Exhibit 4.6
EXECUTION COPY
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XXXXXX INTERNATIONAL INC.
and
BANK ONE TRUST COMPANY, N.A.,
as Trustee
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INDENTURE
Dated as of May 21, 2001
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1 1/4% Convertible Debentures Due June 1, 2021
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TABLE OF CONTENTS
ARTICLE 1 DEFINITIONS AND INCORPORATION BY REFERENCE
1.01. Definitions...........................................................................1
1.02. Incorporation by Reference of Trust Indenture Act.....................................7
1.03. Rules of Construction.................................................................7
ARTICLE 2 THE SECURITIES
2.01. Form and Dating.......................................................................8
2.02. Execution and Authentication..........................................................8
2.03. Registrar, Paying Agent and Conversion Agent, New York Presenting Agent...............9
2.04. Payment on Securities; Paying Agent to Hold Money in Trust............................9
2.05. Securityholder Lists.................................................................10
2.06. Transfer and Exchange................................................................10
2.07. Replacement Securities...............................................................11
2.08. Outstanding Securities...............................................................11
2.09. Treasury Securities..................................................................12
2.10. Temporary Securities.................................................................12
2.11. Cancellation.........................................................................12
2.12. Defaulted Interest...................................................................12
2.13. CUSIP Numbers........................................................................12
2.14. Additional Transfer and Exchange Requirements........................................12
ARTICLE 3 REDEMPTION
3.01. Notices to Trustee...................................................................17
3.02. Selection of Securities to Be Redeemed...............................................17
3.03. Notice of Redemption.................................................................17
3.04. Effect of Notice of Redemption.......................................................18
3.05. Deposit of Redemption Price..........................................................18
3.06. Securities Redeemed in Part..........................................................19
ARTICLE 4 REPURCHASES
4.01. Purchase of Securities at Option of the Holder.......................................19
4.02. Repurchase upon Change of Control....................................................22
4.03. Notices, Etc.........................................................................22
4.04. Exercising Change of Control Repurchase Right........................................22
ARTICLE 5 COVENANTS
5.01. Payment of Securities................................................................23
5.02. SEC Reports..........................................................................24
5.03. Compliance Certificate...............................................................24
5.04. Corporate Existence..................................................................24
5.05. Notice of Defaults...................................................................24
5.06. Further Instruments and Acts.........................................................24
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5.07. Resale of Certain Securities.........................................................24
5.08. Restriction on Secured Debt..........................................................25
5.09. Restriction on Sale and Leaseback Transactions.......................................27
5.10. Restriction on Transfer of Principal Facility to Unrestricted Subsidiaries...........27
ARTICLE 6 SUCCESSORS
6.01. When Company May Merge, Etc..........................................................28
ARTICLE 7 DEFAULTS AND REMEDIES
7.01. Events of Default....................................................................28
7.02. Acceleration.........................................................................29
7.03. Other Remedies.......................................................................30
7.04. Waiver of Past Defaults..............................................................30
7.05. Control by Majority..................................................................30
7.06. Limitation on Suits..................................................................30
7.07. Rights of Holders to Receive Payment.................................................31
7.08. Collection Suit by Trustee...........................................................31
7.09. Trustee May File Proofs of Claim.....................................................31
7.10. Priorities...........................................................................31
7.11. Undertaking for Costs................................................................31
ARTICLE 8 TRUSTEE
8.01. Duties of Trustee....................................................................32
8.02. Rights of Trustee....................................................................33
8.03. Individual Rights of Trustee.........................................................33
8.04. Trustee's Disclaimer.................................................................33
8.05. Notice of Defaults...................................................................33
8.06. Reports by Trustee to Holders........................................................34
8.07. Compensation and Indemnity...........................................................34
8.08. Replacement of Trustee...............................................................34
8.09. Successor Trustee, Agents by Merger, Etc.............................................35
8.10. Eligibility; Disqualification........................................................35
8.11. Preferential Collection of Claims Against Company....................................35
ARTICLE 9 DISCHARGE OF INDENTURE
9.01. Termination of Company's Obligations.................................................36
9.02. Application of Trust Money...........................................................36
9.03. Repayment to Company.................................................................36
9.04. Indemnity for Government Obligations.................................................37
9.05. Reinstatement........................................................................37
ARTICLE 10 AMENDMENTS, SUPPLEMENTS AND WAIVERS
10.01. Without Consent of Holders..........................................................37
10.02. With Consent of Holders.............................................................37
10.03. Compliance with Trust Indenture Act.................................................38
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10.04. Revocation and Effect of Consents...................................................38
10.05. Notation on or Exchange of Securities...............................................38
10.06. Trustee to Sign Amendments, Etc.....................................................39
ARTICLE 11 CONVERSION
11.01. Conversion Privilege................................................................39
11.02. Conversion Procedure................................................................39
11.03. Fractional Shares...................................................................40
11.04. Taxes on Conversion.................................................................40
11.05. Company to Provide Stock............................................................40
11.06. Adjustment for Change in Capital Stock..............................................41
11.07. Adjustment for Rights Issue.........................................................41
11.08. Adjustment for Certain Distributions................................................42
11.09. Adjustment for All Cash Distribution................................................43
11.10. Adjustment for Tender or Exchange Offer.............................................43
11.11. Current Market Price................................................................44
11.12. When Adjustment May Be Deferred.....................................................44
11.13. When No Adjustment Required.........................................................45
11.14. Notice of Adjustment................................................................45
11.15. Voluntary Reduction.................................................................45
11.16. Notice of Certain Transactions......................................................45
11.17. Provisions in Case of Consolidation, Merger of the Company or
Transfer or Lease...................................................................46
11.18. Company Determination Final.........................................................46
11.19. Trustee's Disclaimer................................................................46
ARTICLE 12 MISCELLANEOUS
12.01. Trust Indenture Act Controls........................................................47
12.02. Notices.............................................................................47
12.03. Communications by Holders with Other Holders........................................47
12.04. Certificate and Opinion as to Conditions Precedent..................................47
12.05. Statements Required in Certificate or Opinion.......................................48
12.06. Rules by Trustee and Agents.........................................................48
12.07. Legal Holidays......................................................................48
12.08. Governing Law.......................................................................48
12.09. No Recourse Against Others..........................................................48
12.10. Successors..........................................................................48
12.11. Counterpart Originals...............................................................48
12.12. Severability........................................................................49
SIGNATURES
EXHIBIT A - FORM OF SECURITY
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Note: This Table of Contents shall not, for any purpose, be deemed to be a part
of the Indenture.
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INDENTURE dated as of May 21, 2001, between XXXXXX INTERNATIONAL INC.,
a Delaware corporation (the "Company"), and BANK ONE TRUST COMPANY, N.A., a
national banking association (the "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 1 1/4%
Convertible Debentures Due June 1, 2021 (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. Definitions.
"Affiliate" means any person, directly or indirectly, controlling or
controlled by or under direct or indirect common control with the Company. For
the purposes of this definition, "control" when used with respect to any
specified Person means the power to direct 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.
"Agent" means any Registrar, Paying Agent, Conversion Agent, New York
Presenting Agent or Co-Registrar.
"Agent Members" has the meaning specified in Section 2.01.
"Applicable Procedures" means, with respect to any transfer or
exchange of beneficial ownership interests in a Global Security, the rules and
procedures of the Depositary that are applicable to such transfer or exchange.
"Associate" has 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.
"Bankruptcy Law" has the meaning specified in Section 7.01.
"Beneficial Holder" means each participant in the Depositary who holds
an interest in a Security as indicated in the Participants List (provided that
the Trustee shall be under no duty to make any inquiry regarding the accuracy of
the Participants List).
"Board of Directors" or "Board" means the Board of Directors of the
Company or any duly authorized committee of the Board.
"Business Day" means any day that is not a Legal Holiday.
"Capital Stock" shall mean capital stock of the Company that does not
rank prior, as to the payment of dividends or as to the distribution of assets
upon any voluntary or involuntary liquidation, dissolution or winding up of the
Company, to shares of capital stock of any other class of the Company.
"Certificated Security" means a Security that is in substantially the
form attached hereto as Exhibit A and that does not include the information or
the schedule called for by the footnote thereof.
"Change of 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 TO (or any successor
schedule, form or report) pursuant to the Exchange Act, disclosing that any
person (for the purposes of this Section 3.9 only, as the term "person" is
used in Section 13(d)(3) or Section 14(d)(2) of the Exchange Act) 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 50% or more of the voting power of the Common Shares then
outstanding; provided 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 and (2) is not
also then reportable on Schedule 13D (or any successor schedule) under the
Exchange Act; or
(ii) There shall be consummated any share exchange, consolidation or
merger of the Company pursuant to which the Common Shares 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 the Common Shares 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.
Notwithstanding the foregoing, 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 Common Shares 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 Common Shares, whether in excess of
50% or otherwise.
"Change of Control Company Notice" has the meaning specified in
Section 4.03.
"Change of Control Purchase Date" has the meaning specified in Section
4.04.
"Change of Control Purchase Price" has the meaning specified in
Section 4.02.
"Common Stock" means the common stock, $1.00 par value, of the Company
as existing 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 such above, until a successor
replaces it pursuant to the applicable provisions hereof and thereafter means
the successor.
"Company Order" means a written request or order signed in the name of
the Company by any two Officers.
"Company Notice" has the meaning specified in Section 4.01(c).
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"Consolidated Net Tangible Assets" means the total amount of assets
which would be included on a consolidated balance sheet of the Company and its
Subsidiaries under generally accepted accounting principles (less applicable
reserves and other properly deductible items) after deducting therefrom: (a) all
short-term liabilities and liability items, except for indebtedness payable by
its terms more than one year from the date of incurrence thereof (or renewable
or extendible at the option of the obligor for a period ending more than one
year after such date of incurrence); and (b) all goodwill, trade names,
trademarks, patents, unamortized debt discount, unamortized expense incurred in
the issuance of debt, and other like intangibles (except prepaid royalties).
"Conversion Agent" has the meaning specified in Section 2.03.
"Corporate Trust Office" means the principal office of the Trustee at
1 Bank Xxx Xxxxx, Xxxxx XX0-0000, Xxxxxxx, Xxxxxxxx 00000-0000, or such other
office, designated by the Trustee by written notice to the Company and approved
by the Company, at which at any particular time its corporate trust business
shall be administered.
"Current Market Price" has the meaning specified in Section 11.11.
"Custodian" has the meaning specified in Section 7.01.
"Default" means any event which is, or after notice or passage of time
would be, an Event of Default.
"Depositary" has the meaning specified in Section 2.01(a).
"DTC" has the meaning specified in Section 2.01(a).
"Event of Default" has the meaning specified in Section 7.01.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Expiration Time" has the meaning specified in Section 11.10.
"Final Surrender Date" has the meaning specified in Section 4.04.
"Global Security" means a permanent Global Security that is in
substantially the form attached hereto as Exhibit A and that includes the
information and schedule called for by the footnote thereof and which is
deposited with the Depositary or its custodian and registered in the name of the
Depositary or its nominee.
"Holder" or "Securityholder" means the 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.
"Initial Purchaser Option" means the option granted by the Company to
the Initial Purchasers party to the Purchase Agreement to purchase up to
$200,000,000 aggregate principal amount of additional Securities pursuant to the
Purchase Agreement.
"Legal Holiday" has the meaning specified in Section 12.07.
"New York Presenting Agent" has the meaning specified in Section 2.03.
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"Officer" means the Chairman, the President, any Executive or Senior
Vice President, the Treasurer or the Clerk of the Company.
"Officers' Certificate" means a certificate signed by two Officers.
See Sections 13.04 and 13.05.
"Opinion of Counsel" means a written opinion from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of or counsel to the
Company.
"Participants List" means the position listings showing persons that
have a beneficial interest in the Securities evidenced by the Security in global
form held by the Depositary and the amount of such interest, but only to the
extent that a copy thereof is furnished by the Depositary to the Trustee.
"Paying Agent" has the meaning specified in Section 2.03.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision
thereof and, for purposes of Article 4, shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of the Exchange
Act as in effect on the date of the original execution of this Indenture.
"Principal Facility" means any manufacturing plant, warehouse, office
building or parcel of real property (including fixtures but excluding leases and
other contract rights which might otherwise be deemed real property) owned by
the Company or any Restricted Subsidiary, whether owned on the date hereof or
thereafter, provided each such plant, warehouse, office building or parcel of
real property has a gross book value (without deduction for any depreciation
reserves) in excess of 2% of Consolidated Net Tangible Assets other than any
such plant, warehouse, office building or parcel of real property or portion
thereof which, in the opinion of the Board of Directors (evidenced by a Board
Resolution) is not of material importance to the business conducted by the
Company and its Subsidiaries taken as a whole.
"Purchase Agreement" means the Purchase Agreement, dated May 16, 2001,
among the Company, Credit Suisse First Boston Corporation, Deutsche Banc Xxxx
Xxxxx Inc and Xxxxxxx Xxxxx Barney Inc.
"Purchase Notice" has the meaning specified in Section 4.01.
"Purchase Price" has the meaning specified in Section 4.01.
"Purchased Shares" has the meaning specified in Section 11.10.
"QIB" has the meaning specified in Section 2.01(a).
"Quoted Prices" of the Common Stock means the last sale price regular
way or, in case no such sale takes place on such day, the average of the closing
bid and asked prices regular way, in either case, at 4:00 p.m. (or such earlier
time as the last sale prior to 4:00 p.m.), New York City time, on the New York
Stock Exchange Composite Tape, or, if the Common Stock is not listed or admitted
to trading on such Exchange, on the national securities exchange in or nearest
the City of New York on which the Common Stock is listed or admitted to trading,
or if the Common Stock is not listed or admitted to trading on any national
securities exchange, the last sale price regular way or, in case no such sale
takes place on such day, the average of the highest reported bid and lowest
reported asked prices as furnished by the National Association of Securities
Dealers, Inc. through Nasdaq or a similar organization if Nasdaq is no
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longer reporting such information, or if on any such Trading Day the Common
Stock is not quoted by any such organization, the average of the highest
reported bid and lowest reported asked prices as available in any other
over-the-counter market, or if on such Trading Day the Common Stock is not
reported in any such market, the fair value of a share of Common Stock on such
day, as determined in good faith by, and evidenced by a resolution of, the Board
of Directors.
"Record Date," for purposes of Section 11.07, has the meaning set
forth in such Section and, for purposes of Section 11.08, has the meaning set
forth in such Section.
"Redemption Date" or "redemption date" shall mean 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 5 of the Securities.
"Registrar" has the meaning specified in Section 2.03.
"Registration Default" has the meaning specified in Section 5.09.
"Restricted Certificated Security" means a Certificated Security which
is a Transfer Restricted Security.
"Restricted Global Security" means a Global Security that is a
Transfer Restricted Security.
"Restricted Subsidiary" means any corporation in which the Company
owns voting securities entitling it to elect a majority of the directors and
which either is designated a Restricted Subsidiary in accordance with this
Indenture or (i) existed as such on the date of this Indenture or is the
successor to, or owns, any equity interest in, a corporation which so existed,
(ii) has its principal business and assets in the United States (including
Puerto Rico and other territories and possessions), (iii) such business is other
than the obtaining of financing in capital markets outside the United States or
the financing of the acquisition or disposition of real or personal property or
dealing in real property for residential or office building purposes, and (iv)
does not have assets substantially all of which consist of the securities of one
or more corporations which are not Restricted Subsidiaries.
"Rule 144" means Rule 144 under the Securities Act or any successor to
such Rule.
"Sale and Leaseback Transaction" means any sale or transfer made by
the Company or one or more Restricted Subsidiaries (except a sale or transfer
made to the Company or one or more Restricted Subsidiaries) of any Principal
Facility which (in the case of a Principal Facility which is a manufacturing
plant, warehouse or office building) has been in operation, use , or commercial
production (exclusive of test and start-up periods) by the Company or any
Restricted Subsidiary for more than 120 days prior to such sale or transfer or
which (in the case of a Principal Facility which is a part of real property
other than a manufacturing plant, warehouse or office building) has been owned
by the Company or any Restricted Subsidiary for more than 120 days prior to such
sale or transfer, if such sale or transfer is made with the intention of
leasing, or as part of an arrangement involving the lease, of such Principal
Facility to the Company or a Restricted Subsidiary, except (a) a lease for a
period of not exceeding 36 months, made with the intention that the use of the
leased Principal Facility by the Company or such Restricted Subsidiary will be
discontinued on or before the expiration of such period and (b) a lease that
secures or relates to obligations issued by the United States of America or any
state, territory or possession of the United States of America or any political
subdivision of any of the foregoing, or at the
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District of Columbia, in connection with the financing of the cost of
construction or acquisition of such Principal Facility or a part thereof. No
Security Interest described in subparagraphs (a) through (l) of Section 5.08
hereof shall be deemed to create or be defined to be a Sale and Leaseback
Transaction.
"SEC" means the Securities and Exchange Commission.
