Exhibit 4.1
VISHAY INTERTECHNOLOGY, INC.
Liquid Yield Option (TM) Notes
due 2021
(Zero Coupon-Subordinated)
----------------------------------------------------------
INDENTURE
Dated as of June 4, 2001
----------------------------------------------------------
THE BANK OF NEW YORK
TRUSTEE
----------------------------------------------------------
(TM)Trademark of Xxxxxxx Xxxxx & Co., Inc.
CROSS REFERENCE TABLE*
IA Section............................................... Indenture Section
310(a)(1)................................................ 7.10
(a)(2).............................................. 7.10
(a)(3).............................................. N/A
(a)(4).............................................. N/A
(b)................................................. 7.08; 7.10
(c)................................................. N/A
311(a)................................................... 7.11
(b)................................................. 7.11
(c)................................................. N/A
312(a)................................................... 2.05
(b)................................................. 12.03
(c)................................................. 12.03
313(a)................................................... 7.06
(b)(1).............................................. N/A
(b)(2).............................................. 7.06
(c)................................................. 14.02
(d)................................................. 7.06
314(a)................................................... 4.02; 4.03; 12.02
(b)................................................. N/A
(c)(1).............................................. 14.04
(c)(2).............................................. 14.04
(c)(3).............................................. N/A
(d)................................................. N/A
(e)................................................. 12.05
(f)................................................. N/A
315(a)................................................... 7.01
(b)................................................. 7.05; 12.02
(c)................................................. 7.01
(d)................................................. 7.01
(e)................................................. 6.11
316(a) (last sentence)................................... 2.08
(a)(1)(A)........................................... 6.05
(a)(1)(B)........................................... 6.04
(a)(2).............................................. N/A
(b)................................................. 6.07
317(a)(1)................................................ 6.08
(a)(2).............................................. 6.09
(b)................................................. 2.04
318(a)................................................... 12.01
--------------------
* Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
Table of Contents
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions............................................1
SECTION 1.02 Other Definitions......................................7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act......8
SECTION 1.04 Rules of Construction..................................8
SECTION 1.05 Acts of Holders........................................9
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating........................................10
SECTION 2.02 Execution and Authentication...........................11
SECTION 2.03 Registrar, Paying Agent, Conversion Agent and
Bid Solicitation Agent.................................12
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust.....12
SECTION 2.05 Securityholder Lists...................................13
SECTION 2.06 Transfer and Exchange..................................13
SECTION 2.07 Replacement Securities.................................14
SECTION 2.08 Outstanding Securities; Determinations of Holders'
Action.................................................15
SECTION 2.09 Temporary Securities...................................16
SECTION 2.10 Cancellation...........................................16
SECTION 2.11 Persons Deemed Owners..................................17
SECTION 2.12 Global Securities......................................17
SECTION 2.13 CUSIP Numbers..........................................19
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee....................19
SECTION 3.02 Selection of Securities to Be Redeemed.................20
SECTION 3.03 Notice of Redemption...................................20
SECTION 3.04 Effect of Notice of Redemption.........................21
SECTION 3.05 Deposit of Redemption Price............................21
SECTION 3.06 Securities Redeemed in Part............................21
SECTION 3.07 Conversion Arrangement on Call for Redemption..........21
SECTION 3.08 Purchase of Securities at Option of the Holder.........22
SECTION 3.09 Purchase of Securities at Option of the
Holder upon Trigger Event..............................28
SECTION 3.10 Effect of Purchase Notice or Trigger Event
Purchase Notice........................................33
SECTION 3.11 Deposit of Purchase Price or Trigger Event
Purchase Price.........................................34
SECTION 3.12 Securities Purchased in Part...........................34
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Page
SECTION 3.13 Covenant to Comply With Securities Laws Upon
Purchase of Securities.................................34
SECTION 3.14 Repayment to the Company...............................35
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities..................................35
SECTION 4.02 SEC and Other Reports..................................35
SECTION 4.03 Compliance Certificate.................................36
SECTION 4.04 Further Instruments and Acts...........................36
SECTION 4.05 Maintenance of Office or Agency........................36
SECTION 4.06 Delivery of Certain Information........................36
SECTION 4.07 Calculation of Accrued Original Issue
Discount and Tax Original Issue Discount...............37
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets..............37
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default......................................38
SECTION 6.02 Acceleration...........................................40
SECTION 6.03 Other Remedies.........................................41
SECTION 6.04 Waiver of Past Defaults................................41
SECTION 6.05 Control by Majority....................................41
SECTION 6.06 Limitation on Suits....................................41
SECTION 6.07 Rights of Holders to Receive Payment...................42
SECTION 6.08 Collection Suit by Trustee.............................42
SECTION 6.09 Trustee May File Proofs of Claim.......................42
SECTION 6.10 Priorities.............................................43
SECTION 6.11 Undertaking for Costs..................................43
SECTION 6.12 Waiver of Stay, Extension or Usury Laws................44
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee......................................44
SECTION 7.02 Rights of Trustee......................................45
SECTION 7.03 Individual Rights of Trustee...........................47
SECTION 7.04 Trustee's Disclaimer...................................47
SECTION 7.05 Notice of Defaults.....................................47
SECTION 7.06 Reports by Trustee to Holders..........................47
SECTION 7.07 Compensation and Indemnity.............................47
SECTION 7.08 Replacement of Trustee.................................48
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Page
SECTION 7.09 Successor Trustee by Merger............................49
SECTION 7.10 Eligibility; Disqualification..........................49
SECTION 7.11 Preferential Collection of Claims Against Company......49
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities...................49
SECTION 8.02 Repayment to the Company...............................50
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.............................50
SECTION 9.02 With Consent of Holders................................50
SECTION 9.03 Compliance with Trust Indenture Act....................52
SECTION 9.04 Revocation and Effect of Consents, Waivers and
Actions................................................52
SECTION 9.05 Notation on or Exchange of Securities..................52
SECTION 9.06 Trustee to Sign Supplemental Indentures................52
SECTION 9.07 Effect of Supplemental Indentures......................52
ARTICLE 10
SUBORDINATION
SECTION 10.01 Securities Subordinate to Senior Indebtedness..........52
SECTION 10.02 Payment Over of Proceeds Upon Dissolution, Etc.........53
SECTION 10.03 Acceleration of Securities.............................54
SECTION 10.04 Default on Senior Indebtedness.........................54
SECTION 10.05 Payment Permitted If No Default........................55
SECTION 10.06 Subrogation to Rights of Holders of Senior
Indebtedness...........................................55
SECTION 10.07 Provisions Solely to Define Relative Rights............55
SECTION 10.08 Trustee to Effectuate Subordination....................56
SECTION 10.09 No Waiver of Subordination Provisions..................56
SECTION 10.10 Notice to Trustee......................................56
SECTION 10.11 Xxxxxxxx on Judicial Order or Certificate of
Liquidating Agent......................................57
SECTION 10.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness...........................................57
SECTION 10.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.......................57
SECTION 10.14 Article 10 Applicable to Paying Agents.................58
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege...................................58
SECTION 11.02 Conversion Procedure...................................59
SECTION 11.03 Fractional Shares......................................60
SECTION 11.04 Taxes on Conversion....................................60
SECTION 11.05 Company to Provide Stock...............................60
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Page
SECTION 11.06 Adjustment for Change In Capital Stock.................61
SECTION 11.07 Adjustment for Rights Issue............................61
SECTION 11.08 Adjustment for Other Distributions.....................62
SECTION 11.09 When Adjustment May Be Deferred........................65
SECTION 11.10 When No Adjustment Required............................65
SECTION 11.11 Notice of Adjustment...................................65
SECTION 11.12 Voluntary Increase.....................................65
SECTION 11.13 Notice of Certain Transactions.........................66
SECTION 11.14 Reorganization of Company; Special Distributions.......66
SECTION 11.15 Company Determination Final............................67
SECTION 11.16 Trustee's Adjustment Disclaimer........................67
SECTION 11.17 Simultaneous Adjustments...............................67
SECTION 11.18 Successive Adjustments.................................67
SECTION 11.19 Rights Issued in Respect of Common Stock Issued
Upon Conversion........................................67
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments......................................68
SECTION 12.02 Defaulted Interest.....................................68
SECTION 12.03 Interest Rights Preserved. ............................69
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls...........................69
SECTION 13.02 Notices................................................69
SECTION 13.03 Communication by Holders with Other Holders............70
SECTION 13.04 Certificate and Opinion as to Conditions Precedent.....70
SECTION 13.05 Statements Required in Certificate or Opinion..........71
SECTION 13.06 Severability Clause....................................71
SECTION 13.07 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar..........................................71
SECTION 13.08 Calculations...........................................71
SECTION 13.09 Legal Holidays.........................................71
SECTION 13.10 GOVERNING LAW..........................................71
SECTION 13.11 No Recourse Against Others.............................72
SECTION 13.12 Successors.............................................72
SECTION 13.13 Multiple Originals.....................................72
SECTION 13.14 Tax Matters............................................72
iv
INDENTURE dated as of June 4, 2001, among VISHAY
INTERTECHNOLOGY, INC., a Delaware corporation ("Company") and THE BANK OF NEW
YORK, a New York banking corporation ("Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's
Liquid Yield Option(TM) Notes due 2021 (Zero Coupon - Subordinated)
("Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.
"144A Global Security" means a permanent Global Security in
the form of the Security attached hereto as Exhibit A-1, and that is deposited
with and registered in the name of the Depositary or its nominee, representing
Securities sold in reliance on Rule 144A under the Securities Act.
"Accrued Original Issue Discount" of any Security represents
the accrued portion of the total Original Issue Discount. The total Original
Issue Discount is the excess of the Principal Amount per Security over the Issue
Price. Accrued Original Issue Discount will be calculated on a daily basis at
the yield of the Securities, on a semi-annual bond equivalent basis, using a
360-day year composed of twelve 30-day months, beginning on the Issue Date.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security as disclosed in writing
to the Company, in each case to the extent applicable to such transaction and as
in effect from time to time.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of such board.
"Business Day" means each day of the year other than a
Saturday or a Sunday or other day on which banking institutions in The City of
New York are required or authorized to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Class B Common Stock" shall mean the shares of Class B common
stock, $0.10 par value per share, of the Company as it exists on the date of
this Indenture or any shares of Capital Stock of the Company into which the
Class B Common Stock shall be reclassified or changed.
"Common Stock" shall mean the shares of common stock (other
than the Class B Common Stock), $0.10 par value per share, of the Company as it
exists on the date of this Indenture or any other shares of Capital Stock of the
Company into which the Common Stock shall be reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any such subsequent
successor or successors.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any two Officers.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at 000 Xxxxxxx Xxxxxx, Xxxxx 00, Xxx
Xxxx, Xxx Xxxx 00000, Attention: Corporate Trust Administration, or such other
address as the Trustee may designate from time to time by notice to the Holders
and the Company, or the principal corporate trust office of any successor
Trustee (or such other address as a successor Trustee may designate from time to
time by notice in writing to the Holders and the Company).
"Credit Agreement" means the Amended and Restated Long Term
Revolving Credit Agreement, dated as of June 1, 1999, as amended, between the
Company, Comerica Bank, as administrative agent, and the lenders named therein.
"Default" means any event or condition which is, or after
notice or passage of time or both would be, an Event of Default.
"Global Securities" means Securities that are substantially in
the form of the Securities attached hereto as Exhibit A-1, and to the extent
that such Securities are required to bear the Legend required by Section 2.06,
such Securities will be in the form of a 144A Global Security.
"Holder" or "Securityholder" means a person in whose name a
Security is registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Issue Date" of any Security means the date on which such
Security was originally issued or deemed issued as set forth on the face of the
Security.
2
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which such
Security is sold as set forth on the face of the Security.
"Liquidated Damages" has the meaning set forth in the
Registration Rights Agreement.
"Officer" means, with respect to any Person, the Chairman of
the Board, the President or any Vice President, the Treasurer, an Assistant
Treasurer, the Controller, an Assistant Controller, the Secretary or an
Assistant Secretary of such Person.
"Officers' Certificate" means a written certificate
containing, among other things, the information specified in Sections 13.04 and
13.05, signed in the name of the Company by any two Officers, and delivered to
the Trustee. An Officers' Certificate given pursuant to Section 4.03 shall be
signed by an authorized financial or accounting Officer of the Company but need
not contain the information specified in Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion conforming to the
requirements specified in Sections 13.04 and 13.05, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company or the Trustee.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the Principal Amount at Maturity of such Security as
set forth on the face of such Security.
"Person" or "person" means any individual, corporation,
limited liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or governmental agency or political
subdivision thereof.
"Permitted Junior Securities" means Securities of the Company
or any other corporation that are equity securities or are subordinated in right
of payment to all Senior Indebtedness that may at the time be outstanding to
substantially the same extent as, or to a greater extent than, the Securities
are subordinated as provided in Article 10.
"Principal Amount at Maturity" of a Security means the
Principal Amount at Maturity as set forth on the face of such Security.
"Redemption Date" or "redemption date" means the date
specified for redemption of the Securities in accordance with the terms of the
Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in paragraph 6 of the reverse side of the form of Security set
forth in Exhibit A-1 of this Indenture.
"Registration Rights Agreement" means the registration rights
agreement, dated May 30, 2001, between the Company and Xxxxxxx Xxxxx & Co.,
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated.
3
"Responsible Officer" means, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject and who shall have direct responsibility for the administration of this
Indenture as specified in writing to the Company.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibit A-1 of
this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Sale Price" of Common Stock on any date means the closing per
share sale price (or, if no closing sale price is reported, the average of the
bid and ask prices or, if more than one in either case, the average of the
average bid and the average ask prices) on such date as reported in the
composite transactions for the New York Stock Exchange or on such other
principal United States securities exchange on which the Common Stock is traded
or, if the Common Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated. In the absence of such quotation, the Company shall be entitled to
determine the Sale Price on the basis of such quotations as it considers
appropriate.
"SEC" means the Securities and Exchange Commission or any
successor thereto.
"Securities" means any of the Company's Liquid Yield
Option(TM) Notes due 2021 (Zero Coupon-Subordinated), as amended or supplemented
from time to time, issued under this Indenture, the terms of which shall be
substantially in the form of the Security as set forth in Exhibit A-1 of this
Indenture.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
"Senior Indebtedness" means, without duplication, the
principal of (and premium, if any) and unpaid interest on all present and future
(i) indebtedness of the Company for borrowed money including, without
limitation, under the Credit Agreement and whether secured or unsecured, (ii)
obligations of the Company evidenced by bonds, debentures, notes or similar
instruments, (iii) obligations of the Company under (a) interest rate swaps,
caps, collars, options and similar arrangements, (b) any foreign exchange
contract, currency swap contract, futures contract, currency option contract, or
other foreign currency hedge or any other hedging arrangements, and (c) credit
swaps, caps, floors, collars and similar arrangements, (iv) indebtedness
incurred, assumed or guaranteed by the Company in connection with the
acquisition by it or a Subsidiary of any business, properties or assets (except
purchase-money indebtedness classified as accounts payable under generally
accepted accounting principles), (v) obligations of the Company as lessee under
leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles, (vi) reimbursement obligations of
4
the Company in respect of letters of credit relating to indebtedness or other
obligations of the Company that qualify as indebtedness or obligations of the
kind referred to in clauses (i) through (v) above, (vii) pension plan
obligations, and (viii) obligations of the Company under direct or indirect
guarantees in respect of, and obligations (contingent or otherwise) to purchase
or otherwise acquire, or otherwise to assure a creditor against loss in respect
of, indebtedness or obligations of others of the kinds referred to in clauses
(i) through (vii) above, in each case unless in the instrument creating or
evidencing the indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Securities.
"Senior Indebtedness Default" means the happening of an event
of default with respect to any Senior Indebtedness, as defined therein or in the
instrument under which the same is outstanding which, if occurring prior to the
stated maturity of such Senior Indebtedness, permits any holder thereof
thereupon to accelerate the maturity thereof.
"Special Record Date" means for the payment of any Defaulted
Interest, the date fixed by the Trustee pursuant to Section 12.02.
"Stated Maturity", when used with respect to any Security or
any installment of contingent interest thereon, means the date specified in such
Security as the fixed date on which an amount equal to the Principal Amount at
Maturity of such Security or such installment of contingent interest is due and
payable.
"Subsidiary" means (i) a corporation, a majority of whose
Capital Stock with voting power, under ordinary circumstances, to elect
directors is, at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the Company, and one
or more Subsidiaries of the Company, (ii) a partnership in which the Company, or
a Subsidiary of the Company, holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company, or the Company,
and one or more Subsidiaries of the Company, directly or indirectly, at the date
of determination, has (x) at least a majority ownership interest or (y) the
power to elect or direct the election of a majority of the directors or other
governing body of such person.
"Tax Original Issue Discount" means the amount of ordinary
interest income on a Security that must be accrued as original issue discount
for United States Federal income tax purposes.
"TIA" means the Trust Indenture Act of 1939 (15 U.S.C.
ss.ss.77aaa-77bbb)as in effect on the date of this Indenture, provided, however,
that in the event the TIA is amended after such date, TIA means, to the extent
required by any such amendment, the TIA as so amended.
"trading day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Stock is then listed or, if the
Common Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if
5
the Common Stock is not quoted on the National Association of Securities Dealers
Automated Quotation System, on the principal other market on which the Common
Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
6
SECTION 1.02 Other Definitions.
