositary, the Company
shall appoint a successor Depositary with respect to the Securities.
If a successor Depositary for the Securities is not appointed by the
Company within 90 days after the Company receives such notice or
becomes aware of such ineligibility, the Company will execute, and the
Trustee, upon receipt of a Company Order for the authentication and
delivery of definitive Securities, will authenticate and deliver
Securities of like tenor and terms in definitive form in an aggregate
principal amount equal to the principal amount of the Global Security
or Securities in exchange for such Global Security or Securities.
The Company may at any time and in its sole discretion
determine that Securities issued in the form of one or more Global
Securities shall no longer be
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represented by such Global Securities. In such event, the Company will
execute, and the Trustee, upon receipt of a Company Order for the
authentication and delivery of definitive Securities, will
authenticate and deliver Securities of like tenor and terms in
definitive form in an aggregate principal amount equal to the
principal amount of the Global Security or Securities in exchange for
such Global Security or Securities.
Notwithstanding any other provision in this Indenture, no
Global Security may be transferred to, or registered or exchanged for
Securities registered in the name of, any Person other than the
Depositary for such Global Security or any nominee thereof, and no
such transfer may be registered, unless (1) such Depositary (A)
notifies the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (B) ceases to be qualified to
serve as Depositary, (2) the Company executes and delivers to the
Trustee a Company Order that such Global Security shall be so
transferable, registrable and exchangeable, and such transfers shall
be registrable, or (3) there shall have occurred and be continuing an
Event of Default. Notwithstanding any other provision in this
Indenture, a Global Security to which the restriction set forth in the
preceding sentence shall have ceased to apply may be transferred only
to, and may be registered and exchanged for Securities registered only
in the name or names of, such Person or Persons as the Depositary for
such Global Security shall have directed and no transfer thereof other
than such a transfer may be registered.
Every Security authenticated and delivered upon registration
of transfer, or in exchange for or in lieu, of a Global Security to
which the restriction set forth in the first sentence of the preceding
paragraph shall apply, whether pursuant to this Section, Sections 3.4,
3.6 or otherwise, shall be authenticated and delivered in the form of,
and shall be, a Global Security unless such Security is registered in
the name of a Person other than the Depositary for such Global
Security or a nominee thereof.
SECTION 4.3 Amendment to Section 3.7 of the Subordinated Indenture.
Section 3.7 of the Subordinated Indenture is hereby amended by
inserting the following at the end of such section:
In the case of any 1998A Debenture which is converted after
any Regular Record Date and on or prior to the corresponding Interest
Payment Date (other than any such 1998A Debenture which shall have
been called for redemption on a date within such period), interest on
such 1998A Debenture whose Stated Maturity is on such Interest Payment
Date shall be deemed to continue to accrue and shall be payable on
such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually
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paid or duly provided for) shall be paid to the Person in whose name
that 1998A Debenture (or one or more Predecessor Securities) is
registered at the close of business on such Regular Record Date.
Except as otherwise expressly provided in the immediately preceding
sentence, in the case of any 1998A Debenture which is converted,
interest whose Stated Maturity is after the date of conversion of such
1998A Debenture shall not be payable (although such accrued and unpaid
interest will be deemed paid by the appropriate portion of the Common
Stock received by the holders upon such conversion).
SECTION 4.4 Changes to Section 5.1(a) and 5.1(b) Events of Default.
For purposes of the 1998A Debentures, the Events of Default specified
in paragraphs (a) and (b) of Section 5.1 of the Subordinated Indenture shall
not apply to the 1998A Debentures, and the following paragraphs shall be
substituted as Events of Default in respect of the 1998A Debentures in lieu
thereof:
(a) default in the payment of any interest upon or any
additional amount payable in respect of any 1998A Debentures when it
becomes due and payable, and continuance of such default for a period
of 30 days (whether or not such payment is prohibited by the
subordination provisions set forth in Article XIV hereof or in any
indenture supplemental thereto); provided, however, that a valid
extension of an interest payment period by the Company in accordance
with the terms of the First Supplemental Indenture or any indenture
supplemental hereto, shall not constitute a default in the payment of
interest for this purpose; or
(b) default in the payment of the principal of (or premium,
if any, on) any 1998A Debentures as and when the same shall become due
and payable whether at maturity, upon redemption, by declaration or
otherwise, or in any payment required by any sinking or analogous fund
established with respect to that series (whether or not such payment
is prohibited by the subordination provisions set forth in Article XIV
hereof or in any indenture supplemental hereto); provided, however,
that a valid extension of the maturity of the 1998 Debentures in
accordance with the terms of this Indenture or any indenture
supplemental hereto shall not constitute a default in the payment of
principal or premium, if any.
SECTION 4.5 1998A Debenture Events of Default.
In addition to the matters constituting Events of Default as defined
in the Subordinated Indenture, as modified by Section 4.4 of this First
Supplemental Indenture, the following shall constitute additional Events of
Default with respect to the 1998A Debentures only:
(a) failure by the Company to convert the 1998A Debentures
into shares of Common Stock as provided in Article VI of this First
Supplemental Indenture (whether or not conversion or exchange is
prohibited by the subordination provisions set forth in
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Article XIV of the Subordinated Indenture or in any indenture
supplemental thereto), provided, that Notice of Conversion is
delivered in accordance with Section 6.2(a) of this First Supplemental
Indenture; or
(b) if, after the original issuance of the 1998A Debentures
to the Trust or the Property Trustee in connection with the original
issuance of Trust Securities by the Trust, the Trust shall have
voluntarily or involuntarily dissolved, wound-up its business or
otherwise terminated its existence except in connection with (i) the
distribution of the 1998A Debentures to holders of Trust Securities in
liquidation of their interests in the Trust, (ii) the redemption or
conversion of all of the outstanding Trust Securities of the Trust or
(iii) certain mergers, consolidations or amalgamations, each as
permitted by the Declaration.
SECTION 4.6 Amendment to Section 5.13 of the Subordinated Indenture.