"Secured Debt" means any indebtedness for money borrowed by, or
evidenced by a note or other similar instrument of, the Company or a Restricted
Subsidiary, and any other indebtedness of the Company or a Restricted Subsidiary
on which by the terms of such indebtedness interest is paid or payable,
including obligations evidenced or secured by leases, installment sales
agreements or other instruments (other than indebtedness owned by a Restricted
Subsidiary to the Company, by a Restricted Subsidiary to another Restricted
Subsidiary or by the Company to a Restricted Subsidiary), which in any such case
is secured by (a) a Security Interest in any Principal Facility or portion
thereof or (b) a Security Interest in any shares of stock owned directly or
indirectly by the Company in a Restricted Subsidiary or in indebtedness for
money borrowed by a Restricted Subsidiary from the Company or another Restricted
Subsidiary. The securing in the foregoing manner of any debt which immediately
prior thereto was not Secured Debt shall be deemed to be the creation of Secured
Debt at the time such security is given. The amount of Secured Debt at any time
outstanding shall be the maximum aggregate amount then owing thereon by the
Company and its Restricted Subsidiaries.
"Securities" means the Securities described in the recitals above
which are issued, authenticated and delivered under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means Bank One Trust Company,N.A., as custodian
with respect to the Securities in global form, or any successor entity thereto.
"Security Interest" means any mortgage, pledge, lien, encumbrance or
other security interest which secures payment or performance of an obligation.
"Shelf Registration Statement" has the meaning specified in Section
5.09.
"Subsidiary" means a corporation, a majority of the voting stock of
which is owned, directly or indirectly, by the Company or by one or more
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Superior Indebtedness" means any obligation of the Company or any
Restricted Subsidiary which constituted funded debt as of the date of its
creation and which, in the case of such funded debt of the Company, is not
subordinate and junior in right of payment to the prior payment of the
Securities. As used herein "funded debt" shall mean any obligation payable by
its terms more than one year from the date of incurrence thereof (or renewable
or extendable at the option of the obligor for a period ending more than one
year after such date of incurrence), which under generally accepted accounting
principles should be shown on the consolidated balance sheet of the Company as a
liability.
"TIA" means the Trust Indenture Act of 1939, as amended by the Trust
Indenture Reform Act of 1990 and as in effect on the date of this Indenture,
except to the extent any amendment to the Trust Indenture Act expressly provides
for application of the Trust Indenture Act as in effect on another date.
"Transfer Certificate" has the meaning specified in Section 2.14(f).
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"Transfer Restricted Securities" has the meaning specified in Section
2.14(f).
"Trading Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday other than any day on which securities are not traded on the principal
exchange or market on which the securities in question are traded.
"Trust Officer" means any officer or assistant officer of the Trustee
assigned by the Trustee to administer its corporate trust matters.
"Trustee" means the party named as such above until a successor
replaces it pursuant to the applicable provisions hereof and thereafter means
the successor.
"Unrestricted Global Security" means a Global Security that is not a
Transfer Restricted Security.
"U.S. Government Obligations" has the meaning specified in Section
9.01.
"Voting Shares" has the meaning specified in Section 4.05(d).
SECTION 1.02. 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 or any other
obligor on the Securities.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by Commission rule
and not otherwise defined herein have the meanings assigned to them therein.
SECTION 1.03. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles;
(3) "or" is not exclusive;
(4) words in the singular include the plural, and words in the plural
include the singular; and
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(5) provisions apply to successive events and transactions.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the respective forms set
forth in Exhibit A, which Exhibit is incorporated in and made part of this
Indenture. The Securities may have notations, legends or endorsements required
by law, stock exchange rule or usage. Each Security shall be dated the date of
its authentication. The Securities are being offered and sold by the Company
pursuant to the Purchase Agreement in transactions exempt from, or not subject
to, the registration requirements of the Securities Act.
(a) Restricted Global Securities. Securities offered and sold to
qualified institutional buyers as defined in Rule 144A (collectively, "QIBs" or
individually, each a "QIB") in reliance on Rule 144A under the Securities Act
shall be issued initially in the form of one or more Restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, at its Corporate Trust Office,
as custodian for the depositary, The Depository Trust Company ("DTC") (such
depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and registered in the name of its nominee, Cede & Co., duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Securities Custodian as hereinafter provided, subject in each case to
compliance with the Applicable Procedures.
(b) 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 amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the amount of outstanding Securities represented thereby
shall be made by the Securities Custodian in accordance with the standing
instructions and procedures existing between the Depositary and the Securities
Custodian.
Members of, or participants in, the Depositary ("Agent Members") shall
have no rights under this Indenture with respect to any Global Security held on
their behalf by the Depositary or under any Global Security, and the Depositary
(including, for this purpose, its nominee) 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 (A) prevent the Company, 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 (B)
impair, as between the Depositary and its Agent Members, the operation of
customary practices governing the exercise of the rights of a Holder of any
Security.
(c) Certificated Securities. Certificated Securities shall be issued
only under the limited circumstances provided in Section 2.14(a)(1) hereof.
SECTION 2.02. Execution and Authentication. One Officer shall sign the
Securities on behalf of the Company by manual or facsimile signature. The
Company's seal may be reproduced on the Securities.
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If an Officer whose signature is on a Security no longer holds that
office at the time the Security is authenticated, the Security shall
nevertheless be valid.
A Security shall not be valid until authenticated by the manual
signature of the Trustee. The Trustee's signature shall be conclusive evidence
that the Security has been authenticated under this Indenture.
The Trustee shall authenticate and make available for delivery
Securities for original issue in an aggregate principal amount of $800,000,000
upon a Company Order without any further action by the Company; provided that in
the event that the Company sells any Securities pursuant to the Initial
Purchaser Option, then the Trustee shall authenticate and deliver Securities for
original issue in an aggregate principal amount of $800,000,000 plus up to an
additional $200,000,000 aggregate principal amount of the Securities sold
pursuant to the Initial Purchaser Option upon a Company Order without any
further action by the Company. The aggregate principal amount of the Securities
outstanding at any time may not exceed the amount set forth in the foregoing
sentence, subject to the proviso set forth therein, except as provided in
Section 2.07.
The Trustee may appoint an authenticating agent acceptable to the
Company to authenticate Securities. An authenticating agent may authenticate
Securities whenever the Trustee may do so, other than upon original issuance or
pursuant to Section 2.07. Each reference in this Indenture to authentication by
the Trustee includes authentication by such agent. An authenticating agent has
the same rights as an Agent to deal with the Company or an Affiliate.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
SECTION 2.03. Registrar, Paying Agent, Conversion Agent and New York
Presenting Agent. The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or exchange (the
"Registrar"), an office or agency where Securities may be presented for payment
(the "Paying Agent") and an office or agency where Securities may be presented
for conversion (the "Conversion Agent"). The Registrar shall keep a register of
the Securities and of their transfer and exchange. The Company may appoint one
or more Co-Registrars, one or more additional Paying Agents and one or more
additional Conversion Agents. The Company may act as Registrar, Paying Agent,
Conversion Agent or Co-Registrar. The term "Paying Agent" includes any
additional paying agent; the term "Conversion Agent" includes any additional
conversion agent. The Company shall notify the Trustee of the name and address
of any Agent not a party to this Indenture and shall give the Trustee at least
thirty days' notice prior to changing the Registrar, Paying Agent or Conversion
Agent. If the Company fails to maintain a Registrar, Paying Agent or Conversion
Agent, the Trustee shall act as such. The Company initially appoints the Trustee
as Paying Agent, Registrar and Conversion Agent.
If there is not at least one of each such Registrar or Co-Registrar,
Paying Agent and Conversion Agent located in the Borough of Manhattan, the City
of New York, the Company shall also maintain an office in the Borough of
Manhattan, the City of New York where the Securities may be presented for
purposes of transfer and exchange, payment and conversion (the "New York
Presenting Agent"). The Company initially appoints Bank One Trust Company, N.A.,
having an office at 00 Xxxx Xxxxxx, 0xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000, to
serve as New York Presenting Agent.
SECTION 2.04. Payment on Securities; Paying Agent to Hold Money in
Trust.
(a) Subject to the following provisions, no later than 11:00 a.m. on
the due date of principal of and premium, if any, and interest on the
Securities, the Company will pay to the Paying
9
Agent in immediately available funds the amounts, in money of the United States
that at the time of payment is legal tender for payment of public or private
debts, in the manner, at the times and for the purposes set forth herein and in
the text of the Securities, and the Company hereby authorizes and directs the
Paying Agent from funds so paid to it to make or cause to be made payment of the
principal of and premium, if any, and interest on the Securities set forth
herein and in the text of the Securities. The Paying Agent will make payment,
from the funds furnished by the Company, of the principal of and premium, if
any, and interest on the Securities by check drawn upon a bank in the city in
which the Paying Agent's principal office is located, or make payment by wire
transfer upon terms acceptable to the Paying Agent.
(b) Interest on a Security (other than defaulted interest) shall be
paid on each interest payment date to the Holder thereof at the close of
business on the relevant record date specified in the Securities. Principal of
and premium, if any, on Securities shall be payable only against presentation
and surrender thereof at the principal office of the Paying Agent, unless the
Company shall have otherwise instructed the Trustee in writing.
(c) The Company shall require each Paying Agent other than the Trustee
to agree in writing that the Paying Agent will hold in trust for the benefit of
Securityholders or the Trustee all money held by the Paying Agent for the
payment of principal of or premium, if any, or interest on the Securities, and
will notify the Trustee of any default by the Company in making any such
payment. While any such default continues, the Trustee may require a Paying
Agent to pay all money held by it to the Trustee. If the Company acts as Paying
Agent, it shall segregate the money held by it for the payment of principal of
and premium, if any, and interest on the Securities and hold it as a separate
trust fund. The Company shall provide ten days prior written notice to the
Trustee that it is to act as Paying Agent with respect to such payment and the
Trustee may rely on such notice. The Company at any time may require a Paying
Agent to pay all money held by the Paying Agent to the Trustee. Upon doing so
the Paying Agent shall have no further liability for the money so paid.
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 furnish to the Trustee not less than five days
prior to each interest payment date and at such other times as the Trustee may
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.
(a) Subject to compliance with any applicable additional requirements
contained in Section 2.14, when a Security is presented to a Registrar with a
request to register a transfer thereof or to exchange such Security for an equal
principal amount of Securities of other authorized denominations, the Registrar
shall register the transfer or make the exchange as requested; provided, that
every Security presented or surrendered for registration of transfer or exchange
shall be duly endorsed or accompanied by an assignment form and, if applicable,
a transfer certificate each in the form included in Exhibit A, and in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing. To permit registration of transfers and
exchanges, upon surrender of any Security for registration of transfer or
exchange at an office or agency maintained pursuant to Section 2.03, the Company
shall execute and the Trustee shall authenticate Securities of a like aggregate
principal amount at the Registrar's request. Any exchange or transfer shall be
without charge, except that the Company or the Registrar may require payment of
a sum sufficient to cover any tax or other governmental charge that may be
imposed in relation thereto, and provided, that this sentence shall not apply to
any exchange pursuant to Section 2.07, 2.10, 2.14(a)(1), 3.06, 4.01(g), 4.04(d),
10.05 or 11.02.
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Neither the Company, any Registrar nor the Trustee shall be required
to exchange or register a transfer of (a) any Securities for a period of 15 days
next preceding any mailing of a notice of Securities to be redeemed, (b) any
Securities or portions thereof selected or called for redemption (except, in the
case of redemption of a Security in part, the portion not to be redeemed) or (c)
any Securities or portions thereof in respect of which a Purchase Notice or
Change of Control Purchase Notice has been delivered and not withdrawn by the
Holder thereof (except, in the case of the purchase of a Security in part, the
portion not to be purchased).
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange.
(b) 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.
(c) Each Holder of a Security agrees to indemnify the Company and the
Trustee against any liability that may result from the transfer, exchange or
assignment of such Holder's Security in violation of any provision of this
Indenture and/or applicable United States federal or state securities law.
The Trustee 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 Agent Members or other
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.
SECTION 2.07. Replacement Securities. If the Holder of a Security
claims that the Security has been lost, destroyed or wrongfully taken, or if a
mutilated Security is surrendered to the Trustee, the Company shall issue and
the Trustee shall authenticate a replacement Security if the Trustee's
requirements are met. If an indemnity bond is required by the Trustee or the
Company, such bond must be sufficient, in the judgment of both the Trustee and
the Company, to protect the Company, the Trustee, any Agent or any
authenticating agent from any loss which any of them may suffer if a Security is
replaced. The Company may charge for its expenses incurred in replacing a
Security.
Every replacement Security shall be an additional obligation of the
Company.
SECTION 2.08. Outstanding Securities. The Securities outstanding at
any time are all Securities authenticated by the Trustee (or an authenticating
agent appointed pursuant to Section 2.02) except for those cancelled by the
Trustee, those delivered to the Trustee for cancellation, those reductions in
the interests in a global Security effected by the Trustee hereunder, and those
described in this Section as not outstanding.
A Security does not cease to be outstanding because the Company or an
Affiliate holds the Security.
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.
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If Securities are considered paid under Section 5.01, they cease to be
outstanding and interest on them ceases to accrue.
SECTION 2.09. Treasury Securities. In determining whether the Holders
of the required principal amount of Securities have concurred in any direction,
waiver or consent, Securities owned by the Company or an Affiliate shall be
disregarded, except that for the purposes of determining whether the Trustee
shall be protected in relying on any such direction, waiver or consent, only
Securities which the Trustee knows are so owned shall be so disregarded.
SECTION 2.10. Temporary Securities. Until definitive Securities are
ready for delivery, the Company may prepare and execute and the Trustee shall
authenticate temporary Securities. Temporary Securities shall be substantially
in the form of definitive Securities but may have variations that the Company
considers appropriate for temporary Securities. Every temporary Security shall
be executed by the Company and authenticated by the Trustee, and registered by
the Registrar, upon the conditions, and with like effect, as a definitive
Security. Without unreasonable delay, the Company shall prepare and the Trustee
shall authenticate definitive Securities in exchange for temporary Securities.
SECTION 2.11. Cancellation. The Company at any time may deliver
Securities to the Trustee for cancellation. The Registrar, Paying Agent and
Conversion Agent shall promptly forward to the Trustee any Securities
surrendered to them for registration of transfer, exchange, payment or
conversion. The Trustee shall cancel all Securities surrendered for registration
of transfer, exchange, payment, conversion or cancellation and may destroy
cancelled Securities and deliver a certificate of such destruction to the
Company, unless the Company directs the Trustee to deliver cancelled Securities
to the Company. The Company may not issue new Securities to replace Securities
that it has paid or delivered to the Trustee for cancellation or that any
Securityholder has converted pursuant to Article 11.
SECTION 2.12. Defaulted Interest. If the Company defaults in a payment
of interest on the Securities, it shall pay the defaulted interest in any lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities are listed. It may pay the defaulted interest, plus any
interest payable on the defaulted interest, to the Persons who are
Securityholders on a subsequent special record date. The Company shall fix the
record date and payment date for the payment of any defaulted interest. At least
15 days before the record date, the Company shall mail to each Securityholder
and the Trustee a notice that states the record date, payment date and amount of
interest to be paid.
SECTION 2.13. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "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.
SECTION 2.14. Additional Transfer and Exchange Requirements.
(a) Transfer and Exchange of Global Securities.
(1) Certificated Securities shall be issued in exchange for interests
in the Global Securities only if (x) the Depositary notifies the Company
that it is unwilling or unable to continue as depositary for the Global
Securities or if it at any time ceases to be a "clearing agency" registered
under the Exchange Act, if so required by applicable law or regulation and
a
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successor depositary is not appointed by the Company within 90 days, or (y)
an Event of Default has occurred and is continuing. In either case, the
Company shall execute, and the Trustee shall, upon receipt of a Company
order (which the Company agrees to delivery promptly), authenticate and
deliver Certificated Securities in an aggregate principal amount equal to
the principal amount of such Global Securities in exchange therefor. Only
Restricted Certificated Securities shall be issued in exchange for
beneficial interests in Restricted Global Securities, and only Unrestricted
Certificated Securities shall be issued in exchange for beneficial
interests in Unrestricted Global Securities. Certificated Securities issued
in exchange for beneficial interests in Global Securities shall be
registered in such names and shall be in such authorized denominations as
the Depositary, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Trustee. The Trustee shall
deliver or cause to be delivered such Certificated Securities to the
persons in whose names such Securities are so registered. Such exchange
shall be effected in accordance with the Applicable Procedures.