Term Defined in Section
---- ------------------
"Act"...................................................................1.05(a)
"Agent Members".........................................................2.12(e)
"Associate".............................................................3.09(a)
"Average Sale Price"......................................................11.01
"Bankruptcy Law"...........................................................6.01
"beneficial owner"......................................................3.09(a)
"Bid Solicitation Agent'...................................................2.03
"cash"..................................................................3.08(b)
"Change in Control".....................................................3.09(a)
"Company Notice"........................................................3.08(e)
"Company Notice Date"...................................................3.08(e)
"Conversion Agent".........................................................2.03
"Conversion Date".........................................................11.02
"Conversion Rate".........................................................11.01
"Custodian"................................................................6.01
"Defaulted Interest"......................................................12.02
"Delisting Event".......................................................3.09(a)
"Depositary"............................................................2.01(a)
"DTC"...................................................................2.01(a)
"Event of Default".........................................................6.01
"Exchange Act"..........................................................3.08(d)
"Ex-Dividend Date".....................................................11.08(a)
"Ex-Dividend Measurement Period"..........................................11.08
"Ex-Dividend Time"........................................................11.01
"Extraordinary Cash Dividend".............................................11.08
"group".................................................................3.09(a)
"Institutional Accredited Investors"....................................2.01(b)
"Legal Holiday"...........................................................13.09
"Legend"................................................................2.06(f)
"LYON Market Price".................................................Exhibit A-1
"Market Price"..........................................................3.08(d)
"Material Subsidiary"...................................................6.01(a)
"noncontingent bond method".........................................13.14(b)(1)
"Notice of Default"........................................................6.01
"Paying Agent".............................................................2.03
"permitted holder"......................................................3.09(a)
"Purchase Date".........................................................3.08(a)
"Purchase Notice"....................................................3.08(a)(1)
"Purchase Price"........................................................3.08(a)
"QIBs"..................................................................2.01(a)
"Registrar"................................................................2.03
7
Term Defined in Section
---- ------------------
"Relevant Cash Dividends".................................................11.08
"Rights"..................................................................11.19
"Rights Agreement"........................................................11.19
"Rule 144A Information"....................................................4.06
"Securities Act"........................................................3.08(d)
"Special Record Date".....................................................12.02
"Time of Determination"...................................................11.01
"Trigger Event".........................................................3.09(a)
"Trigger Event Purchase Date"...........................................3.09(a)
"Trigger Event Purchase Notice".........................................3.09(c)
"Trigger Event Purchase Price"..........................................3.09(a)
SECTION 1.03 Incorporation by Reference of Trust Indenture
Act. Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:.
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule and
not otherwise defined herein have the meanings assigned to them by such
definitions.
SECTION 1.04 Rules of Construction. Unless the context
otherwise requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
8
SECTION 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the
register maintained by the Registrar.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee, the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a resolution of the Board of
Directors of the Company fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization, direction, notice,
consent, waiver or other Act, but the Company shall not have any obligation to
do so. If such a record date is fixed, such request, demand, authorization,
direction, notice, consent, waiver or other Act may be given before or after
such record date, but only the Holders of record at the close of business on
such record date shall be deemed to be Holders for the purposes of determining
whether Holders of the requisite proportion of outstanding Securities have
authorized or agreed or consented to such request, demand, authorization,
direction, notice, consent, waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such record date; provided that
no such authorization, agreement or consent by the Holders
9
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A-1
which is a part of this Indenture. The Securities may have notations, legends or
endorsements required by law, stock exchange rule or usage; provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company and are not inconsistent with the provisions of this Indenture.
The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold to
"qualified institutional buyers" as defined in Rule 144A ("QIBs") in reliance on
Rule 144A shall be issued, initially in the form of a 144A Global Security,
which shall be deposited with the Trustee at its Corporate Trust Office, as
custodian for the Depositary and registered in the name of The Depository Trust
Company ("DTC") or the nominee thereof (such depositary, or any successor
thereto, and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the Trustee as
hereinafter provided and with appropriate legends. The aggregate Principal
Amount at Maturity of the 144A Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary as hereinafter provided.
(b) Certificated Securities. Except as provided in Section
2.12, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of Securities in definitive form.
(c) Global Securities in General. Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate Principal Amount at
Maturity of outstanding Securities from time to time endorsed thereon and that
the aggregate Principal Amount at Maturity of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate Principal Amount at Maturity
of a Global Security to reflect the amount of any increase or decrease in the
Principal Amount at Maturity of outstanding Securities represented thereby shall
be made by the Trustee in accordance with instructions given by the Holder
thereof as required by Section 2.12 hereof and shall be made on the records of
the Trustee and the Depositary.
(d) Book-Entry Provisions. This Section 2.01(d) shall apply
only to Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance
with this Section 2.01(d), authenticate and deliver initially one or more Global
Securities that (a) shall be
10
registered in the name of the Depositary, (b) shall be delivered by the Trustee
to the Depositary or pursuant to the Depositary's instructions and (c) shall
bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
SECTION 2.02 Execution and Authentication. The Securities
shall be executed on behalf of the Company by any Officer of the Company. The
signature of the Officer of the Company on the Securities may be manual or a
facsimile thereof.
Securities bearing the manual or facsimile signatures of an
individual who was at the time of the execution of the Securities an Officer of
the Company shall bind the Company notwithstanding that such individual has
ceased to hold such office prior to the authentication and delivery of such
Securities or did not hold such office at the date of authentication of such
Securities.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on such
Security a certificate of authentication substantially in the form provided for
herein duly executed by the Trustee by manual signature of a Responsible
Officer, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate Principal Amount at Maturity of up to
$641,000,000 upon a Company Order without any further action by the Company. The
aggregate Principal Amount at Maturity of Securities outstanding at any time may
not exceed the amount set forth in the foregoing sentence, except as provided in
Section 2.07.
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The Securities shall be issued only in registered form without
coupons and only in denominations of $1,000 of Principal Amount at Maturity and
any integral multiple thereof.
SECTION 2.03 Registrar, Paying Agent, Conversion Agent and Bid
Solicitation Agent. The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities may be presented for
purchase or payment ("Paying Agent") and an office or agency where Securities
may be presented for conversion ("Conversion Agent") as set forth in Section
4.05 herein. The Company shall also appoint a bid solicitation agent (the "Bid
Solicitation Agent") to act pursuant to paragraph 5 of the Securities. The
Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents. The term Paying
Agent includes any additional paying agent, including any named pursuant to
Section 4.05. The term Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement
with any Registrar or co-registrar, Paying Agent, Conversion Agent or Bid
Solicitation Agent (other than the Trustee). The agreement shall implement the
provisions of this Indenture that relate to such agent. The Company shall notify
the Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar, Paying Agent, Conversion Agent or Bid Solicitation Agent,
the Trustee shall act as such and shall be entitled to appropriate compensation
therefor pursuant to Section 7.07. The Company or any Subsidiary or an Affiliate
of either of them may act as Paying Agent, Registrar, Conversion Agent or
co-registrar. None of the Company or any Subsidiary of the Company or any
Affiliate of any of them may act as Bid Solicitation Agent.
The Company initially appoints the Trustee as Registrar,
Conversion Agent, Paying Agent, Bid Solicitation Agent and agent for service of
demands and notices in connection with the Securities.
SECTION 2.04 Paying Agent to Hold Money and Securities in
Trust. Except as otherwise provided herein, on or prior to each due date of
payments in respect of any Security, the Company shall deposit with the Paying
Agent a sum of money (in immediately available funds if deposited on the due
date) or Common Stock sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and Common Stock held by the Paying
Agent for the making of payments in respect of the Securities and shall notify
the Trustee of any default by the Company in making any such payment. At any
time during the continuance of any such default, the Paying Agent shall, upon
the written request of the Trustee, forthwith pay to the Trustee all money and
Common Stock so held in trust. If the Company or a Subsidiary or an Affiliate
thereof acts as Paying Agent, it shall segregate the money and Common Stock held
by it as Paying Agent and hold such assets as a separate trust fund. The Company
at any time may require a Paying Agent to distribute all money and Common Stock
held by it to the Trustee and to account for any funds and Common Stock
disbursed by it. Upon doing so, the Paying Agent shall have no further liability
for the money or Common Stock.
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SECTION 2.05 Securityholder Lists. The Trustee shall preserve
in as current a form as is reasonably practicable the most recent list available
to it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semi-annually on May 1 and November 1 of each year a listing of Securityholders
dated within 15 days of the date on which the list is furnished and at such
other times as the Trustee may reasonably request in writing a list in such form
and as of such date as the Trustee may reasonably require of the names and
addresses of Securityholders.
SECTION 2.06 Transfer and Exchange. Subject to Section 2.12
hereof,
(a) upon surrender for registration of transfer of any
Security, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the securityholder or such Securityholder's attorney
duly authorized in writing, at the office or agency of the Company designated as
Registrar or co-registrar pursuant to Section 2.03, the Company shall execute,
and the Trustee upon receipt of a Company Order shall authenticate and deliver,
in the name of the designated transferee or transferees, one or more new
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount at Maturity. The Company shall not charge a service charge for
any registration of transfer or exchange, but the Company may require payment of
a sum sufficient to pay all taxes, assessments or other governmental charges
that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for
other Securities of any authorized denomination or denominations, of a like
aggregate Principal Amount at Maturity, upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory to the
Registrar duly executed by the Securityholder or such Securityholder's attorney
duly authorized in writing, at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the Trustee upon
receipt of a Company Order shall authenticate and deliver, the Securities which
the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for redemption
(except, in the case of Securities to be redeemed in part, the portion thereof
not to be redeemed) or any Securities in respect of which a Purchase Notice or
Trigger Event Purchase Notice has been given and not withdrawn by the Holder
thereof in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so
long as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
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(c) Successive registrations and registrations of transfers
and exchanges as aforesaid may be made from time to time as desired, and each
such registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof
shall provide to the Trustee such information as the Trustee may reasonably
require in connection with the delivery by such Registrar of Securities upon
transfer or exchange of Securities.
(e) No Registrar shall be required to make registrations of
transfer or exchange of Securities during any periods designated in the text of
the Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing the
legends set forth on the form of Security attached hereto as Exhibit A-1 setting
forth such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that
such Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of the sale of such
Security pursuant to a registration statement that is effective at the time of
such sale, the Trustee, at the written direction of the Company , shall
authenticate and deliver a Security that does not bear the Legend. If the Legend
is removed from the face of a Security pursuant to the terms of this section (f)
and the Security is subsequently held by an Affiliate of the Company, the Legend
shall be reinstated by the Company.
The Trustee and the Registrar shall have no obligation or duty
to monitor, determine or inquire as to compliance with any restrictions on
transfer imposed under this Indenture or under applicable law with respect to
any transfer of any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in any Global
Security) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements hereof
and shall promptly notify the party delivering the same of any non-compliance.
SECTION 2.07 Replacement Securities. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save each of them harmless, then, in the
absence of notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for any
such mutilated Security or
14
in lieu of any such destroyed, lost or stolen Security, a new Security of like
tenor and Principal Amount at Maturity, bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08 Outstanding Securities; Determinations of
Holders' Action. Securities outstanding at any time are all the Securities
authenticated by the Trustee except for those cancelled by it, those delivered
to it pursuant to Section 2.07 for cancellation and those described in this
Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate of the Company holds the Security; provided,
however, that in determining whether the Holders of the requisite Principal
Amount at Maturity of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases
to be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser. A mutilated Security ceases
to be outstanding upon surrender of such Security and replacement thereof
pursuant to Section 2.07.
If the Paying Agent holds, in accordance with this Indenture,
on a Redemption Date, or on the Business Day following the Purchase Date or a
Trigger Event Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities
15
payable on that date, then immediately after such Redemption Date, Purchase
Date, Trigger Event Purchase Date or Stated Maturity, as the case may be, such
Securities shall cease to be outstanding and Original Issue Discount and
contingent interest, if any, on such Securities shall cease to accrue; provided,
that if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture.
If a Security is converted in accordance with Article 11, then
from and after the time of conversion on the Conversion Date, such Security
shall cease to be outstanding and Original Issue Discount and contingent
interest, if any, shall cease to accrue on such Security, whether or not the
Security is delivered to the Paying Agent.
SECTION 2.09 Temporary Securities. Subject to Section 2.12
hereof, pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities, in an amount specified in such Company Order or an
Officer's Certificate, which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions,
Legends and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall execute
and upon Company Order the Trustee shall authenticate and deliver in exchange
therefor a like Principal Amount at Maturity of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
SECTION 2.10 Cancellation. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3, conversion, redemption
or registration of transfer or exchange shall, if surrendered to any person
other than the Trustee, be delivered to the Trustee and shall be promptly
cancelled by it. The Company may at any time deliver to the Trustee for
cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of by the Trustee in accordance with the Trustee's customary procedure.
SECTION 2.11 Persons Deemed Owners. Prior to due presentment
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such
16
Security for the purpose of receiving payment of principal of the Security or
the payment of any Redemption Price, Purchase Price or Trigger Event Purchase
Price in respect thereof, and contingent interest, if any thereon, for the
purpose of conversion and for all other purposes whatsoever, whether or not such
Security be overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.12 Global Securities.
(a) Transfer of Global Security. Notwithstanding any other
provisions of this Indenture or the Securities, transfers of a Global Security,
in whole or in part, shall be made only in accordance with Section 2.06 and
Section 2.12(a). A Global Security may not be transferred, in whole or in part,
to any Person other than the Depositary or a nominee or any successor thereof,
and no such transfer to any such other Person may be registered; provided that
this clause (a) shall not prohibit any transfer of a Security that is issued in
exchange for a Global Security but is not itself a Global Security. No transfer
of a Security to any Person shall be effective under this Indenture unless and
until such Security has been registered in the name of such Person.
(b) Subject to the succeeding paragraph, every Security shall
be subject to the restrictions on transfer provided in the Legend including the
delivery of a certification or an opinion of counsel, if so requested by the
Company or the Registrar.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or, if earlier, upon the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision). Any Security as to which such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon a surrender of such Security for exchange to the Registrar
in accordance with the provisions of this Section 2.12 (accompanied, in the
event that such restrictions on transfer have terminated by reason of a transfer
in compliance with Rule 144 or any successor provision, by an opinion of counsel
having substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and the Registrar
and in form acceptable to the Company, to the effect that the transfer of such
Security has been made in compliance with Rule 144 or such successor provision),
be exchanged for a new Security, of like tenor and aggregate Principal Amount at
Maturity, which shall not bear the restrictive Legend. The Company shall inform
the Trustee of the effective date of any registration statement registering the
Securities under the Securities Act. The Trustee and the Registrar shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section
2.12, the term "transfer" encompasses any sale, pledge, transfer, hypothecation
or other disposition of any Security.
17
(e) The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or
the Securities, except as provided in Section 2.12(a)(ii), a
Global Security shall not be exchanged in whole or in part for
a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in
the names of any person designated by the Depositary in the
event that (i) the Depositary has notified the Company that it
is unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90
days, (ii) the Company decides to discontinue the use of the
system of book-entry transfer through the Depositary (or any
successor Depositary) or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (i) above shall
be so exchanged in whole and not in part, and any Global
Security exchanged pursuant to clause (iii) above may be
exchanged in whole or from time to time in part as directed by
the Depositary. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global Security;
provided that any such Security so issued that is registered
in the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an
aggregate Principal Amount at Maturity equal to that of such
Global Security or portion thereof to be so exchanged, shall
be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear
the applicable Legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the Principal
Amount at Maturity thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of
an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall
authenticate and deliver the Security issuable on such
exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise authorize
any Person, including Agent Members (as defined below) and
persons that may hold interests through Agent Members, to take
any action which a holder is entitled to take under this
Indenture or the Securities.
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly make
available to the Trustee a reasonable
18
supply of Certificated Securities in definitive, fully
registered form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered
in the name of the Depositary or any nominee thereof, or under
any such Global Security, and the Depositary or such nominee,
as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company or the Trustee or any agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of
the rights of a holder of any Security.
SECTION 2.13 CUSIP Numbers. The Company in issuing the
Securities may use one or more "CUSIP" numbers (if then generally in use), and,
if so, the Trustee shall use such "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the CUSIP numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee.
The Company, at its option, may redeem the Securities in
accordance with the provisions of paragraphs 6 and 8 of the Securities. If the
Company elects to redeem Securities pursuant to paragraph 6 of the Securities,
it shall notify the Trustee in writing of the Redemption Date, the Principal
Amount at Maturity of Securities to be redeemed, the Redemption Price and the
amount of contingent interest, if any, payable on the Redemption Date.
The Company shall give the notice to the Trustee provided for
in this Section 3.01 by a Company Order at least 45 days before the Redemption
Date (unless a shorter notice shall be satisfactory to the Trustee).
SECTION 3.02 Selection of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
Trustee shall select the Securities to be redeemed pro rata based on ownership
thereof or by lot or by any other method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules
19
of any stock exchange on which the Securities are then listed and complies with
applicable laws). The Trustee shall make the selection at least 15 days but not
more than 60 days before the Redemption Date from outstanding Securities not
previously called for redemption. The Trustee may select for redemption portions
of the Principal Amount at Maturity of Securities that have denominations larger
than $1,000.
Securities and any portions thereof that the Trustee selects
shall be in Principal Amounts at Maturity of $1,000 or any integral multiple of
$1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
SECTION 3.03 Notice of Redemption.
At least 30 days but not more than 60 days before a Redemption
Date, the Company shall mail a notice of redemption by first-class mail, postage
prepaid, to each Holder of Securities to be redeemed at its registered address.
The notice shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price and, to the extent known at the time
of such notice, the amount of contingent interest, if any,
payable on the Redemption Date;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at
any time before the close of business on the second Business
Day immediately preceding the Redemption Date;
(6) that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 10 of the Securities;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price and
contingent interest, if any;
(8) if fewer than all the outstanding Securities are to be
redeemed, the certificate number and Principal Amounts at
Maturity of the particular Securities to be redeemed;
20
(9) that, unless the Company defaults in making payment of
such Redemption Price and contingent interest, if any,
Original Issue Discount and contingent interest, if any, on
Securities called for redemption will cease to accrue on and
after the Redemption Date; and
(10) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least 15 days (unless a shorter period shall be
acceptable to the Trustee) prior to the date such notice of redemption must be
mailed.
SECTION 3.04 Effect of Notice of Redemption. Once notice of
redemption is given pursuant to Section 3.03, Securities called for redemption
become due and payable on the Redemption Date and at the Redemption Price
(together with accrued contingent interest, if any) stated in the notice except
for Securities which are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, such Securities shall be paid at
the Redemption Price (together with accrued contingent interest, if any) stated
in the notice.
SECTION 3.05 Deposit of Redemption Price. Prior to 10:00 a.m.
(New York City time), on the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary of the Company or an Affiliate
of any of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of, and any accrued and unpaid contingent
interest with respect to, all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money, not required for that purpose because of conversion of
Securities pursuant to Article 11. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
SECTION 3.06 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Principal Amount at Maturity to the unredeemed portion of
the Security surrendered.