For purposes of the 1998A Debentures, Section 5.13(a) of the
Subordinated Indenture shall not apply to the 1998A Debentures and the
following provision shall be substituted in lieu thereof:
(a) a continuing default in the payment of the principal of
(or premium, if any) or any interest on any 1998A Debentures as and
when the same shall become due by the terms of the 1998A Debentures
otherwise than by acceleration (unless such default has been cured and
sums sufficient to pay all matured installments of interest and
principal and any premium has been deposited with the Trustee (in
accordance with this Indenture)), which default cannot be waived
without the consent of the Holder(s) of each of the 1998A Debentures,
and
(b) the following proviso shall be added at the end of
Section 5.13(b) of the Subordinated Indenture:
; provided, however, that if the 1998A Debentures are held by the
Trust or a trustee of such Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities of the Trust (or such higher
percentage in Liquidation Amount of Trust Securities as may be
specified in the Declaration) shall have consented to such waiver or
modification to such waiver; provided further, that if the consent of
the Holders of a majority in Liquidation Amount of the Trust
Securities of a class (or such higher percentage in Liquidation Amount
of such class of Trust Securities as may be specified in the
Declaration) is required under the Declaration, such waiver shall not
be
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effective until the Holders of a majority (or such higher percentage,
as the case may be) in Liquidation Amount of the Trust Securities of
such class shall have consented to such waiver.
SECTION 4.7 Modification of Section 10.6 of the Subordinated Indenture.
For purposes of the 1998A Debentures, Section 10.6 of the Subordinated
Indenture shall be amended by inserting the following proviso at the end of
such Section:
; provided, however, that if the 1998A Debentures are held by the
Trust or a trustee of such Trust, such waiver or modification to such
waiver shall not be effective until the holders of a majority in
Liquidation Amount of Trust Securities shall have consented to such
waiver or modification to such waiver; provided further, that if the
consent of the Holders of a majority in Liquidation Amount of the
Trust Securities of a class is required under the Declaration, such
waiver shall not be effective until the Holders of a majority in
Liquidation Amount of the Trust Securities of each such class shall
have consented to such waiver.
ARTICLE V
REDEMPTION AND EXCHANGE OF THE 1998A DEBENTURES
SECTION 5.1 Optional Redemption.
(a) Subject to the provisions of Article XI of the Subordinated
Indenture, the Company shall have the right to redeem the 1998A Debentures, in
whole or in part, from time to time, on or after , 2002. Any redemption
pursuant to this paragraph will be made upon not less than 30 days nor more
than 60 days notice to the Holders of the 1998A Debentures, at the following
Redemption Prices (expressed as percentages of the principal amount of the
1998A Debentures), if redeemed during the 12-month period beginning on of the
years set forth below:
Year Redemption Price
---- ----------------
2002 %
2003
2004
2005
2006
2007
2008 and thereafter 100
in each case together with accrued and unpaid interest (including Additional
Interest and Additional Sums, if any) to (but not including) the date fixed for
redemption (subject to the rights of Holders of record on any Regular Record
Date to receive interest due on any Interest Payment Date that is on or prior
to such redemption date).
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(b) If at any time prior to the Conversion Expiration Date, less than
ten percent (10%) in principal amount of the 1998A Debentures originally issued
by the Company remain outstanding, such 1998A Debentures shall be redeemable,
at the option of the Company, exercisable at any time in whole but not in part,
at a Redemption Price equal to the aggregate unpaid principal amount thereof,
and all accrued and unpaid interest (including Additional Interest and
Additional Sums, if any) due thereon to the date fixed for redemption.
(c) If any 1998A Debenture selected for partial redemption is
converted in part before termination of the conversion right with respect to
the portion of the 1998A Debenture so selected, the converted portion of such
1998A Debenture shall be deemed (so far as may be) to be the portion selected
for redemption. 1998A Debentures which have been converted during a selection
of 1998A Debentures to be redeemed shall be treated by the Trustee as
Outstanding for the purpose of such selection. In any case where more than one
1998A Debenture is registered in the same name, the Trustee in its discretion
may treat the aggregate principal amount so registered as if it were
represented by one 1998A Debenture.
(d) The notice of redemption to be made to the Holders of the 1998A
Debentures shall specify, in addition to those items specified in Section 11.4
of the Subordinated Indenture, the conversion rate or price, the date on which
the right to convert the 1998A Debentures to be redeemed will terminate and the
place or places where such 1998A Debentures may be surrendered for conversion.
SECTION 5.2 Redemption upon Occurrence of Trust Tax Event.
If, at any time after ____________, 2002, a Trust Tax Event shall
occur and be continuing, the Company shall have the right, within 90 days
following the occurrence of such Trust Tax Event, to elect to redeem the 1998A
Debentures in whole or in part, upon not less than 30 nor more than 60 days'
notice at the Redemption Price for cash equal to the aggregate unpaid principal
amount thereof plus accrued and unpaid interest thereon (including Additional
Interest and Additional Sums, if any) to the date fixed for redemption.
SECTION 5.3 Exchange of Trust Securities for Debentures.
(a) At any time, the Company shall have the right to terminate the
Trust and cause the 1998A Debentures to be distributed to the holders of the
Trust Securities in liquidation of the Trust after satisfaction of liabilities
to creditors of the Trust as provided by applicable law.
(b) If a Trust Special Event shall occur, the Company shall give the
Trustee notice of the same. If a Trust Special Event shall occur and be
continuing, the Declaration requires the Property Trustee and the
Administrative Trustees (as defined in the Declaration) under the Declaration
to direct the Conversion Agent under the Declaration to exchange all
outstanding Trust Securities for the 1998A Debentures having an aggregate
unpaid principal amount equal to the aggregate Liquidation Amount of the Trust
Securities to be exchanged with accrued and unpaid interest in an
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amount equal to any unpaid distributions (including any Additional Amounts (as
defined in the Declaration)) on the Trust Securities, provided that, in the
case of a Trust Tax Event, the Company shall have the right to direct the
Conversion Agent that less than all, or none, of the Trust Securities be so
exchanged (i) if and for so long as the Company shall have elected to pay any
Additional Sums (as defined in the Declaration) such that the net amounts
received by holders of the Trust Securities not so exchanged in respect of
distributions are not reduced as a result of such Trust Tax Event, and shall
not have revoked any such election or failed to make such payments or (ii) if
the Company shall instead elect to redeem the 1998A Debentures, in whole or in
part, in the manner set forth in Section 5.2.
SECTION 5.4 Interest on Converted 1998A Debentures.
If any 1998A Debenture called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such 1998A Debenture shall be paid to the
Company upon Company Request or, if then held by the Company, shall be released
from such trust.
SECTION 5.5 No Sinking Fund.
The 1998A Debentures are not entitled to the benefit of any sinking
fund.
ARTICLE VI
CONVERSION OF 1998A DEBENTURES
SECTION 6.1 Conversion Rights.