(2) Notwithstanding any other provisions of this Indenture other than
the provisions set forth in Section 2.14(a)(1), a Global Security may not
be transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(b) Transfer and Exchange of Certificated Securities. In the event
that Certificated Securities are issued in exchange for beneficial interests in
Global Securities in accordance with Section 2.14(a)(1) of this Indenture, on or
after such event when Certificated Securities are presented by a Holder to a
Registrar with a request:
(x) to register the transfer of the Certificated Securities to a
person who will take delivery thereof in the form of Certificated
Securities only; or
(y) to exchange such Certificated Securities for an equal principal
amount of Certificated Securities of other authorized denominations, such
Registrar shall register the transfer or make the exchange as requested;
provided that the Certificated Securities presented or surrendered for register
of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in accordance with the proviso to the first paragraph of Section
2.06(a); and
(2) in the case of a Restricted Certificated Security, such request
shall be accompanied by the following additional information and documents,
as applicable:
(i) if such Restricted Certificated Security is being delivered
to the Registrar by a Holder for registration in the name of such
Holder, without transfer, or such Restricted Certificated Security is
being transferred to the Company or a Subsidiary of the Company, a
certification to that effect from such Holder (in substantially the
form set forth in the Transfer Certificate);
(ii) if such Restricted Certificated Security is being
transferred to a person the Holder reasonably believes is a QIB in
accordance with Rule 144A or pursuant to an effective registration
statement under the Securities Act, a certification to that effect
from such Holder (in substantially the form set forth in the Transfer
Certificate); or
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(iii) if such Restricted Certificated Security is being
transferred (i) pursuant to an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 or (ii)
pursuant to an exemption from the registration requirements of the
Securities Act (other than pursuant to Rule 144A or Rule 144) and as a
result of which, in the case of a Security transferred pursuant to
this clause (ii), such Security shall cease to be a "restricted
security" within the meaning of Rule 144, a certification to that
effect from the Holder (in substantially the form set forth in the
Transfer Certificate) and, if the Company or such Registrar so
requests, a customary opinion of counsel, certificates and other
information reasonably acceptable to the Company and such Registrar to
the effect that such transfer is in compliance with the registration
requirements of the Securities Act.
(c) Transfer of a Beneficial Interest in a Restricted Global Security
for a Beneficial Interest in an Unrestricted Global Security. Any person having
a beneficial interest in a Restricted Global Security may upon request, subject
to the Applicable Procedures, transfer such beneficial interest to a person who
is required or permitted to take delivery thereof in the form of an Unrestricted
Global Security. Upon receipt by the Trustee of written instructions, or such
other form of instructions as is customary for the Depositary, from the
Depositary or its nominee on behalf of any person having a beneficial interest
in a Restricted Global Security and the following additional information and
documents in such form as is customary for the Depositary from the Depositary or
its nominee on behalf of the person having such beneficial interest in the
Restricted Global Security (all of which may be submitted by facsimile or
electronically):
(1) if such beneficial interest is being transferred pursuant to an
effective registration statement under the Securities Act, a certification
to that effect from the transferor (in substantially the form set forth in
the Transfer Certificate); or
(2) if such beneficial interest is being transferred (i) pursuant to
an exemption from the registration requirements of the Securities Act in
accordance with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than pursuant to
Rule 144A or Rule 144) and as a result of which, in the case of a Security
transferred pursuant to this clause (ii), such Security shall cease to be a
"restricted security" within the meaning of Rule 144, a certification to
that effect from the transferor (in substantially the form set forth in the
Transfer Certificate) and, if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information reasonably
acceptable to the Company and the Trustee to the effect that such transfer
is in compliance with the registration requirements of the Securities Act,
the Trustee, as a Registrar and Securities Custodian, shall reduce or cause
to be reduced the aggregate principal amount of the Restricted Global
Security by the appropriate principal amount and shall increase or cause to
be increased the aggregate principal amount of the Unrestricted Global
Security by a like principal amount. Such transfer shall otherwise be
effected in accordance with the Applicable Procedures. If no Unrestricted
Global Security is then outstanding, the Company shall execute and the
Trustee shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver an Unrestricted Global
Security.
(d) Transfer of a Beneficial Interest in an Unrestricted Global
Security for a Beneficial Interest in a Restricted Global Security. Any person
having a beneficial interest in an Unrestricted Global Security may upon
request, subject to the Applicable Procedures, transfer such beneficial interest
to a person who is required or permitted to take delivery thereof in the form of
a Restricted Global Security (it being understood that only QIBs may own
beneficial interests in Restricted Global Securities). Upon receipt by the
Trustee of written instructions or such other form of instructions
14
as is customary for the Depositary, from the Depositary or its nominee, on
behalf of any person having a beneficial interest in an Unrestricted Global
Security and, in such form as is customary for the Depositary, from the
Depositary or its nominee on behalf of the person having such beneficial
interest in the Unrestricted Global Security (all of which may be submitted by
facsimile or electronically) a certification from the transferor (in
substantially the form set forth in the Transfer Certificate) to the effect that
such beneficial interest is being transferred to a person that the transferor
reasonably believes is a QIB in accordance with Rule 144A. The Trustee, as a
Registrar and Securities Custodian, shall reduce or cause to be reduced the
aggregate principal amount of the Unrestricted Global Security by the
appropriate principal amount and shall increase or cause to be increased the
aggregate principal amount of the Restricted Global Security by a like principal
amount. Such transfer shall otherwise be effected in accordance with the
Applicable Procedures. If no Restricted Global Security is then outstanding, the
Company shall execute and the Trustee shall, upon receipt of a Company Order
(which the Company agrees to deliver promptly), authenticate and deliver a
Restricted Global Security.
(e) Transfers of Certificated Securities for Beneficial Interest in
Global Securities. In the event that Certificated Securities are issued in
exchange for beneficial interests in Global Securities and, thereafter, the
events or conditions specified in Section 2.14(a)(1) which required such
exchange shall cease to exist, the Company shall mail notice to the Trustee and
to the Holders stating that Holders may exchange Certificated Securities for
interests in Global Securities by complying with the procedures set forth in
this Indenture and briefly describing such procedures and the events or
circumstances requiring that such notice be given. Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:
(x) to register the transfer of such Certificated Securities to a
person who will take delivery thereof in the form of a beneficial interest
in a Global Security, which request shall specify whether such Global
Security will be a Restricted Global Security or an Unrestricted Global
Security; or
(y) to exchange such Certificated Securities for an equal principal
amount of beneficial interests in a Global Security, which beneficial
interests will be owned by the Holder transferring such Certificated
Securities (provided that in the case of such an exchange, Restricted
Certificated Securities may be exchanged only for Restricted Global
Securities and Unrestricted Certificated Securities may be exchanged only
for Unrestricted Global Securities), the Registrar shall register the
transfer or make the exchange as requested by canceling such Certificated
Security and causing, or directing the Securities Custodian to cause, the
aggregate principal amount of the applicable Global Security to be
increased accordingly and, if no such Global Security is then outstanding,
the Company shall issue and the Trustee shall authenticate and deliver a
new Global Security;
provided that the Certificated Securities presented or surrendered for
registration of transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in accordance with the proviso to the first paragraph of Section
2.06(a);
(2) in the case of a Restricted Certificated Security to be
transferred for a beneficial interest in an Unrestricted Global Security,
such request shall be accompanied by the following additional information
and documents, as applicable:
(i) if such Restricted Certificated Security is being
transferred pursuant to an effective registration statement under the
Securities Act, a certification to that effect from such Holder (in
substantially the form set forth in the Transfer Certificate); or
15
(ii) if such Restricted Certificated Security is being
transferred pursuant to (i) an exemption from the registration
requirements of the Securities Act in accordance with Rule 144 or (ii)
pursuant to an exemption from the registration requirements of the
Securities Act (other than pursuant to Rule 144A or Rule 144) and as a
result of which, in the case of a Security transferred pursuant to
this clause (ii), such Security shall cease to be a "restricted
security" within the meaning of Rule 144, a certification to that
effect from such Holder (in substantially the form set forth in the
Transfer Certificate), and, if the Company or the Registrar so
requests, a customary opinion of counsel, certificates and other
information reasonably acceptable to the Company and the Trustee to
the effect that such transfer is in compliance with the registration
requirements of the Securities Act;
(3) in the case of a Restricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted Global
Security, such request shall be accompanied by a certification from such
Holder (in substantially the form set forth in the Transfer Certificate) to
the effect that such Restricted Certificated Security is being transferred
to a person the Holder reasonably believes is a QIB (which, in the case of
an exchange, shall be such Holder) in accordance with Rule 144A;
(4) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in an Unrestricted
Global Security, such request need not be accompanied by any additional
information or documents; and
(5) in the case of an Unrestricted Certificated Security to be
transferred or exchanged for a beneficial interest in a Restricted Global
Security, such request shall be accompanied by a certification from such
Holder (in substantially the form set forth in the Transfer Certificate) to
the effect that such Unrestricted Certificated Security is being
transferred to a person the Holder reasonably believes is a QIB (which, in
the case of an exchange, shall be such Holder) in accordance with Rule
144A.
(f) Legends.
(1) Except as permitted by the following paragraphs (2) and (3), each
Global Security and Certificated Security (and all Securities issued in exchange
therefor or upon registration of transfer or replacement thereof) shall bear a
legend in substantially the form called for by Exhibit A hereto (each a
"Transfer Restricted Security" for so long as it is required by this Indenture
to bear such legend). Each Transfer Restricted Security shall have attached
thereto a certificate (a "Transfer Certificate") in substantially the form
called for by Exhibit A hereto.
(2) Upon any sale or transfer of a Transfer Restricted Security (w)
after the expiration of the holding period applicable to sales of the Securities
under Rule 144(k) of the Securities Act, (x) pursuant to Rule 144, (y) pursuant
to an effective registration statement under the Securities Act or (z) pursuant
to any other available exemption (other than Rule 144A) from the registration
requirements of the Securities Act and as a result of which, in the case of a
Security transferred pursuant to this clause (z), such Security shall cease to
be a "restricted security" within the meaning of Rule 144:
(i) in the case of any Restricted Certificated Security, any
Registrar shall permit the Holder thereof to exchange such Restricted
Certificated Security for an Unrestricted Certificated Security, or (under
the circumstances described in Section 2.14(e)) to transfer such Restricted
Certificated Security to a transferee who shall take such Security in the
form of a beneficial interest in an Unrestricted Global Security, and in
each case shall rescind any restriction on the
16
transfer of such Security; provided that the Holder of such Restricted
Certificated Security shall, in connection with such exchange or transfer,
comply with the other applicable provisions of this Section 2.14; and
(ii) in the case of any beneficial interest in a Restricted Global
Security, the Trustee shall permit the beneficial owner thereof to transfer
such beneficial interest to a transferee who shall take such interest in
the form of a beneficial interest in an Unrestricted Global Security and
shall rescind any restriction on transfer of such beneficial interest;
provided (x) that such Unrestricted Global Security shall continue to be
subject to the provisions of Section 2.14(a)(2); and (y) that the owner of
such beneficial interest shall, in connection with such transfer, comply
with the other applicable provisions of this Section 2.14.
(3) Upon the exchange, registration of transfer or replacement of
Securities not bearing the legend described in paragraph (1) above, the Company
shall execute, and the Trustee shall authenticate and deliver Securities that do
not bear such legend and that do not have a Transfer Certificate attached
thereto.
(4) After the expiration of the holding period pursuant to Rule
144(k) of the Securities Act, the Company may with the consent of the Holder of
a Restricted Global Security or Restricted Certificated Security, remove any
restriction of transfer on such Security, and the Company shall execute, and the
Trustee shall authenticate and deliver Securities that do not bear such legend
and that do not have a Transfer Certificate attached thereto.
ARTICLE 3
REDEMPTION
SECTION 3.01. Notices to Trustee. If the Company wishes to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee of the redemption date and the principal amount of Securities to be
redeemed at least 45 days before the redemption date.
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 by lot, or in its discretion, on a pro rata basis from Securities
outstanding and not previously called for redemption (unless the Company
specifically directs the Trustee otherwise), in such manner as the Trustee shall
deem fair and appropriate. The Trustee shall make the selection (and provide the
Company with written notice of such selection) at least 30 days but not more
than 60 days before the redemption date. Securities and portions of them the
Trustee selects for redemption shall be in amounts of $1,000 or integral
multiples of $1,000. In the event that the Trustee is not the Registrar, the
Registrar shall provide to the Trustee such information as the Trustee may
reasonably request to implement the selection. Provisions of this Indenture that
apply to Securities called for redemption also apply to portions of Securities
called for redemption.
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
to the Trustee and each Holder whose Securities are to be redeemed.
The notice shall identify the Securities (including CUSIP numbers, if
any) to be redeemed and shall state:
(1) the redemption date;
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(2) the redemption price;
(3) the conversion price;
(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 business day immediately preceding the
redemption date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 8 of the Securities;
(7) that Securities called for redemption must be surrendered to the
Paying Agent in order to collect the redemption price;
(8) that interest on Securities called for redemption ceases to accrue
on and after the redemption date (unless funds in the requisite amount are
not paid or made available for payment on that date), and the amount of
interest accrued on the Securities called for redemption up to but not
including the redemption date;
(9) if less than all of any Security is to be redeemed, the principal
amount of such Security to be redeemed;
(10) the CUSIP number, if any, printed on the Securities being
redeemed; and
(11) that no representation is made as to the correctness or accuracy
of the CUSIP number, if any, listed in such notice or printed on the
Securities.
If any of the Securities to be redeemed is in the form of a Global
Security, then the Company shall modify such notice to the extent necessary to
accord with the procedures of the Depositary applicable to redemptions. Upon ten
days prior notice to the Trustee, the Company may request that the Trustee mail
the notice of redemption (prepared by the Company) in the Company's name and at
its expense.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption, unless theretofore
converted into Common Stock pursuant to the terms of this Indenture, shall
become due and payable on the redemption date at the redemption price. Upon
surrender to the Paying Agent, such Securities shall be paid at the redemption
price, plus accrued interest to the redemption date; provided that any regular
semi-annual payment of interest becoming due on the redemption date shall be
payable to the Holder of any such Security as provided in paragraph 2 of the
Securities.
SECTION 3.05. Deposit of Redemption Price. No later than 11:00 a.m. on
the redemption date, the Company shall deposit in immediately available funds
with the Paying Agent money sufficient to pay the redemption price of and
interest accrued to the redemption date on all Securities to be redeemed on that
date other than Securities or portions thereof called for redemption on that
date which have been delivered by the Company to the Trustee for cancellation.
The Paying Agent shall return to the Company any money not required for that
purpose because of conversion of Securities.
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SECTION 3.06. Securities Redeemed in Part. Upon surrender to the
Trustee of a Security that is redeemed in part, the Company shall execute and
the Trustee shall authenticate for the Holder a new Security equal in principal
amount to the unredeemed portion of the Security surrendered.
ARTICLE 4
REPURCHASES
SECTION 4.01. Purchase of Securities at Option of the Holder. (a)
Securities shall be purchased by the Company in accordance with the provisions
of paragraph 6 of the Securities as of June 1, 2002, June 1, 2006, June 1, 2011
and June 1, 2016 (each, a "Purchase Date") at a purchase price per Security
equal to 100% of the aggregate principal amount of the Security (the "Purchase
Price"), together with accrued interest up to but not including the Purchase
Date; provided that if the Purchase Date is on or after an interest record date
but on or prior to the related interest payment date, interest will be payable
to the Holders in whose names the Securities are registered at the close of
business on the relevant record date.
Purchases of Securities hereunder shall be made, 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 20 Business Days prior to the Purchase Date until the
close of business on the fifth Business Day prior to such Purchase Date
stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the principal amount of the Security which the
Holder will deliver to be purchased, which portion must be in principal
amounts at maturity of $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased as of the Purchase Date
pursuant to the terms and conditions specified in paragraph 6 of the
Securities and in this Indenture, and
(D) 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, together with all accrued
interest, shall be so paid pursuant to this Section 4.01 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.
The Company shall purchase from the Holder thereof, pursuant to this
Section 4.01, a portion of a Security if the principal amount 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 4.01 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Purchase Date and
the time of delivery of the Security.
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Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 4.01 shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the second Business Day prior to the Purchase Date by delivery of
a written notice of withdrawal to the Paying Agent in accordance with Section
4.01(e).
The Paying Agent shall promptly notify the Company of the receipt by
it of any Purchase Notice or written notice of withdrawal thereof.
(b) The Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 4.01(a) has been given shall be paid in U.S. legal
tender (cash).
(c) In connection with any purchase of Securities pursuant to this
Section 4.01, the Company shall give written notice of the Purchase Date to the
Holders (the "Company Notice"). The Company Notice shall be sent by first-class
mail to the Trustee and to each Holder (and to each beneficial owner as required
by applicable law) not less than 20 Business Days prior to any Purchase Date
(the "Company Notice Date"). Each Company Notice shall include a form of
Purchase Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price and the conversion price;
(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 if they are otherwise convertible only in accordance with Article
11 hereof and paragraph 8 of the Securities 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;
(v) that the Purchase Price for, and any accrued interest on, any
Security as to which a Purchase Notice has been given and not withdrawn will be
paid promptly following the later of the Purchase Date and the time of surrender
of such Security as described in subclause (iv) above;
(vi) the procedures the Holder must follow to exercise rights under
this Section and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice (including
pursuant to the terms of Section 4.01(e);
(ix) that, unless the Company defaults in making payment on
Securities for which a Purchase Notice has been submitted, interest on such
Securities will cease to accrue on the Purchase Date; and
(x) the CUSIP number of the Securities.
