Execution Copy
Mirant Corporation
2.5% Convertible Senior Debentures due 2021
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INDENTURE
Dated as of May 31, 2001
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Bankers Trust Company
TRUSTEE
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TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions......................................................1
Section 1.2 Other Definitions................................................4
Section 1.3 Incorporation by Reference of Trust Indenture Act................5
Section 1.4 Rules of Construction............................................6
Section 1.5 Acts of Holders..................................................6
ARTICLE II THE SECURITIES
Section 2.1 Form and Dating..................................................7
Section 2.2 Execution and Authentication.....................................8
Section 2.3 Registrar, Paying Agent and Conversion Agent.....................9
Section 2.4 Paying Agent to Hold Money and Securities in Trust..............10
Section 2.5 Securityholder Lists............................................10
Section 2.6 Transfer and Exchange...........................................10
Section 2.7 Replacement Securities..........................................11
Section 2.8 Outstanding Securities; Determinations of Holders' Action.......12
Section 2.9 Temporary Securities............................................13
Section 2.10 Cancellation....................................................13
Section 2.11 Persons Deemed Owners...........................................13
Section 2.12 Global Securities...............................................14
Section 2.13 CUSIP Numbers...................................................18
Section 2.14 Ranking.........................................................18
ARTICLE III REDEMPTION AND PURCHASES
Section 3.1 Company's Right to Redeem; Notices to Trustee...................19
Section 3.2 Selection of Securities to Be Redeemed..........................19
Section 3.3 Notice of Redemption............................................19
Section 3.4 Effect of Notice of Redemption..................................20
Section 3.5 Deposit of Redemption Price.....................................20
Section 3.6 Securities Redeemed in Part.....................................21
Section 3.7 Purchase of Securities by the Company at Option of the Holder...21
Section 3.8 Purchase of Securities at Option of the Holder upon a
Fundamental Change............................................27
Section 3.9 Effect of Purchase Notice or Fundamental Change Purchase
Notice........................................................30
Section 3.10 Deposit of Purchase Price or Fundamental Change Purchase
Price.........................................................31
Section 3.11 Securities Purchased in Part....................................31
Section 3.12 Covenant to Comply With Securities Laws Upon Purchase
of Securities..................................................31
Section 3.13 Repayment to the Company........................................31
ARTICLE IV COVENANTS
Section 4.1 Payment of Securities...........................................32
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Section 4.2 SEC and Other Reports...........................................32
Section 4.3 Compliance Certificate..........................................32
Section 4.4 Further Instruments and Acts....................................33
Section 4.5 Maintenance of Office or Agency.................................33
Section 4.6 Delivery of Certain Information.................................33
Section 4.7 Calculation of Original Issue Discount..........................33
ARTICLE V SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.......................34
ARTICLE VI DEFAULTS AND REMEDIES
Section 6.1 Events of Default...............................................35
Section 6.2 Acceleration....................................................36
Section 6.3 Other Remedies..................................................36
Section 6.4 Waiver of Past Defaults.........................................37
Section 6.5 Control by Majority.............................................37
Section 6.6 Limitation on Suits.............................................37
Section 6.7 Rights of Holders to Receive Payment............................38
Section 6.8 Collection Suit by Trustee......................................38
Section 6.9 Trustee May File Proofs of Claim................................38
Section 6.10 Priorities......................................................38
Section 6.11 Undertaking for Costs...........................................39
Section 6.12 Waiver of Stay, Extension or Usury Laws.........................39
ARTICLE VII TRUSTEE
Section 7.1 Duties of Trustee...............................................39
Section 7.2 Rights of Trustee...............................................40
Section 7.3 Individual Rights of Trustee....................................42
Section 7.4 Trustee's Disclaimer............................................42
Section 7.5 Notice of Defaults..............................................42
Section 7.6 Reports by Trustee to Holders...................................42
Section 7.7 Compensation and Indemnity......................................43
Section 7.8 Replacement of Trustee..........................................43
Section 7.9 Successor Trustee by Merger.....................................44
Section 7.10 Eligibility; Disqualification...................................44
Section 7.11 Preferential Collection of Claims Against Company...............44
ARTICLE VIII DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities............................44
Section 8.2 Repayment to the Company........................................45
ARTICLE IX AMENDMENTS
Section 9.1 Without Consent of Holders......................................45
Section 9.2 With Consent of Holders.........................................46
Section 9.3 Compliance with Trust Indenture Act.............................47
Section 9.4 Revocation and Effect of Consents, Xxxxxxx and Actions..........47
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Section 9.5 Notation on or Exchange of Securities...........................47
Section 9.6 Trustee to Sign Supplemental Indentures.........................47
Section 9.7 Effect of Supplemental Indentures...............................47
ARTICLE X CONVERSIONS
Section 10.1 Conversion Privilege............................................48
Section 10.2 Conversion Procedure............................................48
Section 10.3 Fractional Shares...............................................49
Section 10.4 Taxes on Conversion.............................................49
Section 10.5 Company to Provide Stock........................................50
Section 10.6 Adjustment for Change in Capital Stock..........................50
Section 10.7 Adjustment for Rights Issue.....................................51
Section 10.8 Adjustment for Other Distributions..............................52
Section 10.9 Adjustment for Self Tender Offer................................54
Section 10.10 When Adjustment May Be Deferred.................................55
Section 10.11 When No Adjustment Required.....................................55
Section 10.12 Notice of Adjustment............................................55
Section 10.13 Voluntary Increase..............................................56
Section 10.14 Notice of Certain Transactions..................................56
Section 10.15 Reorganization of Company; Special Distributions................56
Section 10.16 Company Determination Final.....................................57
Section 10.17 Trustee's Adjustment Disclaimer.................................57
Section 10.18 Simultaneous Adjustments........................................57
Section 10.19 Successive Adjustments..........................................57
ARTICLE XI MISCELLANEOUS
Section 11.1 Trust Indenture Act Controls....................................58
Section 11.2 Notices.........................................................58
Section 11.3 Communication by Holders with Other Holders.....................59
Section 11.4 Certificate and Opinion as to Conditions Precedent..............59
Section 11.5 Statements Required in Certificate or Opinion...................59
Section 11.6 Separability Clause.............................................59
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent and
Registrar.....................................................59
Section 11.8 Legal Holidays..................................................59
Section 11.9 GOVERNING LAW...................................................60
Section 11.10 No Recourse Against Others......................................60
Section 11.11 Successors......................................................60
Section 11.12 Multiple Originals..............................................60
EXHIBIT A-1 Form of Global Security
EXHIBIT A-2 Form of Certificated Security
EXHIBIT B-1 Transfer Certificate
SCHEDULE A Projected Payment Schedule
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INDENTURE dated as of May 31, 2001 between MIRANT CORPORATION, a Delaware
corporation ("Company"), and BANKERS TRUST COMPANY, a New York banking
corporation ("Trustee").
Each party agrees as follows for the benefit of the other party and for the
equal and ratable benefit of the Holders of the Company's 2.5% Convertible
Senior Debentures due 2021:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
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"144A Global Security" means a permanent Global Security in
the form of the Security attached hereto as Exhibit A-1, and that is deposited
with and registered in the name of the Depositary, representing Securities sold
in reliance on Rule 144A under the Securities Act.
"Affiliate" of any specified person means any other person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified person. For the purposes of this definition,
"control" when used with respect to any specified person means the power to
direct or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of such board.
"Business Day" means, with respect to any Security, a day that
in the City of New York, is not a day on which banking institutions are
authorized by law or regulation to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Certificated Securities" means Securities that are in the
form of the Securities attached hereto as Exhibit A-2.
"Common Stock" shall mean the shares of common stock, $0.01
par value per share, of the Company existing on the date of this Indenture or
any other shares of Capital Stock of the Company into which such common stock
shall be reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by any two Officers.
"Corporate Trust Office" means the principal office of the
Trustee at which at any time its corporate trust business shall be administered,
which office at the date hereof is located at Four Albany Street, New York, New
York 10006, Attention: Corporate Trust Administration, or such other address as
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Default" means any event which is, or after notice or passage
of time or both would be, an Event of Default.
"Global Securities" means Securities that are in the form of
the Securities attached hereto as Exhibit A-1, and that are issued to a
Depositary, and to the extent that such Securities are required to bear the
Legend required by Section 2.6(f), such Securities will be in the form of a 144A
Global Security.
"Holder" or "Securityholder" means a person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, without duplication, the principal or
face amount of (i) all obligations for borrowed money, (ii) all obligations
evidenced by debentures, notes or other similar instruments, (iii) all
obligations in respect of letters of credit or bankers acceptances or similar
instruments (or reimbursement obligations with respect thereto), (iv) all
obligations to pay the deferred purchase price of property or services, except
trade accounts payable arising in the ordinary course of business, (v) all
obligations as lessee which are capitalized in accordance with generally
accepted accounting principles, and (vi) all Indebtedness of others guaranteed
by the Company or any of its Subsidiaries or for which the Company or any of its
Subsidiaries is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).
"Indenture" means this Indenture, as amended or supplemented
from time to time in accordance with the terms hereof, including the provisions
of the TIA that are deemed to be a part hereof.
"Issue Date" of any Security means the date on which the
Security was originally issued or deemed issued as set forth on the face of the
Security.
"NYSE" means The New York Stock Exchange.
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"Officer" means the Chairman of the Board, the Vice Chairman,
the Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing
the information specified in Sections 11.4 and 11.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.3 shall be signed by an authorized
financial or accounting Officer of the Company but need not contain the
information specified in Sections 11.4 and 11.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 11.4 and 11.5, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"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.
"Redemption Date" or "redemption date" shall mean the date
specified in a notice of redemption on which the Securities may be redeemed 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.
"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any managing director, director, vice president, assistant vice
president, associate assistant secretary, assistant treasurer, trust officer or
any other officer of the Trustee who customarily performs functions similar to
those performed by the persons who at the time shall be such officers,
respectively, or to whom any corporate trust matter is referred because of such
person's knowledge of and familiarity with the particular subject and who shall
have direct responsibility for the administration of this Indenture.
"Restricted Security" means a Security required to bear the
restrictive legend set forth in the form of Security set forth in Exhibits A-1
and A-2 of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's 2.5% Convertible
Senior Debentures due 2021, as amended or supplemented from time to time, issued
under this Indenture.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
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"Stated Maturity", when used with respect to any Security,
means June 15, 2021.
"Subsidiary" means any person of which at least a majority of
the outstanding Voting Stock shall at the time directly or indirectly be owned
or controlled by the Company or by one or more Subsidiaries or by the Company
and one or more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on
the date of this Indenture, provided, however, that in the event the TIA is
amended after such date, TIA means, to the extent required by any such
amendment, the TIA as so amended.
"trading day" means a day during which trading in securities
generally occurs on the NYSE or, if the Common Stock is not listed on the NYSE,
on the principal other national or regional securities exchange on which the
Common Stock then is listed or, if the Common Stock is not listed on a national
or regional securities exchange, on the National Association of Securities
Dealers Automated Quotation System or, if the Common Stock is not quoted on the
National Association of Securities Dealers Automated Quotation System, on the
principal other market on which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" of a person means Capital Stock of such person
of the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect at least a majority of the
board of directors, managers or trustees of such person (irrespective of whether
or not at the time Capital Stock of any other class or classes shall have or
might have voting power by reason of the happening of any contingency).
Section 1.2 Other Definitions.
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Term Section: Defined in:
"Accreted Conversion Price"................................... Exhibit A-1
"Accreted Value".............................................. Exhibit A-1
"Administrative Action"....................................... Exhibit A-1
"Agent Members"............................................... 2.12(e)
"Average Sale Price".......................................... 10.7
"beneficial owner"............................................ 3.8(a)
"cash"........................................................ 3.7(b)
"Company Notice".............................................. 3.7(c)
"Company Notice Date"......................................... 3.7(c)
"Conversion Agent"............................................ 2.3
"Conversion Date"............................................. 10.2
"Conversion Period"........................................... Exhibit A-1
"Conversion Rate" ............................................ 10.1
"Depositary".................................................. 2.1(a)
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"Event of Default"............................................ 6.1
"Exchange Act"................................................ 3.7(d)
"Ex-Dividend Time"............................................ 10.1
"Extraordinary Cash Dividend"................................. 10.8
"Fundamental Change".......................................... 3.8(a)
"Fundamental Change Purchase Date"............................ 3.8(a)
"Fundamental Change Purchase Notice".......................... 3.8(a)
"Fundamental Change Purchase Price"........................... 3.8(a)
"Interest Adjustment Date".................................... Exhibit A-1
"Interest Payment Date"....................................... Exhibit A-1
"Legal Holiday"............................................... 11.8
"Legend"...................................................... 2.6(f)
"Market Price"................................................ 3.7(d)
"Notice of Default"........................................... 6.1
"Option Exercise Date"........................................ Exhibit A-1
"Paying Agent"................................................ 2.3
"Purchase Date"............................................... 3.7(a)
"Purchase Notice"............................................. 3.7(a)
"Purchase Price".............................................. 3.7(a)
"QIB"......................................................... 2.1(a)
"Reference Fixed Rate"........................................ Exhibit A-1
"Registrar"................................................... 2.3
"Regular Record Date"......................................... Exhibit A-1
"Reset Rate Agent"............................................ Exhibit A-1
"Reset Fixed Date"............................................ Exhibit A-1
"Reset Rate".................................................. Exhibit A-1
"Rule 144A Information"....................................... 4.6
"Sale Price".................................................. 3.7(d)
"Securities Act".............................................. 3.7(d)
"Tax Event"................................................... Exhibit A-1
"Time of Determination"....................................... 10.1
"Upward Interest Adjustment".................................. Exhibit A-1
Section 1.3 Incorporation by Reference of Trust Indenture Act. Whenever
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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.
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"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context otherwise requires:
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(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 as in effect from
time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
Section 1.5 Acts of Holders. (a) Any request, demand, authorization,
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direction, notice, consent, waiver or other action provided by this Indenture
to be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee and the
Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any person of any such instrument
or writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to such officer the execution thereof. Where such
execution is by a signer acting in a capacity other than such signer's
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of such signer's authority. The fact and date of the execution
of any such instrument or writing, or the authority of the person executing the
same, may also be proved in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the register for the
Securities.
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(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the Company in
reliance thereon, whether or not notation of such action is made upon such
Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board Resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such request,
demand, authorization, direction, notice, consent, waiver or other Act may be
given before or after such record date, but only the Holders of record at the
close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE II
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the Trustee's certificate
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of authentication shall be substantially in the form of Exhibits A-1 and A-2,
which are a part of this Indenture. To the extent any provisions of the
Securities and this Indenture are in conflict, the provisions of this Indenture
shall control. The Securities may have notations, legends or endorsements
required by law, stock exchange rule or usage (provided that any such notation,
legend or endorsement required by usage is in a form acceptable to the Company).