Subject to and upon compliance with the provisions of this Article,
the 1998A Debentures are convertible, at the option of the Holder, at any time
prior to the Conversion Expiration Date, into fully paid and nonassessable
shares of Common Stock of the Company at an initial conversion rate of ________
shares of Common Stock for each $50 in aggregate principal amount of 1998A
Debentures (equal to a conversion price of $______ principal amount of 1998A
Debentures per share of Common Stock), subject to adjustment as described in
this Article (as adjusted, the "Conversion Price"). A Holder of 1998A
Debentures may convert any portion of the principal amount of the 1998A
Debentures into that number of fully paid and nonassessable shares of Common
Stock (calculated as to each conversion to the nearest 1/100th of a share)
obtained by dividing the principal amount of the 1998A Debentures to be
converted by the Conversion Price. In case a 1998A Debenture or portion thereof
is called for redemption, such conversion right in respect of the 1998A
Debenture or portion so called shall expire at the close of business on the
Conversion Expiration Date.
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SECTION 6.2 Conversion Procedures.
(a) In order to convert all or a portion of the 1998A Debentures, the
Holder thereof shall deliver to the Trustee, as conversion agent or to such
other agent appointed for such purposes (the "Conversion Agent") an irrevocable
Notice of Conversion setting forth the principal amount of 1998A Debentures to
be converted, and the name or names, if other than the Holder, in which the
shares of Common Stock should be issued upon conversion together with the 1998A
Debentures to be converted, duly endorsed or assigned to the Company or in
blank. In addition, a holder of Trust Securities may exercise its right under
the Declaration to convert such Trust Securities into Common Stock by
delivering to the Conversion Agent an irrevocable Notice of Conversion setting
forth the information called for by the preceding sentence and directing the
Conversion Agent (i) to exchange such Trust Preferred Security for a portion of
the 1998A Debentures held by the Trust (at an exchange rate of $50 principal
amount at of 1998A Debentures for each $50 of Liquidation Amount of Trust
Securities) and (ii) to immediately convert such 1998A Debentures, on behalf of
such holder, into Common Stock of the Company pursuant to this Article and, if
such Trust Securities are in definitive form, surrendering such Trust
Securities to the Conversion Agent. So long as the Trust Securities are
outstanding, the Conversion Agent shall not convert any 1998A Debentures except
pursuant to a Notice of Conversion delivered to the Conversion Agent by a
holder of Trust Securities. If a Notice of Conversion is delivered on or after
a Regular Record Date and prior to the subsequent Interest Payment Date (other
than with respect to a 1998A Debenture which has been called for redemption on
a date within such period), the Holder of record on the Regular Record Date
will be entitled to receive the interest paid on the subsequent Interest
Payment Date on the portion of 1998A Debentures to be converted notwithstanding
the conversion thereof prior to such Interest Payment Date. Except as otherwise
provided in the immediately preceding sentence, in the case of any 1998A
Debenture which is converted, interest whose Stated Maturity is on or after the
date of conversion of such 1998A Debenture shall not be payable, and the
Company shall not make nor be required to make any other payment, adjustment or
allowance with respect to accrued but unpaid interest on the 1998A Debentures
being converted, which shall be deemed to be paid in full. Each conversion
shall be deemed to have been effected immediately prior to the close of
business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Trust Securities effecting a conversion thereof pursuant to its conversion
rights under the Declaration, as the case may be. The Person or Persons
entitled to receive the Common Stock issuable upon such conversion shall be
treated for all purposes as the record holder or holders of such Common Stock
as of the Conversion Date and such Person or Persons shall cease to be a record
Holder or record Holders of the 1998A Debentures on that date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and
deliver at the office of the Conversion Agent, unless otherwise directed by the
Holder in the Notice of Conversion, a certificate or certificates for the
number of full shares of Common Stock issuable upon such conversion, together
with the cash payment, if any, in lieu of any fraction of any share to the
Person or Persons entitled to receive the same. The Conversion Agent shall
deliver such certificate or certificates to such Person or Persons.
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(b) The Company's delivery upon conversion of the fixed number of
shares of Common Stock into which the 1998A Debentures are convertible
(together with the cash payment, if any, in lieu of fractional shares) shall be
deemed to satisfy the Company's obligation to pay the principal amount of the
portion of 1998A Debentures so converted and any unpaid interest (including
Additional Interest and Additional Sums, if any) accrued on such 1998A
Debentures at the time of such conversion.
(c) No fractional shares of Common Stock will be issued as a result
of conversion, but in lieu thereof, the Company shall pay to the Conversion
Agent, a cash adjustment in an amount equal to the same fraction of the Closing
Price with respect to such fractional interest on the date on which the 1998A
Debentures or Trust Preferred Securities, as the case may be, were duly
surrendered to the Conversion Agent for conversion, and the Conversion Agent in
turn will make such payment, if any, to the Holder of the Securities or the
holder of the Trust Securities so converted.
(d) In the event of the conversion of any 1998A Debenture in part
only, a new 1998A Debenture or 1998A Debentures for the unconverted portion
thereof will be issued in the name of the Holder thereof upon the cancellation
of the 1998A Debenture converted in part in accordance with Section 3.5 of the
Subordinated Indenture or with respect to the 1998A Debentures evidenced by a
Global Security or otherwise held by the Property Trustee, by the Trustee
indicating the reduced principal amount of such Global Security on the schedule
attached thereto.
(e) In effecting the conversion transactions described in this
Section, the Conversion Agent is acting as agent of the holders of Trust
Securities (in the exchange of Trust Securities for 1998A Debentures) and as
agent of the Holders of 1998A Debentures (in conversion of 1998A Debentures
into Common Stock), as the case may be, directing it to effect such conversion
transactions. The Conversion Agent is hereby authorized (i) to exchange 1998A
Debentures held by the Trust from time to time for Trust Securities in
connection with the conversion of such Trust Securities in accordance with this
Article and (ii) to convert all or a portion of the 1998A Debentures into
Common Stock and thereupon to deliver such shares of Common Stock in accordance
with the provisions of this Article and to deliver to the Property Trustee a
new 1998A Debenture or 1998A Debentures for any resulting unconverted principal
amount.
SECTION 6.3 Expiration of Conversion Rights.