If any of the Securities are to be redeemed in the form of a Global
Security, the Company shall modify such notice to the extent necessary to accord
with the procedures of the Depositary applicable to redemptions.
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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, in all cases,
the text of such Company Notice shall be prepared by the Company.
(d) The Company shall deposit cash, in respect of purchases under
this Section 4.01, at the time and in the manner as provided in Section 4.01(f),
sufficient to pay the aggregate Purchase Price of all Securities, together with
all accrued interest to, but not including, the Purchase Date, to be purchased
pursuant to this Section 4.01.
(e) Upon receipt by the Paying Agent of the Purchase Notice specified
in Section 4.01(a), the Holder of the Security in respect of which such Purchase
Notice was given shall (unless such Purchase Notice is withdrawn as specified in
the following two paragraphs) thereafter be entitled to receive solely the
Purchase Price, together with all accrued interest to, but not including, the
Purchase Date thereon, with respect to such Security. Such Purchase Price,
together with all accrued interest to, but not including, the Purchase Date
thereon, shall be paid to such Holder, subject to receipt of funds by the Paying
Agent, promptly following the later of (x) the Purchase Date with respect to
such Security (provided the conditions in Section 4.01(a) 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 4.01(a). Securities in respect of
which a Purchase Notice 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, unless such Purchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A Purchase Notice 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 at any time prior to the close of business on the second
Business Day prior to the Purchase Date specifying:
(1) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains
subject to the original Purchase Notice and which has been or
will be delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice shall be in the
form set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to this Section
4.01 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) and
is continuing an Event of Default (other than a default in the payment of the
Purchase Price 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 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 with respect to such Securities) in
which case, upon such return, the Purchase Notice with respect thereto shall be
deemed to have been withdrawn.
(f) Prior to 10:00 a.m. (local time in the City of New York) on the
Business Day following the Purchase Date, the Company shall deposit with the
Trustee or with the Paying Agent (or, if
21
the Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04(c))
an amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Purchase Price of, together with all
accrued interest to, but not including, the Purchase Date on, all the Securities
or portions thereof which are to be purchased as of the Purchase Date.
(g) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (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 his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
SECTION 4.02. Repurchase upon Change of Control. The Company covenants
and agrees that, in the event that there occurs a Change of Control, each Holder
will have the right, at such Holder's option, to require the Company to
repurchase all, or any portion that is an integral multiple of $1,000, of such
Holder's Securities on the Change of Control Purchase Date (as defined in
Section 4.04 below) selected as provided below at a repurchase price (the
"Change of Control Purchase Price") which is equal to 100% of the principal
amount of such Securities plus accrued interest to the Change of Control
Purchase Date.
SECTION 4.03. Notices, Etc. Unless the Company shall have theretofore
called for redemption all the outstanding Securities, on or before the 30th day
after the occurrence of a Change of Control, the Company shall deliver to the
Trustee, and the Company shall, or, if so requested by the Company upon ten
days' prior written notice, the Trustee shall, in the name of the Company and at
its expense, mail to each Holder at such Holder's address appearing in the
Securities Register a written notice (the "Change of Control Company Notice")
describing the occurrence of the Change of Control and of the repurchase right
set forth herein arising as a result thereof, as well as stating the final date
by which the Securities must be surrendered for repurchase, the conversion price
then in effect, the Change of Control Purchase Date, the Change of Control
Purchase Price and the procedure which the Holder must follow to elect
repurchase. The Company shall also cause a copy of such notice of the repurchase
right to be published in a newspaper of general circulation in the Borough of
Manhattan, The City of New York.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the repurchase of Global Securities.
SECTION 4.04. Exercising Change of Control Repurchase Right. (a) To
elect repurchase of any Securities or portion thereof upon a Change of Control,
the Holder will be required to surrender, on or before the Final Surrender Date
(as defined below), (i) in the case of global Securities, to the Conversion
Agent by book-entry delivery of the interest in the Security in global form to
be repurchased, or (ii) in the case of definitive Securities, at any place where
principal is payable, such Security duly endorsed or assigned to the Company or
in blank, in any event together with written notice of the Holder's election to
have the Company repurchase all or any $1,000 portion of such Security specified
in such notice. Election of repurchase by a Holder shall be irrevocable (unless
the Company defaults in payment of the Change of Control Purchase Price for the
Securities on the Change of Control
22
Purchase Date) and the right to convert the Securities as to which such Holder
has made such election shall expire when such Securities are so surrendered
(unless the Company defaults in payment of the Change of Control Purchase Price
for the Securities on the Change of Control Purchase Date and such election is
revoked).
"Final Surrender Date" shall mean the date which is, subject to any
contrary requirements of applicable law, 60 days after the date of mailing of
the Company Notice.
"Change of Control Purchase Date" shall mean the date selected by the
Company for the repurchase of the Securities that is not less than 10 and not
more than 30 days after the Final Surrender Date.
(b) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid the Change of
Control Purchase Price in cash to the Holder on the Change of Control Purchase
Date; provided that installments of interest that mature on or prior to the
Change of Control Purchase Date shall be payable in cash to the Holders of such
Securities, registered as such at the close of business on the relevant record
date specified in the Securities according to the terms and provisions of
Article 2.
(c) If any Security surrendered for repurchase shall not be so paid
on the Change of Control Purchase Date, the principal amount which is payable at
maturity shall, until the Change of Control Purchase Price (as calculated at the
date of payment) is paid, continue to bear interest from the Change of Control
Purchase Date at the rate borne by the Security and each such Security shall
continue to remain convertible into Common Stock until said Change of Control
Purchase Price shall have been paid to the Holder or duly provided for by
deposit with the Paying Agent in immediately available funds without
restriction.
(d) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (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 his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder without service charge, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
ARTICLE 5
COVENANTS
SECTION 5.01. Payment of Securities. The Company shall pay the
principal of and premium, if any, and interest on, and Purchase Price and Change
of Control Purchase Price, if any, of the Securities on the dates and in the
manner provided in the Securities and this Indenture. Principal, premium, if
any, Purchase Price and Change of Control Purchase Price, if any, and interest
shall be considered paid on the date due if the Paying Agent (other than the
Company) holds on that date money sufficient to pay all principal, premium, if
any, and interest then due and that is immediately available on such date for
payment to the Holders and that is not subject to restriction.
The Company shall pay interest on overdue principal and premium, if
any, at the rate per annum borne by the Securities; it shall pay interest on
overdue installments of interest at the same rate per annum to the extent
lawful.
23
SECTION 5.02. SEC Reports. The Company shall file with the Trustee
within 15 days after the Company is required to file them with the SEC copies of
the annual reports and 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 (as defined in Section 4.05).
Notwithstanding that the Company may not be required to remain subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
shall file with the SEC (unless the SEC will not accept such a filing) and
provide the Trustee and Securityholders with the annual reports and the
information, documents and other reports as are specified in Sections 13 and
15(d) of the Exchange Act and applicable to a U.S. corporation subject to such
Sections, such information, documents and other reports to be so filed and
provided at the times specified for the filing of such information, documents
and reports under such Sections. The Company also shall comply with the other
provisions of TIA ss. 314(a).
SECTION 5.03. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company a brief
certificate from the principal executive officer, principal financial officer or
principal accounting officer as to his or her knowledge of the Company's
compliance with all conditions and covenants under this Indenture. For purposes
of this Section 5.03, such compliance shall be determined without regard to any
period of grace or requirement of notice provided under this Indenture. The
first certificate pursuant to this Section shall be for the year ending on
December 31, 2001.
SECTION 5.04. Corporate Existence. Subject to Article 6, the Company
will do or cause to be done all things necessary to preserve and keep in full
force and effect its corporate existence, rights (charter and statutory) and
franchise; provided that the Company shall not be required to preserve any such
right or franchise if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business of
the Company and that the loss thereof is not disadvantageous in any material
respect to the Holders.
SECTION 5.05. Notice of Defaults. In the event that the Company fails
to make any payment in an amount in excess of $50,000,000 when due, after any
applicable grace period, in respect of indebtedness for borrowed money of the
Company or if indebtedness for borrowed money of the Company in an amount in
excess of $50,000,000 is accelerated because of the occurrence of any default
under such indebtedness, the Company will promptly give written notice to the
Trustee of such failure or acceleration, as the case may be, or of the
occurrence of an event which, with the giving of notice or the passage of time,
or both, would entitle the holder or holders of such indebtedness to declare
such indebtedness due and payable before its maturity.
SECTION 5.06. 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 5.07. Resale of Certain Securities. During the period
beginning on the last date of original issuance of the Securities and ending on
the date that is two years from such date, the Company will not, and will use
its best efforts not to permit any of its "affiliates" (as defined under Rule
144 under the Securities Act or any successor provision thereto) to, resell (x)
any Securities which constitute "restricted securities" under Rule 144 or (y)
any securities into which the Securities have been converted under this
Indenture which constitute "restricted securities" under Rule 144, that in
either case have been reacquired by any of them. The Trustee shall have no
responsibility in respect of the Company's performance of its agreement in the
preceding sentence.
24
SECTION 5.08. Restriction on Secured Debt. After the date hereof, the
Company will not at any time create, incur, assume or guarantee, and will not
cause or permit a Restricted Subsidiary to create, incur, assume or guarantee,
any Secured Debt (including the creation of Secured Debt by the securing of
existing indebtedness) without first making effective provision (and the Company
covenants that in such case it will first make or cause to be made effective
provision) whereby the Securities then outstanding and any other indebtedness of
or guaranteed by the Company or such Restricted Subsidiary then entitled thereto
shall be secured equally and ratably with (or prior to) any and all other
obligations and indebtedness thereby secured, so long as any such other
obligations and indebtedness shall be so secured; provided that the foregoing
covenants shall not be applicable to Secured Debt secured solely by one or more
of the following Security Interests:
(a) (1) Any Security Interest upon any property which is a parcel of
real property, a manufacturing plant, a warehouse or an office building and
which is hereafter acquired, constructed, developed or improved by the Company
or a Restricted Subsidiary, which Security Interest is created prior to or
contemporaneously with, or within 120 days after, (1) in the case of the
construction, development or improvement of such property, the later to occur of
the completion of such construction, development or improvement or the
commencement of operation, use of commercial production (exclusive of test and
start-up periods) of the property, which Security Interest secures or provides
for the payment of all or any part of the acquisition cost of such property or
the cost of construction, development or improvement thereof, as the case may
be; (2) the acquisition by the Company or a Restricted Subsidiary of property
subject to any Security Interest upon such property existing at the time of the
acquisition thereof, which Security Interest secures obligations assumed by the
Company or a Restricted Subsidiary; (3) any conditional sales agreement or other
title retention agreement with respect to any property acquired by the Company
or a Restricted Subsidiary; (4) any Security Interest existing on the property
or on the outstanding shares or indebtedness of a corporation or firm at the
time such corporation or firm shall become a Restricted Subsidiary or is merged
into or consolidated with the Company or a Restricted Subsidiary; or (5) any
Security Interest on property of a corporation or firm existing at the time such
corporation or firm is merged into or consolidated with the Company or
Restricted Subsidiary or at the time of a sale, lease or other disposition of
the properties of a corporation or firm as an entirety or substantially as an
entirety to the Company or a Restricted Subsidiary; provided in each case that
any such Security Interest described in clauses (2), (3), (4) or (5) does not
attach to or affect property owned by the Company or such Restricted Subsidiary
prior to the event referred to in such clauses;
(b) Any Security Interest to secure indebtedness of a Restricted
Subsidiary to the Company or to another Restricted Subsidiary;
(c) Mechanics', materialmen's, carriers' or other like liens arising
in the ordinary course of business (including construction of facilities) in
respect of obligations which are not due or which are being contested in good
faith;
(d) Any Security Interest arising by reason of deposits with, or the
giving of any form of security to, any governmental agency or any body crated or
approved by law or governmental requisitions, which is required by law or
governmental requisition as a condition to the transaction of any business, or
the exercise of any privilege, franchise or license;
(e) Security Interests for taxes, assessments or governmental charges
or levies not yet delinquent or Security Interests for taxes, assessments or
governmental charges or levies already delinquent but the validity of which is
being contested in good faith;
25
(f) Security Interests (including judgment liens) arising in
connection with legal proceedings so long as such proceedings are being
contested in good faith and, in the case of judgment liens, execution thereon is
stayed;
(g) Landlords' liens on fixtures located on premises leased by the
Company or a Restricted Subsidiary in the ordinary course of business;
(h) Security Interests arising in connection with contracts and
subcontracts with or made at the request of the United States of America, any
state thereof, or any department, agency or instrumentality of the United States
or any state thereof;
(i) Any Security Interest that secured an obligation issued by the
United States of America or any state, territory or possession of the United
States, or any political subdivision of any of the foregoing, or the District of
Columbia, in connection with the financing or the cost of the construction or
acquisition of a Principal Facility or a part thereof;
(j) Any Security Interest arising by reason of deposits to qualify
the Company or a Restricted Subsidiary to conduct business, to maintain self-
insurance, or to obtain the benefit of, or comply with, laws;
(k) The extension of any Security Interest existing as of the date of
this Indenture or a Principal Facility to additions, extensions or improvements
thereto and not as the result of borrowing money or the securing of indebtedness
incurred after that date; or
(l) Any extension, renewal or refunding (or successive extensions,
renewals or refunding) in whole or in part of any Secured Debt secured by any
Security Interest referred to in the foregoing subparagraphs (a) through (k),
inclusive, provided that the principal amount of such Secured Debt secured
thereby shall not exceed the principal amount outstanding immediately prior to
such extension, renewal or refunding, and that the Security Interest securing
such Secured Debt shall be limited to the property which, immediately prior to
such extension, renewal or refunding, secured such Secured Debt and additions to
such property.
Notwithstanding the foregoing provisions of this Section 5.08, the
Company and any one or more Restricted Subsidiaries may create, incur, assume or
guarantee Secured Debt (not including Secured Debt permitted to be secured under
subparagraphs (a) through (l), inclusive, above) in an aggregate amount which,
together with all other Secured Debt (not including Secured Debt permitted to be
secured under subparagraphs (a) though (l), inclusive above) of the Company and
its Restricted Subsidiaries which is created, incurred, assumed or guaranteed
after the date hereof and the aggregate value or all Sale and Leaseback
Transactions entered into after the date hereof (not including Sale and
Leaseback Transactions referred to in clause (b) of Section 5.09), does not at
the time exceed 5% of Consolidated Net Tangible Assets. The term "value" shall
mean, with respect to a Sale and Leaseback Transaction, as of any particular
time, the present value (discounted at the rate of interest implicit in the
lease involved in such Sale and Leaseback Transaction, as determined in good
faith by the Company) of the obligation of the lessee thereunder for rental
payments (excluding any amounts required to be paid by such lessee, whether or
not designated as rent or additional rent on account of maintenance and repairs,
insurance, taxes, assessments, water rates or similar charges or any amounts
required to be paid by such lessee thereunder contingent upon the amount of
sales, maintenance and repairs, insurance, taxes, assessments, water rates or
similar charges) during the remaining term of such lease (including any period
for which such lease has been extended or may, at the option of the lessor, be
extended).
26
SECTION 5.09. Restriction on Sale and Leaseback Transactions. After
the date hereof, the Company will not, and will not permit any Restricted
Subsidiary to, enter into any Sale and Leaseback Transaction, unless (a) the
Company or such Restricted Subsidiary would be entitled to incur Secured Debt
only by reason of the last paragraph of Section 5.08 equal in amount to the
value of the Sale and Leaseback Transaction without equally and ratably securing
the Securities as provided in said Section or (b) the Company or a Restricted
Subsidiary shall apply, within one year after the effective date of such sale or
transfer, or shall have committed within one year after such effective date to
apply, an amount at least equal to the net proceeds of the sale of the property
sold or transferred or to be sold or to be transferred pursuant to such Sale and
Leaseback Transaction to (1) the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or, upon such
acquisition, construction development or improvement will be, a Principal
Facility or a part thereof or (2) the optional redemption of Securities in
accordance with the provisions of Article 3 and at the redemption price
applicable at the time of such redemption, or to the repayment of Superior
Indebtedness of the Company or of any Restricted Subsidiary (other than Superior
Indebtedness owed to the Company or any Restricted Subsidiary), or in part to
such acquisition, construction, development or improvement and in part so such
redemption or repayment; provided that in lieu of applying an amount equal to
all or part of such net proceeds to such redemption, the Company may, within one
year after such sale or transfer, deliver to the Trustee Securities (other than
Securities made the basis of a reduction in any mandatory sinking fund payment
provisions contained in any series of Securities) for cancellation and thereby
reduce the amount to be accrued to the redemption of Securities pursuant to
clause (2) above by an amount equal to the aggregate principal amount of
Securities so delivered. Securities redeemed or delivered to the Trustee for
cancellation pursuant to this Section 5.09 shall not be used as credits against
mandatory sinking fund payments.