SECTION 3.07 Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to the Trustee in trust for the Securityholders, on or
prior to 10:00 a.m. New York City time on the Redemption Date, an amount that,
together with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption Price of, and any
accrued and unpaid contingent interest with respect to, such Securities.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Prices of such Securities shall
be deemed to be satisfied and discharged to the extent such amount is so paid by
such purchasers. If such an agreement is entered into, any Securities not duly
21
surrendered for conversion by the Holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 11) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the Business Day prior to the
Redemption Date, subject to payment of the above amount as aforesaid. The
Trustee shall hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion in the same
manner as it would moneys deposited with it by the Company for the redemption of
Securities. Without the Trustee's prior written consent, no arrangement between
the Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture,
and the Company agrees to indemnify the Trustee from, and hold it harmless
against, any loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any Securities between the
Company and such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or in connection
with the exercise or performance of any of its powers, duties, responsibilities
or obligations under this Indenture.
SECTION 3.08 Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company pursuant to paragraph
7 of the Securities as of June 4, 2004, June 4, 2006, June 4, 2011 and June 4,
2016 (each, a "Purchase Date"), at the purchase price of $602.77 per $1,000 of
Principal Amount at Maturity as of June 4, 2004, of $639.76 per $1,000 of
Principal Amount at Maturity as of June 4, 2006, of $742.47 per $1,000 of
Principal Amount at Maturity as of June 4, 2011 and of $861.67 per $1,000
Principal Amount at Maturity as of June 4, 2016 (each, a "Purchase Price", as
applicable), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a written
notice of purchase (a "Purchase Notice") at any time from the opening
of business on the date that is at least 20 Business Days prior to a
Purchase Date until the close of business on the Business Day
immediately preceding such Purchase Date stating:
(A) the certificate number and CUSIP number of the Security
which the Holder will deliver to be purchased,
(B) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which
portion must be a Principal Amount at Maturity of $1,000 or
any integral multiple thereof,
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in (i)
paragraph 7 of the Securities and (ii) this Indenture, and
(D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such
Purchase Date, in whole or in part, in shares of Common Stock
but such portion of the Purchase Price shall ultimately be
payable to such Holder entirely in cash because any of
22
the conditions to payment of the Purchase Price (or a portion
thereof) in Common Stock is not satisfied prior to the close
of business on such Purchase Date, as set forth in Section
3.08(d), whether such Holder elects (i) to withdraw such
Purchase Notice as to some or all of the Securities to which
such Purchase Notice relates (stating the Principal Amount at
Maturity and certificate numbers of the Securities as to which
such withdrawal shall relate), or (ii) to receive cash in
respect of the entire Purchase Price for all Securities (or
portions thereof) to which such Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on
or after the Purchase Date (together with all necessary endorsements)
at the offices of the Paying Agent, such delivery being a condition to
receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to this
Section 3.08 only if the Security so delivered to the Paying Agent
shall conform in all respects to the description thereof in the related
Purchase Notice, as determined by the Company and such Purchase Notice
shall not be validly withdrawn by the Holder.
If a Holder, in such Xxxxxx's Purchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to the terms of
Section 3.10, fails to indicate such Xxxxxx's choice with respect to the
election set forth in clause (D) of Section 3.08(a)(1), such Holder shall be
deemed to have elected to receive cash in respect of the Purchase Price for all
Securities subject to such Purchase Notice in the circumstances set forth in
such clause (D).
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.08, a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or any integral multiple of $1,000.
Provisions of this Indenture that apply to the purchase of all of a Security
also apply to the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.08 shall be consummated by the delivery of the
consideration to be received by the Holder (together with accrued and unpaid
contingent interest, if any) promptly following the later of the Purchase Date
and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this Section
3.08(a) shall have the right to withdraw such Purchase Notice at any time prior
to the close of business on the Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase
Price. The Securities to be purchased pursuant to Section 3.08(a) may be paid
for, at the election of the Company, in U.S. legal tender ("cash") or Common
Stock, or in any combination of cash and Common Stock, subject to the conditions
set forth in Sections 3.08(c) and (d). The Company
23
shall designate, in the Company Notice delivered pursuant to Section 3.08(e),
whether the Company will purchase the Securities for cash or Common Stock, or,
if a combination thereof, the percentages of the Purchase Price of Securities in
respect of which it will pay in cash or Common Stock; provided that the Company
will pay cash for fractional interests in Common Stock. For purposes of
determining the existence of potential fractional interests, all Securities
subject to purchase by the Company held by a Holder shall be considered together
(no matter how many separate certificates are to be presented). Each Holder
whose Securities are purchased pursuant to this Section 3.08 shall receive the
same percentage of cash or Common Stock in payment of the Purchase Price for
such Securities, except (i) as provided in Section 3.08(d) with regard to the
payment of cash in lieu of fractional shares of Common Stock and (ii) in the
event that the Company is unable to purchase the Securities of a Holder or
Holders for Common Stock because any of the conditions specified in Section
3.08(d) have not been satisfied, the Company may purchase the Securities of such
Holder or Holders for cash. The Company may not change its election with respect
to the consideration (or components or percentages of components thereof) to be
paid once the Company has given its Company Notice to Securityholders except
pursuant to Section 3.08(d) in the event of a failure to satisfy, prior to the
close of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Common Stock, that the
conditions to such manner of payment set forth in Section
3.08(d) have been or will be complied with, and
(iv) whether the Company desires the Trustee to give the
Company Notice required by Section 3.08(e).
(c) Purchase with Cash. On each Purchase Date, at the option
of the Company, the Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be paid by the Company with cash equal to the aggregate Purchase
Price of such Securities.
(d) Payment by Issuance of Common Stock. On each Purchase
Date, at the option of the Company, the Purchase Price of Securities in respect
of which a Purchase Notice pursuant to Section 3.08(a) has been given, or a
specified percentage thereof, may be paid by the Company by the issuance of a
number of shares of Common Stock equal to the quotient obtained by dividing (i)
the amount of cash to which the Securityholders would have been entitled had the
Company elected to pay all or such specified percentage, as the case may be, of
the Purchase Price of such Securities in cash by (ii) the Market Price of a
share of Common Stock, subject to the next succeeding paragraph.
24
The Company will not issue a fractional share of Common Stock
in payment of the Purchase Price. Instead the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Common Stock shall be based on the aggregate amount of Securities to
be purchased.
Upon a payment by Common Stock pursuant to the terms hereof,
that portion of Accrued Original Issue Discount and accrued Tax Original Issue
Discount attributable to the period from the Issue Date to the Purchase Date
with respect to the purchased Security shall not be cancelled, extinguished or
forfeited but rather shall be deemed paid in full to the Holder through the
delivery of the Common Stock in exchange for the Security being purchased
pursuant to the terms hereof, and the fair market value of such Common Stock
(together with any cash payments in lieu of fractional shares of Common Stock)
shall be treated as issued, to the extent thereof, first in exchange for the
Accrued Original Issue Discount and Tax Original Issue Discount accrued through
the Purchase Date, and the balance, if any, of the fair market value of such
shares of Common Stock shall be treated as issued in exchange for the Issue
Price of the Security being purchased pursuant to the provisions hereof.
The Company's right to exercise its election to purchase the
Securities pursuant to Section 3.08 through the issuance of shares of Common
Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an
election to pay entirely in cash and its giving of timely
Company Notice of election to purchase all or a specified
percentage of the Securities with Common Stock as provided
herein;
(ii) the shares of Common Stock having been admitted for
listing or admitted for listing subject to notice of issuance
on the principal United States securities exchange on which
the Common Stock is then listed or, if the Common Stock is not
then listed on a national or regional securities exchange, as
quoted on the National Association of Securities Dealers
Automated Quotation System;
(iii) the registration of the shares of Common Stock to be
issued in respect of the payment of the Purchase Price under
the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), in each case, if required;
(iv) any necessary qualification or registration under
applicable state securities laws or the availability of an
exemption from such qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and
an Opinion of Counsel each stating that (A) the terms of the
issuance of the Common Stock are in conformity with this
Indenture and (B) the shares of Common Stock to be issued by
the Company in payment of the Purchase Price in respect of
Securities
25
have been duly authorized and, when issued and delivered
pursuant to the terms of this Indenture in payment of the
Purchase Price in respect of the Securities, will be validly
issued, fully paid and non-assessable and, to the best of such
counsel's knowledge, free from preemptive rights, and, in the
case of such Officers' Certificate, stating that conditions
(i), (ii), (iii) and (iv) above and the condition set forth in
the second succeeding sentence have been satisfied and, in the
case of such Opinion of Counsel, stating that conditions (ii),
(iii) and (iv) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 Principal Amount at Maturity
of Securities and the Sale Price of a share of Common Stock on each trading day
during the period for which the Market Price is calculated. The Company may pay
the Purchase Price (or any portion thereof) in Common Stock only if the
information necessary to calculate the Market Price is published in a daily
newspaper of national circulation or by other appropriate means. If the
foregoing conditions are not satisfied with respect to a Holder or Holders prior
to the close of business on the Purchase Date and the Company has elected to
purchase the Securities pursuant to this Section 3.08 through the issuance of
shares of Common Stock, the Company shall pay the entire Purchase Price of the
Securities of such Holder or Holders in cash.
The "Market Price" of the Common Stock means the average of
the Sale Prices of the Common Stock for the five trading day period ending on
(if the third Business Day prior to the applicable Purchase Date is a trading
day or, if not, then on the last trading day prior to) the third Business Day
prior to the applicable Purchase Date, appropriately adjusted to take into
account the occurrence, during the period commencing on the first of such
trading days during such five trading day period and ending on such Purchase
Date, of any event described in Section 11.06, 11.07 or 11.08; subject, however,
to the conditions set forth in Sections 11.09 and 11.10.
(e) Notice of Election. The Company's notice of election to
purchase with cash or Common Stock or any combination thereof (the "Company
Notice") shall be sent to the Holders (and to beneficial owners as required by
applicable law) in the manner provided in Section 13.02 not less than 20
Business Days prior to the applicable Purchase Date or Trigger Event Purchase
Date (the "Company Notice Date"). Any such Company Notice shall state the manner
of payment elected and shall contain the following information:
In the event the Company has elected to pay the Purchase Price
(or a specified percentage thereof) with Common Stock, the Company Notice shall:
(1) state that each Holder will receive Common Stock with a
Market Price determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any cash amount to be paid in
lieu of fractional shares);
(2) set forth the method of calculating the Market Price of
the Common Stock; and
26
(3) state that because the Market Price of Common Stock will
be determined prior to the Purchase Date, Holders will bear the market
risk with respect to the value of the Common Stock to be received from
the date such Market Price is determined to the Purchase Date.
In any case, each Company Notice shall include a form of
Purchase Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price, the Conversion Rate and, to the extent
known at the time of such notice, the amount of contingent
interest, if any, that will have accrued and be payable with
respect to the Securities as of the Purchase Date;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has been
given may be converted pursuant to Article 11 hereof only if
the applicable Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent
to collect payment of the Purchase Price and contingent
interest, if any;
(v) that the Purchase Price for any Security as to which a
Purchase Notice has been given and not withdrawn, together
with any accrued contingent interest payable with respect
thereto, will be paid promptly following the later of the
Purchase Date and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to exercise rights
under Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal
pursuant to the terms of Section 3.08(a)(1)(D) or Section
3.10);
(ix) that, unless the Company defaults in making payment of
such Purchase Price, Original Issue Discount including
contingent interest, if any, on Securities surrendered for
purchase will cease to accrue on and after the Purchase Date;
and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company
Notice in the Company's name and at the Company's expense, provided that the
Company makes such request at least 15 days (unless a shorter period shall be
acceptable to the Trustee) prior to the date such Company Notice must be mailed;
and provided, further, that, in all cases, the text of such Company Notice shall
be prepared by the Company.
27
Upon determination of the actual number of shares of Common
Stock to be issued for each $1,000 Principal Amount at Maturity of Securities,
the Company will issue a press release and publish such determination on the
Company's web site or by other appropriate means.
(f) Covenants of the Company. All shares of Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.
(g) Procedure upon Purchase. The Company shall deposit cash
(in respect of a cash purchase under Section 3.08(c) or for fractional interests
or contingent interest, as applicable) or shares of Common Stock, or a
combination thereof, as applicable, at the time and in the manner as provided in
Section 3.11, sufficient to pay the aggregate Purchase Price of, and any accrued
and unpaid contingent interest with respect to, all Securities to be purchased
pursuant to this Section 3.08. As soon as practicable after the Purchase Date,
the Company shall deliver to each Holder entitled to receive Common Stock
through the Paying Agent, a certificate (or other evidence of ownership) for the
number of full shares of Common Stock issuable in payment of the Purchase Price
and cash in lieu of any fractional interests. The person in whose name the
certificate for Common Stock is registered shall be treated as a holder of
record of shares of Common Stock on the Business Day following the Purchase
Date. No payment or adjustment will be made for dividends on the Common Stock
the record date for which occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Common Stock,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of shares of Common Stock. However, the Holder shall pay any
such tax which is due if the Holder requests the shares of Common Stock to be
issued in a name other than the Holder's name. The Paying Agent may refuse to
deliver the certificates representing the Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum sufficient to
pay any tax which will be due because the shares of Common Stock are to be
issued in a name other than the Holder's name. Nothing herein shall preclude any
income tax withholding required by law or regulations being deducted by the
Company.
SECTION 3.09 Purchase of Securities at Option of the Holder
upon Trigger Event.
(a) If on or prior to June 4, 2006 there shall have occurred a
Trigger Event, Securities shall be purchased by the Company, at the option of
the Holder thereof, at a purchase price specified in paragraph 7 of the
Securities (the "Trigger Event Purchase Price"), as of the date that is no later
than 35 Business Days after the occurrence of the applicable Trigger Event (the
"Trigger Event Purchase Date"), subject to satisfaction by or on behalf of the
Holder of the requirements set forth in Section 3.09(c).
"Trigger Event" means a Change in Control or Delisting Event
occurring on or before June 4, 2006.
28
A "Change in Control" shall be deemed to have occurred at such
time as either of the following events shall occur:
(i) There is a report filed on Schedule 13D or Schedule TO (or
any successor schedule, form or report) pursuant to the
Exchange Act, disclosing that any person, including the
Company's Affiliates or Associates (for the purposes of this
Section 3.09 only, as the term "person" is used in Section
13(d)(3) or Section 14(d)(2) of the Exchange Act) or group
(other than a permitted holder) has become the beneficial
owner of 50% or more, in the aggregate, of the voting power of
the (x) voting Common Stock and Class B Common Stock of the
Company then outstanding or (y) other Capital Stock into which
the Common Stock or Class B Common Stock is reclassified or
changed; provided, however, that a person shall not be deemed
beneficial owner of, or to own beneficially, (A) any
securities tendered pursuant to a tender or exchange offer
made by or on behalf of such person or any of such person's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange thereunder, or (B) any
securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy
or consent solicitation made pursuant to the applicable rules
and regulations under the Exchange Act or an exemption
therefrom, and (2) is not also then reportable on Schedule 13D
(or any successor schedule) under the Exchange Act; and
provided, further, that notwithstanding the foregoing
provisions of this Section 3.09(a)(i) only, a Change in
Control shall not be deemed to have occurred by virtue of the
Company, any Subsidiary, any employee stock ownership plan or
any other employee benefit plan of the Company or any
Subsidiary, or any person holding its respective voting common
stock for or pursuant to the terms of any such employee
benefit plan, filing or becoming obligated to file a report
under or in response to Schedule 13D or Schedule TO (or any
successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of such
Capital Stock;
(ii) There is a report filed on Schedule 13D or Schedule TO
(or any successor schedule, form or report) pursuant to the
Exchange Act, disclosing that any permitted holder has become
the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 80% or more, in the
aggregate, of the voting power of the (x) voting Common Stock
and Class B Common Stock of the Company then outstanding or
(y) other Capital Stock into which the Common Stock or Class B
Common Stock is reclassified or changed; provided, however,
that a permitted holder shall not be deemed beneficial owner
of, or to own beneficially, (A) any securities tendered
pursuant to a tender or exchange offer made by or on behalf of
such permitted holder or any of such permitted holder's
Affiliates or Associates until such tendered securities are
accepted for purchase or exchange thereunder, or (B) any
securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy
or consent solicitation made pursuant to the applicable rules
and regulations under the Exchange Act or an exemption
therefrom, and (2) is not also then reportable on Schedule 13D
(or any successor schedule) under the Exchange Act; or
29
(iii) There shall be consummated any share exchange,
consolidation or merger of the Company pursuant to which its
voting Common Stock and Class B Common Stock would be
converted into cash, securities or other property, in each
case other than a share exchange, consolidation or merger of
the Company in which the holders of such voting Capital Stock
immediately prior to the share exchange, consolidation or
merger have, directly or indirectly, at least a majority of
the total voting power in the aggregate of all classes of
Capital Stock of the continuing or surviving corporation
immediately after the share exchange, consolidation or merger.
"Delisting Event" occurs if the Company, together with
Affiliates or Associates, acquires a sufficient amount of Common Stock to result
in the Common Stock being delisted from the New York Stock Exchange or the
principal United States national or regional securities exchange or quotation
system on which the Common Stock is then listed or traded.
"Associate" shall have the meaning ascribed to such term in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as in
effect on the date hereof.
The term "group" means any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of Rule
13d-5(b)(1) under the Exchange Act or any successor provision.
The term "beneficial owner" is determined in accordance with
Rule 13d-3 and 13d-5 under the Exchange Act or any successor provision, except
that a person will be deemed to have beneficial ownership of all shares that
such person has the right to acquire irrespective of whether that right is
exercisable immediately or only after the passage of time.
"permitted holder" means each of Xx. Xxxxx Xxxxxxx and Xxx.
Xxxxxxx X. Xxxxxx or their spouses, children or lineal descendants, any trust
established for the benefit of such persons, or any "person" as such term is
used in Section 13(d) or 14(d) of the Exchange Act), directly or indirectly,
controlled, controlled by or under common control with any such person mentioned
in this paragraph or any trust established for the benefit of such persons or
any charitable trust or non-profit entry established by a permitted holder, or
any group in which such permitted holders hold more than a majority of the
voting power of the Common Stock and Class B Common Stock deemed to be
beneficially owned by such group.