The conversion rights of the Holders shall expire on the close of
business on the Business Day prior to the maturity date of the 1998A
Debentures, or, in the case of 1998A Debentures called for redemption, at the
close of business on the Business Day prior to the Redemption Date unless the
Company defaults in making the payment due upon redemption (the "Conversion
Expiration Date").
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SECTION 6.4 Conversion Price Adjustments.
The Conversion Price shall be subject to adjustment (without
duplication) from time to time as follows:
(a) In case the Company shall, while any of the 1998A Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to its
Common Stock in shares of Common Stock, (ii) subdivide its outstanding shares
of Common Stock, (iii) combine its outstanding shares of Common Stock into a
smaller number of shares or (iv) reclassify its shares of Common Stock into
shares of Common Stock and securities other than shares of Common Stock not
constituting a Fundamental Change, then the Conversion Price and the number and
kind of shares of Common Stock and such other securities receivable upon a
conversion of 1998A Debentures in effect immediately prior to such action shall
be adjusted so that the Holder of any 1998A Debentures thereafter surrendered
for conversion shall be entitled to receive the number of shares of Common
Stock and such other securities of the Company which such Holder would have
owned immediately prior thereto if such 1998A Debenture had been converted
immediately prior thereto. An adjustment made pursuant to this subsection (a)
shall become effective immediately after the record date in the case of a
dividend or other distribution and shall become effective immediately after the
effective date in case of a subdivision, combination or reclassification (or
immediately after the record date if a record date shall have been established
for such event). If, as a result of an adjustment made pursuant to this
subsection (a), the Holder of any 1998A Debenture thereafter surrendered for
conversion shall become entitled to receive shares of two or more classes or
series of Capital Stock of the Company, the Board of Directors, whose
determination shall be conclusive and shall be described in a Board Resolution
shall determine the allocation of the adjusted Conversion Price between or
among shares of such classes or series of Capital Stock. In the event that such
dividend, distribution, subdivision, combination or reclassification is not so
paid or made, the Conversion Price shall again be adjusted to be the Conversion
Price which would then be in effect if such record date had not been fixed.
(b) In case the Company shall, while any of the 1998A Debentures are
Outstanding, issue rights or warrants to all holders of its Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase shares of Common Stock at a price
per share less than the Current Market Price per share of Common Stock on the
record date mentioned below, the Conversion Price for the 1998A Debentures
shall be adjusted so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of
issuance of such rights or warrants by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of business on
the record date mentioned below, plus the number of shares which the aggregate
offering price of the total number of shares so offered for subscription or
purchase would purchase at such Current Market Price, and of which the
denominator shall be the number of shares of Common Stock outstanding at the
close of business on the record date mentioned below, plus the number of
additional shares of Common Stock offered for subscription or purchase. Such
adjustment shall become effective immediately after the record date for the
determination of stockholders entitled to receive such rights or warrants.
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For the purposes of this subsection, the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the Company.
In case any rights or warrants referred to in this subsection in respect of
which an adjustment shall have been made shall expire unexercised, within 45
days after the same shall have been distributed or issued by the Company, the
Conversion Price shall be readjusted at the time of such expiration to the
Conversion Price that would have been in effect if no adjustment had been made
on account of the distribution or issuance of such expired rights or warrants.
(c) Subject to the last sentence of this subsection (c), in case the
Company shall, by dividend or otherwise, distribute to all holders of its
Common Stock evidences of its indebtedness, shares of any class or series of
Capital Stock, cash or assets (including securities, but excluding any rights
or warrants referred to in subsection (b), any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in Section
6.4(a)), the Conversion Price shall be reduced so that the same shall equal the
price determined by multiplying the Conversion Price in effect immediately
prior to the close of business on the date fixed for the determination of
stockholders entitled to such distribution (the "Reference Date") by a fraction
of which the numerator shall be the Current Market Price per share of the
Common Stock on the Reference Date less the fair market value (as determined in
good faith by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution), on the Reference Date, of the portion of
the evidences of indebtedness, shares of Capital Stock, cash and assets so
distributed applicable to one share of Common Stock and the denominator shall
be such Current Market Price per share of the Common Stock, such reduction to
become effective immediately prior to the opening of business on the day
following the Reference Date. In the event that such dividend or distribution
is not so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such dividend or distribution
had not occurred. For purposes of this subsection (c), any dividend or
distribution that includes shares of Common Stock or rights or warrants to
subscribe for or purchase shares of Common Stock shall be deemed instead to be
(i) a dividend or distribution of the evidences of indebtedness, shares of
Capital Stock, cash or assets other than such shares of Common Stock or such
rights or warrants (making any Conversion Price reduction required by this
subparagraph (c)) immediately followed by (ii) a dividend or distribution of
such shares of Common Stock or such rights or warrants (making any further
Conversion Price reduction required by subsection (a) or (b)), except any
shares of Common Stock included in such dividend or distribution shall not be
deemed outstanding for purposes of computing any adjustment of the Conversion
Price in subsection (a).
(d) In case the Company shall pay or make a dividend or other
distribution on its Common Stock exclusively in cash (excluding all (i) regular
quarterly cash dividends that do not exceed the per share amount of the
immediately preceding regular quarterly cash dividend (as adjusted to reflect
any of the events referred to in Sections 6.4(a), 6.4(b) or 6.4(c)) and (ii)
regular quarterly cash dividends if the annualized amount thereof per share of
Common Stock does not exceed 10% of the Current Market Price per share of the
Common Stock on the Trading Day immediately preceding the date of declaration
of such dividend), the Conversion Price shall be
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reduced so that the same shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the effectiveness of the
Conversion Price reduction contemplated by this subsection (d) by a fraction,
of which the numerator shall be the Current Market Price per share of the
Common Stock on the date fixed for the payment of such distribution less the
amount of cash so distributed (excluding that portion of such distribution that
does not exceed 10% of the Current Market Price per share, determined as
provided above) applicable to one share of Common Stock and of which the
denominator shall be such Current Market Price per share of the Common Stock,
such reduction to become effective immediately prior to the opening of business
on the day following the date fixed for the payment of such distribution;
provided, however, that in the event the portion of the cash so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price per share of the Common Stock on the record date mentioned above
(excluding that portion of such distribution that does not exceed 10% of the
Current Market Price per share, determined as provided above), in lieu of the
foregoing adjustment adequate provision shall be made so that each Holder of
1998A Debentures shall have the right to receive upon conversion the amount of
cash such Holder would have received had such Holder converted such 1998A
Debenture(s) immediately prior to the record date for the distribution of the
cash (less that portion of such distribution that does not exceed 10% of the
Current Market Price per share, determined as provided above). In the event
that such dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer shall involve
the payment by the Company or such Subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution) at the last time (the "Expiration Time") tenders or exchanges
may be made pursuant to such tender or exchange offer as it shall have been
amended) that exceeds 110% of the Current Market Price per share of the Common
Stock on the Trading Day next succeeding the Expiration Time, the Conversion
Price shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this subsection
(e) by a fraction, of which the numerator shall be the number of shares of
Common Stock outstanding (including any shares tendered or exchanged in such
offer) at the Expiration Time (including the Purchased Shares, as defined
below) multiplied by the Current Market Price per share of the Common Stock on
the Trading Day next succeeding the Expiration Time and of which the
denominator shall be the sum of (x) the fair market value (determined as
aforesaid) of the aggregate consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the tender or exchange
offer) of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum, being
referred to as the "Purchased Shares") (excluding that portion of such
consideration that does not exceed 110% of the Current Market Price per share
of the Common Stock on the Trading Day next succeeding the Expiration Time) and
(y) the product of the number of shares of Common Stock outstanding (less any
Purchased Shares) at the Expiration
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Time and the Current Market Price per share of the Common Stock on the Trading
Day next succeeding the Expiration Time, such reduction to become effective
immediately prior to the opening of business on the day following the
Expiration Time. In the event that no shares are validly accepted in such
tender or exchange offer, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such record date had not
been fixed.