The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within the United
States to qualified institutional buyers as defined in Rule 144A ("QIBs") in
reliance on Rule 144A shall be issued initially in the form of a 144A Global
Security substantially in the form of Exhibit A-1, which shall be deposited with
the Trustee at its Corporate Trust Office, as custodian for the Depositary (as
defined below) and registered in the name of The Depository Trust Company
("DTC") or the nominee thereof (DTC, or any successor thereto, and any such
nominee being hereinafter referred to as the "Depositary"), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of the 144A Global Securities may from time to time be
increased or decreased by adjustments made on the records of the Trustee and the
Depositary as hereinafter provided.
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(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 and conversions.
Any adjustment of the aggregate principal amount 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 Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to Global
----------------------
Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with this
Section 2.1(c), authenticate and deliver initially one or more Global Securities
that (a) shall be registered in the name of the Depositary, (b) shall be
delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS 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."
(d) Certificated Securities. Securities not issued as interests in the
-------------------------
Global Securitieswill be issued in certificated form substantially in the form
of Exhibit A-2 attached hereto.
Section 2.2 Execution and Authentication. The Securities shall be executed
-----------------------------------------
on behalf of the Company by any Officer. The signature of the Officer on the
Securities may be manual or facsimile.
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Securities bearing the manual or facsimile signatures of individuals who
were at the time of the execution of the Securities Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of authentication of
such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount of up to $862,500,000 upon one or more
Company Orders without any further action by the Company. The aggregate
principal amount of the Securities due at the Stated Maturity thereof
outstanding at any time may not exceed the amount set forth in the foregoing
sentence, except as provided in Section 2.7 and upon the occurrence of an Upward
Interest Adjustment or a Tax Event as contemplated in the form of Security
attached hereto as Exhibit A-1.
The Securities shall be issued only in registered form without coupons and
only in denominations of $1,000 of principal amount and any integral multiple
thereof.
Section 2.3 Registrar, Paying Agent and Conversion Agent. The Company shall
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maintain an office or agency where Securities may be presented for registration
of transfer or for exchange ("Registrar"), an office or agency where Securities
may be presented for purchase or payment ("Paying Agent") and an office or
agency where Securities may be presented for conversion ("Conversion Agent").
The Registrar shall keep a register of the Securities and of their transfer and
exchange. The Company may have one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents. The term Paying
Agent includes any additional paying agent, including any named pursuant to
Section 4.5. The term Conversion Agent includes any additional conversion agent,
including any named pursuant to Section 4.5.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (that is not also the
Trustee). The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion Agent
and Paying Agent in connection with the Securities.
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Section 2.4 Paying Agent to Hold Money and Securities in Trust. Except as
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otherwise provided herein, on or prior to each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due date) or shares of
Common Stock sufficient to make such payments when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Securityholders or
the Trustee all money and shares of Common Stock held by the Paying Agent for
the making of payments in respect of the Securities and shall notify the Trustee
of any default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and shares of
Common Stock so held in trust. If the Company, a Subsidiary or an Affiliate of
either of them acts as Paying Agent, it shall segregate the money and shares of
Common Stock held by it as Paying Agent and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to pay all money and shares
of Common Stock held by it to the Trustee and to account for any funds and
Common Stock disbursed by it. Upon doing so, the Paying Agent shall have no
further liability for the money or shares of Common Stock.
Section 2.5 Securityholder Lists. The Trustee shall preserve in as current
----------------------------------
a form as is reasonably practicable the most recent list available to it of the
names and addresses of Securityholders. If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee at least semiannually on June
1 and December 1 a listing of Securityholders dated within 15 days of the date
on which the list is furnished and at such other times as the Trustee may
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 2.6 Transfer and Exchange. (a) Subject to Section 2.12 hereof, upon
----------------------------------
surrender for registration of transfer of any Security, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder's attorney duly authorized in writing, at
the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.3, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount (or Accreted Value, if an
Upward Interest Adjustment has occurred as contemplated in the form of Security
attached as Exhibit A-1 hereto). The Company shall not charge a service charge
for any registration of transfer or exchange, but the Company may require
payment of a sum sufficient to pay all taxes, assessments or other governmental
charges that may be imposed in connection with the transfer or exchange of the
Securities from the Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder's attorney duly authorized
in writing, at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities, which the Holder making the exchange is entitled to
receive.
10
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Fundamental
Change Purchase Notice has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Securities
to be purchased in part, the portion thereof not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.6(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole
or in part, to the Depositary, to nominees of the Depositary or to a successor
of the Depositary or such successor's nominee.
(c) Successive registrations and registrations of transfers and exchanges
as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.3 hereof shall provide to
the Trustee such information as the Trustee may reasonably require in connection
with the delivery by such Registrar of Securities upon transfer or exchange of
Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends set forth
on the forms of Security attached hereto as Exhibits A-1 and A-2 setting forth
such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that
such Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of the sale of such
Security pursuant to a registration statement that is effective at the time of
such sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend. If the Legend
is removed from the face of a Security and the Security is subsequently held by
the Company or an Affiliate of the Company, the Legend shall be reinstated.
Section 2.7 Replacement Securities. If (a) any mutilated Security is
--------------------------------------
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
11
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a certificate number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.7, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.8 Outstanding Securities; Determinations of Holders' Action.
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Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 2.7,
those delivered to it for cancellation and those described in this Section 2.8
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company or such other
obligor shall be disregarded and deemed not to be outstanding, except that, in
determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually knows to be so
owned shall be so disregarded. Subject to the foregoing, only Securities
outstanding at the time of such determination shall be considered in any such
determination (including, without limitation, determinations pursuant to
Articles 6 and 9).
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
12
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a
Fundamental Change Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Fundamental Change
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease to be outstanding and interest, if any, on such Securities shall cease to
accrue; provided, that if such Securities are to be redeemed, notice of such
redemption has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If a Security is converted in accordance with Article X, then from and
after the Conversion Date, such Security shall cease to be outstanding and
interest, if any, shall cease to accrue on such Security.
Section 2.9 Temporary Securities. Pending the preparation of definitive
----------------------------------
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.3,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.10 Cancellation. All Securities surrendered for payment, purchase
--------------------------
by the Company pursuant to Article 3, conversion, redemption or registration of
transfer or exchange shall, if surrendered to any person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article X. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the Trustee in accordance
with the Trustee's customary procedure.
Section 2.11 Persons Deemed Owners. Prior to due presentment of a Security
-----------------------------------
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the person in whose name such Security is
13
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price, Purchase Price
or Fundamental Change Purchase Price in respect thereof, and interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Section 2.12 Global Securities. (a) Notwithstanding any other provisions of
------------------------------
this Indenture or the Securities, (A) transfers of a Global Security, in whole
or in part, shall be made only in accordance with Section 2.6 and Section
2.12(a)(i), (B) transfers of a beneficial interest in a Global Security for a
Certificated Security shall comply with Section 2.6 and Section 2.12(a)(ii)
below, and (C) transfers of a Certificated Security shall comply with Section
2.6 and Sections 2.12(a)(iii) and (iv) below.
(i) Transfer of Global Security. A Global Security may not be transferred,
---------------------------
in whole or in part, to any person other than the Depositary or a nominee or any
successor thereof, and no such transfer to any such other person may be
registered; provided that this clause (i) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is not itself a
Global Security. No transfer of a Security to any person shall be effective
under this Indenture or the Securities unless and until such Security has been
registered in the name of such person. Nothing in this Section 2.12(a)(i) shall
prohibit or render ineffective any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Section
2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global Security
----------------------------------------------------------------------
for a Certificated Security. A beneficial interest in a Global Security may not
----------------------------
be exchanged for a Certificated Security except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a transfer of a
beneficial interest in a Global Security in accordance with Applicable
Procedures for a Certificated Security in the form satisfactory to the Trustee,
together with:
(A) so long as the Securities are Restricted Securities, certification
in the form set forth in Exhibit B-1;
(B) written instructions to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with respect
to such Global Security to reflect a decrease in the aggregate
principal amount of the Securities represented by the Global Security,
such instructions to contain information regarding the Depositary
account to be credited with such decrease; and
(C) if the Company so requests, an opinion of counsel or other
evidence reasonably satisfactory to it as to the compliance with the
restrictions set forth in the Legend, then the Trustee shall cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate principal amount of the Securities
14
represented by the Global Security to be decreased by the aggregate
principal amount of the Certificated Security to be issued, shall
issue such Certificated Security and shall debit or cause to be
debited to the account of the person specified in such instructions a
beneficial interest in the Global Security equal to the principal
amount or Accreted Value of the Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When Certificated
--------------------------------------------------
Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated Securities; or
(z) to exchange such Certificated Securities for an equal principal
amount of Certificated Securities of other authorized denominations,
the Registrar shall register the transfer or make the exchange as requested if
its reasonable requirements for such transaction are met; provided, however,
that the Certificated Securities surrendered for transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument of
transfer in form reasonably satisfactory to the Company and the
Registrar, duly executed by the Holder thereof or his attorney
duly authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied by
the following additional information and documents, as
applicable:
(A) if such Certificated Securities are being delivered to
the Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect; or
(B) if such Certificated Securities are being transferred to
the Company, a certification to that effect; or
(C) if such Certificated Securities are being transferred
pursuant to an exemption from registration, (i) a certification
to that effect (in the form set forth in Exhibit B-1, if
applicable) and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to the
compliance with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a Beneficial
---------------------------------------------------------------------------
Interest in a Global Security. A Certificated Security may not be exchanged for
------------------------------
a beneficial interest in a Global Security except upon satisfaction of the
requirements set forth below.
15
Upon receipt by the Trustee of a Certificated Security, duly endorsed or
accompanied by appropriate instruments of transfer, in form satisfactory to the
Trustee, together with:
(I) so long as the Securities are Restricted Securities, certification, in
the form set forth in Exhibit B-1, that such Certificated Security is being
transferred to a QIB in accordance with Rule 144A; and
(II) written instructions directing the Trustee to make, or to direct the
Registrar to make, an adjustment on its books and records with respect to
such Global Security to reflect an increase in the aggregate principal
amount of the Securities represented by the Global Security, such
instructions to contain information regarding the Depositary account to be
credited with such increase, then the Trustee shall cancel such
Certificated Security and cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing between
the Depositary and the Registrar, the aggregate principal amount of
Securities represented by the Global Security to be increased by the
aggregate principal amount of the Certificated Security to be exchanged,
and shall credit or cause to be credited to the account of the person
specified in such instructions a beneficial interest in the Global Security
equal to the principal amount of the Certificated Security so cancelled. If
no Global Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate, upon written order of the Company in the form
of an Officers' Certificate, a new Global Security in the appropriate
principal amount.
(b) Subject to the succeeding paragraph (c), every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit B-1, dated the date of such surrender and signed by the Holder
of such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
16
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged
for a new Security, of like tenor and aggregate principal amount, which shall
not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the Securities under
the Securities Act. The Trustee shall not be liable for any action taken or
omitted to be taken by it in good faith in accordance with the aforementioned
opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12, the term
"transfer" encompasses any sale, pledge, transfer, loan, hypothecation, or other
disposition of any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply only
to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, except as provided in Section 2.12(a)(ii), a Global
Security shall not be exchanged in whole or in part for a Security
registered in the name of any person other than the Depositary or one
or more nominees thereof, provided that a Global Security may be
exchanged for Securities registered in the names of any person
designated by the Depositary in the event that (i) the Depositary has
notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or such Depositary has ceased to
be a "clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days or
(ii) an Event of Default has occurred and is continuing with respect
to the Securities. Any Global Security exchanged pursuant to clause
(i) above shall be so exchanged in whole and not in part, and any
Global Security exchanged pursuant to clause (ii) above may be
exchanged in whole or from time to time in part as directed by the
Depositary. Any Security issued in exchange for a Global Security or
any portion thereof shall be a Global Security; provided that any such
Security so issued that is registered in the name of a person other
than the Depositary or a nominee thereof shall not be a Global
Security.
(2) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to
that of such Global Security or portion thereof to be so exchanged,
shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to the
Trustee, as Registrar. With regard to any Global Security to be
17
exchanged in part, either such Global Security shall be so surrendered
for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the registered Holder
may grant proxies and otherwise authorize any person, including Agent
Members (as defined below) and persons that may hold interests through
Agent Members, to take any action which a holder is entitled to take
under this Indenture or the Securities.
(4) In the event of the occurrence of any of the events specified in
clause (1) above, the Company will promptly make available to the
Trustee a reasonable supply of Certificated Securities in definitive,
fully registered form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other persons on whose
behalf Agent Members may act shall have any rights under this
Indenture with respect to any Global Security registered in the name
of the Depositary or any nominee thereof, or under any such Global
Security, and the Depositary or such nominee, as the case may be, may
be treated by the Company, the Trustee and any agent of the Company or
the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between
the Depositary, its Agent Members and any other person on whose behalf
an Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any
Security.
Section 2.13 CUSIP Numbers. The Company may issue the Securities with one
---------------------------
or more "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 Ranking. The Indebtedness of the Company arising under or in
--------------------
connection with this Indenture and every outstanding Security issued under this
18
Indenture from time to time constitutes and will constitute a senior unsecured
obligation of the Company, ranking equally with other existing and future senior
unsecured Indebtedness of the Company and ranking senior to any future
subordinated Indebtedness of the Company.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1 Company's Right to Redeem; Notices to Trustee. The Company, at
-----------------------------------------------------------
its option, may redeem the Securities in accordance with the provisions of
Paragraph 5 of the Securities. If the Company elects to redeem Securities
pursuant to Paragraph 5 of the Securities, it shall notify the Trustee in
writing of the Redemption Date, the principal amount of Securities to be
redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in Section
3.3 by a Company Order, at least 45 days before the Redemption Date (unless a
shorter notice shall be satisfactory to the Trustee).
Section 3.2 Selection of Securities to Be Redeemed. If less than all the
-----------------------------------------------------
Securities are to be redeemed, unless the procedures of the Depositary provide
otherwise, the Trustee shall select the Securities to be redeemed by lot, on a
pro rata basis or by another method the Trustee considers fair and appropriate
(so long as such method is not prohibited by the rules of any stock exchange on
which the Securities are then listed). The Trustee shall make the selection at
least 35 days but not more than 60 days before the Redemption Date from
outstanding Securities not previously called for redemption. The Trustee may
select for redemption portions of the principal amount of Securities that have
denominations larger than $1,000.