(b) Within 15 Business Days after the occurrence of a Trigger Event, the Company
shall mail a written notice of such Trigger Event by first-class mail to the
Trustee and to each Holder (and to beneficial owners as required by applicable
law). The notice shall include a form of Trigger Event Purchase Notice to be
completed by the Securityholder and shall state:
(1) briefly, the events causing a Trigger Event and the date
of such Trigger Event;
(2) the date by which the Trigger Event Purchase Notice
pursuant to this Section 3.09 must be given;
(3) the Trigger Event Purchase Date;
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(4) the Trigger Event Purchase Price and, to the extent known
at the time of such notice, the amount of contingent interest,
if any, that will be accrued and payable with respect to the
Securities as of the Trigger Event Purchase Date;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that Securities as to which a Trigger Event Purchase
Notice has been given by the Holder may be converted pursuant
to Article 11 hereof only if the Trigger Event Purchase Notice
has been withdrawn in accordance with the terms of this
Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment of the Trigger Event Purchase Price and
contingent interest, if any;
(9) that the Trigger Event Purchase Price for any Security as
to which a Trigger Event Purchase Notice has been duly given
and not withdrawn, together with any accrued contingent
interest payable with respect thereto, will be paid promptly
following the later of the Trigger Event Purchase Date and the
time of surrender of such Security as described in (8);
(10) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.09;
(11) briefly, the conversion rights of the Securities;
(12) the procedures for withdrawing a Trigger Event Purchase
Notice;
(13) that, unless the Company defaults in making payment of
such Trigger Event Purchase Price, Original Issue Discount and
contingent interest, if any, on Securities surrendered for
purchase will cease to accrue on and after the Trigger Event
Purchase Date; and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section
3.09(a) upon delivery of a written notice of purchase (a "Trigger Event Purchase
Notice") to the Paying Agent at any time prior to the close of business on the
Trigger Event Purchase Date, stating:
(1) the certificate number and CUSIP number of the Security
which the Holder will deliver to be purchased;
(2) the portion of the Principal Amount at Maturity of the
Security which the Holder will deliver to be purchased, which
portion must be $1,000 or an integral multiple thereof; and
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(3) that such Security shall be purchased pursuant to the
terms and conditions specified in paragraph 7 of the
Securities and this Section 3.09.
The delivery of such Security to the Paying Agent prior to, on
or after the Trigger Event Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Trigger Event Purchase Price therefor; provided,
however, that such Trigger Event Purchase Price shall be so paid pursuant to
this Section 3.09 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof set forth in the related
Trigger Event Purchase Notice and such Trigger Event Purchase Notice shall not
be validly withdrawn by the Holder.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.09, a portion of a Security if the Principal Amount at
Maturity of such portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to the purchase of all of a Security also apply to
the purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.09 shall be consummated by the delivery of the
consideration to be received by the Holder (together with accrued and unpaid
contingent interest, if any) promptly following the later of the Trigger Event
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Trigger Event Purchase Notice contemplated by
this Section 3.09(c) shall have the right to withdraw such Trigger Event
Purchase Notice at any time prior to the close of business on the Trigger Event
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Trigger Event Purchase Notice or written withdrawal
thereof.
The Company shall not be required to comply with this Section
3.09 if a third party mails a written notice of Change in Control in the manner,
at the times and otherwise in compliance with this Section 3.09 and repurchases
all Securities for which a Trigger Event Purchase Notice shall be delivered and
not withdrawn.
SECTION 3.10 Effect of Purchase Notice or Trigger Event
Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or
Trigger Event Purchase Notice specified in Section 3.08(a) or Section 3.09(c),
as applicable, the Holder of the Security in respect of which such Purchase
Notice or Trigger Event Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Trigger Event Purchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price or Trigger Event Purchase Price, as the case may be,
and any accrued and unpaid contingent interest, with respect to such Security to
the Purchase Date or Trigger Event Purchase Date, as the case may be. Such
Purchase Price or Trigger Event Purchase Price and contingent interest, if any,
shall be paid to such Holder, subject to receipts of funds and/or securities by
the Paying Agent, promptly following the later of (x) the Purchase Date or the
Trigger Event
32
Purchase Date, as the case may be, with respect to such Security (provided the
conditions in Section 3.08(a) or Section 3.09(c), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.08(a) or Section 3.09(c),
as applicable. Securities in respect of which a Purchase Notice or Trigger Event
Purchase Notice, as the case may be, has been given by the Holder thereof may
not be converted pursuant to Article 11 hereof on or after the date of the
delivery of such Purchase Notice or Trigger Event Purchase Notice, as the case
may be, unless such Purchase Notice or Trigger Event Purchase Notice, as the
case may be, has first been validly withdrawn as specified in the following two
paragraphs.
A Purchase Notice or Trigger Event Purchase Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Trigger Event Purchase Notice, as the case may be, at any time prior
to the close of business on the Purchase Date or the Trigger Event Purchase
Date, as the case may be, specifying:
(1) the Principal Amount at Maturity of the Security with
respect to which such notice of withdrawal is being submitted,
(2) the certificate number and CUSIP number of the Security in
respect of which such notice of withdrawal is being submitted,
and
(3) the Principal Amount at Maturity, if any, of such Security
which remains subject to the original Purchase Notice or
Trigger Event Purchase Notice, as the case may be, and which
has been or will be delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in
the form set forth in the preceding paragraph or may be in the form of (i) a
conditional withdrawal contained in a Purchase Notice pursuant to the terms of
Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(a)(1)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying Agent as set
forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to
Section 3.08 (other than through the issuance of Common Stock in payment of the
Purchase Price, including cash in lieu of fractional shares) or 3.09 if there
has occurred (prior to, on or after, as the case may be, the giving, by the
Holders of such Securities, of the required Purchase Notice or Trigger Event
Purchase Notice, as the case may be) and is continuing an Event of Default
(other than a default in the payment of the Purchase Price or Trigger Event
Purchase Price, as the case may be, and any accrued and unpaid contingent
interest with respect to such Securities). The Paying Agent will promptly return
to the respective Holders thereof any Securities (x) with respect to which a
Purchase Notice or Trigger Event Purchase Notice, as the case may be, has been
withdrawn in compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Purchase Price or Trigger Event Purchase Price, as the case may be, and any
accrued and unpaid contingent interest with respect to such Securities) in
33
which case, upon such return, the Purchase Notice or Trigger Event Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
SECTION 3.11 Deposit of Purchase Price or Trigger Event
Purchase Price. Prior to 10:00 a.m. New York City time on the Business Day
following the Purchase Date or the Trigger Event Purchase Date, as the case may
be, the Company shall deposit with the Trustee or with the Paying Agent (or, if
the Company or a Subsidiary or an Affiliate thereof is acting as the Paying
Agent, shall segregate and hold in trust as provided in Section 2.04) an amount
of money (in immediately available funds if deposited on such Business Day) or
Common Stock (in the case of the payment of the Purchase Price only), if
permitted hereunder, sufficient to pay the aggregate Purchase Price or Trigger
Event Purchase Price, as the case may be, of, and any accrued and unpaid
contingent interest with respect to, all the Securities or portions thereof
which are to be purchased as of the Purchase Date or Trigger Event Purchase
Date, as the case may be. After the Purchase Date or the Trigger Event Purchase
Date, Original Issue Discount, Tax Original Issue Discount and contingent
interest, if any, shall cease to accrue on such Security, whether or not such
Security is delivered to the Paying Agent.
SECTION 3.12 Securities Purchased in Part. Any Security which
is to be purchased only in part shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Xxxxxx in aggregate Principal Amount at Maturity equal to, and in exchange
for, the portion of the Principal Amount at Maturity of the Security so
surrendered which is not purchased.
SECTION 3.13 Covenant to Comply With Securities Laws Upon
Purchase of Securities. In connection with any offer to purchase or purchase of
Securities under Section 3.08 or 3.09 hereof (provided that such offer or
purchase constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act at the time of such offer or purchase), the Company shall (i)
comply with Rule 13e-4 and Rule 14e-1 under the Exchange Act and any other then
applicable tender offer rules, (ii) file the related Schedule TO (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all federal and state securities laws so as to permit the rights and
obligations under Sections 3.08 and 3.09 to be exercised in the time and in the
manner specified in Sections 3.08 and 3.09.
SECTION 3.14 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company any cash or shares of Common Stock that
remain unclaimed as provided in paragraph 14 of the Securities, together with
interest or dividends, if any, thereon (subject to the provisions of Section
7.01(f)), held by them for the payment of the Purchase Price or Trigger Event
Purchase Price, as the case may be, or contingent interest, if any; provided,
however, that to the extent that the aggregate amount of cash or shares of
Common Stock deposited by the Company pursuant to Section 3.11 exceeds the
aggregate Purchase Price or Trigger Event Purchase Price, as the case may be,
of, and the accrued and unpaid contingent interest with respect to, the
Securities or portions thereof which the Company is obligated to
34
purchase as of the Purchase Date or Trigger Event Purchase Date, as the case may
be, then promptly after the Business Day following the Purchase Date or Trigger
Event Purchase Date, as the case may be, the Trustee shall return any such
excess to the Company together with interest or dividends, if any, thereon
(subject to the provisions of Section 7.01(f)).
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent, shall be deposited with the Trustee or
Paying Agent by 10:00 a.m. New York City time by the Company. Principal Amount
at Maturity, Restated Principal Amount, Issue Price, Accrued Original Issue
Discount, Tax Original Discount, Redemption Price, Purchase Price, Trigger Event
Purchase Price and contingent interest, if any, shall be considered paid on the
applicable date due if on such date (or, in the case of a Purchase Price or
Trigger Event Purchase Price, on the Business Day following the applicable
Purchase Date or Trigger Event Purchase Date, as the case may be) the Trustee or
the Paying Agent holds, in accordance with this Indenture, money or securities,
if permitted hereunder, sufficient to pay all such amounts then due. The Company
may deduct or withhold income or other similar taxes imposed by any taxing
authority in the United States from principal, premium, if any, or interest
payments hereunder.
The Company shall, to the extent permitted by law, pay
interest on overdue amounts at the rate per annum set forth in paragraph 1 of
the Securities, compounded semi-annually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in lieu of, and not in addition to, the continued accrual of
Original Issue Discount.
SECTION 4.02 SEC and Other Reports. The Company shall file
with the Trustee, within 15 days after it files such annual and quarterly
reports, information, documents and other reports with the SEC, copies of its
annual report and of the information, documents and other reports (or copies of
such portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall provide the Trustee with copies such information,
documents or reports which may be required, in accordance with rules and
regulations prescribed by the Commission, pursuant to Section 13 of the Exchange
Act. In such event, such reports shall be provided at the times the Company
would have been required to comply with Rule 144A(d)(4) of the Securities Act.
The Company also shall comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of the same shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
35
SECTION 4.03 Compliance Certificate. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2001) an Officers'
Certificate, one of the signers of which shall be the principal executive,
principal accounting or principal financial officer of the Company, such
Officer's Certificate stating whether or not to the best knowledge of the
signers thereof, a Default or an Event of Default has occurred and is continuing
and specifying in reasonable detail all such Defaults or Events of Default, if
any, and the nature and status thereof of which they may have knowledge.
SECTION 4.04 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of The Bank of New York, located at
000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000 (Attention: Corporate Trust
Administration), shall initially be such office or agency for all of the
aforesaid purposes. The Company shall give prompt written notice to the Trustee
of the location, and of any change in the location, of any such office or agency
(other than a change in the location of the office of the Trustee). If at any
time the Company shall fail to maintain any such required office or agency or
shall fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 13.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06 Delivery of Certain Information. At any time when
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a Holder or any beneficial holder of Securities or shares of Common
Stock issued upon conversion thereof, the Company will promptly furnish or cause
to be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Securities or holder of shares of Common Stock issued upon
conversion of Securities, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
36
SECTION 4.07 Calculation of Accrued Original Issue Discount
and Tax Original Discount Tax Original Issue Discount. The Company shall file
with the Trustee promptly after the end of each calendar year (i) a written
notice specifying the amount of Accrued Original Issue Discount and Tax Original
Issue Discount (including daily rates and accrual periods) accrued on
outstanding Securities as of the end of such year and (ii) such other specific
information relating to such Accrued Original Issue Discount and Tax Original
Issue Discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless:
(a) either (1) the Company shall be the continuing corporation
or (2) the person (if other than the Company) formed by such consolidation or
into which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as an
entirety (i) shall be organized and validly existing under the laws of the
United States or any State thereof or the District of Columbia, and (ii) shall
expressly assume, by an indenture supplemental hereto, executed and delivered to
the Trustee, in form reasonably satisfactory to the Trustee, all of the
obligations of the Company under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a supplemental
indenture is required in connection with such transaction, such supplemental
indenture, complies with this Article 5 and that all conditions precedent herein
provided for relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease,
assignment, sale or otherwise) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which, if such
assets were owned by the Company, would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into
which the Company is merged or the successor person to which such conveyance,
transfer or lease is made shall succeed to, and be substituted for, and may
exercise every right and power of, the Company under this Indenture with the
same effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and obligations the Company may have
under a supplemental indenture pursuant to Section 11.14, the Company shall be
discharged from all
37
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor person shall enter into
a supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" means
any one of the following events:
(1) a default in payment of any contingent interest which
default continues for 30 days;
(2) a default in the payment of the Principal Amount at
Maturity, Issue Price plus accrued Original Issue Discount,
Redemption Price, Purchase Price or Trigger Event Purchase
Price on any Security when the same becomes due and payable at
its Stated Maturity, upon redemption, upon declaration, when
due for purchase or otherwise (whether or not any such payment
shall be prohibited by the terms of this Indenture);
(3) the Company fails either to deliver shares of Common Stock
(or to pay cash in lieu of fractional shares) in accordance
with the terms hereof when such Common Stock (or cash in lieu
of fractional shares) is required to be delivered, upon
conversion of a Security and such failure is not remedied for
a period of 10 days;
(4) the Company fails to comply with any of its agreements in
the Securities or this Indenture (other than those referred to
in clauses (1), (2) and (3) above) and such failure (or the
failure to obtain a waiver thereof) continues for 60 days
after receipt by the Company of a Notice of Default;
(5) (a) failure of the Company to make any payment by the end
of any applicable grace period after maturity of indebtedness
in an amount (taken together with amounts in (b) below) in
excess of $10,000,000 and continuance of such failure, or (b)
the acceleration of indebtedness in an amount (taken together
with amounts in (a) above) in excess of $10,000,000 because of
a default with respect to such indebtedness without such
indebtedness having been discharged or such acceleration
having been cured, waived, rescinded or annulled, in the case
of (a) or (b) above, for a period of 30 days after receipt by
the Company of a Notice of Default; provided, however, that if
any such failure or acceleration referred to in (a) or (b)
above shall cease or be cured, waived, rescinded or annulled,
then the Event of Default by reason thereof shall be deemed
not to be continuing;
(6) the Company or any Material Subsidiary pursuant to or
under or within the meaning of any Bankruptcy Law:
38
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against
it in an involuntary case or proceeding or the
commencement of any case against it;
(C) consents to the appointment of a Custodian of it or
for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or consent
seeking reorganization or relief; or
(F) consents to the filing of such petition or the
appointment of or taking possession by a Custodian; or
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any Material
Subsidiary in an involuntary case or proceeding, or
adjudicates the Company or any Material Subsidiary
insolvent or bankrupt;
(B) appoints a Custodian of the Company or any Material
Subsidiary for any substantial part of its property; or
(C) orders the winding up or liquidation of the Company
or any Material Subsidiary;
and the order or decree remains unstayed and in effect for 60 days.
"Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors.
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Material Subsidiary" means a Subsidiary of the Company,
including such Subsidiary's subsidiaries, which meets any of the following
conditions:
(i) the Company and its other Subsidiaries' investments
in and advances to such Subsidiary exceed 5% of the
total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently
completed fiscal year; or
(ii) the Company and its other Subsidiaries' proportional
share of the total assets (after intercompany
eliminations) of such subsidiary exceeds 5% of
39
the total assets of the Company and its Subsidiaries
consolidated as of the end of the most recently
completed fiscal year; or
(iii) the Company and its other Subsidiaries' equity in the
income from continuing operations before income
taxes, extraordinary items and cumulative effect of a
change in accounting principle of such Subsidiary
exceeds 5% of such income of the Company and its
Subsidiaries consolidated as of the end of the most
recently completed fiscal year.
A Default under clause (4) or clause (5) above is not an Event
of Default until the Trustee notifies the Company or the Holders of at least 25%
in aggregate Principal Amount at Maturity of the Securities at the time
outstanding notify the Company and the Trustee, of the Default and the Company
does not cure such Default (and such Default is not waived) within the time
specified in clause (4) or clause (5) above after actual receipt of such notice.
Any such notice must specify the Default, demand that it be remedied and state
that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within five (5) days
after it becomes aware of the occurrence thereof, written notice of any event
which with the giving of notice or the lapse of time, or both, would become an
Event of Default under clause (4) or clause (5) above, its status and what
action the Company is taking or proposes to take with respect thereto.
SECTION 6.02 Acceleration. Subject to Section 10.03, if an
Event of Default (other than an Event of Default specified in Section 6.01(6) or
(7)) occurs and is continuing, the Trustee by Notice to the Company or the
Holders of at least 25% in aggregate Principal Amount at Maturity of the
Securities at the time outstanding by notice to the Company and the Trustee, may
declare the Issue Price plus accrued Original Issue Discount through the date of
such declaration, and any accrued and unpaid contingent interest through the
date of such declaration, on all the Securities to be immediately due and
payable. Upon such a declaration, such Issue Price plus Accrued Original Issue
Discount, and such accrued and unpaid interest (including contingent interest),
if any, shall be due and payable immediately. Subject to Section 10.03, if an
Event of Default specified in Section 6.01(6) or (7) occurs and is continuing,
the Issue Price plus Accrued Original Issue Discount, and any accrued and unpaid
contingent interest, on all the Securities to the occurrence of such Event of
Default shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Securityholders. The Holders of a
majority in aggregate Principal Amount at Maturity of the Securities at the time
outstanding, by notice to the Trustee (and without notice to any other
Securityholder) may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Issue Price
plus Accrued Original Issue Discount and any accrued and unpaid contingent
interest that has become due solely as a result of acceleration and if all
amounts due to the Trustee under Section 7.07 have been paid. No such rescission
shall affect any subsequent Event of Default or impair any right consequent
thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Issue
40
Price plus Accrued Original Issue Discount on the Securities or to enforce the
performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
SECTION 6.04 Waiver of Past Defaults. Subject to Sections 6.07
and 9.02, the Holders of a majority in aggregate Principal Amount at Maturity of
the Securities at the time outstanding, by notice to the Trustee (and without
notice to any other Securityholder), may waive an existing Default and its
consequences except (1) an Event of Default described in Section 6.01(1), (2) or
(3), (2) a Default in respect of a provision that under Section 9.02 cannot be
amended without the consent of each Securityholder affected or (3) a Default
which constitutes a failure to convert any Security in accordance with the terms
of Article 11. When a Default is waived, it is deemed cured, but no such waiver
shall extend to any subsequent or other Default or impair any consequent right.