(f) The Company shall have the right to reduce from time to time the
Conversion Price by any amount selected by the Company for any period of at
least 20 days, provided, that the Company shall give at least 15 days' prior
notice of such reduction to the Trustee, the Property Trustee, the Conversion
Agent, the holders of the Trust Securities (if the Trust then holds 1998A
Debentures) and other Holders of the 1998A Debentures. The Company may, at its
option, make such reductions in the Conversion Price, in addition to those set
forth above in Sections 6.4(a) through (e), as the Board of Directors deems
advisable to avoid or diminish any income tax to holders of Common Stock
resulting from any dividend or distribution of stock (or rights to acquire
stock) or from any event treated as such for income tax purposes.
(g) No adjustment in the Conversion Price shall be required unless
such adjustment would require an increase or decrease of at least 1% in the
Conversion Price; provided, however, that any adjustments which by reason of
this subsection (g) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required. There shall be no adjustment of the Conversion Price in case of the
issuance of any Capital Stock (or securities convertible into or exchangeable
for Capital Stock) of the Company except as specifically described in this
Article.
(h) The Company may make such reductions in the Conversion Price, in
addition to those required by subsections (a) through (f), as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes. The Company from time to time
may reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period, and
the Board of Directors shall have made a determination that such reduction
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Conversion Price is reduced pursuant to the preceding
sentence, the Company shall mail to Holders of record of the 1998A Debentures a
notice of the reduction at least 15 days prior to the date the reduced
Conversion Price takes effect, and such notice shall state the reduced
Conversion Price and the period it will be in effect.
(i) If any action would require adjustment of the Conversion Price
pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holders of the 1998A Debentures.
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SECTION 6.5 Fundamental Change.
(a) In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Common
Stock), consolidation, continuance, sale of all or substantially all of the
assets of the Company, recapitalization, holding company reorganization (whether
pursuant to Section 251(g) of the Delaware General Corporation Law or
otherwise) or reclassification of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par value or
as a result of a subdivision or combination of Common Stock) or any compulsory
share exchange (each of the foregoing being referred to as a "Transaction"), in
each case, as a result of which shares of Common Stock shall be converted into
the right to receive, or shall be exchanged for, (i) in the case of any
Transaction other than a Transaction involving a Stock Fundamental Change (and
subject to funds being legally available for such purpose under applicable law
at the time of such conversion), securities, cash or other property, each 1998A
Debenture shall thereafter be convertible into the kind and, in the case of a
Transaction which does not involve a Fundamental Change, amount of securities,
cash and other property receivable upon the consummation of such Transaction by
a holder of that number of shares of Common Stock into which a 1998A Debenture
was convertible immediately prior to such Transaction, or (ii) in the case of a
Transaction involving a Stock Fundamental Change (and subject to funds being
legally available for such purpose under applicable law at the time of such
conversion), securities, cash or other property, each 1998A Debenture shall
thereafter be convertible (in the manner described herein) into Common Stock of
the kind received by holders of Common Stock (but in each case after giving
effect to any adjustment discussed in subsections (b) and (c) relating to a
Fundamental Change if such Transaction constitutes a Fundamental Change). The
Holders of 1998A Debentures will have no voting rights with respect to any
Transaction described in this section.
(b) If any Fundamental Change occurs, then the Conversion Price in
effect will be adjusted immediately after such Fundamental Change as described
in subsection (c) below. In addition, in the event of a Stock Fundamental
Change, each 1998A Debenture shall be convertible solely into Common Stock of
the kind received by holders of Common Stock as a result of such Stock
Fundamental Change.
(c) The Conversion Price in the case of any Transaction involving a
Fundamental Change will be adjusted immediately after such Fundamental Change
as follows:
(1) in the case of a Non-Stock Fundamental Change, the
Conversion Price immediately following such Non-Stock Fundamental
Change will be the lower of (A) the Conversion Price in effect
immediately prior to such Non-Stock Fundamental Change (after giving
effect to any other prior adjustments), and (B) the result obtained by
multiplying the greater of the Applicable Price and the then
applicable Reference Market Price by a fraction of which the numerator
will be 100 and of which the denominator will be an amount based upon
the date such Non-Stock Fundamental Change occurs. For the 12-month
period beginning __________, 1998, the denominator used in the
immediately preceding sentence will be ____, and such denominator will
decrease by ___ during each successive 12-month period, provided that
in no event shall the denominator be less than 100; and
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(2) in the case of a Stock Fundamental Change, the
Conversion Price immediately following such Stock Fundamental Change
will be the Conversion Price in effect immediately prior to such Stock
Fundamental Change (after giving effect to any other prior adjustments)
as adjusted by multiplying such Conversion Price by a fraction, of
which the numerator will be the Purchaser Stock Price and of which the
denominator will be the Applicable Price; provided, however, that in
the event of a holding company reorganization of the Company (whether
effected in accordance with Section 251(g) of the Delaware General
Corporation Law or otherwise) or in the event of a Stock Fundamental
Change in which (A) 100% of the value of the consideration received by
a holder of Common Stock is Common Stock of the successor, acquirer or
other third party (and cash, if any, is paid only with respect to any
fractional interests in such Common Stock resulting from such Stock
Fundamental Change) and (B) all of the Common Stock will have been
exchanged for, converted into, or acquired for Common Stock (and cash
with respect to fractional interests) of the successor, acquiror, or
other third party, the Conversion Price immediately following such
Stock Fundamental Change will be the Conversion Price in effect
immediately prior to such Stock Fundamental Change as adjusted by
multiplying such Conversion Price by a fraction, of which the numerator
will be one and the denominator will be the number of shares of Common
Stock of the holding company, successor, acquiror or other third party
received by a holder of one share of Common Stock as a result of such
Stock Fundamental Change.