SECTION 5.10. Restriction on Transfer of Principal Facility to
Unrestricted Subsidiaries. After the date hereof, the Company will not itself,
and will not cause or permit any Restricted Subsidiary to, transfer (whether by
merger, consolidation or otherwise) any Principal Facility to any Unrestricted
Subsidiary, unless it shall apply, within one year after the effective date of
such transaction, or shall have committed within one year after such effective
date to apply, an amount equal to the fair value of such Principal Facility at
the time of such transfer, as determined by the Board of Directors (evidenced by
a Board Resolution), to (a) the acquisition, construction, development or
improvement of properties, facilities or equipment which are, or, upon such
acquisition, construction, development or improvement will be, a Principal
Facility or a part thereof or (b) the optional redemption of Securities in
accordance with the provisions of Article 3 and at the redemption price
applicable at the time of such redemption or to the repayment of other Superior
Indebtedness of the Company or of any Restricted Subsidiary (other than Superior
Indebtedness owed to the Company or any Restricted Subsidiary), or in part to
such acquisition, construction, development or improvement and in part such
redemption or repayment; provided that in lieu of applying an amount equivalent
to all or any part of such fair value to such redemption, the Company may,
within one year after such transfer, deliver to the Trustee Securities (other
than Securities made the basis of a reduction in any mandatory sinking fund
payment provisions contained in any series of Securities) for cancellation and
thereby reduce the amount to be applied to the redemption of Securities pursuant
to clause (b) above by an amount equivalent to the aggregate principal amount of
the Securities so delivered. Sometimes redeemed or delivered to the Trustee for
cancellation pursuant to this Section 5.10 shall not be used as credits against
mandatory sinking fund payments.
27
ARTICLE 6
SUCCESSORS
SECTION 6.01. When Company May Merge, Etc. The Company shall not
consolidate or merge with or into, or sell, lease, convey or otherwise dispose
of all or substantially all of its assets to, any Person unless:
(1) the Company is the surviving person or that Person is a
corporation organized under the laws of the United States, any state
thereof or the District of Columbia or a corporation or comparable legal
entity organized under the laws of a foreign jurisdiction and whose equity
securities are listed on a national securities exchange in the United
States or authorized for quotation on the Nasdaq National Market;
(2) that Person assumes by supplemental indenture executed and
delivered to the Trustee, in form satisfactory to the Trustee, all the
obligations of the Company under the Securities and this Indenture, except
that it need not assume the obligations of the Company as to conversion of
Securities if pursuant to Section 11.17 the Company or another Person
enters into a supplemental indenture obligating it to deliver securities,
cash or other assets upon conversion of Securities;
(3) immediately after giving effect to such transaction, no Default
shall have occurred and be continuing; and
(4) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that such consolidation, merger,
transfer or lease and such supplemental indenture comply with this Article
and that all conditions precedent herein provided for related to such
transaction have been complied with.
The surviving, transferee or lessee corporation shall be the successor
Company, but the predecessor Company in the case of a transfer or lease shall
not be released from the obligation to pay the principal amount or Purchase
Price or Change of Control Purchase Price of and premium, if any, and interest
on the Securities.
ARTICLE 7
DEFAULTS AND REMEDIES
SECTION 7.01. Events of Default. An "Event of Default" occurs if:
(1) the Company defaults in the payment of interest on any Security
when the same becomes due and payable and the Default continues uncured for
a period of 30 days;
(2) the Company defaults in the payment of (A) principal of or
premium, if any, on any Security when the same becomes due and payable,
whether at maturity, upon redemption or otherwise, or (B) the Purchase
Price or Change of Control Purchase Price in respect of any Security when
due;
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(3) the Company fails to comply with any of its other covenants or
agreements set forth in this Indenture and the Default continues for a
period of 60 days after the written notice specified below;
(4) the Company fails to make any payment when due, including any
applicable grace period, in respect of indebtedness for borrowed money of
the Company, which payment is in an amount in excess of $50,000,000, or the
Company defaults with respect to any indebtedness for borrowed money of the
Company, which default results in acceleration of any such indebtedness
which is in an amount of in excess of $50,000,000;
(5) the Company pursuant to or within the meaning of any Bankruptcy
Law (as defined below):
(A) commences a voluntary case;
(B) consents to the entry of an order for relief against it in an
involuntary case;
(C) consents to the appointment of a Custodian (as defined below)
of it or for all or substantially all of its property; or
(D) makes a general assignment for the benefit of its creditors;
or
(6) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(A) is for relief against the Company in an involuntary case;
(B) appoints a Custodian of the Company or for all or
substantially all of its property; or
(C) orders the liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 consecutive
days.
The term "Bankruptcy Law" means Title 11, U.S. Code or any similar
federal or state law for the relief of debtors. The term "Custodian" means any
receiver, trustee, assignee, liquidator or similar official under any Bankruptcy
Law.
A Default under clause (3) above is not an Event of Default until the
Trustee or, subject to Section 2.09, the Holders of at least 25% in principal
amount of the Securities notify the Company in writing of the Default and the
Company does not cure the Default within 60 days after receipt of the notice.
The notice must specify the Default, demand that it be remedied and state that
the notice is a "Notice of Default." When a Default is cured, it ceases to
exist.
SECTION 7.02. Acceleration. If any Event of Default described in
Section 7.01(1) through (4) occurs and is continuing, the Trustee, by written
notice to the Company, or, subject to Section 2.09, the Holders of at least 25%
in aggregate principal amount of the outstanding Securities, by written notice
to the Company and the Trustee, may declare the principal of and accrued
interest on all Securities to be due and payable. Upon such declaration such
principal and interest shall be due and payable immediately. If any Event of
Default described in Section 7.01(5) or (6) occurs the principal of
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and accrued interest on all Securities shall automatically become due and
payable, without any action required of the Trustee or the Holders. The Holders
of a majority in principal amount of the Securities by notice to the Trustee may
rescind an acceleration and its consequences if all existing Events of Default
have been cured or waived except nonpayment of principal or interest that has
become due solely because of the acceleration, if the rescission would not
conflict with any judgment or decree of a court of competent jurisdiction, and
if all payments (including fees and expenses) due to the Trustee have been paid.
SECTION 7.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of principal or the Purchase Price or Change of Control Purchase Price of or
premium, if any, or interest 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 them 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. To the extent
permitted by law. no remedy is exclusive of any other remedy and all remedies
are cumulative.
SECTION 7.04. Waiver of Past Defaults. Subject to Section 2.09, the
Holders of a majority in aggregate principal amount of the Securities by written
notice to the Trustee may waive an existing Default and its consequences except
a Default in the payment of the principal of or premium, if any, or interest on
any Security or a Default under Article 11. When a Default is waived, it is
cured and ceases to exist. This Section 7.04 shall be in lieu of TIA ss.
316(a)(1)(B), and TIA ss. 316(a)(1)(B) is hereby expressly excluded from this
Indenture and Section, as permitted by the TIA.
SECTION 7.05. Control by Majority. Subject to Section 2.09, the
Holders of a majority in aggregate principal amount of the Securities may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or exercising any trust or power conferred on it. However, the
Trustee may refuse to follow any direction that conflicts with law or this
Indenture, is unduly prejudicial to the rights of another Securityholder, or
would expose the Trustee to liability or expense for which it has not been
offered reasonably satisfactory indemnity. This Section 7.05 shall be in lieu of
TIA ss. 316(a)(1)(A), and TIA ss. 316(a)(1)(A) is hereby expressly excluded from
this Indenture and Section, as permitted by the TIA.
SECTION 7.06. Limitation on Suits. A Securityholder may pursue any
remedy with respect to this Indenture or the Securities only if:
(1) the Holder gives to the Trustee written notice of a continuing
Event of Default;
(2) the Holders of at least 25% in principal amount of the Securities
make a written request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee indemnity satisfactory
to the Trustee against any loss, liability or expense to be, or which may
be, incurred by the Trustee in pursuing the remedy;
(4) the Trustee does not comply with the request within 60 days after
receipt of the request and the offer of indemnity; and
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(5) during such 60-day period the Holders of a majority in principal
amount of the Securities do not give the Trustee a direction inconsistent
with the request.
A Securityholder may not use this Indenture to prejudice the rights of another
Securityholder or to obtain a preference or priority over another
Securityholder.
SECTION 7.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the principal of and premium, if any, and interest on the Security on
or after the respective due dates expressed in the Security, and to convert such
Security in accordance with Article 11, or to bring suit for the enforcement of
any such payment on or after such respective due dates and such right to
convert, is absolute and unconditional and shall not be impaired or affected
without the consent of the Holder.
SECTION 7.08. Collection Suit by Trustee. If an Event of Default
specified in Section 7.01(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 of principal, premium, if any, Purchase Price or
Change of Control Purchase Price, if any, and interest remaining unpaid together
with interest on overdue principal and premium, if any, and on the principal
amount of any Security for which the Purchase Price or Change of Control
Purchase Price is overdue, and, to the extent that payment of such interest is
lawful, interest on overdue installments of interest, in each case at the rate
per annum set forth in the title of the Securities.
SECTION 7.09. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Securityholders
allowed in any judicial proceeding relative to the Company, its creditors or its
property.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Securityholder 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 Securityholder in any such proceedings.
SECTION 7.10. Priorities. If the Trustee collects any money or
property pursuant to this Article 7, it shall pay out the money or property in
the following order:
First: to the Trustee for amounts due under Section 8.07 or any other
provision of this Indenture;
Second: to Securityholders for amounts due and unpaid on the
Securities for principal, premium, if any, Purchase Price or Change of
Control Purchase Price, if any, and interest, ratably, without preference
or priority of any kind, according to the amounts due and payable on the
Securities for principal, premium, if any, Purchase Price or Change of
Control Purchase Price, if any, and interest, respectively; and
Third: to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 7.10.
SECTION 7.11 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
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Trustee, a court in its discretion may require the filing by any party litigant
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,
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 does
not apply to a suit by the Trustee, a suit by a Holder pursuant to Section 7.07,
or a suit by a Holder or Holders of more than 10% in aggregate principal amount
of the Securities then outstanding.
ARTICLE 8
TRUSTEE
SECTION 8.01. Duties of Trustee. (a) If to the knowledge of the
Trustee an Event of Default has occurred and is continuing, the Trustee shall
exercise such of the rights and powers vested in it by this Indenture and use
the same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of his 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 others; 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. However,
the Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but need
not verify the accuracy of the contents thereof.
(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 does not limit the effect of paragraph (b) of this
Section;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer, unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(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 7.05; and
(4) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in
the performance of any of its duties hereunder, or in the exercise of any
of its rights or powers, if it shall have reasonable grounds for believing
that repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree with the Company. Money held in
trust by the Trustee need not be segregated from
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other funds except to the extent required by law and need not be invested except
as agreed to by the Trustee.
SECTION 8.02. Rights of Trustee. Subject to Section 8.01:
(a) the Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need
not investigate any fact or matter stated in the document;
(b) before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be
liable for any action it takes or omits to take in good faith in reliance
on such Officers' Certificate or Opinion of Counsel;
(c) the Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care;
(d) the Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its
rights or powers;
(e) the Trustee may consult with counsel reasonably acceptable to the
Trustee, which may be counsel to the Company, and the advice of such
counsel as to matters of law shall be full and complete authorization and
protection in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of
such counsel;
(f) The Trustee shall not be bound to ascertain or inquire as to the
performance or observance of any covenants, conditions or agreements on the
part of the Company under this Indenture; but the Trustee may require of
the Company full information and advice as to the performance of the
covenants, conditions and agreements aforesaid; and
(g) the Trustee shall not be required to give any bond or surety in
respect of the execution of its trusts and powers or in respect of this
Indenture.
SECTION 8.03. 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 an Affiliate with the same rights the
Trustee would have if it were not Trustee. Any Agent may do the same with like
rights.
SECTION 8.04. Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, shall not be accountable for the Company's use of the proceeds from
the sale of the Securities or the use or application of any money received by
any Paying Agent other than the Trustee, and shall not be responsible for any
statement in the Securities other than the Trustee's certificate of
authentication.
SECTION 8.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
Securityholder, at the name and address which appear in the Securities Register,
a notice of the Default within 90 days after the Default occurs. Except in the
case of a Default in payment of the principal of or premium, if any, or interest
on any Security, the Trustee may withhold the notice if and so long as its board
of directors, the executive committee, or a trust committee of its directors
and/or responsible officers in good faith determines that withholding the notice
is in the interests of Securityholders. The Trustee shall not be deemed to have
notice of any Default or Event of Default other than as described in clauses (1)
or (2) of Section 7.01 unless it shall
33
have received written notice thereof from the Company or any Securityholder, or
a Trust Officer has actual knowledge thereof. The foregoing sentence of this
Section 8.05 shall be in lieu of the proviso to TIA ss. 315(b), and such proviso
to TIA ss. 315(b) is hereby expressly excluded from this Indenture and Section,
as permitted by the TIA.
SECTION 8.06. Reports by Trustee to Holders. If required by TIA ss.
313(a), within 60 days after each April 1 beginning with the April 1 following
the date of this Indenture, the Trustee shall mail to each Securityholder a
report dated as of such April 1 that complies with TIA ss. 313(a). The Trustee
also shall comply with TIA ss. 313(b), (c) and (d).
A copy of each such report at the time of its mailing to
Securityholders shall also be mailed to the Company and shall be filed with the
SEC and each stock exchange, if any, on which the Securities are listed.
The Company shall promptly notify the Trustee in writing if the
Securities become listed on any stock exchange or of any delisting thereof.
SECTION 8.07. Compensation and Indemnity. The Company shall from time
to time pay to the Trustee reasonable compensation for its services. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee, within 45
days after receiving request therefor, for all reasonable out-of-pocket
disbursements, fees and expenses incurred by the Trustee in connection with the
performance of its duties under this Indenture, including without limitation
those incurred in connection with the enforcement of any remedy hereunder or the
interpretation of any provision hereunder. Such expenses may include the
reasonable compensation and out-of-pocket expenses of the Trustee's agents and
counsel. All rights, protections and benefits of the Trustee shall extend to the
Trustee acting as Conversion Agent, Paying Agent, Registrar or other Agent with
respect hereto.
The Company shall indemnify the Trustee for, and hold it harmless
against, any loss or liability incurred by it in connection with this Indenture.
The Trustee shall promptly notify the Company of any claim for which the Trustee
may seek indemnity, including costs and expenses of defending itself against any
claim for liability arising from the exercise or performance of any of its
powers or duties hereunder.
The Company need not reimburse any expense or indemnify against any
loss or liability incurred by the Trustee through its negligence or bad faith.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay principal of,
premium, if any, and interest on particular Securities.
When the Trustee incurs expenses or renders services after an Event of
Default specified in Section 7.01(5) or (6) occurs, the expenses and the
compensation for such services are intended to constitute expenses of
administration under any Bankruptcy Law.
Notwithstanding any provision hereof to the contrary, the Trustee's
lien shall not be subordinated to that of Senior Indebtedness.
SECTION 8.08. Replacement of Trustee. A resignation or removal of the
Trustee and appointment of a successor Trustee shall become effective only upon
the successor Trustee's acceptance of appointment as provided in this Section.
34
The Trustee may resign by so notifying the Company. The Holders of a
majority in principal amount of the Securities may remove the Trustee by so
notifying the Trustee and the Company. The Company may remove the Trustee if:
(1) the Trustee fails to comply with Section 8.10;
(2) the Trustee is adjudged a bankrupt or an insolvent;
(3) a receiver or other public officer takes charge of the Trustee or
its property; or
(4) the Trustee 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. Within one year after the successor Trustee takes office, the Holders
of a majority in principal amount of the Securities may appoint a successor
Trustee to replace the successor Trustee appointed by the Company.
If a successor Trustee does not take office within 60 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of at least 10% in principal amount of the Securities may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 8.10, any Securityholder
or Beneficial Holder may petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the retiring
Trustee shall transfer all property held by it as Trustee to the successor
Trustee (subject to the lien provided for in Section 8.07), 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.
SECTION 8.09. Successor Trustee, Agents by Merger, Etc. If the Trustee
or any Agent consolidates with, merges or converts into, or transfers all or
substantially all of its corporate trust business to, another corporation, the
successor corporation without any further act shall be the successor Trustee or
Agent, as the case may be.
SECTION 8.10. Eligibility; Disqualification. This Indenture shall
always have a Trustee who satisfies the requirement of TIA xx.xx. 310(a)(1) and
310(a)(5). The Trustee (or in the case of a corporation included in a bank
holding company system, the related bank holding company) shall have a combined
capital and surplus of at least $100,000,000 as set forth in its most recent
published annual report of condition. In addition, if the Trustee is a
corporation included in a bank holding company system, the Trustee,
independently of such bank holding company, shall meet the capital requirements
of TIA ss. 310(a)(2). The Trustee shall comply with TIA ss. 310(b).