Securities and portions of Securities that the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to Securities called for redemption also apply to
portions of Securities called for redemption. The Trustee shall notify the
Company promptly of the Securities or portions of the Securities to be redeemed.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed (so far as
may be) to be the portion selected for redemption. Securities, which have been
converted during a selection of Securities to be redeemed, may be treated by the
Trustee as outstanding for the purpose of such selection.
Section 3.3 Notice of Redemption. At least 30 days but not more than 60
------------------------------------
days before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall state:
(1) the Redemption Date;
19
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any time
before the close of business on the date that is two Business Days
prior to the Redemption Date;
(6) that Holders who want to convert their 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 at least two (2) Business Days prior to the Redemption
Date to collect the Redemption Price;
(8) if fewer than all of the outstanding Securities are to be redeemed,
the certificate numbers, if any, and principal amounts of the
particular Securities to be redeemed;
(9) that, unless the Company defaults in making payment of such Redemption
Price, interest, if any, on Securities called for redemption will
cease to accrue on and after the Redemption Date; and
(10) the CUSIP number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense, provided that the Company
makes such request at least three Business Days prior to the date by which such
notice of redemption must be given to Holders in accordance with this Section
3.3.
Section 3.4 Effect of Notice of Redemption. Once notice of redemption is
--------------------------------------------
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice except for Securities
which are converted in accordance with the terms of this Indenture. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Xxxxx stated in the notice.
Section 3.5 Deposit of Redemption Price. Prior to 10:00 a.m. (New York City
---------------------------------------
time), on the Redemption Date, the Company shall deposit with the Paying Agent
(or if the Company or a Subsidiary or an Affiliate of either of them is the
Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article X. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
20
Section 3.6 Securities Redeemed in Part. Upon surrender of a Security that
-----------------------------------------
is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered.
Section 3.7 Purchase of Securities by the Company at Option of the Holder.
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(a) General. Securities shall be purchased by the Company pursuant to Paragraph
6 of the Securities at the option of the Holder on June 15, 2004, June 15, 2006,
June 15, 2011 and June 15, 2016 (each, a "Purchase Date"), at the Accreted Value
plus accrued and unpaid cash interest, if any, on such Purchase Date (the
"Purchase Price"). 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") during the period beginning at any time
from the opening of business on the date that is 20 Business Days
prior to the relevant Purchase Date until the close of business on the
last Business Day prior to such Purchase Date stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased or the appropriate Depositary procedures if
Certificated Securities have not been issued,
(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 of $1,000 or an integral multiple thereof,
(C) that such Security shall be purchased by the Company as of the
Purchase Date pursuant to the terms and conditions specified in
Paragraph 6 of the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section 3.7(b), to
pay the Purchase Price, in whole or in part, in shares of Common Stock
but such portion of the Purchase Price shall ultimately be paid to
such Holder entirely in cash because any of the conditions to payment
of the Purchase Price in shares of Common Stock is not satisfied prior
to the close of business on the last Business Day prior to the
relevant Purchase Date, as set forth in Section 3.7(d), whether such
Holder elects (i) to withdraw such Purchase Notice as to some or all
of the Securities to which such Purchase Notice relates (stating the
principal amount and certificate numbers, if any, of the Securities as
to which such withdrawal shall relate), or (ii) to receive cash in
respect of the entire Purchase Price for all Securities (or portions
thereof) to which such Purchase Notice relates; and
(2) delivery of such Security to the Paying Agent prior to, on or after
the Purchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to
21
receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to this
Section 3.7 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.
If a Holder, in such Xxxxxx's Purchase Notice and in any written notice of
withdrawal delivered by such Holder pursuant to the terms of Section 3.9, fails
to indicate such Xxxxxx's choice with respect to the election set forth in
clause (D) of Section 3.7(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Securities subject
to such Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.7, a portion of a Security, only 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 3.7 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.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 3.7(a) shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the last Business Day prior to the Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section 3.9.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price for
Payment. The Securities to be purchased on any Purchase Date pursuant to Section
3.7(a) may be paid for, in whole or in part, at the election of the Company, in
U.S. legal tender ("cash") or shares of Common Stock, or in any combination of
cash and shares of Common Stock, subject to the conditions set forth in Sections
3.7(c) and (d). The Company shall designate, in the Company Notice delivered
pursuant to Section 3.7(e), whether the Company will purchase the Securities for
cash or shares of Common Stock, or, if a combination thereof, the percentages of
the Purchase Price of Securities in respect of which it will pay in cash or
shares of Common Stock; provided that the Company will pay cash for fractional
interests in shares of Common Stock. For purposes of determining the existence
of potential fractional interests, all Securities subject to purchase by the
Company held by a Holder shall be considered together (no matter how many
separate certificates are to be presented). Each Holder whose Securities are
purchased pursuant to this Section 3.7 shall receive the same percentage of cash
or shares of Common Stock in payment of the Purchase Price for such Securities,
except (i) as provided in Section 3.7(d) with regard to the payment of cash in
lieu of fractional shares of Common Stock and (ii) in the event that the Company
is unable to purchase the Securities of a Holder or Holders for shares of Common
Stock because any necessary qualifications or registrations of the shares of
Common Stock under applicable state securities laws cannot be obtained, the
22
Company may purchase the Securities of such Holder or Holders for cash. The
Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company has
given its Company Notice to Holders except pursuant to this Section 3.7(b) or
pursuant to Section 3.7(d) in the event of a failure to satisfy, prior to the
close of business on the last Business Day prior to the Purchase Date, any
condition to the payment of the Purchase Price, in whole or in part, in shares
of Common Stock.
At least three Business Days before each Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.7(e) in the Company Notice,
(iii) if the Company elects to pay the Purchase Price, or a specified
percentage thereof, in shares of Common Stock, that the conditions to such
manner of payment set forth in Section 3.7(d) have been or will be complied
with,
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.7(e), and
(v) the principal amount of the Securities plus accrued and unpaid
interest.
(c) Purchase with Cash. At the option of the Company, the Purchase Price of
Securities in respect of which a Purchase Notice pursuant to Section 3.7(a) has
been given, or a specified percentage thereof, may be paid by the Company with
cash equal to the aggregate Purchase Price of such Securities, except that
accrued and unpaid cash interest must be paid in cash. The Company Notice, as
provided in Section 3.7(e), shall be sent to Holders (and to beneficial owners
as required by applicable law) not less than 20 Business Days prior to such
Purchase Date (the "Company Notice Date").
(d) Payment by Issuance of shares of Common Stock. At the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.7(a) has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Common Stock
equal to the quotient obtained by dividing (i) the portion of the Purchase Price
to be paid in shares of Common Stock by (ii) the Market Price of one share of
Common Stock as determined by the Company in the Company Notice, subject to the
next succeeding paragraph.
The Company will not issue fractional shares of Common Stock in payment of
the Purchase Price. Instead, the Company will pay cash based on the current
market price for all fractional shares. It is understood that if a Holder elects
to have more than one Security purchased, the number of shares of Common Stock
shall be based on the aggregate amount of Securities to be purchased.
23
If the Company elects to purchase the Securities by the issuance of shares
of Common Stock, the Company Notice, as provided in Section 3.7(e), shall be
sent to the Holders (and to beneficial owners as required by applicable law) not
later than the Company Notice Date.
The Company's right to exercise its election to purchase Securities through
the issuance of shares of Common Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of an
election to purchase all or a specified percentage of the Securities with
shares of Common Stock as provided herein;
(ii) the registration of such shares of Common Stock under the
Securities Act of 1933, as amended (the "Securities Act"), or the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), in each
case, if required;
(iii) the listing of such shares of Common Stock on the principal
national securities exchange (currently the NYSE) or other principal
exchange or market on which the shares of Common Stock are listed or
traded;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
shares of Common Stock are in conformity with this Indenture and (B) the
shares of Common Stock to be issued by the Company in payment of the
Purchase Price in respect of Securities have been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture in payment of
the Purchase Price in respect of the Securities, will be validly issued,
fully paid and non-assessable and, to the best of such counsel's knowledge,
free from preemptive rights, and, in the case of such Officers'
Certificate, stating that the conditions above and the condition set forth
in the second succeeding sentence have been satisfied and, in the case of
such Opinion of Counsel, stating that the conditions in clauses (i) through
(iv) above have been satisfied.
Such Officers' Certificate shall also set forth the number of shares of
Common Stock to be issued for each $1,000 principal amount of Securities and the
Sale Price of a share of Common Stock on each trading day during the period
commencing on the first trading day of the period during which the Market Price
is calculated and ending on the third trading day prior to the applicable
Purchase Date. The Company may pay the Purchase Price (or any portion thereof)
in shares of Common Stock only if the information necessary to calculate the
Market Price is published in a daily newspaper of national circulation. If the
foregoing conditions are not satisfied with respect to a Holder or Holders prior
to the close of business on the last Business Day prior to the Purchase Date,
and the Company has elected to purchase the Securities pursuant to this Section
3.7 through the issuance of shares of Common Stock, the Company shall pay the
entire Purchase Price of the Securities of such Holder or Holders in cash.
24
The "Market Price" means the average of the Sale Prices of the shares of
Common Stock for the five trading day period ending on the third Business Day
prior to the applicable Purchase Date (if the third Business Day prior to the
applicable Purchase Date is a trading day, or if not, then on the last trading
day prior to the third Business Day), appropriately adjusted to take into
account the occurrence, during the period commencing on the first of the trading
days during the five trading day period and ending on the Purchase Date, of any
event described in Sections 10.6, 10.7, 10.8 or 10.9; subject, however, to the
conditions set forth in Sections 10.10 and 10.11.
The "Sale Price" of the shares of Common Stock on any date means the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported on the NYSE or, if the shares of Common Stock are not listed on the
NYSE, as reported by the Nasdaq system. In the absence of such quotations, the
Company shall be entitled to determine the sales price on the basis of such
quotations as it considers appropriate.
Upon determination of the actual number of shares of Common Stock to be
issued upon redemption of Securities, the Company will disseminate a press
release through Dow Xxxxx & Company, Inc. or Bloomberg Business News containing
this information or publish the information on the Company's Web site or through
such other public medium as the Company may use at that time.
(e) Notice of Election. In connection with any purchase of Securities
pursuant to Paragraph 6 of the Securities, the Company shall give notice to
Holders setting forth information specified in this Section 3.7(e) (the "Company
Notice").
In the event the Company has elected to pay the Purchase Price (or a
specified percentage thereof) with shares of Common Stock, the Company Notice
shall:
(1) state that each Holder will receive shares of Common Stock with a
Market Price determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any cash amount to be paid in
lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the shares of
Common Stock; and
(3) state that because the Market Price of shares of Common Stock will be
determined prior to the Purchase Date, Holders of the Securities will
bear the market risk with respect to the value of the shares of Common
Stock to be received from the date such Market Price is determined to
the Purchase Date.
In any case, each Company Notice shall include a form of Purchase Notice to
be completed by a Holder and shall state:
(i) the Purchase Price and the Conversion Rate;
25
(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 X 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 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 (iv);
(vi) the procedures the Holder must follow to exercise its put rights
under this Section 3.7 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities;
(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.7(a)(1)(D) or Section 3.9);
(ix) that, unless the Company defaults in making payment on Securities
for which a Purchase Notice has been submitted, interest, if any, on such
Securities will cease to accrue on the Purchase Date; and
(x) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in the
Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
(f) Covenants of the Company. All shares of Common Stock delivered upon
purchase of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and nonassessable, and
shall be free from preemptive rights and free of any lien or adverse claim.
(g) Procedure upon Purchase. The Company shall deposit cash (in respect of
a cash purchases under this Section 3.7 or for fractional interests, as
applicable) or shares of Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 3.10, sufficient to pay the
aggregate Purchase Price of all Securities to be purchased pursuant to this
Section 3.7. As soon as practicable after the Purchase Date, the Company shall
deliver to each Holder entitled to receive shares of Common Stock through the
Paying Agent, a certificate for the number of full shares of Common Stock
issuable in payment of the Purchase Price and cash in lieu of any fractional
interests. The person in whose name the certificate for the shares of Common
Stock is registered shall be treated as a holder of record of Common Stock on
26
the Business Day following the Purchase Date. Subject to Section 3.7(d), no
payment or adjustment will be made for dividends on the shares of Common Stock
the record date for which occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a purchased Security is paid in shares of Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of Common Stock. However, the Holder shall pay any such
tax which is due because the Holder requests the Common Stock to be issued in a
name other than the Holder's name. The Paying Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name
other than the Holder's name until the Paying Agent receives a sum sufficient to
pay any tax which will be due because the shares of Common Stock are to be
issued in a name other than the Holder's name. Nothing herein shall preclude any
income tax withholding required by law or regulations.
Section 3.8 Purchase of Securities at Option of the Holder upon a
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Fundamental Change. (a) If a Fundamental Change occurs, the Securities not
--------------------
previously purchased by the Company shall be purchased by the Company, at the
option of the Holder thereof, at a purchase price specified in Paragraph 6 of
the Securities (the "Fundamental Change Purchase Price"), as of the date that is
45 days after the date of the Fundamental Change Notice delivered by the Company
(the "Fundamental Change Purchase Date"), subject to satisfaction by or on
behalf of the Holder of the requirements set forth in Section 3.8(c).
A "Fundamental Change" shall be deemed to have occurred at such time after
the Securities are originally issued as either of the following events shall
occur:
(i) any person, including any syndicate or group deemed to be a
"person" under Section 13(d)(3) of the Exchange Act, acquires beneficial
ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of the
Company's Capital Stock entitling the person to exercise 50% or more of the
total voting power of all shares of the Company's Capital Stock that are
entitled to vote generally in elections of directors, other than an
acquisition by the Company, any of its Subsidiaries or any of its employee
benefit plans; or
(ii) the Company merges or consolidates with or into any other person,
any merger of another person into the Company, or the Company conveys,
sells, transfers or leases all or substantially all of its assets to
another person, other than any transaction: (A) that does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of the Company's Capital Stock, or (B) pursuant to which the holders
of Common Stock immediately prior to the transaction have the entitlement
to exercise, directly or indirectly, 50% or more of the total voting power
of all shares of Capital Stock entitled to vote generally in the election
of directors of the continuing or surviving corporation immediately after
the transaction, or (C) which is effected solely to change the Company's
jurisdiction of incorporation and results in a reclassification, conversion
or exchange of outstanding shares of the Common Stock solely into shares of
common stock of the surviving entity.