SECTION 6.6 Notice of Adjustments of Conversion Price.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price and shall
prepare a certificate signed by the Chief Financial Officer or the Treasurer of
the Company setting forth the adjusted Conversion Price and showing in
reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee, the Conversion Agent,
the Property Trustee and the transfer agent for the Trust Securities and the
1998A Debentures; and
(b) a notice stating the Conversion Price has been adjusted and
setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Trust Securities and the 1998A
Debentures at their last addresses as they appear upon the transfer books of
the Company and the Trust and the Securities Registrar.
SECTION 6.7 Prior Notice of Certain Events.
In case:
(i) the Company shall (A) declare any dividend (or any other
distribution) on its Common Stock, other than (x) a dividend payable in shares
of Common Stock or (y) a dividend payable in cash that would not require an
adjustment pursuant to Section 6.4(c) or (d) or (B) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 6.4(e) (or
shall amend any such tender or exchange offer to change the maximum number of
shares being sought or the amount or type of consideration being offered
(including by exchange) therefor);
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(ii) the Company shall authorize the granting to all holders of Common
Stock of rights or warrants to subscribe for or purchase any shares of Capital
Stock of any class or series or of any other rights or warrants;
(iii) of any reclassification of Common Stock (other than a
subdivision or combination of the outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a party and for which
approval of stockholders of the Company shall be required, or of the sale or
transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or other property; or
(iv) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company, (A) shall if any Trust Securities are outstanding under the
Declaration, cause to be filed with the transfer agent for the Trust
Securities, and shall cause to be mailed to the holders of record of the Trust
Securities, at their last addresses as they shall appear upon the transfer
books of the Trust or (B) shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 15 days prior
to the applicable record, effective or expiration date hereinafter specified, a
notice stating (x) the date on which a record (if any) is to be taken for the
purpose of such dividend, distribution, rights or warrants or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, rights or warrants are to be
determined, (y) the date on which such reclassification, consolidation, merger,
sale, transfer, share exchange, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, sale, transfer, share exchange,
dissolution, liquidation or winding up or (z) the date on which such tender or
exchange offer (other than an exchange offer contemplated by clause (y) above)
commenced, the date on which such tender or exchange offer is scheduled to
expire unless extended, the consideration offered and the other material terms
thereof (or the material terms of any amendment thereto); but no failure to
mail such notice or any defect therein or in the mailing thereof shall affect
the validity of the corporate action required to be specified in such notice.
SECTION 6.8 Dividend Reinvestment and Other Plans.
Notwithstanding anything to the contrary in this Article, no
adjustment of the Conversion Price will be made upon the issuance of any shares
of Common Stock of the Company pursuant to any present or future plan providing
for the reinvestment of dividends or interest payable on securities of the
Company and the investment of additional optional amounts in shares of Common
Stock of the Company under any such plan, or the issuance of any shares of
Common Stock or options or rights to purchase such shares pursuant to any
present or future employee benefit plan or program of the Company or pursuant
to any option, warrant, right, or exercisable, exchangeable or
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convertible security which does not constitute an issuance to all holders of
Common Stock or a class thereof, of rights or warrants entitling holders of
such rights or warrants to subscribe for or purchase Common Stock at less than
the Current Market Price.
SECTION 6.9 Certain Additional Rights.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on its Common Stock referred to in Section 6.4(c) or 6.4(d)
(including, without limitation, dividends or distributions referred to in the
last sentence of Section 6.4(c)), the Holders of the 1998A Debentures upon the
conversion thereof subsequent to the close of business on the date fixed for
the determination of stockholders entitled to receive such distribution and
prior to the effectiveness of the Conversion Price adjustment in respect of
such distribution, shall also be entitled to receive for each share of Common
Stock into which the 1998A Debentures are converted, the portion of the shares
of Common Stock, rights, warrants, evidences of indebtedness, shares of Capital
Stock, cash and assets so distributed applicable to one share of Common Stock;
provided, however, that, at the election of the Company with respect to all
Holders so converting, the Company may, in lieu of distributing to such Holder
any portion of such distribution not consisting of cash or securities of the
Company, pay such Holder an amount in cash equal to the fair market value
thereof (as determined in good faith by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution). If any
conversion of 1998A Debentures described in the immediately preceding sentence
occurs prior to the payment date for a distribution to holders of Common Stock
which the Holder of 1998A Debentures so converted is entitled to receive in
accordance with the immediately preceding sentence, the Company may elect (such
election to be evidenced by a Board Resolution) to distribute to such Holder a
due xxxx for the shares of Common Stock, rights, warrants, evidences of
indebtedness, shares of Capital Stock, cash or assets to which such Holder is
so entitled, provided, that such due xxxx (i) meets any applicable requirements
of the principal national securities exchange or other market on which the
Common Stock is then traded and (ii) requires payment or delivery of such
shares of Common Stock, rights, warrants, evidences of indebtedness, shares of
Capital Stock, cash or assets no later than the date of payment or delivery
thereof to holders of shares of Common Stock receiving such distribution.
SECTION 6.10 Reservation of Common Stock; Taxes.