This Section 6.04 shall be in lieu of Section 316(a)1(B) of the TIA and such
Section 316(a)1(B) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.05 Control by Majority. The Holders of a majority in
aggregate Principal Amount at Maturity of the Securities at the time outstanding
may direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee or of exercising any trust or power conferred on
the Trustee. However, the Trustee may refuse to follow any direction that
conflicts with law or this Indenture or that the Trustee determines in good
faith is unduly prejudicial to the rights of other Securityholders or would
involve the Trustee in personal liability unless the Trustee is offered
indemnity satisfactory to it. This Section 6.05 shall be in lieu of Section
316(a)1(A) of the TIA and such Section 316(a)1(A) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.06 Limitation on Suits. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount
at Maturity of the Securities at the time outstanding make a
written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or
indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of such notice, request and offer of
security or indemnity; and
41
(5) the Holders of a majority in aggregate Principal Amount at
Maturity of the Securities at the time outstanding do not give
the Trustee a direction inconsistent with the request during
such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
SECTION 6.07 Rights of Holders to Receive Payment.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the Principal Amount at Maturity, Issue Price plus Accrued
Original Issue Discount, Redemption Price, Purchase Price, Trigger Event
Purchase Price, contingent interest or interest, if any, in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities or any Redemption Date, and to convert the Securities in
accordance with Article 11, or to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, shall not be
impaired or affected adversely without the consent of such Holder.
SECTION 6.08 Collection Suit by Trustee. If an Event of
Default described in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the Principal Amount at Maturity, Issue Price
plus Accrued Original Issue Discount, Redemption Price, Purchase Price, Trigger
Event Purchase Price, contingent interest or interest, if any, in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
Principal Amount at Maturity, Issue Price plus Accrued
Original Issue Discount, Redemption Price, Purchase Price,
Trigger Event Purchase Price, contingent interest or interest,
if any, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its
agents and counsel or any other amounts due the Trustee under
Section 7.07) and of the Holders allowed in such judicial
proceeding, and
(b) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute
the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly
42
to the Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, and any other amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any Holder
any plan of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent
required by Article 10;
THIRD: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount at Maturity, Issue Price
plus Accrued Original Issue Discount, Redemption Price,
Purchase Price, Trigger Event Purchase Price, contingent
interest or interest, if any, as the case may be, ratably,
without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
FOURTH: the balance, if any, to the Company .
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Trustee shall mail to each Securityholder and the
Company a notice that states the record date, the payment date and the amount to
be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.07 or a suit by Holders of more than 10% in aggregate
Principal Amount at Maturity of the Securities at the time outstanding. This
Section 6.11 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The
Company covenants (to the extent that it may lawfully do so) that they will not
at any time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount at
Maturity, Issue Price plus Accrued Original Issue Discount, Redemption Price,
43
Purchase Price, Trigger Event Purchase Price, contingent interest, if any,
delivering Common Stock upon a conversion pursuant to Article 11 or paying the
cash equivalent thereof, in respect of Securities, or any interest on such
amounts, as contemplated herein, or which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such
law, and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, the Trustee
shall examine such certificates and opinions to determine
whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own
willful misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the
pertinent facts; and
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(3) the Trustee shall not be liable with respect to any action
it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
7.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or expend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
SECTION 7.02 Rights of Trustee. Subject to its duties and
responsibilities under the provisions of Section 7.01, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, under the TIA:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless other
evidence be herein specifically prescribed) may, in the absence of bad faith on
its part, conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or through
agents or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and
any advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
45
(f) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order,
accompanied, if applicable, by a resolution of the Board of Directors of the
Company;
(h) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company upon reasonable notice to
the Company, personally or by agent or attorney at the sole cost of the Company
and shall incur no liability or additional liability of any kind by reason of
such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a Default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an
Officers' Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to this
Indenture, which Officers' Certificate may be signed by any person authorized to
sign such Officers' Certificate, including any person specified as so authorized
in any such certificate previously delivered and not superseded.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the
46
Securities Act or in the Indenture or the Securities (other than its certificate
of authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults. If a Default occurs and if it
is known to the Trustee, the Trustee shall give to each Securityholder notice of
the Default within 90 days after it occurs unless such Default shall have been
cured or waived before the giving of such notice. Except in the case of a
Default described in Section 6.01(1), (2) or (3), the Trustee may withhold the
notice if and so long as a committee of its Responsible Officers in good faith
determines that withholding the notice is in the interests of Securityholders.
The second sentence of this Section 7.05 shall be in lieu of the proviso to
Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default.
SECTION 7.06 Reports by Trustee to Holders. Within 60 days
after each May 15 beginning with the May 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such May 15 that complies with TIA Section 313(a), if required by such
Section 313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to
Securityholders shall be filed with the SEC and each securities exchange, if
any, on which the Securities are listed. The Company agrees to promptly notify
the Trustee whenever the Securities become listed on any securities exchange and
of any delisting thereof.
SECTION 7.07 Compensation and Indemnity.
The Company agrees:
(a) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time
agree in writing for all services rendered by it hereunder
(which compensation shall not be limited (to the extent
permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all
reasonable and documented expenses, disbursements and
advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the
reasonable and documented compensation and the expenses,
advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its negligence, willful misconduct or bad
faith; and
(c) to indemnify the Trustee or any predecessor, Trustee and
their agents for, and to hold them harmless against, any
loss, damage, claim, liability, cost or expense (including
attorney's fees and taxes (other than taxes based upon,
measured by or determined by the income of the Trustee))
incurred without negligence, willful misconduct or bad
faith on its part, arising out
47
of or in connection with the acceptance or administration
of this trust, including the reasonable costs and expenses
of defending itself against any claim (whether asserted by
the Company or any Holder or any other Person) or
liability in connection with the exercise or performance
of any of its powers or duties hereunder.
The Trustee shall promptly notify the Company of any claim
asserted against the Trustee or any of its agents for which it may seek
indemnity. The Company shall defend, through counsel reasonably satisfactory to
the Trustee any claim, cost, liabilities, damages and expenses, arising out of
the Trustee's failure to perform any of its obligations under this Indenture,
provided that the Trustee may assume the defense of any action, and provided
further that the Trustee shall be consulted and have the right to approve any
settlement of any claim or suit.
To secure the Company's 's payment obligations in this Section
7.07, the Trustee shall have a lien prior to the Securities on all money or
property held or collected by the Trustee, in its capacity as Trustee, except
that held in trust to pay the Principal Amount at Maturity, Issue Price plus
Accrued Original Issue Discount, Redemption Price, Purchase Price, Trigger Event
Purchase Price, contingent interest or interest, if any, as the case may be, on
particular Securities, or Common Stock delivered upon a conversion pursuant to
Article 11, or the cash equivalent thereof.
The Company's 's payment obligations pursuant to this Section
7.07 shall survive the discharge of this Indenture and the resignation or
removal of the Trustee. When the Trustee incurs expenses after the occurrence of
a Default specified in Section 6.01(6) or (7), the expenses including the
reasonable charges and expenses of its counsel, are intended to constitute
expenses of administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign by so notifying the
Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.08.
The Holders of a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee
or its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint a
successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and the Company satisfactory in form and
substance to the retiring Trustee and
48
the Company. Thereupon the resignation or removal of the retiring Trustee shall
become effective, and the successor Trustee shall have all the rights, powers
and duties of the Trustee under this Indenture. The successor Trustee shall mail
a notice of its succession to Securityholders. The retiring Trustee shall
promptly transfer all property held by it as Trustee to the successor Trustee,
subject to the lien provided for in Section 7.07.
If a successor Xxxxxxx does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate Principal Amount at Maturity
of the Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Xxxxxx. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall, if
otherwise eligible hereunder, be the successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall
at all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of TIA Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against
Company. The Trustee shall comply with TIA Section 311(a), excluding any
creditor relationship listed in TIA Section 311(b). A Trustee who has resigned
or been removed shall be subject to TIA Section 311(a) to the extent indicated
therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities. When (i)
the Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash or, if expressly permitted by the terms of the Securities,
Common Stock sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture
49
on demand of the Company accompanied by an Officers' Certificate and Opinion of
Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment to the Company. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remains unclaimed for one year, subject to applicable unclaimed
property law. After return to the Company, Holders entitled to the money or
securities must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person and the Trustee and
the Paying Agent shall have no further liability to the Securityholders with
respect to such money or securities for that period commencing after the return
thereof.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Company and the
Trustee may amend this Indenture or the Securities without notice to or the
consent of any Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to secure the Company's obligations under the Securities
and this Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred
upon the Company ;
(5) to make any change to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the
SEC in connection with the qualification of the Indenture
under the TIA, or as necessary in connection with the
registration of the Securities under the Securities Act; or
(6) to make any change that does not adversely affect the
rights of any Holders hereunder.
SECTION 9.02 With Consent of Holders. Subject to Section 6.07,
with the written consent of the Holders of at least a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding, the
Company and the Trustee may amend this Indenture or the Securities. However,
without the consent of each Securityholder affected, an amendment to this
Indenture or the Securities may not:
(1) change the provisions of this Indenture that relate to
modifying or amending this Indenture;
50
(2) make any change in the Stated Maturity, the manner or rate
of accrual in connection with Original Issue Discount, make
any change in the manner of calculation of, or that adversely
affects the right to receive, contingent interest, reduce the
rate of interest referred to in paragraph 1 of the Securities
or extend the time for payment of Original Issue Discount,
contingent interest or interest, if any, on any Security;
(3) reduce the Principal Amount at Maturity, Accrued Original
Issue Discount, Restated Principal Amount or the Issue Price
of or extend the Stated Maturity of any Security;
(4) reduce the Redemption Price, Purchase Price or Trigger
Event Purchase Price of any Security;
(5) make any Security payable in money or securities other
than as stated in the Security;
(6) make any change in Section 6.04 or this Section 9.02,
except to increase any percentage set forth therein;
(7) make any change that adversely affects the right to
convert any Security;
(8) make any change that adversely affects the right to
require the Company to purchase the Securities in accordance
with the terms thereof and this Indenture; or
(9) modify the provisions of this Indenture relating to the
subordination of the Securities in a manner adverse to the
Holders of the Securities;
(10) impair the right to institute suit for the enforcement of
any payment with respect to, or conversion of, the Securities.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment,
supplement or waiver but it shall be sufficient if such consent approves the
substance thereof.
After an amendment, supplement or waiver under this Section
9.02 becomes effective, the Company shall mail to each Holder a notice briefly
describing the amendment, supplement or waiver.
An amendment, supplement or waiver under this Section 9.02 or
Section 9.01 may not make any change that adversely affects the rights under
Article 10 of any holder of Senior Indebtedness then outstanding unless the
requisite holders of such Senior Indebtedness consent to such change pursuant to
the terms of such Senior Indebtedness.
SECTION 9.03 Compliance with Trust Indenture Act. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA.
51
SECTION 9.04 Revocation and Effect of Consents, Waivers and
Actions. Until an amendment, waiver or other action by Holders becomes
effective, a consent thereto by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice of revocation before the date the amendment, waiver
or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
SECTION 9.05 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors of the Company,
to any such supplemental indenture may be prepared and executed by the Company
and authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06 Trustee to Sign Supplemental Indentures. The
Trustee shall sign any supplemental indenture authorized pursuant to this
Article 9 if the amendment contained therein does not adversely affect the
rights, duties, liabilities or immunities of the Trustee. If it does, the
Trustee may, but need not, sign such supplemental indenture. In signing such
supplemental indenture the Trustee shall receive, and (subject to the provisions
of Section 7.01) shall be fully protected in relying upon, an Officers'
Certificate and an Opinion of Counsel stating that such amendment is authorized
or permitted by this Indenture.
SECTION 9.07 Effect of Supplemental Indentures. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01 Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security, by his
acceptance thereof, likewise covenants and agrees, that all Securities shall be
issued subject to the provisions of this Article 10 and to the extent and in the
manner hereinafter set forth in this Article 10, the indebtedness represented by
the Securities and the payment of the Principal Amount, Issue Price, Accrued
Original Issue Discount, Redemption Price, cash in respect of Purchase Price,
Trigger Event Purchase Price, contingent interest, if any, and interest, if any,
in respect of each and all of the Securities are hereby expressly made
subordinate and junior and subject in right of payment to the prior payment in
full of all Senior Indebtedness whether outstanding on the date hereof or
thereafter incurred.
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SECTION 10.2 Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of (a) any
insolvency or bankruptcy case or proceeding, or any receivership, liquidation,
reorganization or other similar case or proceeding in connection therewith,
relative to the Company or to its creditors, as such, or to its assets, or (b)
any liquidation, dissolution or other winding-up of the Company, whether
voluntary or involuntary and whether or not involving insolvency or bankruptcy,
or (c) any assignment for the benefit of creditors or any other marshalling of
assets and liabilities of the Company, then and in any such event the holders of
Senior Indebtedness shall be entitled to receive (1) payment in full of all
amounts due or to become due on or in respect of all Senior Indebtedness, or
provision shall be made for such payment in money or money's worth, before the
Holders of the Securities are entitled to receive any payment (other than
Permitted Junior Securities) on account of the Principal Amount, Issue Price,
Accrued Original Issue Discount, Redemption Price, cash in respect of the
Purchase Price, Trigger Event Purchase Price, contingent interest, if any, or
interest, if any, in respect of the Securities, and (2) any payment or
distribution of any kind or character, whether in cash, property or securities
(other than Permitted Junior Securities), which may be payable or deliverable in
respect of the Securities in any such case, proceeding, dissolution, liquidation
or other winding-up or event, including any such payment or distribution which
may be payable or deliverable by reason of the payment of any other indebtedness
of the Company being subordinated to the payment of the Securities, until, in
each case, such Senior Indebtedness is paid in full or payment thereof is duly
provided for. In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities (other than Permitted Junior
Securities), including any such payment or distribution which may be payable or
deliverable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities, before all Senior
Indebtedness is paid in full or payment thereof provided for, and if such fact
shall, at or prior to the time of such payment or distribution, have been made
known to the Trustee or, as the case may be, such Holder, then in such event
such payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, Custodian, assignee, agent
or other Person making payment or distribution of assets of the Company for
application to the payment of all Senior Indebtedness remaining unpaid, to the
extent necessary to pay all Senior Indebtedness in full, after giving effect to
any concurrent payment or distribution to or for the holders of Senior
Indebtedness. The consolidation of the Company with, or the merger of the
Company into, another person or the liquidation or dissolution of the Company
following the conveyance or transfer of its properties and assets substantially
as an entirety to another person upon the terms and conditions set forth in
Article 5 shall not be deemed a dissolution, winding-up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of assets
and liabilities of the Company for the purposes of this Section if the person
formed by such consolidation or into which the Company is merged or the person
which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall as part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article 5.
SECTION 10.3 Acceleration of Securities. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.02, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities until the earlier of (i) the passage of 120
53
or more days have passed after such acceleration occurs or (ii) the payment in
full of all Senior Indebtedness, and may thereafter pay the Securities if this
Article 10 permits the payment at that time. In the event that, notwithstanding
the foregoing, the Company shall make any payment to the Trustee or the Holder
of any Securities prohibited by the foregoing provisions of this Section 10.03,
and if such facts shall, at or prior to the time of such payment, have been made
known to the Trustee or, as the case may be, such Holder, then and in such event
such payment shall be paid over and delivered forthwith to the Company by or on
behalf of the person holding such payment for the benefit of the holders of
Senior Indebtedness. The provisions of this Section 10.03 shall not apply to any
payment with respect to which Section 10.02 would be applicable.
SECTION 10.4 Default on Senior Indebtedness. The Company may
not make any payment of the Principal Amount at Maturity, Issue Price, Accrued
Original Issue Discount, Redemption Price, Trigger Event Purchase Price,
contingent interest, if any, or interest, if any, in respect of the Securities
nor may the Company pay cash with respect to the Purchase Price or Trigger Event
Purchase Price or acquire any Securities for cash or property (except as
otherwise provided by Article 11 and other than for Common Stock of the Company)
if: (1) a payment default on any Senior Indebtedness has occurred and is
continuing beyond any applicable grace period with respect thereto; or (2) a
default (other than a default referred to in the preceding clause (1)) on any
Senior Indebtedness occurs and is continuing that permits holders of such Senior
Indebtedness to accelerate the maturity thereof and the default is the subject
of judicial proceedings or the Company receives a notice of default thereof from
any person who may give such notice pursuant to the instrument evidencing or
document governing such Senior Indebtedness. If the Company receives any such
notice, then a similar notice received within nine months thereafter relating to
the same default on the same issue of Senior Indebtedness shall not be effective
for purposes of this Section 10.04. The Company may resume payment on the
Securities and may acquire Securities if and when: (A) the default referred to
above is cured or waived; or (B) in the case of a default referred to in clause
(2) of the preceding paragraph, 179 or more days pass after the receipt by the
Company of the notice described in clause (2) above; and this Article 10
otherwise permits the payment or acquisition at that time. In the event that,
notwithstanding the foregoing, the Company shall make any payment to the Trustee
or the Holder of any Security prohibited by the foregoing provisions of this
Section, and if such fact shall then have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such payment shall (to the
extent permitted by law) be paid over and delivered forthwith to the Company by
or on behalf of the person holding such payment for the benefit of the holders
of the Senior Indebtedness. Nothing contained in this Article 10 or elsewhere in
this Indenture or in any of the Securities shall prevent the conversion by a
Holder of any Securities into Common Stock in accordance with the provisions for
conversion of such Securities set forth in this Indenture, including the payment
of cash in lieu of fractional shares of Common Stock in accordance with Article
11 in the event of an occurrence of the events described in this Section 10.04.