27
Notwithstanding the foregoing provisions of this Section 3.8, a Fundamental
Change shall not be deemed to have occurred if (A) the closing price per share
of Common Stock on the NYSE for any five NYSE trading days within the period of
10 consecutive NYSE trading days ending immediately after the later of a
Fundamental Change or the public announcement of a Fundamental Change, in the
case of a Fundamental Change relating to an acquisition of Capital Stock, or the
period of 10 consecutive NYSE trading days ending immediately before a
Fundamental Change, in the case of a Fundamental Change relating to a merger,
consolidation or asset sale, equals or exceeds 105% of the conversion price of
the Securities in effect on each of those NYSE trading days or (B) all of the
consideration (excluding cash payments for fractional shares and cash payments
made pursuant to dissenters' appraisal rights) in a merger or consolidation
otherwise constituting a Fundamental Change under clause (i) and/or clause (ii)
above consists of shares of common stock traded on a national securities
exchange or quoted on the Nasdaq National Market (or will be so traded or quoted
immediately following the merger or consolidation) and as a result of the merger
or consolidation the Securities become convertible into such common stock. For
purposes of this Section 3.8, (x) the conversion price is equal to the Accreted
Value of a Security with a $1,000 principal amount divided by the Conversion
Rate, (y) whether a person is a "beneficial owner" shall be determined in
accordance with Rule 13d-3 under the Exchange Act and (z) "person" includes any
syndicate or group that would be deemed to be a "person" under Section 13(d)(3)
of the Exchange Act.
(b) No later than 30 days after the occurrence of a Fundamental Change, the
Company shall mail a written notice of the Fundamental Change by first-class
mail to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice shall include a form of Fundamental Change Purchase
Notice to be completed by the Holder and shall state:
(1) briefly, the events causing a Fundamental Change and the date of
such Fundamental Change;
(2) the date by which the Fundamental Change Purchase Notice pursuant
to this Section 3.8 must be given;
(3) the Fundamental Change Purchase Date;
(4) the Fundamental Change Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that the Securities as to which a Fundamental Change Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article X hereof only if the Fundamental
Change Purchase Notice has been withdrawn in accordance with the
terms of this Indenture;
(8) that the Securities must be surrendered to the Paying Agent to
collect payment;
28
(9) that the Fundamental Change Purchase Price for any Security as to
which a Fundamental Change Purchase Notice has been duly given
and not withdrawn will be paid promptly following the later of
the Fundamental Change Purchase Date and the time of surrender of
such Security as described in (8);
(10) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.10;
(11) briefly, the conversion rights, if any, of the Securities;
(12) the procedures for withdrawing a Fundamental Change Purchase
Notice;
(13) that, unless the Company defaults in making payment of such
Fundamental Change Purchase Price, interest, if any, on
Securities surrendered for purchase by the Company will cease to
accrue on and after the Fundamental Change Purchase Date; and
(14) the CUSIP number(s) of the Securities.
(c) A Holder may exercise its rights specified in Section 3.8(a) upon
delivery of an irrevocable written notice of purchase (a "Fundamental Change
Purchase Notice") to the Paying Agent at any time on or prior to the 30th day
after the date the Company delivers its written Fundamental Change Purchase
Notice, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
(2) the portion of the principal amount of the Security which the
Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in Paragraph 6 of the Securities.
The delivery of such Security to the Paying Agent with the Fundamental
Change Purchase Notice (together with all necessary endorsements) at the offices
of the Paying Agent shall be a condition to the receipt by the Holder of the
Fundamental Change Purchase Price therefor; provided, however, that such
Fundamental Change Purchase Price shall be so paid pursuant to this Section 3.8
only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Fundamental Change
Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.8, a portion of a Security only 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.
29
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.8 shall be consummated by the delivery of the consideration to be
received by the Holder on the Fundamental Change Purchase Date.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice.
Section 3.9 Effect of Purchase Notice or Fundamental Change Purchase
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Notice. Upon receipt by the Paying Agent of the Purchase Notice or the
------
Fundamental Change Purchase Notice specified in Section 3.7(a) or Section
3.8(c), as applicable, the Holder of the Security in respect of which such
Purchase Notice or Fundamental Change Purchase Notice, as the case may be, was
given shall (unless such Purchase Notice or Fundamental Change Purchase Notice,
as the case may be, is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Purchase Price or the Fundamental
Change Purchase Price, as the case may be, with respect to such Security. Such
Purchase Price or Fundamental Change Purchase Price shall be paid to such
Holder, subject to receipts of funds and/or securities by the Paying Agent,
promptly following the later of (x) the Purchase Date or the Fundamental Change
Purchase Date, as the case may be, with respect to such Security (provided the
conditions in Section 3.7(a) or Section 3.8(c), as applicable, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.7(a) or Section 3.8(c),
as applicable. Securities in respect of which a Purchase Notice or Fundamental
Change Purchase Notice has been given by the Holder thereof may not be converted
pursuant to Article X hereof on or after the date of the delivery of such
Purchase Notice or Fundamental Change Purchase Notice unless such Purchase
Notice or Fundamental Change 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 last 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 or Fundamental Change
Purchase Notice, as the case may be, and which has been or will
be delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form set
forth in the preceding paragraph or may be in the form of (i) a conditional
withdrawal contained in a Purchase Notice pursuant to the terms of Section
3.7(a)(1)(D) or (ii) a conditional withdrawal containing the information set
forth in Section 3.7(a)(1)(D) and the preceding paragraph and contained in a
written notice of withdrawal delivered to the Paying Agent as set forth in the
preceding paragraph.
30
There shall be no purchase of any Securities pursuant to Section 3.7 or 3.8
if there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Purchase Notice or Fundamental
Change Purchase Notice, as the case may be) and is continuing an Event of
Default (other than a default in the payment of the Purchase Price or
Fundamental Change Purchase Price, as the case may be, with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Purchase Notice or
Fundamental Change Purchase Notice, as the case may be, has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of an
Event of Default (other than a default in the payment of the Purchase Price or
Fundamental Change Purchase Price, as the case may be, with respect to such
Securities) in which case, upon such return, the Purchase Notice or Fundamental
Change Purchase Notice with respect thereto shall be deemed to have been
withdrawn.
Section 3.10 Deposit of Purchase Price or Fundamental Change Purchase
---------------------------------------------------------------------------
Price. Prior to 10:00 a.m. (local time in the City of New York) on the Business
-----
Day following the Purchase Date or the Fundamental Change Purchase Date, as the
case may be, the Company shall deposit with the Trustee or with the Paying Agent
(or, if the Company or a Subsidiary or an Affiliate of either of them is acting
as the Paying Agent, shall segregate and hold in trust as provided in Section
2.4) an amount of cash (in immediately available funds if deposited on such
Business Day) or Common Stock, if permitted hereunder, sufficient to pay the
aggregate Purchase Price or Fundamental Change Purchase Price, as the case may
be, of all the Securities or portions thereof which are to be purchased as of
the Purchase Date or Fundamental Change Purchase Date, as the case may be.
Section 3.11 Securities Purchased in Part. Any Certificated Security which
-----------------------------------------
is to be purchased only in part shall be surrendered at the office of the Paying
Agent (with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Xxxxxx's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered which is not
purchased.
Section 3.12 Covenant to Comply With Securities Laws Upon Purchase of
---------------------------------------------------------------------------
Securities. When complying with the provisions of Section 3.7 or 3.8 hereof
-----------
(provided that such offer or purchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e- 4 and Rule 14e-1 (or any
successor provision) under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal and state securities laws so as to permit the
rights and obligations under Sections 3.7 and 3.8 to be exercised in the time
and in the manner specified in Sections 3.7 and 3.8.
Section 3.13 Repayment to the Company. The Trustee and the Paying Agent
-----------------------------------------
shall return to the Company any cash or shares of Common Stock that remain
unclaimed as provided in Paragraph 12 of the Securities, together with interest
31
or dividends, if any, thereon (subject to the provisions of Section 7.1(f)),
held by them for the payment of the Purchase Price or Fundamental Change
Purchase Price, as the case may be; provided, however, that to the extent that
the aggregate amount of cash or shares of Common Stock deposited by the Company
pursuant to Section 3.10 exceeds the aggregate Purchase Price or Fundamental
Change Purchase Price, as the case may be, of the Securities or portions thereof
which the Company is obligated to purchase as of the Purchase Date or
Fundamental Change Purchase Date, as the case may be, then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following
the Purchase Date or Fundamental Change Purchase Date, as the case may be, the
Trustee shall return any such excess to the Company together with interest or
dividends, if any, thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1 Payment of Securities. The Company shall promptly make all
-----------------------------------
payments in respect of the Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Any amounts of cash or shares of
Common Stock to be given to the Trustee or Paying Agent, shall be deposited with
the Trustee or Paying Agent by 10:00 a.m. New York City time by the Company.
Principal amount, Accreted Value plus accrued interest, if any, Redemption
Price, Purchase Price, Fundamental Change Purchase Price and cash interest, if
any, shall be considered paid on the applicable date due if on such date (or, in
the case of a Purchase Price or Fundamental Change Purchase Price, on the
Business Day following the applicable Purchase Date or Fundamental Change
Purchase Date, as the case may be) the Trustee or the Paying Agent holds, in
accordance with this Indenture, cash or securities, if permitted hereunder,
sufficient to pay all such amounts then due.
Section 4.2 SEC and Other Reports. The Company shall file with the Trustee,
----------------------------------
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the SEC, copies of its annual report and of the
information, documents and other reports (or copies of such portions of any of
the foregoing as the SEC may by rules and regulations prescribe) which the
Company is required to file with the SEC pursuant to Section 13 or 15(d) of the
Exchange Act. In the event the Company is at any time no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, it shall
continue to provide the Trustee with reports containing substantially the same
information as would have been required to be filed with the SEC had the Company
continued to have been subject to such reporting requirements. In such event,
such reports shall be provided at the times the Company would have been required
to provide reports had it continued to have been subject to such reporting
requirements. The Company also shall comply with the other provisions of TIA
Section 314(a). Delivery of such reports, information and documents to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely conclusively on Officers' Certificates).
Section 4.3 Compliance Certificate. The Company shall deliver to the
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Trustee within 120 days after the end of each fiscal year of the Company
32
(beginning with the fiscal year ending on December 31, 2001) an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 4.4 Further Instruments and Acts. Upon request of the Trustee, the
-----------------------------------------
Company will execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more effectively the
purposes of this Indenture.
Section 4.5 Maintenance of Office or Agency. The Company will maintain in
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the Borough of Manhattan, the City of New York, an office or agency of the
Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of Bankers Trust Company, Four Albany
Street, New York, New York 10006 (Attention: Corporate Trust Administration),
shall initially be such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location, and of
any change in the location, of any such office or agency (other than a change in
the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.2.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, the City of New York, for such purposes.
Section 4.6 Delivery of Certain Information. At any time when the Company
---------------------------------------------
is not subject to Section 13 or 15(d) of the Exchange Act, upon the request of a
Holder or any beneficial owner of Securities or holder or beneficial owner of
shares of Common Stock issued upon conversion thereof, or in accordance with
Section 3.8(c), the Company will promptly furnish or cause to be furnished Rule
144A Information (as defined below) to such Holder or any beneficial owner of
Securities or holder or beneficial owner of shares of Common Stock, or to a
prospective purchaser of any such security designated by any such holder, as the
case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the resale of
any such security. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person
is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.7 Calculation of Original Issue Discount. The Company and the
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Trustee on behalf of the Holders agree (i) that for United States federal income
tax purposes the Securities will be treated as indebtedness subject to the
Treasury regulations governing contingent payment debt instruments, (ii) that
33
the Holders will report original issue discount and interest on the Securities
in accordance with the Company's determination of both the "comparable yield"
and the "projected payment schedule" and (iii) to be bound by the Company's
application of the Treasury regulations that govern contingent payment debt
instruments. For this purpose, the "comparable yield" for the Securities is
8.543% compounded semi-annually and the "projected payment schedule" is attached
as Schedule A hereto. The Company shall file with the Trustee no later than the
end of each calendar year or at any other time as the Trustee may request (i) a
written notice specifying the amount of original issue discount (including daily
rates and accrual periods) accrued on outstanding Securities as of the end of
such year and (ii) such other specific information relating to such original
issue discount as may then be relevant under the Internal Revenue Code of 1986,
as amended from time to time.
ARTICLE V
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets. The Company shall
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not consolidate with or merge with or into any other person or convey, transfer,
sell or lease its properties and assets substantially as an entirety to any
person, or permit any person to consolidate with or merge into the Company,
unless:
(a) either (1) the Company shall be the continuing corporation or (2) the
person (if other than the Company) formed by such consolidation or into which
the Company is merged or the person which acquires by conveyance, transfer or
lease the properties and assets of the Company substantially as an entirety (i)
shall be a corporation, limited liability company, partnership or trust
organized and validly existing under the laws of the United States or any State
thereof or the District of Columbia and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
reasonably satisfactory to the Trustee, all of the obligations of the Company
under the Securities and this Indenture;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation,
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article 5 and that all conditions precedent herein provided for
relating to such transaction have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment, sale or
otherwise) of the properties and assets of one or more Subsidiaries (other than
to the Company or another Subsidiary), which, if such assets were owned by the
Company, would constitute all or substantially all of the properties and assets
of the Company, shall be deemed to be the transfer of all or substantially all
of the properties and assets of the Company.
The successor person formed by such consolidation or into which the Company
is merged or the successor person to which such conveyance, transfer or lease is
34
made shall succeed to, and be substituted for, and may exercise every right and
power of, the Company under this Indenture with the same effect as if such
successor had been named as the Company herein; and thereafter, except in the
case of a lease and obligations the Company may have under a supplemental
indenture pursuant to Section 10.14, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.6, the Company, the Trustee and the successor person shall enter into
a supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default" occurs if:
------------------------------
(1) the Company defaults in the payment of the Accreted Value plus accrued
and unpaid cash interest on any Security when the same becomes due and payable
at its Stated Maturity, upon redemption, upon declaration, when due for purchase
by the Company or otherwise;
(2) the Company defaults in the payment of any cash interest (including
interest which becomes payable after an Upward Interest Adjustment or any
election by the Company to pay cash interest on the Securities following a Tax
Event) when due and payable, and continuance of such default for a period of 30
days;
(3) the Company fails to deliver the shares of Common Stock upon an
appropriate election by Holders to convert the Securities into shares of Common
Stock, and continuance of such default for a period of 10 days;
(4) the Company fails to comply in any material respect with any of its
agreements or covenants in the Securities or this Indenture (other than those
referred to in clause (1), (2) or (3) above) and such failure continues for 90
days after receipt by the Company of a Notice of Default;
(5) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition by
one or more Persons other than the Company seeking reorganization, arrangement,
adjustment or composition of or in respect of the Company under any applicable
federal or state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official for the Company or for any
substantial part of its property, or ordering the winding up or liquidation of
its affairs, and the continuance of any such decree or order for relief or any
such other decree or order unstayed and in effect for a period of 90 consecutive
days; or
(6) the commencement by the Company of a case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
35
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action;
or
A Default under clause (4) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (4) above after
actual receipt of such notice. Any such notice must specify the Default, demand
that it be remedied and state that such notice is a "Notice of Default".