(a) The Company shall at all times reserve and keep available, free
from preemptive rights, out of its authorized and unissued Common Stock solely
for issuance upon the conversion of the 1998A Debentures, such number of shares
of Common Stock as shall from time to time be issuable upon the conversion of
all the 1998A Debentures then outstanding. Notwithstanding the foregoing, the
Company shall be entitled to deliver upon conversion of 1998A Debentures shares
of Common Stock reacquired and held in the treasury of the Company (in lieu of
the issuance of authorized and unissued shares of Common Stock) so long as any
such treasury shares are free and clear of all liens, charges, security
interests or encumbrances. Any shares of Common Stock issued upon conversion of
the 1998A Debentures shall be duly authorized, validly issued and fully paid
and nonassessable. The Conversion Agent shall deliver the shares of Common
Stock received upon
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conversion of the 1998A Debentures to the converting Holder free and clear of
all liens, charges, security interests and encumbrances, except for United
States withholding taxes. The Company shall use its commercially reasonable
efforts to obtain and keep in force such governmental or regulatory permits or
other authorizations as may be required by law, and shall comply with all
applicable requirements as to registration or qualification of the Common Stock
(and all requirements to list the Common Stock issuable upon conversion of
1998A Debentures that are at the time applicable), in order to enable the
Company to lawfully issue Common Stock to each Holder upon conversion of the
1998A Debentures.
(b) The Company will pay any and all taxes that may be payable in
respect of the issue or delivery of shares of Common Stock on conversion of
1998A Debentures. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that in which the 1998A
Debentures so converted were registered, and no such issue or delivery shall be
made unless and until the Person requesting such issue has paid to the
Conversion Agent the amount of any such tax, or has established to the
satisfaction of the Conversion Agent that such tax has been paid.
(c) Nothing in this Article shall limit the requirement of the
Company to withhold taxes pursuant to the terms of the 1998A Debentures or as
set forth in the Subordinated Indenture (including this First Supplemental
Indenture) or otherwise require the Trustee or the Company to pay any amounts
on account of such withholdings.
SECTION 6.11 Trustee Not Responsible for Determining Conversion Price or
Adjustments.
Neither the Trustee nor any Conversion Agent shall at any time be
under any duty or responsibility to any Holder of any 1998A Debenture to
determine whether any facts exist which may require any adjustment of the
Conversion Price, or with respect to the nature or extent of any such
adjustment when made, or with respect to the method employed, or whether any
indenture supplemental hereto needs be entered into. Neither the Trustee nor
any Conversion Agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any 1998A Debenture; and neither the Trustee nor any Conversion Agent makes any
representation with respect thereto. Neither the Trustee nor any Conversion
Agent shall be responsible for any failure of the Company to make any cash
payment or to issue, transfer or deliver any shares of Common Stock or stock
certificates or other securities or property upon the surrender of any 1998A
Debenture for the purpose of conversion. All 1998A Debentures delivered for
conversion shall be delivered to the Trustee to be canceled by or at the
discretion of the Trustee, which shall dispose of the same as provided in
Section 3.9 of the Subordinated Indenture.
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ARTICLE VII
EXTENSION OF INTEREST PAYMENT PERIOD
SECTION 7.1 Extension of Interest Payment Period.
As long as an Event of Default under Section 5.1 of the Subordinated
Indenture shall not have occurred and be continuing, the Company shall have the
right, at any time and from time to time during the term of the 1998A
Debentures, to defer payments of interest by extending the interest payment
period of such 1998A Debentures for a period not exceeding 20 consecutive
quarters as provided in the form of 1998A Debenture attached as Exhibit A.
SECTION 7.2 Additional Sums.
In the event that (a) the Property Trustee is the Holder of all of the
Outstanding 1998A Debentures, (b) a Trust Tax Event in respect of the Trust
shall have occurred and be continuing and (c) the Company shall not have (i)
redeemed or exchanged all the 1998A Debentures pursuant to Section 5.2 or 5.3,
respectively, or (ii) terminated the Trust pursuant to Section 9.1 of the
Declaration, the Company shall pay Additional Sums to the Trust (and its
permitted successors or assigns under the Declaration) for so long as the
Property Trustee (or its permitted successor or assignee) is the registered
holder of the 1998A Debentures. Whenever in this First Supplemental Indenture,
the Subordinated Indenture or the 1998A Debentures there is a reference in any
context to the payment of principal of or interest on the 1998A Debentures,
such mention shall be deemed to include mention of the payments of the
Additional Sums provided for in this paragraph to the extent that, in such
context, Additional Sums are, were or would be payable in respect thereof
pursuant to the provisions of this paragraph and express mention of the payment
of Additional Sums (if applicable) in any provisions hereof shall not be
construed as excluding Additional Sums in those provisions hereof where such
express mention is not made; provided, however, that the extension of an
interest payment period pursuant to Section 7.1 shall not extend the payment of
any Additional Sums that may be due and payable during such interest payment
period.
ARTICLE VIII
LIMITATION OF TRANSACTIONS, COVENANTS AS TO TRUST;
CERTAIN CONVERSIONS DEEMED PAYMENT
SECTION 8.1 Limitation of Transactions.
So long as any 1998A Debentures remain outstanding, if (a) an Event of
Default has occurred and is continuing or there shall have occurred and be
continuing any event of which the Company has actual knowledge that, with the
giving of notice or lapse of time, or both, would constitute an Event of
Default, (b) the Company is in default of its obligations under the Trust
Preferred Securities Guarantee (as defined in the Declaration) or the Trust
Common Securities Guarantee (as defined in
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the Declaration), or (c) the Company shall have given notice of its election to
defer payments of interest on the 1998A Debentures by extending the interest
payment period as provided in Section 7.1 and such period or any extension
thereof shall be continuing, then, during such period, the Company shall not
(i) declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to any of its
Capital Stock (except for (x) dividends or distributions in shares of, or
options, warrants or rights to subscribe for or purchase shares of its Capital
Stock and conversions or exchanges of Common Stock of one class for Common
Stock of another class and (y) redemptions or purchases of any rights pursuant
to the Rights Agreement and the issuance of Capital Stock pursuant to such
rights) or (ii) make any payments of principal, interest or premium, if any, on
or repay or repurchase or redeem any debt securities (including guarantees of
indebtedness for money borrowed) of the Company that rank pari passu with or
junior to the 1998A Debentures (other than (u) any redemption, liquidation,
interest, principal or guarantee payment by the Company where the payment is
made by way of securities (including Capital Stock) that rank pari passu with
or junior to the securities on which such redemption, interest, principal or
guarantee payment is being made, (v) payments under the Trust Preferred
Securities Guarantee (as defined in the Declaration) or the Trust Common
Securities Guarantee (as defined in the Declaration), (w) purchases of Common
Stock related to the issuance of Common Stock under any of the Company's
benefit plans for its directors, officers or employees, (x) as a result of a
reclassification of the Company's Capital Stock or the exchange or conversion
of one series or class of the Company's Capital Stock for another series or
class of the Company's Capital Stock, (y) the purchase of fractional interests
in shares of the Company's Capital Stock pursuant to the conversion or exchange
provisions of such Capital Stock or the security being converted or exchanged
and (z) redemptions or purchases of any rights pursuant to the Rights Agreement
and the issuance of Capital Stock pursuant to such rights).