SECTION 8.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA ss. 311(a), excluding any creditor relationship
listed in TIA ss. 311(b). A Trustee who has resigned or been removed shall be
subject to TIA ss. 311(a) to the extent indicated therein.
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ARTICLE 9
DISCHARGE OF INDENTURE
SECTION 9.01. Termination of Company's Obligations. The Company may
terminate all of its obligations under this Indenture if:
(a) (1) the Securities mature within one year or all of them are to be
called for redemption (and the Securities are redeemable) within one
year and arrangements satisfactory to the Trustee are made with
respect to the giving of the notice of redemption; and
(2) the Company irrevocably deposits in trust with the Trustee
money or U.S. Government Obligations sufficient to pay, when due, the
principal of and premium, if any, and interest on the Securities to
maturity or redemption, as the case may be; or
(b) all securities previously authenticated and delivered (other than
destroyed, lost or stolen Securities which have been replaced or paid or
Securities for whose payment money or securities have theretofore been held
in trust and thereafter repaid to the Company, as provided in Section 9.03)
have been delivered to the Trustee for cancellation and the Company has
paid all sums payable by it hereunder.
However, the obligations in Sections 2.03, 2.04, 2.05, 2.06, 2.07,
2.14, 5.01, 8.07, 8.08, 9.03, 9.04 and 9.05 and in Article 11 shall survive
until the Securities are no longer outstanding. Thereafter the obligations in
Sections 8.07, 9.03 and 9.04 shall survive.
After a termination of the Company's obligations in accordance with
this Section, the Trustee upon request shall acknowledge in writing the
discharge of the Company's obligations under this Indenture except for those
surviving obligations specified above.
In order to have money available on a payment date to pay principal of
and premium, if any, or interest on the Securities, the U.S. Government
Obligations shall be payable as to principal or interest on or before such
payment date in such amounts as will provide the necessary money.
"U.S. Government Obligations" means direct obligations of the United
States of America for the payment of which the full faith and credit of the
United States of America is pledged and which are not callable at the issuer's
option.
SECTION 9.02. Application of Trust Money. The Trustee shall hold in
trust money or U.S. Government Obligations deposited with it pursuant to Section
9.01. It shall apply the deposited money and the money from U.S. Government
Obligations through the Paying Agent and in accordance with this Indenture to
the payment of principal of and premium, if any, and interest on the Securities.
SECTION 9.03. Repayment to Company. The Trustee and the Paying Agent
shall promptly pay to the Company upon request any excess money or securities
held by them at any time.
Subject to the requirements of applicable law, the Trustee and the
Paying Agent shall pay to the Company upon request any money held by them for
the payment of principal or premium, if any, or interest that remains unclaimed
for two years; provided that, before being required to make any such repayment,
the Trustee or such Paying Agent shall, if the Company so requests and at the
expense of the
36
Company, cause to be published once a week for two successive weeks, in each
case on any day of the week, in an authorized newspaper in the Borough of
Manhattan, The City of New York, or mail to each such Holder, a notice (in such
form as may be deemed appropriate by such Trustee or Paying Agent) that said
monies remain unclaimed and that, after a date named therein, which shall not be
less than 30 days from the date of such publication or mailing, any unclaimed
balance of said monies then remaining will be returned to the Company. After
payment to the Company, Securityholders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another Person.
SECTION 9.04. Indemnity for Government Obligations. The Company shall
pay and shall indemnify the Trustee and each Securityholder against any tax, fee
or other charge imposed on or assessed against deposited U.S. Government
Obligations or the principal and interest received on such obligations.
SECTION 9.05. Reinstatement. If the Trustee is unable to apply any
money or United States Government Obligations in accordance with Section 9.01 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, the Company's obligations under this Indenture and the
Securities shall be revived and reinstated as though no deposit had occurred
pursuant to Section 9.01 until such time as the Trustee is permitted to apply
all such money or United States Government Obligations in accordance with
Section 9.01; provided that if the Company has made any payment of interest on
or principal of any Securities because of the reinstatement of its obligations,
the Company shall be subrogated to the rights of the Holders of such Securities
to receive such payment from the money or United States Government Obligations
held by the Trustee.
ARTICLE 10
AMENDMENTS, SUPPLEMENTS AND WAIVERS
SECTION 10.01. Without Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities without the consent of
any Securityholder:
(1) to cure any ambiguity, defect or inconsistency herein or in the
Securities or any inconsistency between the terms hereof and the
description of the Securities and this Indenture contained in the
Confidential Offering Circular dated May 16, 2001 with respect to the
Securities;
(2) to comply with Section 6.01;
(3) to make any change that does not materially adversely affect the
rights of any Securityholder; or
(4) to make provision with respect to the conversion rights of Holders
pursuant to the requirements of Section 11.17.
SECTION 10.02. With Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities with the written
consent of the Holders of at least a majority in aggregate principal amount of
the Securities, and the Holders of a majority in aggregate principal amount of
the Securities may waive compliance by the Company with any provision of this
Indenture or
37
the Securities. However, without the consent of each Securityholder affected, an
amendment, supplement or waiver under this Section may not:
(1) change the stated maturity date of the principal of, or interest
on, any Security or adversely affect the right of a Holder to convert any
Security;
(2) reduce the principal amount Purchase Price or Change of Control
Purchase Price of, or premium, if any, or interest on, any Security;
(3) change the currency for payment of principal of, or interest on,
any Security;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security;
(5) reduce the principal amount of Securities whose Holders must
consent to an amendment or supplement of this Indenture or the waiver of
defaults or compliance hereunder; or
(6) make any change in Section 7.04, 7.07 or this 10.02 (second
sentence).
It shall not be necessary for the consent of the Holders under this
Section to approve the particular form of any proposed amendment, supplement or
waiver, but it shall be sufficient if such consent approves the substance
thereof. The Company may establish, by delivery of an Officers' Certificate to
the Trustee, a record date for determining Securityholders of record entitled to
give any consent or waiver.
After an amendment or supplement under this Section becomes effective,
the Company shall mail to Securityholders a notice briefly describing the
amendment or supplement. Any failure of the Company to mail any such notice, or
any defect therein, shall not, however, in any way impair or affect the validity
of any supplemental indenture.
SECTION 10.03. Compliance with Trust Indenture Act. Every amendment to
or supplement of this Indenture or the Securities shall comply with the TIA as
then in effect.
SECTION 10.04. Revocation and Effect of Consents. Until an amendment,
supplement or waiver becomes effective, a consent to it by a Holder of a
Security is a continuing consent by the Holder and every subsequent Holder of a
Security or portion of a Security that evidences the same debt as the consenting
Holder's Security, even if notation of the consent is not made on any Security.
However, any such Holder or subsequent Holder may revoke the consent as to such
Security or portion of a Security if a Trust Officer of the Trustee receives the
notice of revocation before the date the amendment, supplement or waiver becomes
effective. An amendment, supplement or waiver becomes effective in accordance
with its terms and thereafter binds every Securityholder. Notwithstanding the
foregoing, if a record date has been established for the purpose of determining
Securityholders entitled to consent, such written notice of revocation must be
signed by the Securityholder of record as of the record date or his duly
appointed proxy.
SECTION 10.05. Notation on or Exchange of Securities. The Trustee may
place an appropriate notation relating to an amendment, supplement or waiver on
any Security thereafter authenticated. The Company in exchange for all
Securities may issue, and the Trustee shall authenticate, new Securities that
reflect the amendment, supplement or waiver.
38
SECTION 10.06. Trustee to Sign Amendments, Etc. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or Section 11.15 or the modifications thereby of the trusts
created by this Indenture, the Trustee shall be entitled to receive, and
(subject to Section 8.01) shall be fully protected in relying upon, an Opinion
of Counsel and an Officers' Certificate stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture.
The Trustee shall sign any amendment or supplement authorized pursuant
to this Article if the amendment or supplement does not adversely affect the
rights of the Trustee. If the amendment or supplement does adversely affect the
Trustee's rights, the Trustee may, but need not, sign it.
ARTICLE 11
CONVERSION
SECTION 11.01. Conversion Privilege. At any time after May 30, 2001, a
Holder of a Security may convert it into fully paid and non-assessable shares of
Common Stock at any time during the period and subject to the terms stated
herein and in paragraph 8 of the Securities. The number of shares issuable upon
conversion of a Security is determined by dividing the principal amount to be
converted by the conversion price in effect on the conversion date, and rounding
the result to the nearest 1/l00th of a share, with 500/1,000 of a share to be
rounded up.
The initial conversion price is stated in paragraph 8 of the
Securities. The conversion price is subject to adjustment as provided in this
Article 11.
The Conversion Agent shall, on the Company's behalf, determine daily
the Quoted Price for the Common Stock, and shall determine whether the
Securities are then eligible to be converted based solely on such Quoted Prices
for the relevant period, as provided in the first sentence of paragraph 8 of the
Securities, and shall notify the Company and the Trustee accordingly. The
Conversion Agent shall have no liability for any determination made by it
hereunder in good faith, and, in the absence of manifest error, any such
determination by the Conversion Agent shall be binding on the Company, the
Trustee and the Holders. In all other cases, the Company shall determine and
advise the Conversion Agent and the Trustee in writing whether the Securities
are eligible for conversion, and the Conversion Agent and Trustee may
conclusively rely on any such determination by the Company.
A Holder may convert a portion of a Security if the portion is $1,000
or a whole 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 it.
SECTION 11.02. Conversion Procedure. To convert a Security a Holder
must satisfy the requirements set forth in paragraph 8 of the Securities. The
first date on which the Holder satisfies all those requirements in respect of a
Security is the conversion date. As soon as practical on or after the conversion
date, the Company shall deliver through the Conversion Agent a certificate for
the number of full shares of Common Stock issuable upon the conversion of that
Security and a check for any fractional share. The person in whose name the
certificate is registered shall be treated as a shareholder of record on and
after the conversion date. Anything herein to the contrary notwithstanding, in
the case of Global Securities, conversion notices may be delivered and such
Securities may be surrendered for conversion in accordance with the Applicable
Procedures as in effect from time to time.
39
No payment or adjustment will be made for accrued interest on a
converted Security (other than the payment of interest to the Holder of a
Security at the close of business on a record date pursuant to Section 2.04(b)
hereof), or for dividends or distributions on any Common Stock issued upon
conversion of any Security.
If a Holder converts more than one Security at the same time, the
number of full shares issuable upon the conversion shall be based on the total
principal amount of the Securities converted.
If Common Stock is to be issued in the name of a Person other than the
Holder thereof, and the restrictions on transfer of such Security set forth in
the first paragraph of the face of the Security remain in effect, the Holder
must provide certification regarding compliance with the restrictions on
transfer, by executing an assignment in the form attached to the Security.
Upon surrender of a Security that is converted in part, the Company
shall execute and the Trustee shall authenticate for the Holder a new Security
equal in principal amount to the unconverted portion of the Security
surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that Conversion Agent on the next succeeding business day that is
not a Legal Holiday with the same force and effect as if surrendered on such
last day.
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 to the converting Securityholder its check for the current
market value of the fractional share. The current market value of a fraction of
a share is determined by multiplying the current market price of a full share by
the fraction, and rounding the result to the nearest cent, with .5 cents to be
rounded up.
For purposes of this Section, the current market price of a share of
Common Stock is the Quoted Price of the Common Stock on the last Trading Day
prior to the conversion date.
SECTION 11.04. Taxes on Conversion. If a Holder of a Security converts
it, 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 shares are issued in a
name other than such Holder's.
SECTION 11.05. Company to Provide Stock. The Company shall reserve at
all times and keep available, free from preemptive rights, out of its authorized
but unissued Common Stock, enough shares of Common Stock to permit the
conversion of the Securities.
All shares of Common Stock which may be issued upon conversion of the
Securities shall be fully paid and nonassessable.
The Company shall endeavor to comply with all applicable securities
laws regulating the offer and delivery of shares of Common Stock upon conversion
of Securities and shall endeavor to list such shares on each national securities
exchange on which the Common Stock is listed, or to have such shares approved
for quotation on the Nasdaq National Market or other over-the-counter market on
which the Common Stock is traded.
40
SECTION 11.06. Adjustment for Change in Capital Stock. If the Company:
(1) issues any shares of its capital stock as a dividend (or other
distribution) on 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; or
(4) issues by reclassification of its Common Stock any shares of its
capital stock,
(excluding in the case of (1) through (4) above the two-for-one stock
split of the Common Stock effective May 30, 2001) then the conversion privilege
and the conversion price in effect immediately prior to such action shall be
adjusted so that the Holder of a Security thereafter converted will receive the
number of shares of capital stock of the Company that would have been received
(and if there is more than one class or series of such capital stock, then
shares of each class or series in the same proportions that would have been
received) upon consummation of such action by a holder of the number of shares
of Common Stock into which such Security might have been converted immediately
prior to such action, with the aggregate conversion price to be divided evenly
among the shares to be issued upon conversion thereof.
The adjustment described in the preceding paragraph 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 may receive shares of
two or more classes or series of capital stock of the Company upon conversion of
such Security, the Company shall determine the allocation of the adjusted
conversion price between or among such classes or series of capital stock. After
such allocation, the conversion privilege and the conversion price of each class
of capital stock shall thereafter be subject to adjustment on terms comparable
to those applicable to Common Stock in this Article.
SECTION 11.07. Adjustment for Rights Issue. If the Company distributes
any rights or warrants to all holders of its Common Stock entitling them to
subscribe for or purchase shares of Common Stock at a price per share less than
the current market price per share (as defined in Section 11.11), then, on the
Record Date (as defined in this Section 11.07), the conversion price shall be
adjusted in accordance with the formula:
O + (N x P)
-----
AC = CC x M
------
O + N
where:
AC = the adjusted conversion price.
CC = the current conversion price.
41
O = the number of shares of Common Stock outstanding on the Record
Date.
N = the number of additional shares of Common Stock offered.
P = the offering price per share of the additional shares.
M = the current market price per share of Common Stock on the
Record Date (as defined in this Section 11.07).
The adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive such rights or
warrants (for purposes of this Section 11.07 only, the "Record Date").
SECTION 11.08. Adjustment for Certain Distributions. Subject to the
last paragraph of this Section 11.08, if the Company distributes to all holders
of its Common Stock any cash, debt securities (or other evidences of
indebtedness) or other assets (excluding dividends or distributions for which
adjustment is required to be made under Sections 11.06, 11.07 or 11.09), the
conversion price shall be reduced in accordance with the following formula:
AC = CC x M - P
-----
M
where:
AC = the adjusted conversion price.
CC = the current conversion price.
M = the current market price per share of Common Stock on the Record
Date (as defined in this Section 11.08).
P = the aggregate fair market value on the Record Date (as defined in
this Section 11.08) (as determined in good faith by the Board of
Directors and set forth in a certified resolution filed with the
Trustee) of the cash, debt securities (or other evidences of
indebtedness) or other assets distributed applicable to one share
of Common Stock.
The adjustment shall become effective immediately after the record
date for the determination of stockholders entitled to receive such distribution
(for purposes of this Section 11.08 only, the "Record Date").
No adjustment will be made with respect to this Section 11.08 if, in
lieu of such adjustment, the Holders of the Securities, upon conversion, will be
entitled to receive, in addition to the shares of Common Stock into which such
Securities are convertible, the kind and amount of cash, debt securities (or
other evidences of indebtedness) or other assets comprising the distribution
that such Holders would have received had they converted their Securities
immediately prior to the Record Date (as defined in this Section 11.08). In
addition, no adjustment will be made in the event that the then fair market
value (as so determined) of the cash, debt securities (or other evidences of
indebtedness) or other assets so distributed applicable to one share of Common
Stock is equal to or greater than the current
42
market price per share of the Common Stock, in which case, in lieu of such
adjustment, adequate provision shall be made so that each Holder of Securities
shall have the right to receive upon conversion the amount of cash, debt
securities (or other evidences of indebtedness) or other assets such Holder
would have received had such Holder converted each Security on the Record Date
(as defined in this Section 11.08).
SECTION 11.09. Adjustment for All Cash Distribution. Subject to the
last two paragraphs of this Section 11.09, if the Company shall pay or make a
dividend or other distribution consisting exclusively of cash to all holders of
its Common Stock, the conversion price shall be reduced in accordance with the
following formula:
AC = CC x M - C
-----
M
where:
AC = the adjusted conversion price.
CC = the current conversion price.
M = the current market price per share of Common Stock on the date
fixed for payment of such distribution.
C = the amount of cash so distributed and not excluded (as provided
below) applicable to one share of Common Stock.
The adjustment shall become effective immediately prior to the opening
of business on the day following the date fixed for payment of such
distribution.