The Company shall deliver to the Trustee, within 30 days after it becomes
aware of the occurrence thereof, written notice of any event which with the
giving of notice or the lapse of time, or both, would mature into an Event of
Default under clause (4) above, its status and what action the Company is taking
or proposes to take with respect thereto.
Section 6.2 Acceleration. If an Event of Default (other than an Event of
--------------------------
Default specified in Section 6.1(5) or (6)) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding by notice to the
Company and the Trustee, may declare the Accreted Value plus accrued and unpaid
cash interest, if any, on all the Securities to be immediately due and payable.
Upon such a declaration, such accelerated amount shall be due and payable
immediately. If an Event of Default specified in Section 6.1(5) or (6) occurs
and is continuing, the Accreted Value plus accrued and unpaid cash interest, if
any, on all the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Securityholder) may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
Accreted Value plus accrued and cash unpaid interest, if any, that have become
due solely as a result of acceleration and if all amounts due to the Trustee
under Section 7.7 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 6.3 Other Remedies. If an Event of Default occurs and is
------------------------------
continuing, the Trustee may pursue any available remedy to collect the payment
of the Accreted Value plus accrued and unpaid cash interest, if any, on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
36
The Trustee may maintain a proceeding even if the Trustee does not possess
any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.4 Waiver of Past Defaults. The Holders of a majority in aggregate
------------------------------------
principal amount of the Securities at the time outstanding, by notice to the
Trustee (and without notice to any other Securityholder), may waive an existing
Default and its consequences except (a) an Event of Default described in Section
6.1(1), (2), or (3) or (b) a Default in respect of a provision that under
Section 9.2 cannot be amended without the consent of each Securityholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right. This
Section 6.4 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section
316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
Section 6.5 Control by Majority. The Holders of a majority in aggregate
----------------------------------
principal amount of the Securities at the time outstanding may direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or of exercising any trust or power conferred on the Trustee. However,
the Trustee may refuse to follow any direction that conflicts with law or this
Indenture or that the Trustee determines in good faith is unduly prejudicial to
the rights of other Securityholders or would involve the Trustee in personal
liability unless the Trustee is offered indemnity satisfactory to it. This
Section 6.5 shall be in lieu of Section 316(a)(1)(A) of the TIA and such Section
316(a)(1)(A) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
Section 6.6 Limitation on Suits. A Securityholder may not pursue any remedy
--------------------------------
with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an Event of
Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of any
other Securityholder or to obtain a preference or priority over any other
Securityholder.
37
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding any other
------------------------------------------------
provision of this Indenture, the right of any Holder to receive payment of the
principal amount of the Securities plus accrued and unpaid interest in respect
of the Securities held by such Holder, on or after the respective due dates
expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article X, or to bring suit for the enforcement of
any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default described in
---------------------------------------
Section 6.1(1) occurs and is continuing, the Trustee may recover judgment in its
own name and as trustee of an express trust against the Company for the whole
amount owing with respect to the Securities and the amounts provided for in
Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. In case of the pendency of
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any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount of the Securities plus accrued and unpaid
interest in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of the principal amount
of the Securities plus accrued and unpaid interest and to file such other papers
or documents as may be necessary or advisable in order to have the claims of the
Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any other
amounts due the Trustee under Section 7.7) and of the Holders allowed in such
judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10 Priorities. If the Trustee collects any money pursuant to this
------------------------
Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
38
SECOND: to Securityholders for amounts due and unpaid on the Securities for
the principal amount of the Securities plus accrued and unpaid interest,
ratably, without preference or priority of any kind, according to such amounts
due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11 Undertaking for Costs. In any suit for the enforcement of any
------------------------------------
right or remedy under this Indenture or in any suit against the Trustee for any
action taken or omitted by it as Trustee, a court in its discretion may require
the filing by any party litigant (other than the Trustee) in the suit of an
undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.12 Waiver of Stay, Extension or Usury Laws. The Company covenants
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(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law or any usury or other law wherever
enacted, now or at any time hereafter in force, which would prohibit or forgive
the Company from paying all or any portion of the principal amount of the
Securities plus accrued and unpaid interest or any interest on such amounts, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1 Duties of Trustee. If an Event of Default has occurred and is
-----------------------------
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(a) Except during the continuance of an Event of Default:
39
(1) the Trustee need perform only those duties that are specifically set
forth in this Indenture and no duties shall be inferred or implied;
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, but
in case of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee, the
Trustee shall examine the certificates and opinions to determine
whether or not they conform to the requirements of this Indenture, but
need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein. This Section 7.1(b) shall
be in lieu of Section 315(a) of the TIA and such Section 315(a) is
hereby expressly excluded from this Indenture, as permitted by the
TIA.
(b) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of this
Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer unless it is proved that the Trustee
was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it takes or
omits to take in good faith in accordance with a direction received by
it pursuant to Section 6.5.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(c) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(d) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(e) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
Section 7.2 Rights of Trustee. Subject to its duties and responsibilities
------------------------------
under the TIA,
40
(a) the Trustee may conclusively rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document believed by it
to be genuine and to have been signed or presented by the proper party or
parties;
(b) whenever in the administration of this Indenture the Trustee shall deem
it desirable that a matter be proved or established prior to taking, suffering
or omitting any action hereunder, the Trustee (unless other evidence be herein
specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) The Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) The Trustee may consult with counsel selected by it and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel.
(f) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which may be incurred therein or
thereby.
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
41
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.3 Individual Rights of Trustee. The Trustee in its individual or
----------------------------------------
any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no representation as to
--------------------------------
the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default occurs and if it is known to
------------------------------
the Trustee, the Trustee shall give to each Securityholder notice of the Default
within 90 days after it occurs or, if later, within 15 days after it is known to
the Trustee, unless such Default shall have been cured or waived before the
giving of such notice. Notwithstanding the preceding sentence, except in the
case of a Default described in Section 6.1(1) or (2), the Trustee may withhold
the notice if and so long as a committee of its Responsible Officers in good
faith determines that withholding the notice is in the interests of
Securityholders. The second sentence of this Section 7.5 shall be in lieu of the
proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA. The Trustee shall not be
deemed to have knowledge of a Default unless a Responsible Officer of the
Trustee has received written notice of such Default.
Section 7.6 Reports by Trustee to Holders. Within 60 days after each May 15
-----------------------------------------
beginning with the May 15 following the date of this Indenture, the Trustee
shall mail to each Securityholder a brief report dated as of such May 15 that
complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders shall
be filed with the SEC and each securities exchange, if any, on which the
42
Securities are listed. The Company agrees to notify the Trustee promptly
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
Section 7.7 Compensation and Indemnity. The Company agrees:
------------------------------------------------
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance with
any provision of this Indenture (including the reasonable compensation and the
expenses, advances and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be caused by its negligence or bad
faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their agents
for, and to hold them harmless against, any loss, damage, claim, liability, cost
or expense (including attorney's fees and expenses, and taxes (other than taxes
based upon, measured by or determined by the income of the Trustee)) incurred
without negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the costs and
expenses of defending itself against any claim (whether asserted by the Company
or any Holder or any other person) or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7, 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 the principal
amount, plus accrued and unpaid interest on particular Securities.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(5) or (6), the expenses including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.
Section 7.8 Replacement of Trustee. The Trustee may resign by so notifying
-----------------------------------
the Company; provided, however, no such resignation shall be effective until a
successor Trustee has accepted its appointment pursuant to this Section 7.8. The
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may remove the Trustee by so notifying the Trustee and the
Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
43
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint, by resolution of
its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company satisfactory in form and substance to
the retiring Trustee and the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Securityholders. The
retiring Trustee shall promptly transfer all property held by it as Trustee to
the successor Trustee, subject to the lien provided for in Section 7.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
Section 7.9 Successor Trustee by Xxxxxx. If the Trustee consolidates with,
----------------------------------------
merges or converts into, or transfers all or substantially all its corporate
trust business or assets to, another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee shall at all times
--------------------------------------------
satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee (or
its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company. The Trustee
---------------------------------------------------------------
shall comply with TIA Section 311(a), excluding any creditor relationship listed
in TIA Section 311(b). A Trustee who has resigned or been removed shall be
subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities. When (i) the Company
-----------------------------------------------------
delivers to the Trustee all outstanding Securities (other than Securities
44
replaced or repaid pursuant to Section 2.7) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash (and, as permitted by this Indenture, shares of Common Stock)
sufficient to pay all amounts due and owing on all outstanding Securities (other
than Securities replaced pursuant to Section 2.7), and if in either case the
Company pays all other sums payable hereunder by the Company, then this
Indenture shall, subject to Section 7.7, cease to be of further effect. The
Trustee shall join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and Opinion of Counsel and at
the cost and expense of the Company.
Section 8.2 Repayment to the Company. The Trustee and the Paying Agent
----------------------------------------
shall return to the Company upon written request any money or securities held by
them for the payment of any amount with respect to the Securities that remains
unclaimed for two years, subject to applicable unclaimed property law. After
return to the Company, Holders entitled to the money or securities must look to
the Company for payment as general creditors unless an applicable abandoned
property law designates another person and the Trustee and the Paying Agent
shall have no further liability to the Securityholders with respect to such
money or securities for that period commencing after the return thereof.
ARTICLE IX
AMENDMENTS
Section 9.1 Without Consent of Holders. The Company and the Trustee may
-----------------------------------------
amend this Indenture or the Securities without the consent of any
Securityholder, so long as such changes, other than those in clause (2), do not
materially and adversely affect the interests of the Securityholder:
(1) to cure any ambiguity, omission, defect or inconsistency provided that
such modification or amendment does not, in the good faith opinion of the
Company's Board of Directors and the Trustee, adversely affect the interests of
the holders of the Securities in any material respect;
(2) to make any modifications or amendments that do not, in the good faith
opinion of the Company's Board of Directors and the Trustee, adversely affect
the interests of the holders of the Securities in any material respect;
(3) to comply with Article 5;
(4) to secure the Company's obligations or add any guarantee under the
Securities and this Indenture;
(5) to add Events of Default with respect to the Securities; or
(6) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the Company;
or
(7) to make any change necessary for the registration of the Securities
under the Securities Act or to comply with the TIA, or any amendment thereto, or
45
to comply with any requirement of the SEC in connection with the qualification
of the Indenture under the TIA, provided that such modification or amendment
does not, in the good faith opinion of the Company's Board of Directors and the
Trustee, adversely affect the interests of the holders of the Securities in any
material respect.
(8) to provide for uncertificated Securities in addition to or in place of
certificated Securities or to provide for bearer Securities.
Section 9.2 With Consent of Holders. With the written consent of the
----------------------------------------
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding, the Company and the Trustee may amend this Indenture or
the Securities. However, without the consent of each Securityholder affected, an
amendment to this Indenture or the Securities may not:
(1) reduce the interest rate or the rate of accrual upon an upward interest
adjustment referred to in paragraph 1 of the Securities or change the time for
payment of interest thereon;
(2) reduce the principal amount of or extend the Stated Maturity of any
Security;
(3) reduce the calculation of the value of the Common Stock to which
reference is made in determining whether an Upward Interest Adjustment will be
made on the Securities, or change the method by which this value is calculated;
(4) reduce the Redemption Price, Purchase Price or Fundamental Change
Purchase Price of any Security or change the time at which the Securities may be
redeemed or repurchased;
(5) make any payments on the Securities payable in currency or securities
other than as stated in the Security;
(6) make any change in the percentage of the principal amount of Securities
necessary to waive compliance with the provisions of Section 6.4, Section 6.7 or
this Section 9.2, except to increase any percentage set forth therein;
(7) make any change that in the good faith judgment of the Company's Board
of Directors and the Trustee adversely affects the right to convert any Security
in accordance with the terms thereof and this Indenture;
(8) make any change that in the good faith judgment of the Company's Board
of Directors and the Trustee adversely affects the right to require the Company
to purchase the Securities in accordance with the terms thereof and this
Indenture;
(9) impair a Xxxxxx's right to institute suit for the enforcement of any
payment on the Securities;
(10) waive a continuing default or Event of Default regarding any payment
on the Securities; or
46
(11) make any change that adversely effects the Holders' rights under
Section 3.7, Section 3.8 and Article X.
It shall not be necessary for the consent of the Holders under this Section
9.2 to approve the particular form of any proposed amendment, but it shall be
sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.
Section 9.3 Compliance with Trust Indenture Act. Every supplemental
------------------------------------------------------
indenture executed pursuant to this Article shall comply with the TIA.
Section 9.4 Revocation and Effect of Consents, Waivers and Actions. Until
--------------------------------------------------------------------
an amendment, waiver or other action by Holders becomes effective, a consent
thereto by a Holder of a Security hereunder is a continuing consent by the
Holder and every subsequent Holder of that Security or portion of the Security
that evidences the same obligation as the consenting Xxxxxx's Security, even if
notation of the consent, waiver or action is not made on the Security. However,
any such Holder or subsequent Holder may revoke the consent, waiver or action as
to such Holder's Security or portion of the Security if the Trustee receives the
notice of revocation before the date the amendment, waiver or action becomes
effective. After an amendment, waiver or action becomes effective, it shall bind
every Securityholder.
Section 9.5 Notation on or Exchange of Securities. Securities authenticated
--------------------------------------------------
and delivered after the execution of any supplemental indenture pursuant to this
Article may, and shall if required by the Trustee, bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Securities so modified as to
conform, in the opinion of the Trustee and the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
Section 9.6 Trustee to Sign Supplemental Indentures. The Trustee shall sign
----------------------------------------------------
any supplemental indenture authorized pursuant to this Article 9 if the
amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.1) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section 9.7 Effect of Supplemental Indentures. Upon the execution of any
------------------------------------------------
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
47
ARTICLE X
CONVERSIONS
Section 10.1 Conversion Privilege. A Holder of a Security may convert such
---------------------------------
Security into shares of Common Stock at any time during the period stated in
Paragraph 8 of the Securities. The number of shares of Common Stock issuable
upon conversion of a Security per $1,000 of principal amount thereof (the
"Conversion Rate") shall be that set forth in Paragraph 8 of the Securities,
subject to adjustment as herein set forth. The Company shall notify the Trustee
of the date on which the Securities first become convertible, which certificate
shall set forth the calculations on which such determination was made.