The provisions of this Section shall not apply to any payment with respect to
which Section 10.02 would be applicable.
SECTION 10.5 Payment Permitted If No Default. Nothing
contained in this Article or elsewhere in this Indenture or in any of the
Securities shall prevent (a) the Company, at any time except during the pendency
of any case, proceeding, dissolution, liquidation or other winding up,
assignment for the benefit of creditors or other marshalling of assets and
liabilities of the Company referred to in Section 10.02 or under the conditions
54
described in Section 10.03 or 10.04, from making payments at any time of
Principal Amount, Issue Price, Accrued Original Issue Discount, Redemption
Price, Purchase Price, Trigger Event Purchase Price, contingent interest, if
any, or interest, if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee of any money deposited with it hereunder to
the payment of or on account of the Principal Amount, Issue Price, Accrued
Original Issue Discount, Redemption Price, Purchase Price, Trigger Event
Purchase Price, contingent interest, if any, or interest, if any, as the case
may be, in respect of the Securities or the retention of such payment by the
Holders of the Securities, if, at the time of such application by the Trustee,
the Trustee did not have actual knowledge that such payment would have been
prohibited by the provisions of this Article.
SECTION 10.6 Subrogation to Rights of Holders of Senior
Indebtedness. Subject to payment in full of all Senior Indebtedness, the Holders
of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article (equally and ratably with the holders of all
indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Securities
are subordinated and is entitled to like rights of subrogation) to the rights of
the holders of such Senior Indebtedness to receive payments or distributions of
cash, property and securities applicable to the Senior Indebtedness until the
Principal Amount, Issue Price, Accrued Original Issue Discount, Redemption
Price, Purchase Price, Trigger Event Purchase Price, contingent interest, if
any, or interest, if any, as the case may be, in respect of the Securities shall
be paid in full. For purposes of such subrogation, no payments or distributions
to the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article, and no payments pursuant to the provisions of
this Article to the holders of Senior Indebtedness by Holders of the Securities
or the Trustee, shall, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, be deemed to be a payment
or distribution by the Company to or on account of the Senior Indebtedness.
SECTION 10.7 Provisions Solely to Define Relative Rights. The
provisions of this Article are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on the one hand,
and the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, its creditors other than holders of
Senior Indebtedness and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the Principal Amount, Issue Price, Accrued Original
Issue Discount, Redemption Price, Purchase Price, Trigger Event Purchase Price,
contingent interest, if any, or interest, if any, as the case may be, in respect
of the Securities as and when the same shall become due and payable in
accordance with the terms of the Securities and this Indenture; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than the holders of Senior Indebtedness; or (c)
prevent the Trustee or the Holder of any Security from exercising all remedies
otherwise permitted by applicable law upon default under this Indenture, subject
to the rights, if any, under
55
this Article of the holders of Senior Indebtedness to receive cash, property and
securities otherwise payable or deliverable to the Trustee or such Holder.
SECTION 10.8 Trustee to Effectuate Subordination. Each Holder
of a Security by his acceptance thereof authorizes and directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provided in this Article and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 10.9 No Waiver of Subordination Provisions. No right
of any present or future holder of any Senior Indebtedness to enforce the
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any non-compliance
by the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with. Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article or
the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any Person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 10.10 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts which would prohibit the making of any payment to or
by the Trustee in respect of the Securities, unless and until the Trustee shall
have received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee therefor; and, prior to the receipt of any such
written notice, the Trustee shall be entitled in all respects to assume that no
such facts exist; provided, however, that if a Responsible Officer of the
Trustee shall not have received, at least two Business Days prior to the date
upon which by the terms hereof any such money may become payable for any purpose
(including, without limitation, the payment of the Principal Amount at Maturity,
Issue Price, Accrued Original Issue Discount, Redemption Price, Purchase Price,
Trigger Event Purchase Price, contingent interest, if any, or interest if any,
as the case may be, in respect of any Security), the notice with respect to such
money provided for in this Section 10.10, then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purpose for which such money was
received and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date. The Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
person representing himself to be a holder of Senior Indebtedness (or a trustee
therefor) to
56
establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 10.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities shall
be entitled to conclusively rely upon any order or decree entered by any court
of competent jurisdiction in which such insolvency, bankruptcy, receivership,
liquidation, reorganization, dissolution, winding up or similar case or
proceeding is pending, or a certificate of the trustee in bankruptcy,
liquidating trustee, Custodian, receiver, assignee for the benefit of creditors,
agent or other Person making such payment or distribution, delivered to the
Trustee or to the Holders of Securities, for the purpose of ascertaining the
persons entitled to participate in such payment or distribution, the holders of
the Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 10.12 Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other person cash, property or securities to which
any holders of Senior Indebtedness shall be entitled by virtue of this Article
or otherwise. The Trustee shall not be charged with knowledge of the existence
of Senior Indebtedness or of any facts that would prohibit any payment hereunder
or that would permit the resumption of any such payment. With respect to the
holders of Senior Indebtedness, the Trustee undertakes to perform or to observe
only such of its covenants or obligations as are specifically set forth in this
Article 10 and no implied covenants or obligations with respect to holders of
Senior Indebtedness shall be read into this Indenture against the Trustee.
SECTION 10.13 Rights of Trustee as Holder of Senior
Indebtedness; Preservation of Trustee's Rights. The Trustee in its individual
capacity shall be entitled to all the rights set forth in this Article with
respect to any Senior Indebtedness which may at any time be held by it, to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall deprive the Trustee of any of its rights as such holder. Nothing
in this Article shall apply to claims of, or payments to, the Trustee under or
pursuant to Section 7.06.
SECTION 10.14 Article 10 Applicable to Paying Agents. In case
at any time any Paying Agent other than the Trustee shall have been appointed by
the Company and be then acting hereunder, the term "Trustee" as used in this
Article shall in such case (unless the context otherwise requires) be construed
as extending to and including such Paying Agent within its meaning as fully for
all intents and purposes as if such Paying Agent were named in this
57
Article in addition to or in place of the Trustee; provided, however, that
Sections 10.10 and 10.12 shall not apply to the Company or any Affiliate of the
Company if it or such Affiliate acts as Paying Agent.
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege. A Holder of a Security may
convert such Security into Common Stock until the close of business on the
second Business Day immediately preceding Stated Maturity, subject to the
provisions of this Article 11. The number of shares of Common Stock issuable
upon conversion of a Security per $1,000 of Principal Amount at Maturity thereof
(the "Conversion Rate") shall be determined in accordance with the provisions of
paragraph 10 in the Securities, subject to adjustment as set forth herein and
therein.
A Holder may convert a portion of the Principal Amount at
Maturity of a Security if the portion is $1,000 or any integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
"Average Sale Price" means the average of the Sale Prices of
the Common Stock for the shorter of:
(i) 30 consecutive trading days ending on the last full
trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of
which the Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights,
warrants or options or (b) the distribution, in each case, in
respect of which the Average Sale Price is being calculated
and (y) proceeding through the last full trading day prior to
the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such
period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next
preceding (a) issuance of rights, warrants or options or (b)
distribution, in each case, for which an adjustment is
required by the provisions of Section 11.06(4), 11.07 or 11.08
and (y) proceeding through the last full trading day prior to
the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such
period, if any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Sale Price" pursuant to
the definition in the preceding sentence, "Average Sale Price" shall be
calculated for such period in a
58
manner determined by the Board of Directors of the Company to reflect the impact
of such dividend, subdivision, combination or reclassification on the Sale Price
of the Common Stock during such period.
"Time of Determination" means the time and date of the earlier
of (i) the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Section 11.07 or 11.08 applies
and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other United States national or regional
exchange or market on which the Common Stock is then listed or quoted.
SECTION 11.02 Conversion Procedure. To convert a Security a
Holder must satisfy the requirements in paragraph 10 of the Securities. The date
on which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a certificate
(or other evidence of ownership) for the number of full shares of Common Stock
issuable upon the conversion and cash in lieu of any fractional share determined
pursuant to Section 11.03. The person in whose name the certificate is
registered shall be treated as a stockholder of record on and after the
Conversion Date; provided, however, that no surrender of a Security on any date
when the stock transfer books of the Company shall be closed shall be effective
to constitute the person or persons entitled to receive the shares of Common
Stock upon such conversion as the record holder or holders of such shares of
Common Stock on such date, but such surrender shall be effective to constitute
the person or persons entitled to receive such shares of Common Stock as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; and such
conversion shall be at the Conversion Rate in effect on the date that such
Security shall have been surrendered for conversion, as if the stock transfer
books of the Company had not been closed. Upon conversion of a Security, such
person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on, or
other distributions with respect to, any Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Tax Original
Issue Discount and Accrued Original Issue Discount attributable to the period
from the Issue Date of the Security through the Conversion Date and (except as
provided below) accrued contingent interest with respect to the converted
Security shall not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional shares) in
exchange for the Security being converted pursuant to the provisions hereof; and
the fair market value of such shares of Common Stock (together with any such
cash payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for Tax Original Issue Discount and Accrued
Original Issue Discount accrued through the Conversion Date and accrued
contingent interest, and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment) shall be treated as issued in exchange
for the Issue Price of the Security being converted pursuant to the provisions
hereof.
59
If the Holder converts more than one Security at the same
time, the number of shares of Common Stock issuable upon the conversion shall be
based on the total Principal Amount at Maturity of the Securities converted.
If the last day on which a Security may be converted is a
Legal Holiday, the Security may be surrendered on the next succeeding Business
Day that is not a Legal Holiday; provided, however, the Security shall be deemed
to have been converted and surrendered as of such last day, notwithstanding the
occurrence of a Legal Holiday on such day.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and deliver to the
Holder, a new Security in an authorized denomination equal in Principal Amount
at Maturity to the unconverted portion of the Security surrendered.
SECTION 11.03 Fractional Shares. The Company will not issue a
fractional share of Common Stock upon conversion of a Security. Instead, the
Company will deliver cash for the current market value of the fractional share.
The current market value of a fractional share shall be determined, to the
nearest 1/1,000th of a share, by multiplying the Sale Price of the Common Stock,
on the last trading day prior to the Conversion Date, of a full share by the
fractional amount and rounding the product to the nearest whole cent.
SECTION 11.04 Taxes on Conversion. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificates representing the Common
Stock being issued in a name other than the Holder's name until the Conversion
Agent receives a sum sufficient to pay any tax which will be due because the
shares are to be issued in a name other than the Holder's name. Nothing herein
shall preclude any tax withholding required by law or regulations by the
Company.
SECTION 11.05 Company to Provide Stock. The Company shall,
prior to issuance of any Securities under this Article 11, and from time to time
as may be necessary, reserve out of its authorized but unissued Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities.
All shares of Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all federal
and state securities laws regulating the offer and delivery of shares of Common
Stock upon conversion of Securities, if any, and will list or cause to have
quoted such shares of Common Stock on each national or regional securities
exchange or such other market on which the Common Stock is then listed or
quoted.
SECTION 11.06 Adjustment for Change In Capital Stock. If,
after the Issue Date of the Securities, the Company:
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(1) pays a dividend or makes a distribution on its Common
Stock in shares of its Common Stock;
(2) subdivides its outstanding shares of Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Common Stock into a
smaller number of shares;
(4) pays a dividend or makes a distribution on its Common
Stock in shares of its Capital Stock (other than Common Stock
or rights, warrants or options for its Capital Stock); or
(5) issues by reclassification of its Common Stock any shares
of its Capital Stock (other than rights, warrants or options
for its Capital Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the
record date in the case of a dividend or distribution and immediately after the
effective date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion
of such Security may receive shares of two or more classes of Capital Stock of
the Company, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class of Capital
Stock as is contemplated by this Article 11 with respect to the Common Stock, on
terms comparable to those applicable to Common Stock in this Article 11.
SECTION 11.07 Adjustment for Rights Issue.
If after the Issue Date of the Securities, the Company distributes any
rights, warrants or options to all holders of its Common Stock entitling them,
for a period expiring within 60 days after the record date for such
distribution, to purchase shares of Common Stock at a price per share less than
the Sale Price of the Common Stock as of the Time of Determination, the
Conversion Rate shall be adjusted in accordance with the formula:
R' = R x (O + N)
---------------------
(O + [(N x P)/M)]
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
61
O = the number of shares of Common Stock outstanding on the record
date for the distribution to which this Section 11.07 is being
applied.
N = the number of additional shares of Common Stock offered pursuant
to the distribution.
P = the purchase price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a distribution
to which Section 11.06(4) applies or (ii) a distribution to which
Section 11.08 applies, for which, in each case, (x) the record
date shall occur on or before the record date for the distribution
to which this Section 11.07 applies and (y) the Ex-Dividend Time
shall occur on or after the date of the Time of Determination for
the distribution to which this Section 11.07 applies, the fair
market value (on the record date for the distribution to which
this Section 11.07 applies) of:
(1) the Capital Stock of the Company distributed in respect of
each share of Common Stock in such Section 11.06(4)
distribution; and
(2) the assets of the Company or debt securities or any
rights, warrants or options to purchase securities of the
Company distributed in respect of each share of Common Stock
in such Section 11.08 distribution.
The Board of Directors shall determine fair market values for
the purposes of this Section 11.07.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
rights, warrants or options to which this Section 11.07 applies. If all of the
shares of Common Stock subject to such rights, warrants or options have not been
issued when such rights, warrants or options expire, then the Conversion Rate
shall promptly be readjusted to the Conversion Rate which would then be in
effect had the adjustment upon the issuance of such rights, warrants or options
been made on the basis of the actual number of shares of Common Stock issued
upon the exercise of such rights, warrants or options.
No adjustment shall be made under this Section 11.07 if the
application of the formula stated above in this Section 11.07 would result in a
value of R' that is equal to or less than the value of R.
SECTION 11.08 Adjustment for Other Distributions.
(a) Subject to 11.08(c), if, after the Issue Date of the
Securities, the Company distributes to all holders of its Common Stock any of
its assets (excluding distributions of Capital Stock) or debt securities or any
rights, warrants or options to purchase securities of the Company (including
securities or cash, but excluding (x) distributions of Capital Stock referred to
in Section 11.06 and distributions of rights, warrants or options referred to in
Section 11.07 and (y) cash dividends or other cash distributions that are paid
out of consolidated current net earnings or earnings retained in the business as
shown on the books of the Company unless such cash
62
dividends or other cash distributions are Extraordinary Cash Dividends) the
Conversion Rate shall be adjusted, subject to the provisions of Section
11.08(c), in accordance with the formula:
R' = R x M
---------
M - F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of a distribution to
which Section 11.06(4) applies, for which (i) the record date shall occur on or
before the record date for the distribution to which this Section 11.08 applies
and (ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 11.08 applies, the fair
market value (on the record date for the distribution to which this Section
11.08 applies) of any Capital Stock of the Company distributed in respect of
each share of Common Stock in such Section 11.06(4) distribution.
F = the fair market value (on the record date for the distribution to
which this Section 11.08 applies) of the assets, securities, rights, warrants or
options to be distributed in respect of each share of Common Stock in the
distribution to which this Section 11.08 is being applied (including, in the
case of cash dividends or other cash distributions giving rise to an adjustment,
all such cash distributed concurrently).
The Board of Directors shall determine fair market values for
the purposes of this Section 11.08.
The adjustment shall become effective immediately after the
record date for the determination of shareholders entitled to receive the
distribution to which this Section 11.08 applies.
For purposes of this Section 11.08, the term "Extraordinary
Cash Dividend" shall mean any cash dividend or distribution with respect to the
Common Stock the amount of which, together with the aggregate amount of cash
dividends on the Common Stock to be aggregated with such cash dividend in
accordance with the provisions of this paragraph, equals or exceeds the
threshold percentage set forth in item (i) below. For purposes of item (i)
below, the "Ex-Dividend Measurement Period" with respect to a cash dividend on
the Common Stock shall mean the 365 consecutive day period ending on the date
prior to the Ex-Dividend Time with respect to such cash dividend, and the
"Relevant Cash Dividends" with respect to a cash dividend on the Common Stock
shall mean the cash dividends on the Common Stock with Ex-Dividend Times
occurring in the Ex-Dividend Measurement Period.
(i) If, upon the date prior to the Ex-Dividend Time with
respect to a cash dividend on the Common Stock, the aggregate
amount of such cash dividend together with the amounts of all
Relevant Cash Dividends equals or exceeds on a per share basis
the sum of (a) 5% of the Sale Price of the Common Stock on the
63
last trading day preceding the date of declaration by the
Board of Directors of the cash dividend or distribution with
respect to which this provision is being applied, and (b) an
amount equal to the quotient of (x) any contingent interest
paid on a Security during the Ex-Dividend Measurement Period
divided by (y) the conversion rate in effect on the payment
date for such contingent interest, then such cash dividend
together with all Relevant Cash Dividends, shall be deemed to
be an Extraordinary Cash Dividend and for purposes of applying
the formula set forth above in this Section 11.08, the value
of "F" shall be equal to (y) the aggregate amount of such cash
dividend together with the amount of all Relevant Cash
Dividends, minus (z) the aggregate amount of all Relevant Cash
Dividends for which a prior adjustment in the Conversion Rate
was previously made under this Section 11.08.
In making the determinations required by item (i) above, the
amount of cash dividends paid on a per share basis and the
amount of any Relevant Cash Dividends specified in item (i)
above, shall be appropriately adjusted to reflect the
occurrence during such period of any event described in
Section 11.06.
(b) Subject to Section 11.08(c), if, after the Issue Date, the
Company pays a dividend or makes a distribution to all holders of its Common
Stock consisting of Capital Stock of any class or series, or similar equity
interests, of or relating to a Subsidiary or other business unit of the Company,
the Conversion Rate shall be adjusted in accordance with the formula:
R' = R x (1 + F/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the average of the Sale Prices of the Common Stock for the 10
trading days commencing on and including the fifth trading day after the date on
which "ex-dividend trading" commences for such dividend or distribution on The
New York Stock Exchange or such other national or regional exchange or market
which such securities are then listed or quoted (the "Ex-Dividend Date").