SECTION 8.2 Covenants As To Trust.
The Company covenants with each Holder of the 1998A Debentures that it
will (i) for so long as Trust Preferred Securities are outstanding, (a) not
convert the 1998A Debentures except pursuant to a notice of conversion delivered
to the Conversion Agent under the Declaration by a holder of Trust Securities;
(b) maintain directly or indirectly 100% ownership of the Trust Common
Securities, provided, that any permitted successor of the Company under the
Subordinated Indenture as amended by this First Supplemental Indenture may
succeed to the Company's ownership of the Trust Common Securities; and (c) not
voluntarily terminate, wind-up or liquidate the Trust, except in connection with
(A) a distribution of the 1998A Debentures to the holders of Trust Preferred
Securities in liquidation of the Trust, (B) the redemption of all Trust
Securities or (C) mergers, consolidations or amalgamations permitted by the
Declaration; (ii) use its commercially reasonable efforts, consistent with the
terms and provisions of the Declaration to cause the Trust to remain classified
as a grantor trust, and not taxable as a corporation, for United States federal
income tax purposes; (iii) deliver shares of Common Stock upon an election by a
holder of Debentures to convert such Debentures into or for Common Stock; and
(iv) honor all obligations relating to the conversion or exchange of the Trust
Securities into or for Common Stock or 1998A Debentures.
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SECTION 8.3 Certain Conversions Deemed Payment.
For the purposes of Article XIV of the Subordinated Indenture only,
(1) the issuance and delivery of junior securities upon conversion of 1998A
Debentures in accordance with Article VI hereof shall not be deemed to
constitute a payment or distribution on account of the principal of or premium
or interest on 1998A Debentures or on account of the purchase or other
acquisition of 1998A Debentures, and (2) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon conversion of
a 1998A Debenture shall be deemed to constitute payment on account of the
principal of such 1998A Debenture. For the purposes of this Section 8.3, the
term "junior securities" means (a) shares of any stock of any class of the
Company and (b) securities of the Company which are subordinated in right of
payment to the prior payment in full of all Senior Debt which may be
outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the 1998A
Debentures are so subordinated as provided in Article XIV of the Subordinated
Indenture. Nothing contained in this Article VIII or elsewhere in this First
Supplemental Indenture, the Subordinated Indenture or in the 1998A Debentures
is intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the 1998A Debentures, the right,
which is absolute and unconditional, of the Holder of any 1998A Debenture to
convert such 1998A Debenture in accordance with Article VI hereof.
ARTICLE IX
MISCELLANEOUS
SECTION 9.1 Conflict of Any Provision with Trust Indenture Act of 1939.
If any provision of this First Supplemental Indenture qualifies or
conflicts with the duties imposed by Section 318(c) of the Trust Indenture Act
of 1939, as amended, the imposed duties shall control.
SECTION 9.2 New York Law to Govern.
THIS SUPPLEMENTAL INDENTURE AND THE 1998A DEBENTURES SHALL BE DEEMED
TO BE CONTRACTS MADE AND TO BE PERFORMED ENTIRELY IN THE STATE OF NEW YORK, AND
FOR ALL PURPOSES SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS
OF SAID STATE WITHOUT REGARD TO THE CONFLICTS OF LAW RULES OF SAID STATE.
SECTION 9.3 Counterparts.
This First Supplemental Indenture may be executed in any number of
counterparts, each of which shall be an original, but such counterparts shall
together constitute but one and the same instrument.
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SECTION 9.4 Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
SECTION 9.5 Severability of Provisions.
In case any provision in this First Supplemental Indenture or in the
1998A Debentures shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
SECTION 9.6 Successors and Assigns.
All covenants and agreements in this First Supplemental Indenture by
the parties hereto shall bind their respective successors and assigns and inure
to the benefit of their respective successors and assigns, whether so expressed
or not.
SECTION 9.7 Benefit of First Supplemental Indenture.
Nothing in this First Supplemental Indenture, express or implied,
shall give to any Person, other than the parties hereto, any Security
Registrar, any Paying Agent and their successors hereunder, and the Holders of
the 1998A Debentures, any benefit or any legal or equitable right, remedy or
claim under this First Supplemental Indenture.
SECTION 9.8 Acceptance by Trustee.
The Trustee accepts the amendments to the Subordinated Indenture
effected by this First Supplemental Indenture and agrees to execute the trusts
created by the Subordinated Indenture as hereby amended or supplemented, but
only upon the terms and conditions set forth in the Subordinated Indenture as
so amended or supplemented. Without limiting the generality of the foregoing,
the Trustee assumes no responsibility for the correctness of the recitals
contained herein, which shall be taken as the statements of the Company and
except as provided in the Subordinated Indenture the Trustee shall not be
responsible or accountable in any way whatsoever for or with respect to the
validity or execution or sufficiency of this First Supplemental Indenture and
the Trustee makes no representation with respect thereto.
SECTION 9.9 Ratification of Subordinated Indenture; First Supplemental
Indenture Controls; Scope of Subordinated Indenture.
(a) The Subordinated Indenture, as supplemented by this First
Supplemental Indenture, is in all respects ratified and confirmed, and this
First Supplemental Indenture shall be deemed part of the Subordinated Indenture
in the manner and to the extent herein and therein provided. The provisions of
this First Supplemental Indenture shall, subject to Section 9.1 hereof,
supersede the
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provisions of the Subordinated Indenture to the extent the Subordinated
Indenture is inconsistent herewith.
(b) The changes, modifications and supplements to the Subordinated
Indenture effected by this First Supplemental Indenture shall be applicable
only with respect to, and govern the terms of, the 1998A Debentures, and shall
not apply to any other Securities which may be issued under the Subordinated
Indenture unless a supplemental indenture with respect to such other Securities
specifically incorporates such changes, modifications and supplements.
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IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed, all as of the day and year first
above written.
EL PASO NATURAL GAS COMPANY
By:
------------------------------
Name:
Title:
THE CHASE MANHATTAN BANK
By:
------------------------------
Name:
Title:
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