A Holder may convert a portion of the principal amount of a Security if the
portion converted is in a $1,000 principal amount or an integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
In the event that the Ex-Dividend Time (as defined below) (or in the case
of a subdivision, combination or reclassification, the effective date with
respect thereto) with respect to a dividend, subdivision, combination or
reclassification to which Section 10.6(1), (2) or (3) applies occurs during the
period applicable for calculating "Average Sale Price" pursuant to the
definition in the preceding sentence, "Average Sale Price" shall be calculated
for such period in a manner determined by the Board of Directors to reflect the
impact of such dividend, subdivision, combination or reclassification on the
Sale Price of the shares of Common Stock during such period.
"Time of Determination" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options or
a distribution, in each case, to which Section 10.7 or 10.8 applies and (ii) the
time ("Ex-Dividend Time") immediately prior to the commencement of "ex-dividend"
trading for such rights, warrants or options or distribution on the NYSE or such
other U.S. national or regional exchange or market on which the shares of Common
Stock are then listed or quoted.
Section 10.2 Conversion Procedure. To convert a Security a Holder must
-------------------------------------
satisfy the requirements in Paragraph 8 of the Securities. The first Business
Day on which the Holder satisfies all those requirements and submits such
Holder's Securities for conversion is the conversion date (the "Conversion
Date").
As soon as practicable after the Conversion Date, the Company shall deliver
to the Holder, through the Conversion Agent, a certificate for the number of
full shares of Common Stock issuable upon the conversion or exchange and cash in
lieu of any fractional share determined pursuant to Section 10.3. The person in
whose name the certificate is registered shall be treated as a shareholder of
record as of the close of business on the Conversion Date. Upon conversion of a
Security in its entirety, such person shall no longer be a Holder of such
Security.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any shares of Common Stock except as provided in
48
this Article X. On conversion of a Security, except as provided below with
respect to cash interest payable on Securities or portions thereof converted
after a Regular Record Date and those called for redemption, (x) that portion of
accrued and unpaid cash interest on the converted Securities attributable to the
period from the most recent Interest Payment Date through the Conversion Date
and (y) that portion of accrued and unpaid interest adjustment, including
interest adjustment payable in cash, shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through delivery of the shares of Common Stock (together with the cash payment,
if any, in lieu of fractional shares) for the Security being converted pursuant
to the provisions hereof. The Company will not adjust the conversion rate to
account for accrued interest, if any. If the Holder converts more than one
Security at the same time, the number of shares of Common Stock issuable upon
the conversion shall be based on the total principal amount of the Securities
converted.
The Securities or portions thereof surrendered for conversion during the
period from the close of business on any date on which cash interest accrues to
the opening of business on the date on which such cash interest is payable shall
(unless such Securities or portions thereof have been called for redemption on a
Redemption Date within such period) be accompanied by payment to the Company or
its order, in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the cash interest payable on such cash interest
payment date on the principal amount of the Securities or portions thereof being
surrendered for conversion.
If the last day on which a Security may be converted is a Legal Holiday,
the Security may be surrendered on the next succeeding day that is not a Legal
Holiday.
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security in an authorized denomination equal in principal amount to the
unconverted portion of the Security surrendered.
Section 10.3 Fractional Shares. The Company will not issue fractional
----------------------------------
shares of Common Stock upon conversion of a Security. Instead, the Company will
pay cash based on the current Market Price for all fractional shares. The
current market value of a fractional share shall be determined, to the nearest
1/1,000th of a share, by multiplying the Sale Price on the last trading day
immediately prior to the Conversion Date, of a full share by the fractional
amount and rounding the product to the nearest whole cent. It is understood that
if a Holder elects to have more than one Security converted, the number of
shares of Common Stock shall be based on the aggregate principal amount of
Securities to be converted.
Section 10.4 Taxes on Conversion. If a Holder submits a Security for
------------------------------------
conversion, the Company shall pay all stamp and all other duties, if any, which
may be imposed by the United States or any political subdivision thereof or
taxing authority thereof or therein with respect to the issuance of shares of
Common Stock upon the conversion. However, the Holder shall pay any such tax
which is due because the Holder requests the shares to be issued in a name other
than the Holder's name. The Conversion Agent may refuse to deliver the
certificates representing the shares of Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
49
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulations.
Section 10.5 Company to Provide Stock. The Company shall, prior to issuance
--------------------------------------
of any Securities under this Article X, and from time to time as may be
necessary, reserve out of its authorized but unissued shares of Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim. The Company will endeavor promptly
to comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on each national
securities exchange or in the over-the-counter market or such other market on
which the shares of Common Stock are then listed or quoted.
Section 10.6 Adjustment for Change in Capital Stock
---------------------------------------------------
If, after the Issue Date of the Securities, the Company:
(1) pays a dividend or makes another distribution to all holders of the its
Common Stock payable exclusively in shares of its Common Stock;
(2) subdivides the outstanding shares of its Common Stock into a greater
number of shares of Common Stock;
(3) combines the outstanding shares of its Common Stock into a smaller
number of shares of Common Stock; or
(4) issues by reclassification of its Common Stock any shares of Capital
Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Xxxxxx would have owned immediately following such action if
such Holder had converted the Security immediately prior to the record date for
such action.
The adjustment shall become effective immediately after the record date in
the case of a dividend or distribution and immediately after the effective date
in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
50
is contemplated by this Article X with respect to the shares of Common Stock, on
terms comparable to those applicable to shares of Common Stock in this Article
X.
Section 10.7 Adjustment for Rights Issue
----------------------------------------
Except as provided in Section 10.11, if after the Issue Date of the
Securities, the Company distributes any rights or warrants to all holders of
shares of its Common Stock entitling them to purchase, for a period expiring
within 60 days, shares of Common Stock at a price per share less than the
Average Sale Price as of the Time of Determination, unless the Holders of
Securities may participate in the distribution without conversion on a basis and
with the notice that the Company's Board of Directors determines to be fair and
appropriate, the Conversion Rate shall be adjusted in accordance with the
formula:
R' = R x (O + N)
-------------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on
the record date for the distribution to which this
Section 10.7 is being applied.
N = the number of additional shares of Common Stock
offered pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 10.6(4) applies or (ii) a distribution to which
Section 10.8 applies, for which, in each case, (x) the record date shall occur
on or before the record date for the distribution to which this Section 10.7
applies and (y) the Ex-Dividend Time shall occur on or after the date of the
Time of Determination for the distribution to which this Section 10.7 applies,
the fair market value (on the record date for the distribution to which this
Section 10.7 applies) of the
(1) Capital Stock of the Company distributed in respect of each share of
Common Stock in such Section 10.6(4) distribution and
(2) the Company's debt, securities or assets or certain rights, warrants or
options to purchase securities of the Company distributed in respect of each
share of Common Stock in such Section 10.8 distribution.
The Board of Directors of the Company shall determine fair market values
for the purposes of this Section 10.7, except as Section 10.8 otherwise provides
in the case of a Spin-off.
51
"Average Sale Price" means the average of the Sales Prices of the shares of
Common Stock for the shorter of:
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Sale Price is being
calculated;
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Sale
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Sale Price is
being calculated (excluding days within such period, if any, which are not
trading days); or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, warrants or options or (b) distribution, in each case, for which an
adjustment is required by the provisions of Section 10.7, 10.8 or 10.9 and
(y) proceeding through the last full trading day prior to the Time of
Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Sale Price is being calculated
(excluding days within such period, if any, which are not trading days).
In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, or combination or reclassification to which
Section 10.6(1), (2), (3) or (4) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors of the Company to reflect the impact of
such dividend, subdivision, combination or reclassification on the Sales Price
of the shares of Common Stock during such period.
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the rights, warrants or
options to which this Section 10.7 applies. If all of the shares of Common Stock
subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 10.7 if the application of
the formula stated above in this Section 10.7 would result in a value of R' that
is equal to or less than the value of R.
Section 10.8 Adjustment for Other Distributions
-----------------------------------------------
52
Except as provided in Section 10.11, if, after the Issue Date of the
Securities, the Company distributes to all holders of its shares of Common Stock
any of its debt, securities or assets or any rights, warrants or options to
purchase securities of the Company (including securities or cash, but excluding
(x) distributions of Capital Stock referred to in Section 10.6 and distributions
of rights, warrants or options referred to in Section 10.7 and (y) payments made
to redeem rights issued under any present or future rights agreement of the
Company and (z) cash dividends or other cash distributions that do not exceed
the per share amount of the immediately preceding regular cash dividend on the
Common Stock and other cash dividends or distributions unless such other cash
dividends or cash distributions are Extraordinary Cash Dividends) and unless the
Holders of Securities may participate in the distribution without conversion,
the Conversion Rate shall be adjusted, subject to the provisions of the last
paragraph of this Section 10.8, in accordance with the formula:
R' = R x M
-----
(M - F)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price
F = the fair market value (on the record date for the
distribution to which this Section 10.8 applies) of the assets, securities,
rights, warrants or options to be distributed in respect of each share of Common
Stock in the distribution to which this Section 10.8 is being applied
(including, in the case of cash dividends or other cash distributions giving
rise to an adjustment, all such cash distributed concurrently).
In the event the Company distributes shares of Capital Stock of a
Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market
value of the Subsidiary stock so distributed relative to the market value of the
Common Stock, as discussed below. The Board of Directors of the Company shall
determine fair market values for the purposes of this Section 10.8, except that
in respect of a dividend or other distribution of shares of Capital Stock of any
class or series, or similar equity interests, of or relating to a Subsidiary or
other business unit of the Company (a "Spin-off"), the fair market value of the
securities to be distributed shall equal the average of the daily Sales Prices
of those securities for the five consecutive trading days commencing on and
including the sixth day of trading of those securities after the effectiveness
of the Spin-off and the average of the Sales Prices shall mean the average Sales
Prices for the Company's Common Stock for the same five trading days. In the
event, however, that an underwritten initial public offering of the securities
in the Spin-off occurs simultaneously with the Spin-off, fair market value of
the securities distributed in the Spin-off shall mean the initial public
offering price of such securities and the Average Sale Price, for purposes of
this sentence, shall mean the Sales Price for the Company's Common Stock on the
same trading day.
53
The adjustment shall become effective immediately after the record date for
the determination of shareholders entitled to receive the distribution to which
this Section 10.8 applies, except that an adjustment related to a Spin-off shall
become effective at the earlier to occur of (i) 10 trading days after the
effective date of the Spin-off and (ii) the initial public offering of the
securities distributed in the Spin-off.
For purposes of this Section 10.8, the term "Extraordinary Cash Dividend"
shall mean all all-cash distributions to all or substantially all holders of the
Company's Common Stock made within the 365 days preceding the Time of
Determination (or the period from May 31, 2001 to the Time of Determination if
such period is shorter than 365 days) not triggering a Conversion Rate
adjustment (other than payments made to redeem rights issued under any present
or future rights agreement of the Company and cash dividends or other cash
distributions that do not exceed the per share amount of the immediately
preceding regular cash dividend on the Common Stock), to the extent such
aggregate amount exceeds an amount equal to 12.5% of the Sale Price of the
Company's Common Stock on the Business Day immediately preceding the day on
which the Company declares the distribution times the number of shares of Common
Stock outstanding on such day.
If, upon the date prior to the Ex-Dividend Time with respect to a cash
dividend on the shares of Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends and distributions
referred to in the definition of Extraordinary Cash Dividend gives rise to an
adjustment of the Conversion Rate, then such cash dividend together with all
such other cash dividends and distributions shall, for purposes of applying the
formula set forth above in this Section 10.8, cause the value of "F" to equal
(y) the aggregate amount of such cash dividend and other cash dividends and
distributions, minus (z) the aggregate amount of all cash dividends or other
cash distributions during the preceding 365 days for which an adjustment in the
Conversion Rate was previously made.
In the event that, with respect to any distribution to which this Section
10.8 would otherwise apply, the difference "M-F" as defined in the above formula
is less than $1.00 or "F" is equal to or greater than "M", then the adjustment
provided by this Section 10.8 shall not be made and in lieu thereof the
provisions of Section 10.15 shall apply to such distribution.
Section 10.9 Adjustment for Self Tender Offer
---------------------------------------------
If, after the Issue Date of the Securities, the Company or any Subsidiary
of the Company pays holders of the Company's Common Stock in respect of a tender
or exchange offer, other than an odd-lot offer, by the Company or any of its
Subsidiaries for the Company's Common Stock consideration per share of Common
Stock having a fair market value, as determined in good faith by the Board of
Directors of the Company, whose determination shall be conclusive, in excess of
110% of the Sale Price of the Common Stock as of the first Business Day (the
"Measurement Date") next succeeding the last Business Day tenders or exchanges
may be made pursuant to the offer (the "Expiration Time"), the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the effectiveness
of the Conversion Rate adjustment contemplated by this Section 10.9 by a
fraction, the numerator of which shall be the sum of (x) the fair market value
of the aggregate consideration payable to stockholders based on the acceptance
54
of all shares validly tendered or exchanged and not withdrawn as of the
Expiration Time up to the maximum specified in the tender or exchange offer (the
"Purchased Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Sale
Price of a share of Common Stock on the Measurement Date, and the denominator of
which shall be the number of shares of Common Stock outstanding (including any
tendered or exchanged shares) at the Expiration Time (including the Purchased
Shares) multiplied by the Sale Price of one share of Common Stock on the
Measurement Date. Such reduction shall become effective immediately prior to the
opening of business on the day following the Measurement Date.
Section 10.10 When Adjustment May Be Deferred.
----------------------------------------------
No adjustment in the Conversion Rate need be made unless the adjustment
would require an increase or decrease of at least 1% in the Conversion Rate. Any
adjustments that are not made shall be carried forward and taken into account in
any subsequent adjustment.
All calculations under this Article X shall be made to the nearest cent or
to the nearest 1/1,000th of a share, as the case may be.
Section 10.11 When No Adjustment Required. No adjustment to the Conversion
------------------------------------------
Rate need be made as a result of:
(1) (i) the issuance of the rights; (ii) the distribution of separate
certificates representing the rights; (iii) the exercise or redemption of the
rights in accordance with any rights agreement; or (iv) the termination or
invalidation of the rights, in each case, pursuant to the Company's existing
stockholders rights plan, as amended, modified, or supplemented from time to
time or any newly adopted stockholders rights plans;
(2) upon the issuance of any shares of Common Stock pursuant to any present
or future plan providing for the reinvestment of dividends or interest payable
on securities of the Company and the investment of additional optional amounts
in shares of Common Stock under any plan;
(3) upon the issuance of any shares of Common Stock or options or rights to
purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries; or
(4) upon the issuance of any shares of Common Stock pursuant to any option,
warrant, right, or exercisable, exchangeable or convertible security outstanding
as of the date the Securities were first issued.