For the purposes of this Section 11.09, (A) the portion of regular
cash dividends on the Common Stock that does not exceed the per share amount of
the immediately preceding regular cash dividend on the Common Stock (as adjusted
to reflect any of the events referred to in Sections 11.06, 11.07, 11.08, 11.09
and 11.10) shall be excluded and (B) the portion of such regular cash dividends
on the Common Stock, to the extent that the annualized per share amount thereof
does not exceed 15% of the current market price per share of the Common Stock as
of the trading day immediately preceding the date of declaration of such
dividend, shall be excluded.
No adjustment will be made in the event that the amount of cash so
distributed applicable to one share of Common Stock is equal to or greater than
the current market price per share of the Common Stock, in which case, in lieu
of such adjustment, adequate provision shall be made so that each Securityholder
shall have the right to receive upon conversion the amount of cash such Holder
would have received had such Holder converted each Security immediately prior to
the record date for the distribution of the cash.
SECTION 11.10. Adjustment for Tender or Exchange Offer. Subject to the
last paragraph of this Section 11.10, in the event that a tender or exchange
offer (other than an odd-lot offer) made by the Company or any subsidiary of the
Company for all or a portion of the Common Stock shall expire and such tender or
exchange offer (including any amendment in effect immediately prior to the
expiration thereof) shall require the payment to stockholders of consideration
per share of Common Stock having a fair market value (as determined in good
faith by the Board of Directors and set forth in a certified resolution filed
with the Trustee) that, as of the last time (the "Expiration Time") tenders or
43
exchanges may be made pursuant to such tender or exchange offer, exceeds 110% of
the current market price per share of Common Stock at the Expiration Time, the
conversion price shall be reduced in accordance with the following formula:
AC = CC x O x M
--------
P + (T x M)
where:
AC = the adjusted conversion price.
CC = the current conversion price.
O = the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) at the Expiration Time.
P = the fair market value of the aggregate consideration payable to
stockholders of Common Stock based on the acceptance (up to any
maximum specified in the terms of the tender or exchange offer)
of all shares of Common Stock validly tendered or exchanged and
not withdrawn as of the Expiration Time (the shares of Common
Stock so accepted, up to any such maximum, being referred to as
the "Purchased Shares").
T = the number of shares of Common Stock outstanding (less any
Purchased Shares) on the Expiration Time.
M = the current market price per share of Common Stock at the
Expiration Time.
The adjustment shall become effective immediately prior to the opening
of business on the day following the Expiration Time.
In the event that the Company or its subsidiary, if applicable, is
permanently prevented by applicable law from effecting any such purchases or all
such purchases are rescinded, the Conversion Price shall again be adjusted to be
the Conversion Price which would then be in effect if such tender or exchange
offer had not been made.
SECTION 11.11. Current Market Price. For purposes of Sections 11.07,
11.08, 11.09 and 11.10, the current market price per share of Common Stock on
any date is the average of the Quoted Prices of the Common Stock for five
consecutive Trading Days selected by the Company commencing not more than 20
Trading Days before, and ending not later than, the earlier of the date in
question and the Trading Day before the "ex" date, if any, with respect to the
issuance or distribution requiring such computation. The term "`ex' date," when
used with respect to any issuance or distribution, means the first Trading Day
on which the Common Stock trades regular way in the market from which the Quoted
Price is then to be determined without the right to receive such issuance or
distribution.
SECTION 11.12. When Adjustment May Be Deferred. No adjustment in the
conversion price need be made unless the adjustment would require an increase or
decrease of at least 1% in the conversion price then in effect. Any adjustments
which are not made shall be carried forward and taken into account in any
subsequent adjustment.
44
All calculations under this Article shall be made to the nearest cent
or to the nearest 1/100th of a share, as the case may be, with .005 cents and
500/1,000 of a share to be rounded up.
SECTION 11.13. When No Adjustment Required. 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 (including a
change to no par value) of the Common Stock.
To the extent the Securities become convertible 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 price which would have the effect of
reducing the conversion price below the par value of the Common Stock.
SECTION 11.14. Notice of Adjustment. Whenever the conversion price is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment and file with the Trustee a certificate from the Company's
independent public accountant briefly stating the facts requiring the adjustment
and the manner of computing it. In the absence of manifest error, such
certificate shall be presumptive evidence that the adjustment is correct.
SECTION 11.15. Voluntary Reduction. The Company from time to time may
reduce the conversion price by any amount for any period of time if the period
is at least 20 days and if the reduction is irrevocable during the period.
Notwithstanding any provision to the contrary in this Indenture, the reduction
of the conversion price pursuant to this Section 11.15 shall not require the
consent of the Trustee or any Securityholder.
Whenever the conversion price is reduced, the Company shall mail to
Securityholders and the Trustee a notice of the reduction. The Company shall
mail the notice at least 15 days before the date the reduced conversion price
takes effect. The notice shall state the reduced conversion price and the period
during which it will be in effect.
A reduction of the conversion price is deemed not to be in effect for
purposes of calculating adjustments pursuant to Sections 11.06 through 11.10.
SECTION 11.16. Notice of Certain Transactions. If:
(1) the Company takes any action which would require an adjustment in
the conversion price pursuant to Section 11.08 but, in lieu of such
adjustment, the Securityholders are entitled to participate therein (as
described in the last paragraph of Section 11.08);
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.17; or
(3) there is a dissolution or liquidation of the Company,
the Company shall mail to Securityholders and the Trustee a notice stating the
record date for any such distribution or the effective date of any such
subdivision, combination, reclassification, consolidation, merger, transfer,
lease, liquidation or dissolution. The Company shall mail the notice at least 15
days
45
before such date. Failure to mail the notice or any defect in it shall not
affect the validity of any transaction referred to in clause (1), (2) or (3) of
this Section.
SECTION 11.17. Provisions in Case of Consolidation, Merger of the
Company or Transfer or Lease. If the Company is a party to a consolidation or
merger or a transfer or lease of all or substantially all of its assets not
prohibited by Section 6.01 or a merger which reclassifies or changes its
outstanding Common Stock, the Person formed by such consolidation or resulting
from such merger or which assumes or leases such assets shall enter into a
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
receivable upon the consolidation, merger, transfer or lease by a holder (other
than any party to such transaction or any of its affiliates) of the number of
shares of Common Stock into which such Security might have been converted
immediately before the effective date of such transaction, assuming such holder
of Common Stock failed to exercise his rights of election, if any, as to the
kind or amount of securities, cash or other property receivable upon such
consolidation, merger, transfer or lease (provided that, if the kind or amount
of securities, cash or other property receivable upon such consolidation,
merger, transfer or lease is not the same for each share of Common Stock held
immediately prior to such consolidation, merger, transfer or lease by others
than the parties to such transaction or their affiliates and in respect of which
such rights of election shall not have been exercised ("non-electing share"),
then for the purposes of this Section the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, transfer or lease
by each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). 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.
If the issuer of securities deliverable upon conversion of Securities is an
affiliate of the surviving, transferee or lessee corporation, that issuer shall
join in the supplemental indenture. The successor Company shall mail to each
Securityholder a notice briefly describing the supplemental indenture.
If this Section applies to a particular event, Section 11.06 shall not
apply to such event.
SECTION 11.18. Company Determination Final. Subject to compliance with
the terms of this Indenture (including without limitation Section 11.14) and of
the Securities, any determination which the Company or its Board of Directors
must make pursuant to Section 11.03, 11.06, 11.08, 11.10, 11.11 or 11.12 shall
be conclusive.
SECTION 11.19. Trustee's Disclaimer. The Trustee has no duty to
determine when an adjustment under this Article should be made, how it should be
made or what it should be. The Trustee has no duty to determine the market price
or market value of any fractional or other share. The Trustee has no duty to
determine whether any provisions of a supplemental indenture under Section 11.17
are correct. The Trustee makes no representation as to the validity or value of
any securities or assets issued upon conversion of the Securities. The Trustee
shall not be responsible for the Company's failure to comply with this Article.
Each Conversion Agent other than the Company shall have the same protection
under this Section as the Trustee.
46
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. 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 12.02. Notices. Any notice or communication to the Company or
the Trustee by the other shall be duly given if in writing and delivered in
person or by overnight courier or mailed by first class mail or transmitted by
telephone facsimile transmission (and receipt confirmed) addressed as follows:
If to the Company: Xxxxxx International Inc.
Xxx Xxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Chief Financial Officer
Facsimile:
If to the Trustee: Bank One Trust Company, N.A.
1 Bank Xxx Xxxxx
Xxxxx XX0-0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention:
Facsimile:
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication to a Securityholder shall be mailed by
first-class mail to his address as shown on the register kept by the Registrar.
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
the Company mails a notice or communication to Securityholders, it shall mail a
copy to the Trustee and each Agent at the same time.
If a notice or communication is delivered, mailed or transmitted in
the manner provided above within the time prescribed, it is duly given, whether
or not the addressee receives it.
SECTION 12.03. Communications by Holders with Other Holders.
Securityholders may communicate pursuant to TIA ss. 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar and any other person shall
have the protection of TIA ss. 312(c).
SECTION 12.04. 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:
47
(1) an Officers' Certificate 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
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture (other than pursuant to Section 5.03) shall
include:
(1) a statement that the Person making such certificate or opinion 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
certificate or opinion are based;
(3) a statement that, in the opinion of such Person, such examination
or investigation as is necessary to enable him to express an informed
opinion as to whether or not such covenant or condition has been complied
with; and
(4) a statement as to whether or not, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 12.06. Rules by Trustee and Agents. The Trustee may make
reasonable rules for action by or a meeting of Securityholders. The Registrar,
Paying Agent, New York Presenting Agent and Conversion Agent may each make
reasonable rules and set reasonable requirements for its respective functions.
SECTION 12.07. Legal Holidays. A "Legal Holiday" is a Saturday, Sunday
or a day on which banking institutions in either New York, New York or in
Chicago, Illinois are not required to be open. If a payment date is a Legal
Holiday at a place of payment, payment may be made at such place on the next
succeeding day that is not a Legal Holiday, and no interest shall accrue for the
intervening period. If a regular record date is a Legal Holiday, the record date
shall not be affected.
SECTION 12.08. Governing Law. The laws of the State of New York shall
govern this Indenture and the Securities without regard to principles of
conflicts of law.
SECTION 12.09. 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. Each Securityholder by accepting a Security waives and releases all
such liability. The waiver and release are part of the consideration for the
issue of the Securities.
SECTION 12.10. 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 successors.
SECTION 12.11. Counterpart 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.
48
SECTION 12.12. Severability. 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, and a Holder shall have no claim therefor against
any party hereto.
[remainder of page intentionally blank]
4
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed as of the date first written above.
XXXXXX INTERNATIONAL INC.
By:
-----------------------------------------
Name:
Title:
BANK ONE TRUST COMPANY, N.A.
By:
-----------------------------------------
Name:
Title:
50
EXHIBIT A
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO XXXXXX INTERNATIONAL INC. (THE "COMPANY") 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 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 (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE XXXXXX
INTERNATIONAL INC. ("XXXXXX") COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY
NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS
SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON
THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF XXXXXX THAT (A)
THIS SECURITY AND THE XXXXXX COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY
BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY (I) IN THE UNITED
STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF
CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY
STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER
IS REQUIRED TO,
----------------
* These paragraphs should be included only if the Security is a Global
Security.
A-1
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE. IN ANY CASE, THE HOLDER HEREOF WILL NOT, DIRECTLY OR
INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTIONS WITH REGARD TO THE SECURITIES
EXCEPT AS PERMITTED UNDER THE SECURITIES ACT.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-2
$
No. ----------
CUSIP No.
XXXXXX INTERNATIONAL INC.
1 1/4% Convertible Debenture Due June 1, 2021
Xxxxxx International Inc., a Delaware corporation, promises to pay to
[CEDE & Co.] [[_______________] or registered assigns,] the principal sum of
[_______________] Dollars on June 1, 2021 [or such greater or lesser amount as
is indicated on the Schedule of Exchanges of Securities on the other side of
this Security].*
Interest Payment Dates: June 1 and December 1.
Record Dates: May 15 and June 15.
----------
* Should be included only if the Security is a Global Security.
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Reference is hereby made to the further provisions of this Security
set forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Dated:
XXXXXX INTERNATIONAL INC.
By:
-------------------------------------------
Name:
Title
Authenticated:
BANK ONE TRUST COMPANY, N.A.,
as Trustee
By:
-------------------------------
Authorized Signer
A-4
(Reverse of Security)
XXXXXX INTERNATIONAL INC.
1 1/4% Convertible Debenture Due June 1, 2021
1. INTEREST.
XXXXXX INTERNATIONAL INC. (the "Company"), a Delaware corporation,
promises to pay interest on the principal amount of this Security at the rate of
1 1/4% per annum. The Company will pay interest semi-annually on June 1 and
December 1 each year, commencing on December 1, 2001 to Holders of Securities at
the close of business on the relevant record dates specified above. Interest on
the Securities will accrue from the most recent date to which interest has been
paid or, if no interest has been paid, from May 21, 2001. Notwithstanding the
foregoing, at the close of business on December 1, 2005, December 1, 2010 and
December 1, 2015 (each, a "Reset Date") the interest rate on this Security shall
be automatically reset, and this Security shall accrue interest, from such Reset
Date to but not including the next succeeding Reset Date, or, in the case of
December 1, 2015, until the Principal Amount is paid or duly made available for
payment, at a rate per annum equal to the interest rate payable on the date 120
days prior to such reset date on 5-year U.S. Treasury Notes minus 370 basis
points; provided that in no event will the interest rate on this Debenture be
reset below 1 1/4% per annum or above 2-9/10% per annum. Any change in the
interest rate pursuant to the preceding sentence shall not have any effect on
any other provision of the Indenture or this Security. Interest will be computed
on the basis of a 360-day year of twelve 30-day months.
2. METHOD OF PAYMENT.
The Company will pay interest on the Securities (except defaulted
interest) to the persons who are registered Holders of Securities at the close
of business on the May 15 or November 15 next preceding the interest payment
date (including Securities that are cancelled after the record date and on or
before the interest payment date). Holders must surrender Securities to a Paying
Agent to collect principal and any premium payments. The Company will pay
principal, premium, if any, and interest in money of the United States that at
the time of payment is legal tender for payment of public and private debts.
3. PAYING AGENT, REGISTRAR, CONVERSION AGENT.
Initially, Bank One Trust Company, N.A. (the "Trustee") will act as
Paying Agent, Registrar and Conversion Agent. The Company may change any Paying
Agent, Registrar, Conversion Agent or co-registrar by giving notice to the
Trustee. The Company may act as Paying Agent, Registrar, Conversion Agent or co-
registrar.
4. INDENTURE.
The Company issued this Security as one of a duly authorized issue of
Debentures of the Company designated as its 1 1/4% Convertible Debentures Due
June 1, 2021 (the "Securities") under an Indenture dated as of May 21, 2001 (the
"Indenture"), between the Company and the Trustee. The terms of the Securities
include those stated in the Indenture. The Securities are subject to all such
terms, and Securityholders are referred to the Indenture for a statement of such
terms. Terms used herein that are defined in the Indenture shall have the
respective meanings assigned thereto in the Indenture. The
A-5
Securities are general unsecured obligations of the Company limited to
$800,000,000 in aggregate principal amount ($1,000,000,000 if the Initial
Purchaser Option is exercised in full).
5. OPTIONAL REDEMPTION.
No sinking fund is provided for the Securities. The Securities may not
be redeemed prior to June 5, 2006, and are redeemable, on such date and
thereafter at the option of the Company, as a whole or from time to time in
part, in integral multiples of $1,000, at any time by the Company at 100% of the
Redemption Price, plus accrued and unpaid interest to, but not including, the
Redemption Date.
If the redemption date is on or after an interest record date but on
or prior to the related interest payment date, interest will be payable to the
Holders in whose names the Securities are registered at the close of business on
the relevant record date.
6. REDEMPTION AT OPTION OF HOLDER.
Subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase, at the option of the Holder, all or any
portion of the Securities held by such Holder, in any integral multiple of
$1,000, on June 1, 2002, June 1, 2006, June 1, 20011 and June 1, 2016 (each, a
"Purchase Date") at a purchase price per Security equal to 100% of the aggregate
principal amount of the Security (the "Purchase Price"), together with accrued
and unpaid interest up to but not including the Purchase Date (provided that, if
the Purchase Date is on or after an interest record date but on or prior to the
related interest payment date, interest will be payable to the Holders in whose
names the Securities are registered at the close of business on the relevant
record date) 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 20 Business Days prior to such Purchase Date until the close of business
on the fifth Business Day prior to such Purchase Date, and upon delivery of the
Securities to the Paying Agent by the Holder as set forth in the Indenture.