F = the fair market value of the securities distributed in respect of
each share of Common Stock for which this Section 11.08(b) applies.
(c) In the event that, with respect to any distribution to
which Section 11.08(a) would otherwise apply, the difference between "M-F" is
less than $1.00 or "F" is equal to or greater than "M", then the adjustment
provided by Section 11.08(a) shall not be made and in lieu thereof the
provisions of Section 11.14 shall apply to such distribution.
SECTION 11.09 When Adjustment May Be Deferred. No adjustment
in the Conversion Rate need be made unless the adjustment would require an
increase or decrease
64
of at least 1% in the Conversion Rate. Any adjustments that are not made shall
be carried forward and taken into account in any subsequent adjustment.
All calculations under this Article 11 shall be made to the
nearest cent or to the nearest 1/1,000th of a share, as the case may be.
SECTION 11.10 When No Adjustment Required. No adjustment need
be made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction, on a basis and with
notice that the Board of Directors determines to be fair and appropriate in
light of the basis and notice on which holders of Common Stock participate in
the transaction. Such participation by Securityholders may include participation
upon conversion provided that an adjustment shall be made at such time as the
Securityholders are no longer entitled to participate.
No adjustment need be made for rights to purchase Common Stock
pursuant to a Company plan for reinvestment of dividends or interest.
No adjustment need be made for a change in the par value or no
par value of the Common Stock.
To the extent the Securities become convertible pursuant to
this Article 11 into cash, no adjustment need be made thereafter as to the cash.
Interest will not accrue on the cash.
Notwithstanding any provision to the contrary in this
Indenture, no adjustment shall be made in the Conversion Rate to the extent, but
only to the extent, such adjustment results in the following quotient being less
than the par value of the Common Stock: (i) the Issue Price plus Accrued
Original Issue Discount as of the date such adjustment would otherwise be
effective divided by (ii) the Conversion Rate as so adjusted.
No adjustment will be made pursuant to this Section 11 which
would result, through the application of two or more provisions hereof, in the
duplication of any adjustment.
SECTION 11.11 Notice of Adjustment. Whenever the Conversion
Rate is adjusted, the Company shall promptly mail to Securityholders a notice of
the adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
SECTION 11.12 Voluntary Increase. The Company from time to
time may increase the Conversion Rate by any amount for any period of time.
Whenever the Conversion Rate is increased, the Company shall mail to
Securityholders and file with the Trustee and the Conversion Agent a notice of
the increase. The Company shall mail the notice at least 15 days before the date
the increased Conversion Rate takes effect. The notice shall state the increased
Conversion Rate and the period it will be in effect.
65
A voluntary increase of the Conversion Rate does not change or
adjust the Conversion Rate otherwise in effect for purposes of Section 11.06,
11.07 or 11.08.
SECTION 11.13 Notice of Certain Transactions. If:
(1) the Company takes any action that would require an
adjustment in the Conversion Rate pursuant to Section 11.06,
11.07 or 11.08 (unless no adjustment is to occur pursuant to
Section 11.10); or
(2) the Company takes any action that would require a
supplemental indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
SECTION 11.14 Reorganization of Company; Special
Distributions. If the Company is a party to a transaction subject to Section
5.01 (other than a sale of all or substantially all of the assets of the Company
in a transaction in which the holders of Common Stock immediately prior to such
transaction do not receive securities, cash, property or other assets of the
Company or any other person) or a merger or binding share exchange which
reclassifies or changes its outstanding Common Stock, the person obligated to
deliver securities, cash or other assets upon conversion of Securities shall
enter into a supplemental indenture. If the issuer of securities deliverable
upon conversion of Securities is an Affiliate of the successor Company, that
issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a
Security may convert it into the kind and amount of securities, cash or other
assets which such Holder would have received immediately after the
consolidation, merger, binding share exchange or transfer if such Holder had
converted the Security immediately before the effective date of the transaction,
assuming (to the extent applicable) that such Holder (i) was not a constituent
person or an Affiliate of a constituent person to such transaction; (ii) made no
election with respect thereto; and (iii) was treated similarly to the plurality
of non-electing Holders. The supplemental indenture shall provide for
adjustments which shall be as nearly equivalent as may be practical to the
adjustments provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07
applies.
If the Company makes a distribution to all holders of its
Common Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
Section 11.08(c), would otherwise result in an adjustment in the Conversion Rate
pursuant to the provisions of Section 11.08, then, from and
66
after the record date for determining the holders of Common Stock entitled to
receive the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common Stock into which the
Security is convertible, the kind and amount of securities, cash or other assets
comprising the distribution that such Holder would have received if such Holder
had converted the Security immediately prior to the record date for determining
the holders of Common Stock entitled to receive the distribution.
SECTION 11.15 Company Determination Final. Any determination
that the Company or the Board of Directors makes pursuant to Sections 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16 Trustee's Adjustment Disclaimer. The Trustee has
no duty to determine when an adjustment under this Article 11 should be made,
how it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent shall have the same protection under this
Section 11.16 as the Trustee.
SECTION 11.17 Simultaneous Adjustments. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06(4), 11.07 or 11.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 11.06,
second, the provisions of Section 11.08 and, third, the provisions of Section
11.07.
SECTION 11.18 Successive Adjustments. After an adjustment to
the Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19 Rights Issued in Respect of Common Stock Issued
Upon Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of common stock or preferred stock purchase rights, as the case may be (the
"Rights"), if any, and the certificates representing the Common Stock issued
upon such conversion shall bear such legends, if any, in each case as may be
provided by the terms of any shareholder rights agreement adopted by the
Company, as the same may be amended from time to time (in each case, a "Rights
Agreement"). Provided that such Rights Agreement requires that each share of
Common Stock issued upon conversion of Securities at any time prior to the
distribution of separate certificates representing the Rights be entitled to
receive such Rights, then, notwithstanding anything else to the contrary in this
Article 11, there shall not be any adjustment to the conversion privilege or
Conversion Rate as a result of the issuance of Rights, the distribution of
separate certificates representing the Rights, the exercise or redemption of
such Rights in accordance with any such Rights Agreement, or the termination or
invalidation of such Rights.
67
ARTICLE 12
PAYMENT OF INTEREST
SECTION 12.01 Interest Payments. If applicable, contingent
interest on any Security that is payable, and is punctually paid or duly
provided for, on any applicable payment date shall be paid in the manner
described in paragraph 5 of the Securities at the office or agency of the
Company maintained for such purpose. Each installment of contingent interest on
any Security shall be paid in same-day funds by transfer to an account
maintained by the payee located inside the United States. In the case of a
permanent Global Security, contingent interest payable on any applicable payment
date will be paid to the Depositary, with respect to that portion of such
permanent Global Security held for its account by Cede & Co. for the purpose of
permitting such party to credit the interest received by it in respect of such
permanent Global Security to the accounts of the beneficial owners thereof.
SECTION 12.02 Defaulted Interest. Except as otherwise
specified with respect to the Securities, any contingent interest on any
Security that is payable, but is not punctually paid or duly provided for,
within 30 days following any applicable payment date (herein called "Defaulted
Interest", which term shall include any accrued and unpaid interest that has
accrued on such defaulted amount in accordance with paragraph 1 of the
Securities), shall forthwith cease to be payable to the registered Holder
thereof on the relevant date described in paragraph 5 of the Securities by
virtue of having been such Holder, and such Defaulted Interest may be paid by
the Company at its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest to the persons in whose names the Securities are
registered at the close of business on a special record date
for the payment of such Defaulted Interest, which shall be
fixed in the following manner: the Company shall notify the
Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the
proposed payment (which shall not be less than 20 days after
such notice is received by the Trustee), and at the same time
the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect
of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to
the date of the proposed payment, such money when deposited to
be held in trust for the benefit of the persons entitled to
such Defaulted Interest as in this clause provided. Thereupon
the Trustee shall fix a special record date (the "Special
Record Date") for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior
to the date of the proposed payment and not less than 10 days
after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such
Special Record Date and, in the name and at the expense of the
Company , shall cause notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of
Securities at his address as it appears on the list of
Securityholders maintained pursuant to Section 2.05 not less
than 10 days prior to such Special Record Date; notice of the
proposed payment of such Defaulted Interest and the Special
Record Date therefor having been mailed as aforesaid, such
Defaulted Interest shall be paid to the persons in whose
68
names the Securities are registered at the close of business
on such Special Record Date and shall no longer be payable
pursuant to the following clause (2).
(2) The Company may make payment of any Defaulted Interest on
the Securities in any other lawful manner not inconsistent
with the requirements of any securities exchange on which such
Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to
this clause, such manner of payment shall be deemed
practicable by the Trustee.
SECTION 12.03 Interest Rights Preserved. Subject to the
foregoing provisions of this Article 12 and Section 2.06, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to contingent
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
ARTICLE 13
MISCELLANEOUS
SECTION 13.01 Trust Indenture Act Controls. If any provision
of this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 13.02 Notices. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or by overnight courier or mailed by first-class mail, postage prepaid,
addressed as follows or transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile numbers:
if to the Company:
Vishay Intertechnology, Inc.
00 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Telephone No.: (000) 000-0000
Facsimile No. 000-000-0000
Attention: Chief Financial Officer
with a copy to:
Xxxxxx Xxxxx Xxxxxxxx & Xxxxxxx, LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Facsimile: (000) 000-0000
Attention: Xxxxx Xxxxxxxxx, Esq.
69
if to the Trustee:
The Bank of New York
000 Xxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No. (000) 000-0000
Facsimile No. (000) 000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder
or any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the
Securityholders, it shall mail a copy to the Trustee and each Registrar, Paying
Agent, Conversion Agent or co-registrar.
SECTION 13.03 Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 13.04 Certificate and Opinion as to Conditions
Precedent. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate of the Company stating that, in
the opinion of the signers, all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been
complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 13.05 Statements Required in Certificate or Opinion.
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include, without
limitation:
70
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or
condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or
opinions contained in such Officers' Certificate or Opinion of
Counsel are based;
(3) a statement that, in the opinion of each such person, he
has made such examination or investigation as is necessary to
enable such person to express an informed opinion as to
whether such covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
SECTION 13.06 Severability Clause. In case any provision in
this Indenture or in the Securities 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 13.07 Rules by Trustee, Paying Agent, Conversion Agent
and Registrar. The Trustee may make reasonable rules for action by or a meeting
of Securityholders. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 13.08 Calculations. The calculation of the Purchase
Price, Trigger Event Purchase Price, Conversion Rate, Market Price, Sale Price
of the Common Stock and each other calculation to be made hereunder (other than
the LYON Market Price) shall be the obligation of the Company. All calculations
made by the Company as contemplated pursuant to this Section 13.08 shall be
final and binding on the Company and the Holders absent manifest error. The
Trustee, Paying Agent, Conversion Agent and Bid Solicitation Agent shall not be
obligated to recalculate, recompute or confirm any such calculations.
SECTION 13.09 Legal Holidays. A "Legal Holiday" is any day
other than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding day
that is not a Legal Holiday, and, if the action to be taken on such date is a
payment in respect of the Securities, no Original Issue Discount or interest, if
any, shall accrue for the intervening period.
SECTION 13.10 GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD TO CONFLICTS OF
LAWS PROVISIONS THEREOF.
SECTION 13.11 No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
71
SECTION 13.12 Successors. All agreements of the Company in
this Indenture and the Securities shall bind its successors. All agreements of
the Trustee in this Indenture shall bind its successor.
SECTION 13.13 Multiple Originals. The parties may sign any
number of copies of this Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement. One signed copy is enough to
prove this Indenture.
SECTION 13.14 Tax Matters.
(a) Tax Treatment. The parties hereto hereby agree, and each
Holder by its purchase of a Security hereby agrees:
(1) to treat the Securities as indebtedness of the Company for
all tax purposes;
(2) to treat the Securities as indebtedness that are subject
to the special regulations governing contingent payment debt
instruments that are contained in U.S. Treasury Regulation
section 1.1275-4; and
(3) to treat any payment to and receipt by a Holder of Common
Stock upon conversion of a Security, or upon a redemption of a
Security by the Company where the Company elects to pay in
Common Stock (other than that portion of the value of the
Common Stock that constitutes a repayment of principal), as a
contingent payment under Treasury Regulation section
1.1275-4(b) that will result in an adjustment under Treasury
Regulation section 1.1275-4(b)(3)(iv) and Treasury Regulation
section 1.1275-4(b)(6).
(b) Comparable Yield and Projected Payment Schedule. Solely
for purposes of applying Treasury Regulation section 1.1275-4 to the Securities:
(1) for United States Federal income tax purposes, the Company
shall accrue interest with respect to outstanding Securities
as original issue discount according to the "noncontingent
bond method," as set forth in Treasury Regulation Section
1.1275-4(b);
(2) the Company has determined that the comparable yield, as
defined in Treasury Regulation section 1.1275-4(b)(4)(i), for
the Securities is 9.28%, compounded semiannually;
(3) the Company has determined that the projected payment
schedule, as defined in Treasury Regulation section
1.1275-4(b)(4)(iii), for the Securities consists of the
projected payment schedule referred to in (5) below;
(4) the Company acknowledges and agrees, and each Holder and
any beneficial holder of a Security, by its purchase of a
Security shall be deemed to acknowledge and agree, that (i)
the comparable yield and the projected payment schedule are
determined on the basis of an assumption of linear growth of
stock price and a constant dividend yield, (ii) the comparable
yield and the projected
72
payment schedule are not determined for any purpose other than
for the purpose of applying Treasury Regulation section
1.1275-4(b)(4) to the Securities and (iii) the comparable
yield and the projected payment schedule do not constitute a
projection or representation regarding the actual amounts
payable on the Securities; and
(5) the projected payment schedule, as defined in Treasury
Regulation section 1.1275-4(b)(4)(ii) for the Securities is
set forth in Annex 1 hereto.
73
IN WITNESS WHEREOF, the undersigned, being duly authorized,
have executed this Indenture on behalf of the respective parties hereto as of
the date first above written.
VISHAY INTERTECHNOLOGY, INC.
By:
-------------------------------
Name:
Title:
THE BANK OF NEW YORK
By:
-------------------------------
Name:
Title:
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE DISCOUNT
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS JUNE 4, 2001,
AND THE YIELD TO MATURITY FOR PURPOSES OF ACCRUING ORIGINAL ISSUE DISCOUNT IS 3%
PER ANNUM.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION
OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE OFFERED, REOFFERED,
SOLD, ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL, OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF, THE ISSUANCE OF THE SECURITIES UPON THE EXERCISE OF
THE OVER-ALLOTMENT OPTION GRANTED TO THE INITIAL PURCHASER IN CONNECTION WITH
THE ORIGINAL SALE OF THE SECURITIES AND THE LAST DATE ON WHICH VISHAY
INTERTECHNOLOGY, INC.
A-1
(THE "COMPANY" OR THE "ISSUER") OR ANY AFFILIATE OF THE COMPANY WAS THE OWNER OF
THIS SECURITY (OR ANY PREDECESSOR OF SUCH SECURITY) ONLY (A) TO THE COMPANY OR
ANY SUBSIDIARY THEREOF, (B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A, TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE COMPANY'S AND THE TRUSTEE'S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER
PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL,
CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF THE HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-2
VISHAY INTERTECHNOLOGY, INC.
Liquid Yield Option(TM) Note due 2021
(Zero Coupon-Subordinated)
No. R- CUSIP: 928298 AC2
Issue Date: June 4, 2001 Original Issue Discount: $448.74
Issue Price: $551.26 (for each $1,000 Principal
(for each $1,000 Principal Amount at Maturity)
Amount at Maturity)
VISHAY INTERTECHNOLOGY, INC., a Delaware corporation, promises to pay
to Cede & Co. or registered assigns, the Principal Amount at Maturity of
________________ DOLLARS ($____________) on June 4, 2021.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: June 4, 2001 VISHAY INTERTECHNOLOGY,
INC.
By:
------------------------------
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THE BANK OF NEW YORK, as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture.
By: ____________________________
Authorized Signatory
Dated: ________________________
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[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option(TM) Note due 2021
(Zero Coupon-Subordinated)
1. Interest.
This Security shall not bear interest, except as specified in
this paragraph or in paragraphs 5 and 12 hereof. If the Principal Amount at
Maturity hereof or any portion of such Principal Amount at Maturity is not paid
when due (whether upon acceleration pursuant to Section 6.02 of the Indenture,
upon the date set for payment of the Redemption Price pursuant to paragraph 6
hereof, upon the date set for payment of the Purchase Price or Trigger Event
Purchase Price pursuant to paragraph 7 hereof or upon the Stated Maturity of
this Security) or if interest (including contingent interest, if any) due hereon
or any portion of such interest is not paid when due in accordance with
paragraph 5 or 12 hereof, then in each such case the overdue amount shall, to
the extent permitted by law, bear interest at the rate of 3% per annum,
compounded semi-annually, which interest shall accrue from the date such overdue
amount was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand. The accrual of such interest on overdue amounts shall be in lieu of,
and not in addition to, the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue
Price and the Principal Amount at Maturity of the Security), in the period
during which a Security remains outstanding, shall accrue at 3% per annum, on a
semi-annual bond equivalent basis using a 360-day year composed of twelve 30-day
months, from the Issue Date of this Security.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of Redemption Prices, Purchase Prices, Trigger Event
Purchase Prices and at Stated Maturity to Holders who surrender Securities to a
Paying Agent to collect such payments in respect of the Securities. The Company
will pay cash amounts in money of the United States that at the time of payment
is legal tender for payment of public and private debts. However, the Company
may make such cash payments by check payable in such money.
3. Paying Agent, Conversion Agent, Registrar and Bid Solicitation Agent.
Initially, The Bank of New York, a New York banking corporation (the
"Trustee"), will act as Paying Agent, Conversion Agent, Registrar and Bid
Solicitation Agent. The Company may appoint and change any Paying Agent,
Conversion Agent, Registrar or co-registrar or Bid Solicitation Agent without
notice, other than notice to the Trustee except that the Company will maintain
at least one Paying Agent in the State of New York, City of New York, Borough of
Manhattan, which shall initially be an office or agency of the Trustee. The
Company or any of its Subsidiaries or any of its Affiliates may act as Paying
Agent, Conversion Agent, Registrar or co-registrar. None of the Company, any of
its Subsidiaries or any of its Affiliates shall act as Bid Solicitation Agent.