To the extent the Securities become convertible pursuant to this Article X
in whole or in part into cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
Section 10.12 Notice of Adjustment. Whenever the Conversion Rate is
---------------------------------------
adjusted, the Company shall promptly mail to Holders a notice of the adjustment.
55
The Company shall file with the Trustee and the Conversion Agent such notice
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
Section 10.13 Voluntary Increase. The Company from time to time may
------------------------------------
increase the Conversion Rate by any amount at any time for at least 20 days, so
long as the increase is irrevocable during such period. Whenever the Conversion
Rate is increased, the Company shall mail to Securityholders and file with the
Trustee and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect. A voluntary increase of the Conversion Rate does
not change or adjust the Conversion Rate otherwise in effect for purposes of
Section 10.6, 10.7 or 10.8.
Section 10.14 Notice of Certain Transactions. If:
---------------------------------------------
(1) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 10.6, 10.7, 10.8 or 10.9 (unless no
adjustment is to occur pursuant to Section 10.11); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.16; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Holders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend,
distribution or subdivision or the proposed effective date of a combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
Section 10.15 Reorganization of Company; Special Distributions. If the
-------------------------------------------------------------------
Company is a party to a transaction subject to Section 5.1 (other than a sale of
all or substantially all of the assets of the Company in a transaction in which
the holders of shares of Common Stock immediately prior to such transaction do
not receive securities, cash or other assets of the Company or any other person)
or a merger or binding share exchange which reclassifies or changes its
outstanding shares of Common Stock, the person obligated to deliver securities,
cash or other assets upon conversion of Securities shall enter into a
supplemental indenture. If the issuer of securities deliverable upon conversion
of Securities is an Affiliate of the successor Company, that issuer shall join
in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security may
convert it into the kind and amount of securities, cash or other assets which
such Holder would have received immediately after the consolidation, merger,
binding share exchange or transfer if such Holder had converted the Security
immediately before the effective date of the transaction, assuming (to the
extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
56
with respect thereto; and (iii) was treated alike with the plurality of non-
electing Holders. The supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practical to the adjustments provided
for in this Article X. The successor Company shall mail to Securityholders a
notice briefly describing the supplemental indenture.
If this Section applies, neither Section 10.6 nor 10.7 applies.
If the Company makes a distribution to all holders of its shares of Common
Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
the last paragraph of Section 10.8, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 10.8, then, from and
after the record date for determining the holders of shares of Common Stock
entitled to receive the distribution, a Holder of a Security that converts such
Security in accordance with the provisions of this Indenture shall upon such
conversion be entitled to receive, in addition to the shares of shares of Common
Stock into which the Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of shares of Common Stock entitled to
receive the distribution.
Section 10.16 Company Determination Final. Any determination that the
---------------------------------------------
Company or the Board of Directors must make pursuant to Section 10.3, 10.6,
10.7, 10.8, 10.9, 10.10, 10.11, 10.15 or 10.17 is conclusive, absent manifest
error.
Section 10.17 Trustee's Adjustment Disclaimer. The Trustee has no duty to
-----------------------------------------------
determine when an adjustment under this Article X should be made, how it should
be made or what it should be. The Trustee has no duty to determine whether a
supplemental indenture under Section 10.15 need be entered into or whether any
provisions of any supplemental indenture are correct. The Trustee shall not be
accountable for and makes no representation as to the validity or value of any
securities or assets issued upon conversion of Securities. The Trustee shall not
be responsible for the Company's failure to comply with this Article X. Each
Conversion Agent shall have the same protection under this Section 10.17 as the
Trustee. All calculations required under Article X shall be performed by the
Company, with notice thereof to the Trustee.
Section 10.18 Simultaneous Adjustments. In the event that this Article X
-----------------------------------------
requires adjustments to the Conversion Rate under more than one of Sections
10.6(4), 10.7 or 10.8, and the record dates for the distributions giving rise to
such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 10.6, second, the provisions
of Section 10.8 and, third, the provisions of Section 10.7.
Section 10.19 Successive Adjustments. After an adjustment to the Conversion
-------------------------------------
Rate under this Article X, any subsequent event requiring an adjustment under
this Article X shall cause an adjustment to the Conversion Rate as so adjusted.
57
ARTICLE XI
MISCELLANEOUS
Section 11.1 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 11.2 Notices. Any request, demand, authorization, notice, waiver,
--------------------
consent or communication shall be in writing and delivered in person or mailed
by first-class mail, postage prepaid, addressed as follows or transmitted by
facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
Mirant Corporation.
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: President
Xxxxxxxxx Xx. (000) 000-0000
if to the Trustee:
Bankers Trust Company
Four Albany Street
New York, New York 10006
Telephone No. 000-000-0000
Facsimile No. 000-000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed to
the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any defect
in it shall not affect its sufficiency with respect to other Securityholders. If
a notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
58
Section 11.3 Communication by Holders with Other Holders. Securityholders
----------------------------------------------------------
may communicate pursuant to TIA Section 312(b) with other Securityholders with
respect to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar, the Paying Agent, the Conversion Agent and anyone else
shall have the protection of TIA Section 312(c).
Section 11.4 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:
(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 11.5 Statements Required in Certificate or Opinion. Each Officers'
-----------------------------------------------------------
Certificate or Opinion of Counsel with respect to compliance with a covenant or
condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has made such
examination or investigation as is necessary to enable such person to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
Section 11.6 Separability Clause. In case any provision in this Indenture
-----------------------------------
or in the Securities shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 11.7 Rules by Trustee, Paying Agent, Conversion Agent and
---------------------------------------------------------------------------
Registrar. The Trustee may make reasonable rules for action by or a meeting of
----------
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
Section 11.8 Legal Holidays. A "Legal Holiday" is any day other than a
------------------------------
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
59
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
Section 11.9 GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN
----------------------------
THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD AS TO CONFLICT OF LAWS
PRINCIPLES.
Section 11.10 No Recourse Against Others. A director, officer, employee or
-----------------------------------------
stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 11.11 Successors. All agreements of the Company in this Indenture
--------------------------
and the Securities shall bind its successor. All agreements of the Trustee in
this Indenture shall bind its successor.
Section 11.12 Multiple Originals. The parties may sign any number of copies
---------------------------------
of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
60
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed this
Indenture on behalf of the respective parties hereto as of the date first above
written.
MIRANT CORPORATION
By: ___________________________________
Name:
Title:
BANKERS TRUST COMPANY,
not in its individual capacity, but solely as Trustee
hereunder
By: ___________________________________
Name:
Title:
61
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS GOVERNING
CONTINGENT PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. AS REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE COMPANY HAS SET
FORTH THE "COMPARABLE YIELD" IN SECTION 4.7 OF THE INDENTURE PURSUANT TO WHICH
THIS SECURITY IS BEING ISSUED. THE HOLDER OF THIS SECURITY MAY OBTAIN THE
PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO MIRANT CORPORATION, 0000 XXXXXXXXX XXXXXX XXXX, XXXXXXX, XXXXXXX 00000,
ATTENTION: CORPORATE SECRETARY'S OFFICE.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE
OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF
OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY
SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH
IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON THE
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE 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 MIRANT
CORPORATION THAT THIS SECURITY AND ANY SHARES OF COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE
TRANSFERRED EXCEPT (A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS
1
A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE
SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2)
PURSUANT TO THE EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY
RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM
TIME TO TIME TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS
SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY AND ANY
SUCH SHARES OF COMMON STOCK SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY
AND ANY SUCH SHARES OF COMMON STOCK TO HAVE AGREED TO ANY SUCH AMENDMENT OR
SUPPLEMENT.
The foregoing legend may be removed from this Security on
satisfaction of the conditions specified in the Indenture.
2
MIRANT CORPORATION
2.5% Convertible Senior Debentures due 2021
No. CUSIP: 000000XX0
Issue Date: May 31, 2001
Issue Price: 100% of principal amount
MIRANT CORPORATION, a Delaware corporation, promises to pay to
Cede & Co. or registered assigns, the principal amount of [__________________]
($___________) on June 15, 2021.
This Security shall bear interest at a rate of 2.5% per year
except as specified on the other side of this Security. This Security is
convertible as specified on the other side of this Security.
3
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: MIRANT CORPORATION
By: __________________________________
Title: _________________________________
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BANKERS TRUST COMPANY,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By __________________________________
Authorized Signatory
Dated:
4
[FORM OF REVERSE OF GLOBAL SECURITY]
2.5% Convertible Senior Debentures due 2021
1. Interest.
------------------
Except as provided below, this Security shall bear interest at
a rate of 2.5% per year from May 31, 2001 or from the most recent Interest
Payment Date (as defined below) to which payment has been paid or duly provided
for, payable semiannually in arrears on June 15 and December 15 of each year
(each an "Interest Payment Date") to the persons in whose names the Securities
are registered at the close of business on June 1 and December 1 (each a
"Regular Record Date") (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Interest on the Securities will be
computed on the basis of a 360-day year comprised of twelve 30-day months.
Cash interest on Securities converted after a record date, but
prior to the corresponding Interest Payment Date, will be paid to the Holder of
the Securities on the Regular Record Date but, upon conversion, the Holder must
pay the Company the cash interest which has accrued and will be paid on such
Interest Payment Date. No such payment needs to be made with respect to
Securities that will be redeemed after a Regular Record Date and prior to the
corresponding Interest Payment Date.
If the principal amount of a Security, plus accrued and unpaid
interest or any portion thereof, is not paid when due (whether upon acceleration
pursuant to Section 6.2 of the Indenture, upon the date set for payment of the
Redemption Price pursuant to Paragraph 5 hereof, upon the date set for payment
of the Purchase Price or the Fundamental Change Purchase Price pursuant to
Paragraph 6 hereof, or upon the Stated Maturity of this Security), then, in each
such case, the overdue amount shall, to the extent permitted by law, bear
interest at a rate of 2.5% per year, compounded semi-annually, which interest
shall accrue from the date such overdue amount was originally due to the date of
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand and shall be based on
a 360-day year comprised of twelve 30-day months.
Upward Interest Adjustment. The interest rate on this Security
---------------------------
will be 2.5% per year through June 15, 2004. If the average of the Sale Prices
(as defined below) of the Company's Common Stock is less than or equal to 45% of
the Accreted Conversion Price (as defined below) of this Security for any 20 out
of the last 30 trading days ending five days prior to each June 15 and December
15, beginning on June 15, 2004, then the interest rate on this Security will be
subject to an upward interest adjustment for the subsequent six-month period (an
"Upward Interest Adjustment"). The Upward Interest Adjustment will result in the
interest on this Security being equivalent to the applicable Reset Rate (as
defined below).
If an Upward Interest Adjustment is then in effect for any
six-month period and the average of the Sale Prices of the Company's Common
Stock as of the next June 15 or December 15 is not less than or equal to 45% of
1
the Accreted Conversion Price of this Security for any 20 out of the last 30
trading days of the six-month period ending on the fifth day preceding each June
15 or December 15, as applicable, then the interest rate on this Security will
revert to 2.5% per year of the Accreted Value for the subsequent six-month
period.
If an Upward Interest Adjustment is in effect for a particular
six-month period, the Company will pay a portion of the Upward Interest
Adjustment as cash interest at a rate of 0.25% per year (0.125% per six-month
period) of the Accreted Value, and the remaining interest will be accrued and
payable at the Stated Maturity or earlier upon the redemption or repurchase of
the Securities.
The "applicable Reset Rate" for any six-month period in which
there is an Upward Interest Adjustment, as determined by the Reset Rate Agent
(as defined below), will be set as of the Purchase Date on which such adjustment
is required or, if the adjustment is required as of a date that is not a
Purchase Date, the immediately preceding Purchase Date, and will be equal to the
rate (the "Reference Fixed Rate") that would, in the sole and reasonable
judgment of the Reset Rate Agent, result in a trading price of par for a
hypothetical issue of senior, non-convertible, fixed-rate, callable (after June
15, 2006), resetable debt securities of the Company with:
(i) a final maturity equal to the term from the most recent
Purchase Date until the next Purchase Date;
(ii) an aggregate principal amount equal to the then
Accreted Value of the Securities; and
(iii) provisions that are, insofar as would be practicable
for an issue of senior, non-convertible, fixed-rate, callable
(after June 15, 2006), resetable debt securities with no
restrictive covenants, substantially identical to those of the
Securities.
In no case, however, will the applicable Reset Rate for the
period from June 15, 2004 to June 14, 2006 be greater than 10% per year without
the prior written consent of the Company. Also, if the Reset Rate Agent
determines in its reasonable judgment that there is no suitable Reference Fixed
Rate, the applicable rate of accretion for that period will be the applicable
rate of accretion then in effect and to remain in effect until the Reset Rate
Agent determines that there is a suitable Reference Fixed Rate at which time the
Reset Rate Agent shall determine a new applicable Reset Rate for the period
ending on the next Purchase Date.
"Accreted Conversion Price" means, as of any date, the
Accreted Value of this Security divided by the number of shares of Common Stock
issuable upon conversion of this Security on that day.
2
"Accreted Value" means, as of any date, the sum of the Issue
Price of the Securities and the accrued and unpaid interest as of such date
(excluding any accrued and unpaid interest payable as cash interest).
The "Sale Price" of the shares of Common Stock on any date
means the closing per share sale price (or if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported on The New York Stock Exchange or, if the shares of Common Stock are
not listed on The New York Stock Exchange, then on the principal other national
or regional securities exchange on which the shares of Common Stock then are
listed or, if the shares of Common Stock are not listed on a U.S. national or
regional securities exchange, as reported on the National Association of
Securities Dealers Automated Quotation System or, if the shares of Common Stock
are not quoted on the National Association of Securities Dealers Automated
Quotation System, on the principal other market on which the shares of Common
Stock are then traded. In the absence of such quotations, the Company will be
entitled to determine the Sale Price on the basis of such quotations as the
Company considers appropriate.
The Company and the Trustee agree that Xxxxxxx Xxxxx Xxxxxx
Inc. will act as the Reset Rate Agent unless and until removed as provided
below. For the determination of the applicable Reset Rate, the Reset Rate Agent
shall seek indicative reference rates from one other nationally recognized
investment bank. The determination of any applicable Reset Rate shall be made by
the Reset Rate Agent by averaging the indicative reference rates obtained by
Xxxxxxx Xxxxx Xxxxxx Inc. and such other investment bank. The determination of
any applicable Reset Rate by the Reset Rate Agent will be conclusive and binding
upon the Reset Rate Agent, the Company, the Trustee and the holders of the
Securities, in the absence of manifest error. The Reset Rate Agent may be
removed at any time with or without cause by the Company giving at least sixty
(60) days' written notice to the Reset Rate Agent. The Reset Rate Agent may
resign at any time upon giving at least thirty (30) days' written notice to the
Company. A successor Reset Rate Agent, if any, will be appointed by the Company.