Holders have the right to withdraw any Purchase Notice by delivering
to the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash sufficient to pay the Purchase Price of and accrued and unpaid
interest on, all Securities or portions thereof to be purchased as of the
Purchase Date is deposited with the Paying Agent on the Business Day following
the Purchase Date, the Holder thereof shall have no other rights other than the
right to receive the Purchase Price, together with accrued and unpaid interest
to but not including the Purchase Date, upon surrender of such Security.
If a Change of Control (as defined below) occurs, each Holder of
Securities shall have the right, at the Holder's option, to require the Company
to repurchase all of such Holder's Securities, or any portion thereof that is an
integral multiple of $1,000, on the date (the "Change of Control Purchase Date")
selected by the Company that is not less than 10 nor more than 30 days after the
Final Surrender Date (as defined below), at a price equal to 100% of the
principal amount thereof, plus accrued interest to the Change of Control
Purchase Date (the "Change of Control Purchase Price").
Unless the Company shall have theretofore called for redemption all
the outstanding Securities, on or before the 30th day after the occurrence of a
Change of Control, the Company is obligated to mail or cause the Trustee to mail
to all Holders of record of the Securities a notice (the "Company Notice")
describing, among other things, the occurrence of such Change of Control and of
the repurchase right arising as a result thereof. The Company must deliver a
copy of the Company Notice to the Trustee and cause a copy of such notice to be
published in a newspaper of general circulation in the
A-6
Borough of Manhattan, The City of New York. To exercise the repurchase right, a
Holder of Securities must surrender, on or before the date which, subject to any
contrary requirements of applicable law, is 60 days after the date of mailing of
the Company Notice (the "Final Surrender Date") the Securities with respect to
which the right is being exercised, which, in the case of definitive Securities,
must be duly endorsed for transfer to the Company.
The term "Change of Control" shall mean either:
(i) any person, including our affiliates and associates, other than
us, our subsidiaries or their employee benefit plans, files a Schedule 13D
or Schedule TO, or any successor schedule, form or report under the
Exchange Act, disclosing that such person has become the beneficial owner
of 50% or more of the voting power of our common stock or other capital
stock into which our common stock is reclassified or changed, with certain
exceptions; or
(ii) any share exchange, consolidation or merger is consummated
pursuant to which our common stock would be converted into cash, securities
or other property, in each case other than any share exchange,
consolidation or merger of our company in which the Holders of our common
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;
Notwithstanding the foregoing, 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 Common Shares 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 Common Shares, whether in excess of
50% or otherwise.
7. NOTICE OF REDEMPTION.
Notice of redemption pursuant to paragraph 5 must be mailed at least
30 days, but not more than 60 days, before the redemption date to the Trustee
and each Holder of Securities to be redeemed at his address as shown on the
register kept by the Registrar. Securities in denominations larger than $1,000
may be redeemed in part, but only in integral multiples of $1,000. On and after
the redemption date, interest shall cease to accrue on Securities or any portion
of them called for redemption; provided that funds in the requisite amount are
paid or made available for payment on that date.
8. CONVERSION.
At any time after May 30, 2001, Holders may surrender Securities for
conversion into shares of Common Stock on a conversion date if, as of such
conversion date, the Quoted Price (as defined in the Indenture) of the Common
Stock for at least 20 trading days in the 30 trading day period ending on the
trading day prior to the conversion date is more than 110% of the conversion
price per share of Common Stock on such conversion date. In addition, a Holder
may surrender for conversion a Security which has been called for redemption
pursuant to paragraph 5 hereof, even if the foregoing provisions has not been
satisfied, and such Securities may be surrendered for conversion until the close
of business on the day that is two Business Days prior to the Redemption Date.
In the event that the Company declares a dividend or distribution described in
Section 11.7 of the Indenture, or a dividend or distribution described in
Section 11.8 of the Indenture where the fair market value of such dividend or
distribution per share of
A-7
Common Stock, as determined in the Indenture exceeds 15% of the current Market
Price of the Common Stock as of the Trading Day immediately prior to the date of
declaration, the Securities may be surrendered for conversion beginning on the
date the Company gives notice to the Holders of such right, which shall be not
less than 20 days prior to the ex-dividend time for such dividend or
distribution and Securities may be surrendered for conversion at any time
thereafter until the close of business on the Business Day prior to the ex-
dividend time or until the Company announces that such distribution will not
take place. Finally, in the event that the Company is a party to a
consolidation, merger, transfer or lease of all or substantially all of its
assets or a merger which reclassifies or changes its Common Stock pursuant to
which the Common Stock would be converted into cash, securities or other assets
as set forth in Section 11.17 of the Indenture, the Securities may be
surrendered for conversion at any time from or after the date the Company
announces as the anticipated effective time until 15 days after the actual date
of such transaction (assuming, in a case in which the Company's stockholders may
exercise rights of election, that a Holder of Securities would not have
exercised any rights of election as to the stock, other securities or other
property or assets receiveable in connection therewith and received per share
the kind and amount received per share by plurality of nonelecting shares). The
number of shares issuable upon conversion of a Security is determined by
dividing the principal amount to be converted by the conversion price in effect
on the conversion date, and rounding the result to the nearest 1/l00th of a
share, with 500/1,000 of a share to be rounded up. Upon conversion, no payment
or adjustment for accrued interest on a converted Security (other than the
payment of interest to the Holder of a Security at the close of business on a
record date pursuant to paragraph 2 hereof) or for dividends or distributions on
the Common Stock will be made. The Company will deliver a check for any
fractional share issuable upon conversion.
A Security in respect of which a Holder has delivered a Purchase
Notice or Change of Control Purchase Notice exercising the option of such Holder
to required 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 price is $65.1843 per share of Common Stock
(expressed as such after giving effect to a two-for-one split of the Common
Stock effective on May 30, 2001), subject to adjustment in certain events
described in the Indenture. A Holder which surrenders Securities for conversion
will receive a check in lieu of any fractional shares of Common Stock.
To convert a Security, a Holder must (1) complete and sign the
conversion notice on the reverse of the Security, (2) surrender the Security to
the Conversion Agent, (3) furnish the appropriate endorsements and transfer
documents if required by the Registrar or Conversion Agent, and (4) pay any tax
or duty which may be payable in respect of any transfer involving the issue or
delivery of Common Stock in the name of a Person other than the Holder thereof.
A Holder may convert a portion of a Security if the portion is $1,000 or an
integral multiple of $1,000.
The conversion price will be adjusted for the issuance of capital
stock of the Company as a dividend or distribution on its Common Stock;
subdivisions, combinations or certain reclassifications of Common Stock;
distributions to all holders of Common Stock of rights or warrants to purchase
Common Stock at less than the current market price at the time; distributions to
such holders of Common Stock of cash, debt securities (or other evidences of
indebtedness) or other assets of the Company (excluding dividends or
distributions for which adjustment is required to be made pursuant to another
provision); certain dividends or other distributions consisting exclusively of
cash to all holders of Common Stock; or for payments to holders of Common Stock
pursuant to certain tender or exchange offers as provided in the Indenture. No
adjustment in the conversion price will be required unless such adjustment would
require a change of at least 1% in the conversion price then in effect; provided
that any adjustment that would otherwise be required to be made shall be carried
forward and taken into account in any subsequent
A-8
adjustment. However, no adjustment need be made if Securityholders are entitled
to participate in certain of the above transactions or in certain other cases.
The Company from time to time may voluntarily reduce the conversion price for a
period of at least 20 days.
If the Company is a party to a consolidation or merger, or a transfer
or a lease of all or substantially all of its assets or a merger which
reclassifies or changes its outstanding Common Stock, 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.
9. Conversion Arrangement
The Company has the option to designate a financial institution to
which Securities surrendered for conversion by a Holder of Securities will be
initially offered by the Conversion Agent for exchange in lieu of the Company's
converting the Securities. When a Holder surrenders Securities for conversion,
the Conversion Agent will cause the Securities first to be offered to a
financial institution chosen by the Company for exchange lieu of conversion. The
Company expects that when the Securities are convertible, the designated
institution will submit to the Conversion Agent a non-binding offer to accept
Securities surrendered for conversion. In order to accept Securities surrendered
for conversion, the designated institution must agree to exchange for such
Securities a number of shares of Common Stock equal to the number of such shares
the Holder of such Securities would receive upon conversion, plus cash for any
fractional shares. If the institution accepts any such Securities, it will
deliver the appropriate number of shares of Common Stock to the Conversion Agent
and the Conversion Agent will deliver those shares to the Holder who surrendered
the Securities. The designation of an institution to which Securities may be
submitted for exchange does not require the institution to accept any Securities
from the Conversion Agent. If the designated institution declines to accept any
Securities in whole or in part, those Securities or parts of Securities will be
converted into shares of Common Stock as the close of business on the Business
Day following the Business Day on which the Securities are surrendered for
conversion. If the designated institution agrees to accept any Securities for
exchange but does not timely deliver the related common shares, the Securities
will be converted and the shares of Common Stock will be delivered. Any
Securities accepted for exchange by the designated institution will remain
outstanding.
10. DENOMINATIONS, TRANSFER, EXCHANGE.
The Securities are in registered form without coupons in denominations
of $1,000 and integral multiples of $1,000. A Holder may register the transfer
of 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 or other governmental charges that may
be imposed in relation thereto by law or permitted by the Indenture.
11. AMENDMENT, SUPPLEMENT, WAIVER.
Subject to certain exceptions, the Indenture or the Securities may be
amended or supplemented, with the consent of the Company and the Holders of a
majority in aggregate principal amount of the Securities, and any existing
default may be waived with the consent of the Holders of a majority in aggregate
principal amount of the Securities. Without the consent of any Securityholder,
the Indenture or the Securities may be amended, inter alia, to cure any
ambiguity, defect or inconsistency, to provide for assumption of Company
obligations to Securityholders in the case of a merger or acquisition, or to
make any change that does not materially adversely affect the rights of any
Securityholder.
A-9
12. DEFAULTS AND REMEDIES.
An Event of Default is default in the payment of interest on the
Securities continued for 30 days, whether or not such payment is prohibited or
restricted by the subordination provisions of the Indenture; default in payment
of principal of or premium, if any, on the Securities when due and payable,
whether or not such payment is prohibited or restricted by the subordination
provisions of the Indenture; default in payment of the Purchase Price or Change
of Control Purchase Price to be paid upon a redemption at the option of the
Holder pursuant to paragraph 6; failure by the Company for 60 days after certain
notice to it to comply with any of its other agreements in the Indenture;
default in the payment of other evidences of indebtedness of the Company if such
payment exceeds $50,000,000 or acceleration of payments with respect to
indebtedness of the Company in excess of $50,000,000; and certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee or the Holders of at least 25% in aggregate principal amount of the
Securities may declare the principal of, and accrued interest on, 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 being 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 require indemnity satisfactory to
it before it enforces the Indenture or the Securities. Subject to certain
limitations, Holders of a majority in aggregate principal amount of the
Securities 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 principal or premium, if any, or interest) if it
determines that withholding notice is in their interests. The Company must
furnish an annual compliance certificate to the Trustee.
13. TRUSTEE DEALINGS WITH COMPANY.
Bank One Trust Company, N.A., the Trustee and any agent under the
Indenture, in its individual or any other capacity, may make loans to, accept
deposits from, and perform services for the Company or its Affiliates, and may
otherwise deal with the Company or its Affiliates, as if it were not Trustee or
agent.
14. 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. Each Securityholder by accepting
a Security waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
15. AUTHENTICATION.
This Security shall not be valid until authenticated by the manual
signature of the Trustee or an authenticating agent on the face hereof.
16. 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 Gifts to Minors
Act).
A-10
17. CUSIP NUMBERS
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures the Company has caused CUSIP numbers to be
printed on the Securities and has directed the Trustee to use CUSIP numbers in
notices of redemption as a convenience to Securityholders. No representation is
made as to the accuracy of such numbers either as printed on the Securities or
as contained in any notice of redemption.
18. GOVERNING LAW.
The laws of the State of New York shall govern the Indenture and the
Securities.
THE COMPANY WILL FURNISH TO ANY SECURITYHOLDER UPON WRITTEN REQUEST
AND WITHOUT CHARGE A COPY OF THE INDENTURE. IT ALSO WILL FURNISH THE TEXT OF
THIS SECURITY IN LARGER TYPE. REQUESTS MAY BE MADE TO: XXXXXX INTERNATIONAL
INC., XXX XXXXXX XXXXXXX, XXXXXXXXX, XXXXXXXX 00000, ATTENTION: TREASURER
A-11
CONVERSION NOTICE
To Xxxxxx International Inc.:
The undersigned owner of this Security hereby irrevocably exercises
the option to convert this Security, or the portion hereof (which is $1,000 or
an integral multiple thereof) below designated, into shares of Xxxxxx Common
Stock in accordance with the terms of the Indenture referred to in this
Security, and directs that the shares issuable and deliverable upon conversion,
together with any check in payment for fractional shares and any Securities
representing any unconverted principal amount hereof, be issued and delivered to
the registered Holder hereof unless a different name has been indicated below.
If shares are to be issued in the name of a Person other than the undersigned,
the undersigned will pay all transfer taxes payable with respect thereto.
To convert this Security into Xxxxxx Common Stock of the Company,
check the box: [_]
To convert only part of this Security, state the amount (must be
$1,000 or any whole multiple thereof): $
--------
If you want the stock certificate made out in another Person's name,
fill in the form below:
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert other Person's social security
or tax identification number)
--------------------------------------------------------------------------------
(Print or type other Person's name, address and zip code)
Date: Your signature:
---------------- -------------------------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guaranteed:
-----------------------------------------------------------
A-12
ASSIGNMENT FORM
To assign this Security or, in the event of conversion, shares of
Xxxxxx Common Stock, fill in the form below:
I or we assign and transfer this Security or, ____ shares of Xxxxxx Common
Stock, to
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Insert assignee's social security
or tax identification number)
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint
________________________________________ agent to transfer this Security on the
books of the Company. The agent may substitute another to act for him.
Date: Your signature:
---------------- -------------------------------------------
(Sign exactly as your name appears on the
face of this Security)
Signature Guaranteed:
-----------------------------------------------------------
A-13
SCHEDULE OF EXCHANGES OF SECURITIES*
The following exchanges, redemptions, repurchases or conversions of a
part of this global Security have been made:
Principal Amount of
this Global Security Amount of Amount of Increase in
Following Such Decrease in Principal Principal Amount of
Decrease Date of Authorized Signatory Amount of this Global this Global
Exchange (or Increase) of Securities Custodian Security Security
---------------------- ----------------------- --------------------- ----------------------
----------
* Should be included only if the Security is a Global Security.
A-14
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION
OF TRANSFER OF TRANSFER RESTRICTED SECURITIES
Re: 1 1/4% Convertible Debentures Due June 1, 2021 (the "Securities") of Xxxxxx
International Inc.
This certificate relates to $_______ principal amount of Securities
owned in (check applicable box)
[ ] book-entry or [ ] definitive form by _______________ (the
"Transferor").
The Transferor has requested a Registrar or the Trustee to exchange or
register the transfer of such Securities.
In connection with such request and in respect of each such Security,
the Transferor does hereby certify that the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Section 2 of the
Indenture dated as of May 21, 2001 between Xxxxxx International Inc. and Bank
One Trust Company, N.A. (the "Indenture"), and the transfer of such Security is
being made pursuant to an effective registration statement under the Securities
Act of 1933, as amended (the "Securities Act") (check applicable box) or the
transfer or exchange, as the case may be, of such Security does not require
registration under the Securities Act because (check applicable box):
[ ] Such Security is being transferred pursuant to an effective
registration statement under the Securities Act.
[ ] Such Security is being acquired for the Transferor's own account,
without transfer.
[ ] Such Security is being transferred to the Company or a Subsidiary (as
defined in the Indenture) of the Company.
[ ] Such Security is being transferred to a person the Transferor
reasonably believes is a "qualified institutional buyer" (as defined
in Rule 144A or any successor provision thereto ("Rule 144A") under
the Securities Act) that is purchasing for its own account or for the
account of a "qualified institutional buyer", in each case to whom
notice has been given that the transfer is being made in reliance on
such Rule 144A, and in each case in reliance on Rule 144A.
[ ] Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements under the Securities
Act in accordance with Rule 144 (or any successor thereto) ("Rule
144") under the Securities Act.
[ ] Such Security is being transferred pursuant to and in compliance with
an exemption from the registration requirements of the Securities Act
(other than an exemption referred to above) and as a result of which
such Security will, upon such transfer, cease to be a "restricted
security" within the meaning of Rule 144 under the Securities Act.
A-15
The Transferor acknowledges and agrees that, if the transferee will
hold any such Securities in the form of beneficial interests in a global
Security which is a "restricted security" within the meaning of Rule 144 under
the Securities Act, then such transfer can only be made pursuant to Rule 144A
under the Securities Act and such transferee must be a "qualified institutional
buyer" (as defined in Rule 144A).
Date:
------------------------- -----------------------------------------
(Insert Name of Transferor)
A-16