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4. Indenture.
The Company issued the Securities under an Indenture, dated as of June
4, 2001 (the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Securities themselves and the Trust Indenture Act
of 1939, as in effect from time to time (the "TIA"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders are
referred to the Indenture and the TIA for a statement of those terms.
The Securities are unsecured obligations of the Company limited to
$641,000,000 aggregate Principal Amount at Maturity (subject to Section 2.07 of
the Indenture) and are subordinated in right of payment to all the Company's
existing and future Senior Indebtedness. The Indenture does not limit other
indebtedness of the Company, secured or unsecured, including Senior
Indebtedness.
5. Contingent Interest.
Subject to the accrual and record date provisions specified in this
paragraph 5, the Company shall pay contingent interest to the Holders during any
six-month period (a "Contingent Interest Period") from June 4 to December 3 and
from December 4 to June 3, with the initial six-month period commencing June 4,
2006, if the average LYON Market Price for the Five-Day Period with respect to
such Contingent Interest Period equals 120% or more of the sum of the Issue
Price and Accrued Original Issue Discount of a Security to the trading day
immediately preceding the first day of the relevant Contingent Interest Period.
The amount of contingent interest payable per $1,000 Principal Amount
at Maturity hereof in respect of any Contingent Interest Period shall equal the
sum of any contingent interest payable in the first and second three-month
periods during such Contingent Interest Period. During any such three-month
period, the amount of any contingent interest payable shall be equal to the
greater of (x) 0.625% of the average LYON Market Price for the Five-Day Period
with respect to such Contingent Interest Period and (y) the sum of any Regular
Cash Dividends paid by the Company per share of Common Stock during such
three-month period multiplied by the number of shares of Common Stock into which
$1,000 Principal Amount at Maturity hereof is convertible pursuant to paragraph
9 hereof as of the accrual date for such contingent interest.
Contingent interest, if any, will accrue and be payable to Holders as
of the 15th day (whether or not a Business Day) preceding the last day of the
relevant Contingent Interest Period or, if any Regular Cash Dividends are paid
by the Company during a Contingent Interest Period, to Holders as of the record
date for the related Regular Cash Dividend. Such payments shall be paid on the
last day of the relevant Contingent Interest Period or, if Regular Cash
Dividends are paid by the Company during a Contingent Interest Period, on the
payment date of the related Regular Cash Dividend. Original Issue Discount will
continue to accrue at 3% per annum whether or not contingent interest is paid.
"Five-Day Period" means, with respect to any Contingent Interest
Period, the five trading days ending on the second trading day immediately
preceding the first day of such Contingent
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Interest Period; provided, however, if the Company shall have declared a Regular
Cash Dividend on its Common Stock that is payable during such Contingent
Interest Period but for which the record date for determining stockholders
entitled thereto precedes the first day of such Contingent Interest Period, then
"Five-Day Period" shall mean, with respect to such Contingent Interest Period,
the five trading days ending on the third trading day immediately preceding such
record date.
"Regular Cash Dividends" means quarterly or other periodic cash
dividends on the Company's Common Stock as declared by the Company's Board of
Directors as part of its cash dividend payment practices and that are not
designated by them as extraordinary or special or other nonrecurring dividends.
"LYON Market Price" means, as of any date of determination, the average
of the secondary market bid quotations per $1,000 Principal Amount at Maturity
obtained by the Bid Solicitation Agent for $10 million Principal Amount at
Maturity of Securities at approximately 4:00 p.m., New York City time, on such
determination date from three recognized securities dealers in The City of New
York (none of which shall be an Affiliate of the Company) selected by the
Company; provided, however, if (a) at least three such bids are not obtained by
the Bid Solicitation Agent or (b) in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Securities as
of such determination date, then the LYON Market Price for such determination
date shall equal the product of (i) the Conversion Rate in effect as of such
determination date multiplied by (ii) the average Sale Price of the Common Stock
for the five trading days ending on such determination date, appropriately
adjusted to take into account the occurrence, during the period commencing on
the first of such trading days during such five trading day period and ending on
such determination date, of any event described in Section 11.06, 11.07 or 11.08
(subject to the conditions set forth in Sections 11.09 and 11.10) of the
Indenture.
Upon determination that Holders will be entitled to receive contingent
interest which may become payable during a Contingent Interest Period, on or
prior to the first day of such Contingent Interest Period, the Company shall
issue a press release and publish such information on its web site or by other
appropriate means.
6. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided that the
Securities are not redeemable prior to June 4, 2006.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount at Maturity on the dates shown below and at Stated Maturity,
which prices reflect the Issue Price plus Accrued Original Issue Discount
calculated to each such date. The Redemption Price of a Security redeemed
between such dates shall include an additional amount reflecting the additional
Accrued Original Issue Discount accrued since the preceding date in the table.
A-6
(1) (2) (3)
LYON Accrued Original Redemption Price
Redemption Date Issue Price Issue Discount (1) + (2)
----------- ---------------- ----------------
June 4:
2006..................................... $551.26 $88.50 $639.70
2007..................................... 551.26 107.84 659.10
2008..................................... 551.26 127.76 679.02
2009..................................... 551.26 148.28 699.54
2010..................................... 551.26 169.43 720.69
2011..................................... 551.26 191.21 742.47
2012..................................... 551.26 213.65 764.91
2013..................................... 551.26 236.77 788.03
2014..................................... 551.26 260.59 811.85
2015..................................... 551.26 285.13 836.39
2016..................................... 551.26 310.41 861.67
2017..................................... 551.26 336.45 887.71
2018..................................... 551.26 363.28 914.54
2019..................................... 551.26 390.92 942.18
2020..................................... 551.26 419.40 970.66
At Stated Maturity....................... 551.26 448.74 1,000.00
In addition to the Redemption Price payable with respect to all
Securities or portions thereof to be redeemed as of a Redemption Date, the
Holders of such Securities (or portions thereof) shall be entitled to receive
accrued and unpaid contingent interest, if any, with respect thereto, which
contingent interest shall be paid in cash on the Redemption Date.
7. Purchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
Prices per $1,000 Principal Amount at Maturity, upon delivery of a Purchase
Notice containing the information set forth in the Indenture, at any time from
the opening of business on the date that is at least 20 Business Days prior to
such Purchase Date until the close of business on the Business Day immediately
preceding such Purchase Date and upon delivery of the Securities to the Paying
Agent by the Holder as set forth in the Indenture.
Purchase Date Purchase Price
------------- --------------
June 4, 2004 $602.77
June 4, 2006 $639.76
June 4, 2011 $742.47
June 4, 2016 $861.67
A-7
The Purchase Price (equal to the Issue Price plus Accrued Original
Issue Discount to the Purchase Date) may be paid, at the option of the Company,
in cash or by the issuance and delivery of shares of Common Stock of the
Company, or in any combination thereof.
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to purchase all or a portion
of the Securities in integral multiples of $1,000 Principal Amount at Maturity
held by such Holder no later than 35 Business Days after the occurrence of a
Trigger Event of the Company occurring on or prior to June 4, 2006 for a Trigger
Event Purchase Price for each $1,000 Principal Amount at Maturity for such
Securities equal to the Issue Price plus Accrued Original Issue Discount to the
Trigger Event Purchase Date, which Trigger Event Purchase Price shall be paid in
cash only.
In addition to the Purchase Price or Trigger Event Purchase Price, as
the case may be, payable with respect to all Securities or portions thereof to
be purchased as of the Purchase Date or the Trigger Event Purchase Date, as the
case may be, the Holders of such Securities (or portions thereof) shall be
entitled to receive accrued and unpaid contingent interest, if any, with respect
thereto, which contingent interest shall be paid in cash promptly following the
later of the Purchase Date or the Trigger Event Purchase Date, as the case may
be and the time of delivery of such Securities to the Paying Agent pursuant to
the Indenture.
Holders have the right to withdraw any Purchase Notice or Trigger Event
Purchase Notice, as the case may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay the Purchase Price or Trigger Event Purchase Price, as the case may be,
together with any accrued and unpaid contingent interest, with respect to all
Securities or portions thereof to be purchased as of the Purchase Date or the
Trigger Event Purchase Date, as the case may be, is deposited with the Paying
Agent on the Purchase Date or the Trigger Event Purchase Date, as the case may
be, Original Issue Discount and contingent interest, if any, shall cease to
accrue on such Securities (or portions thereof) immediately after such Purchase
Date or Trigger Event Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Trigger Event Purchase Price, as the case may be, and accrued and
unpaid contingent interest, if any, upon surrender of such Security).
8. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of, and accrued and unpaid contingent interest, if any, with respect to,
all Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, immediately
after such Redemption Date, Original Issue Discount and contingent interest, if
any, shall cease to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of Principal Amount at Maturity may be redeemed
in part but only in integral multiples of $1,000 of Principal Amount at
Maturity.
A-8
9. Subordination.
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination of such Security and authorizes the Trustee to give it effect and
appoints the Trustee as attorney-in fact for such purpose.
10. Conversion.
Subject to the provisions of this paragraph 10 and the Indenture, a
Holder may convert this Security into Common Stock at any time until the close
of business on the second Business Day immediately preceding Stated Maturity. If
this Security or any part hereof is subject to redemption by the Company in
accordance with paragraph 6 hereof, a Holder may convert this Security into
Common Stock at any time until the close of business on the second Business Day
immediately preceding the related Redemption Date.
A Security in respect of which a Holder has delivered a Purchase Notice
exercising the option of such Holder to require the Company to purchase such
Security may be converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.
The initial Conversion Rate is 17.6686 shares of Common Stock per
$1,000 Principal Amount at Maturity, subject to adjustment for certain events
described in the Indenture or this paragraph 10. The Company will deliver cash
or a check in lieu of any fractional share of Common Stock.
To convert a Security, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the
Security to the Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Company or the
Trustee and (4) pay any transfer or similar tax, if required.
A Holder may only convert a portion of a Security pursuant to the terms
of this paragraph 10 and in accordance with the Indenture if the Principal
Amount at Maturity of such portion is $1,000 or any integral multiple of $1,000.
No payment or adjustment will be made for dividends on the Common Stock except
as provided herein and in the Indenture. On conversion of a Security, that
portion of accrued Tax Original Issue Discount, Accrued Original Issue Discount
attributable to the period from the Issue Date through the Conversion Date and
(except as provided above) accrued contingent interest with respect to the
converted Security shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through the delivery of
the Common Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Security being converted pursuant to the terms
hereof; and the fair market value of such shares of Common Stock (together with
any such cash payment in lieu of fractional shares) shall be treated as issued,
to the extent thereof, first in exchange for Tax Original Issue Discount and
Original Issue Discount accrued through the Conversion Date and accrued
contingent interest, and the balance, if any, of such fair market
A-9
value of such Common Stock (and any such cash payment) shall be treated as
issued in exchange for the Issue Price of the Security being converted pursuant
to the provisions hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Common Stock payable in Common Stock or other Capital Stock; subdivisions,
combinations or certain reclassifications of Common Stock; distributions to all
holders of Common Stock of certain rights to purchase Common Stock for a period
expiring within 60 days at less than the Sale Price of the Common Stock at the
Time of Determination; and distributions to such holders of assets or debt
securities of the Company or certain rights to purchase securities of the
Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Securityholders may participate in the transaction or
in certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
certain distributions described in the Indenture, the right to convert a
Security into Common Stock may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
The Conversion Rate will not be adjusted for Accrued Original Issue
Discount or any contingent interest.
11. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the second Business Day prior to the Redemption
Date, may be deemed to be purchased from the Holders of such Securities at an
amount not less than the Redemption Price, by one or more investment bankers or
other purchasers who may agree with the Company to purchase such Securities from
the Holders, to convert them into Common Stock of the Company and to make
payment for such Securities to the Trustee in trust for such Holders.
12. Defaulted Interest.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date or accrual date,
as the case may be, by virtue of having been such Holder, and such Defaulted
Interest may be paid by the Company as provided in Section 12.02 of the
Indenture.
13. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Principal Amount at Maturity and integral multiples
of $1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Trigger Event
Purchase Notice has been given and not withdrawn (except, in
A-10
the case of a Security to be purchased in part, the portion of the Security not
to be purchased) or any Securities for a period of 15 days before the mailing of
a notice of redemption of Securities to be redeemed.
14. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
15. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for one year,
subject to applicable unclaimed property laws. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person.
16. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount at Maturity of the
Securities at the time outstanding and (ii) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate Principal Amount
at Maturity of the Securities at the time outstanding. Subject to certain
exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, omission, defect or inconsistency, or to
comply with Article 5 or Section 11.14 of the Indenture, to secure the Company's
obligations under this Security or to add to the Company's covenants for the
benefit of the Securityholders or to surrender any right or power conferred, or
to comply with any requirement of the SEC in connection with the qualification
of the Indenture under the TIA, or as necessary in connection with the
registration of the Securities under the Securities Act.
17. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in the
payment of contingent interest when the same becomes due and payable or of
interest which becomes due and payable upon exercise by the Company of its
option provided for in paragraph 12 hereof and Article 10 of the Indenture which
default in either case continues for 30 days; (ii) default in payment of the
Principal Amount at Maturity, Issue Price plus Accrued Original Issue Discount,
Redemption Price, Purchase Price or Trigger Event Purchase Price, as the case
may be, in respect of the Securities when the same becomes due and payable;
(iii) the Company fails either to deliver shares of Common Stock (or to pay cash
in lieu of fractional shares) in accordance with the terms of the Indenture when
such Common Stock (or cash in lieu of fractional shares) is required to be
delivered, upon conversion of a Security and such failure is not remedied for a
period of 10 days; (iv) failure by the Company to comply with any of its other
agreements in the Indenture or the Securities, subject to notice and lapse of
time; (v) (a) failure of the Company to make any payment by the end of any
applicable grace period after maturity of indebtedness in an amount
A-11
(taken together with amounts in (b) below) in excess of $10,000,000, or (b) the
acceleration of indebtedness in an amount (taken together with amounts in (a)
above) in excess of $10,000,000 because of a default with respect to such
indebtedness without such indebtedness having been discharged or such
acceleration having been cured, waived, rescinded or annulled, subject to notice
and lapse of time; provided, however, that if any such failure or acceleration
referred to in (a) or (b) above shall cease or be cured, waived, rescinded or
annulled, then the Event of Default by reason thereof shall be deemed not to be
continuing; and (v) certain events of bankruptcy or insolvency with respect to
the Company or any Material Subsidiary. If an Event of Default occurs and is
continuing, the Trustee, or the Holders of at least 25% in aggregate Principal
Amount at Maturity of the Securities at the time outstanding, may declare all
the Securities to be due and payable immediately. Certain events of bankruptcy
or insolvency are Events of Default which will result in the Securities becoming
due and payable immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
Principal Amount at Maturity of the Securities at the time outstanding may
direct the Trustee in its exercise of any trust or power. The Trustee may
withhold from Securityholders notice of any continuing Default (except a Default
in payment of amounts specified in clause (i) or (ii) above) if it determines
that withholding notice is in their interests.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under
the Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
with the same rights it would have if it were not Trustee.
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
A-12
22. GOVERNING LAW.
THE LAW OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY, WITHOUT REGARD TO CONFLICTS OF LAW PRINCIPLES THEREOF.
----------------------
A-13
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Vishay Intertechnology, Inc.
00 Xxxxxxx Xxxxxxx
Xxxxxxx, XX 00000-0000
Att: Investor Relations
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the To convert this Security into
form below: Common Stock of the Company, check
the box:
I or we assign and transfer this [ ]
Security to
To convert only part of this
------------------------------------ Security, state the Principal
Amount at Maturity to be converted
(Insert assignee's soc. sec. or tax ID (which must be $1,000 or an
no.) integral multiple of $1,000):
------------------------------------ $--------------------------
------------------------------------ If you want the stock certificate
made out in another person's name,
------------------------------------ fill in the form below:
(Print or type assignee's name, address
and zip code) -----------------------------------
and irrevocably appoint -----------------------------------
(Insert other person's soc. sec. or
_____________________ agent to transfer tax ID no.)
this Security on the books of the
Company. The agent may substitute -----------------------------------
another to act for him.
-----------------------------------
-----------------------------------
(Print or type other person's name,
address and zip code)
------------------------------------------------------------------------------
Date: _____________________ Your Signature:_________________________________
------------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Security)
Signature Guarantee: ______________________________________
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution" meeting the
requirements of the Registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Registrar in
addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
ANNEX A
Projected Payment Schedule*
Semi-annual Period Ending Projected Payment per LYON
December 4, 2001 *
June 4, 2002 *
December 4, 2002 *
June 4, 2003 *
December 4, 2003 *
June 4, 2004 *
December 4, 2004 *
June 4, 2005 *
December 4, 2005 *
June 4, 2006 *
December 4, 2006 *
June 4, 2007 *
December 4, 2007 *
June 4, 2008 1.0183
December 4, 2008 1.0708
June 4, 2009 1.1259
December 4, 2009 1.1839
June 4, 2010 1.2449
December 4, 2010 1.3090
June 4, 2011 1.3765
December 4, 2011 1.4474
June 4, 2012 1.5219
December 4, 2012 1.6003
June 4, 2013 1.6827
December 4, 2013 1.7694
June 4, 2014 1.8606
December 4, 2014 1.9564
June 4, 2015 2.0572
December 4, 2015 2.1631
June 4, 2016 2.2745
December 4, 2016 2.3917
June 4, 2017 2.5149
December 4, 2017 2.6444
June 4, 2018 2.7806
December 4, 2018 2.9239
June 4, 2019 3.0745
December 4, 2019 3.2328
June 4, 2020 3.3993
December 4, 2020 3.5744
June 4, 2021 3.7586
---------------------
* The comparable yield and the schedule of projected payments are
determined on the basis of an assumption of linear growth of the stock
price and a constant dividend yield and are not determined for any
purpose other than for the determination of interest accruals and
adjustments thereof in respect of the Securities for United States
federal income tax purposes. The comparable yield and the schedule of
projected payments do not constitute a projection or representation
regarding the amounts payable on Securities.