In the event of any Upward Interest Adjustment, the Company
will disseminate a press release through Dow Xxxxx & Company, Inc. or Bloomberg
Business News containing this information or publish the information on the
Company's web site or through such other public medium as the Company may use at
that time.
Tax Event. From and after the date of the occurrence of a Tax
---------
Event, the Company will have the option to elect to pay interest at the
applicable Reset Rate on this Security entirely in cash instead of accruing
interest pursuant to an Upward Interest Adjustment. Following the Company's
election to pay interest in cash following a Tax Event, interest will be payable
on the Accreted Value of the Securities as of the date of the Company's election
(the "Option Exercise Date").
Such interest shall accrue from the Option Exercise Date and
will be payable semiannually on the Interest Payment Dates to Holders of record
as of the Regular Record Dates immediately preceding the Interest Payment Dates.
Cash interest accrued and unpaid to the Option Exercise Date shall be paid to
the Holders of the Securities together with the cash interest at the higher rate
accrued from the Option Exercise Date.
3
A "Tax Event" means that the Company shall have received an
opinion from a nationally recognized independent tax counsel experienced in such
matters to the effect that as a result of:
(i) any amendment to, or change (including any announced
prospective change (which will not include a proposed change)), in the
laws (or any regulations thereunder) of the United States or any
political subdivision; or taxing authority of the United States or any
political subdivision; provided that a Tax Event will not occur more
than 90 days before the effective date of any prospective change in
such laws or regulations; or
(ii) any judicial decision or official administrative
pronouncement, ruling, regulatory procedure, notice or announcement,
including any notice or announcement of intent to adopt such procedures
or regulations (an "Administrative Action"); or
(iii) any amendment to or change in the administrative position
or interpretation of any Administrative Action or judicial decision
that differs from the theretofore generally accepted position, in each
case, by any legislative body, court, government agency or regulatory
body, irrespective of the manner in which such amendment or change is
made known, which amendment or change is effective or such
Administrative Action or decision is announced, in each case, on or
after May 31, 2001; there is more than an insubstantial risk that
interest on this Security, including interest as a result of any
Upward Interest Adjustment either:
(x) would not be deductible on a current accrual basis; or
(y) would not be deductible under any other method, in
either case in whole or in part, by the Company for United States
federal income tax purposes.
General. Except as provided below, interest will be paid (i) on the Global
--------
Securities to DTC in immediately available funds, (ii) on the definitive
Securities having an aggregate principal amount of $5,000,000 or less, by check
4
mailed to the Holders of such Securities; and (iii) on the definitive Securities
having an aggregate principal amount of more than $5,000,000, by wire transfer
in immediately available funds at the election of the Holders of these
Securities.
2. Method of Payment.
---------------------------
Subject to the terms and conditions of the Indenture, the
Company will make payments in cash, shares of Common Stock or a combination
thereof, as the case may be, in respect of Redemption Prices, Purchase Prices,
Fundamental Change Purchase Prices and at Stated Maturity to Holders who
surrender Securities to the Paying Agent to collect such payments in respect of
the Securities. The Company will pay cash amounts in money of the United States
that at the time of payment is legal tender for payment of public and private
debts. However, the Company may make such cash payments by check payable in such
money.
3. Paying Agent, Conversion Agent and Registrar.
------------------------------------------------------
Initially, Bankers Trust Company (the "Trustee") will act as
Paying Agent, Conversion Agent and Registrar. The Company may appoint and change
any Paying Agent, Conversion Agent or Registrar without notice, other than
notice to the Trustee; provided that the Company will maintain at least one
Paying Agent in the State of New York, City of New York, Borough of Manhattan,
which shall initially be an office or agency of the Trustee. The Company or any
of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent or Registrar.
4. Indenture.
-------------------
The Company issued the Securities under an Indenture dated as
of May 31, 2001 (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as in
effect from time to time (the "TIA"). Capitalized terms used herein and not
defined herein have the meanings ascribed thereto in the Indenture. The
Securities are subject to all such terms, and Securityholders are referred to
the Indenture and the TIA for a statement of those terms. To the extent any
provisions of this Security and the Indenture conflict, the provisions of the
Indenture shall control.
The Securities are senior unsecured obligations of the Company
limited to $862,500,000 aggregate principal amount (subject to Section 2.7 of
the Indenture, Upward Interest Adjustments and the Company's election to pay
interest in cash following a Tax Event). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Redemption at the Option of the Company.
-------------------------------------------------
No sinking fund is provided for the Securities. The Securities
are redeemable at the option of the Company in whole or in part, at any time or
from time to time, on or after June 18, 2006 upon not less than 30 nor more than
60 days' notice by mail for a cash price equal to the Accreted Value plus
accrued and unpaid cash interest, if any, to the Redemption Date (the
"Redemption Price").
6. Purchase By the Company at the Option of the Holder.
-------------------------------------------------------------
5
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 on June 15, 2004, June 15,
2006, June 15, 2011 and June 15, 2016 in integral multiples of $1,000 at a
Purchase Price equal to the Accreted Value plus accrued and unpaid cash
interest, if any, to the Purchase Date. To exercise such right, a Holder shall
deliver to the Company 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
last day prior to such Purchase Date, and shall deliver the Securities to the
Paying Agent as set forth in the Indenture.
The Purchase Price may be paid, at the option of the Company,
in cash or by the issuance and delivery of shares of Common Stock, or in any
combination thereof, provided that interest payable in cash shall be paid in
cash.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to offer to
purchase the Securities held by such Holder within 30 days (which purchase shall
occur 45 days after the date of such offer) after the occurrence of a
Fundamental Change for a Fundamental Change Purchase Price equal to the Accreted
Value plus accrued and unpaid cash interest, if any, to the Fundamental Change
Purchase Date, which Fundamental Change Purchase Price shall be paid in cash.
Holders have the right to withdraw any Purchase Notice or
Fundamental Change Purchase Notice, as the case may be, by delivering to the
Paying Agent a written notice of withdrawal in accordance with the provisions of
the Indenture.
If cash (and/or shares of Common Stock if permitted under the
Indenture) sufficient to pay the Purchase Price or Fundamental Change Purchase
Price, as the case may be, of all Securities or portions thereof to be purchased
on the Purchase Date or the Fundamental Change Purchase Date, as the case may
be, is deposited with the Paying Agent on the Business Day following the
Purchase Date or the Fundamental Change Purchase Date, interest ceases to accrue
on such Securities or portions thereof immediately after such Purchase Date or
Fundamental Change Purchase Date, and the Holder thereof shall have no other
rights as such other than the right to receive the Purchase Price or Fundamental
Change Purchase Price upon surrender of such Security.
7. Notice of Redemption.
------------------------------
Notice of redemption pursuant to Paragraph 5 of this Security
will be mailed at least 30 days but not more than 60 days before the Redemption
Date to each Holder of Securities to be redeemed at the Holder's registered
address. If money sufficient to pay the Redemption Price of all Securities or
portions thereof to be redeemed on the Redemption Date is deposited with the
Paying Agent prior to or on the Redemption Date, interest ceases to accrue on
such Securities or portions thereof immediately after such Redemption Date.
Securities in denominations larger than $1,000 of principal amount may be
redeemed in part but only in integral multiples of $1,000 of principal amount.
8. Conversion.
--------------------
6
Holders may surrender Securities for conversion into shares of
Common Stock if the Sale Prices of the Common Stock for at least 20 trading days
in the 30 day period ending on the first day of such Conversion Period is more
than 110% of the Accreted Conversion Price per share of the Common Stock on the
first day of the Conversion Period. A "Conversion Period" will be the period
from and including the twelfth trading day in a fiscal quarter to but not
including the twelfth trading day in the immediately following fiscal quarter. A
Holder may also surrender for conversion a Security or portion of a Security
which has been called for redemption pursuant to Paragraph 5 hereof, even if the
foregoing provision 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 Conversion Rate must be adjusted because
the Company declares a dividend or distribution described in Section 10.7 of the
Indenture or a dividend or a distribution described in Section 10.8 of the
Indenture where the fair market value of such dividend or distribution per share
of Common Stock, as determined in the Indenture, exceeds 12.5% of the Sale Price
of a share of Common Stock as of the Business Day prior to the date of
declaration for such distribution, unless the Holder may participate in this
distribution without conversion, 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 the 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 the Company is a party to a
consolidation, merger or binding share exchange pursuant to which the shares of
Common Stock would be converted into cash, securities or other property as set
forth in Section 10 of the Indenture, the Securities may be surrendered for
conversion at any time from and after the date which is 15 days prior to the
date the Company announces as the anticipated effective time until 15 days after
the actual date of such transaction.
A Security in respect of which a Holder has delivered a
Purchase Notice or Fundamental Change Purchase Notice exercising the option of
such Holder to require the Company to purchase such Security may be converted
only if such notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is 14.7167 shares of Common Stock
per $1,000 principal amount of Securities, subject to adjustment in certain
events described in the Indenture. A Holder that surrenders Securities for
conversion will receive cash or a check in lieu of any fractional shares of
Common Stock.
To surrender a Security for conversion, a Holder must (1)
complete and manually sign the irrevocable conversion notice below (or complete
and manually sign a facsimile of such notice) and deliver such notice to the
Conversion Agent, (2) surrender the Security to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents and (4) pay any transfer
or similar tax, if required.
7
A Holder may convert a portion of a Security if the principal
amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the shares of Common Stock except as
provided in the Indenture. Except as provided in Paragraph 1 hereof, on
conversion of a Security, the Holder will not receive any cash payment
representing accrued interest with respect to the converted Securities. Instead,
upon conversion the Company will deliver to the Holder a fixed number of shares
of Common Stock and any cash payment to account for fractional shares. Accrued
interest will be deemed paid in full rather than canceled, extinguished or
forfeited. The Company will not adjust the Conversion Rate to account for
accrued interest.
The Conversion Rate will be adjusted as provided in Article 10
of the Indenture. The Company may increase the Conversion Rate for at least 20
days, so long as the increase is irrevocable during such period.
If the Company is a party to a consolidation, merger or
binding share exchange or a transfer of all or substantially all of its assets,
or upon certain distributions described in the Indenture, then at the effective
time of the transaction the right to convert a Security into shares of 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 on Call for Redemption
------------------------------------------------------
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the day that is two Business Days
prior to the Redemption Date, may be deemed to be purchased from the Holders of
such Securities at an amount not less than the Redemption Price, by one or more
investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into shares of Common
Stock and to make payment for such Securities to the Trustee in trust for such
Holders.
10. Denominations; Transfer; Exchange.
-------------------------------------------
The Securities are in fully registered form, without coupons,
in denominations of $1,000 of principal amount and integral multiples of $1,000.
A Holder may transfer or exchange the Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Fundamental Change
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
8
11. Persons Deemed Owners.
-------------------------------
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
12. Unclaimed Money or Securities.
---------------------------------------
The Trustee and the Paying Agent shall return to the Company
upon written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company for payment
as general creditors unless an applicable abandoned property law designates
another person.
13. Amendment; Waiver.
---------------------------
Subject to certain exceptions set forth in the Indenture, (i)
the Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee
may amend the Indenture or the Securities so long as such changes, other than
those in clause (ii) below, do not materially and adversely affect the interest
of the Holders, among other things, (i) to cure any ambiguity, omission, defect
or inconsistency, provided that such modification or amendment does not in the
good faith opinion of the Company's Board of Directors and the Trustee adversely
affect the interests of the holders of the Securities in any material respect,
(ii) to comply with Article 5 or Section 10.14 of the Indenture, (iii) to secure
the Company's obligations or to add any guarantee under the Securities and the
Indenture; (iv) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power conferred upon the Company, (v) to
make any change necessary for the registration of the Securities under the
Securities Act or to comply with the TIA, or any amendment thereto, or to comply
with any requirement of the SEC in connection with the qualification of the
Indenture under the TIA, provided that such modification or amendment does not,
in the good faith opinion of the Company's Board of Directors and the Trustee,
adversely affect the interests of the holders of the Securities in any material
respect, (vi) to provide for uncertificated Securities in addition to or in
place of certificated Securities or to provide for bearer Securities or (vii) to
make any modifications or amendments that do not, in the good faith opinion of
the Company's Board of Directors and the Trustee, adversely affect the interests
of the Holders of the Securities in any material respect.
14. Defaults and Remedies.
-------------------------------
Under the Indenture, Events of Default include (i) default in
payment of the principal amount of the Securities plus accrued and unpaid
interest when the same becomes due and payable at Stated Maturity, upon
redemption, upon declaration, when due for purchase by the Company or otherwise,
(ii) default in the payment of any cash interest (including interest which
becomes payable after an Upward Interest Adjustment or any election by the
9
Company to pay interest entirely in cash on the Securities following a Tax
Event), when due and payable, subject to lapse of time, (iii) failure by the
Company to comply in any material respect with other agreements or covenants in
the Indenture or the Securities, subject to notice and lapse of time; (iv)
failure by the Company to deliver shares of Common Stock upon the election by
the Holders to convert their Securities, subject to lapse of time; and (v)
certain events of bankruptcy, insolvency and reorganization of the Company.
Holders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from the Holders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(ii) above) if it determines that withholding notice is in their interests.
15. Trustee Dealings with the Company.
-------------------------------------------
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with the Company or its
Affiliates with the same rights it would have if it were not Trustee.
16. Calculations in Respect of Securities.
-----------------------------------------------
The Company will be responsible for making all calculations
called for under the Securities, except for such calculations made by the Reset
Rate Agent. These calculations include, but are not limited to, determination of
the market prices for the Common Stock, accrued interest payable on the
Securities and the Accreted Conversion Price of the Securities. Any calculations
made in good faith and without manifest error will be final and binding on
Holders of the Securities. The Company will be required to deliver to the
Trustee a schedule of its calculations and the Trustee will be entitled to rely
upon the accuracy of such calculations without independent verification. The
Trustee will forward the Company's calculations to any Holder of the Securities
upon the request of such Holder.
17. No Recourse Against Others.
------------------------------------
A director, officer, employee or stockholder, as such, of the
Company or the Trustee shall not have any liability for any obligations of the
Company under the Securities or the Indenture or for any claim based on, in
respect of or by reason of such obligations or their creation. By accepting a
Security, each Holder waives and releases all such liability. The waiver and
release are part of the consideration for the issue of the Securities.
10
18. Authentication.
------------------------
This Security shall not be valid until an authorized signatory
of the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Security.
19. Abbreviations.
-----------------------
Customary abbreviations may be used in the name of a Holder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW.
------------------------
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS SECURITY.
The Company will furnish to any Holder upon written request
and without charge a copy of the Indenture which has in it the text of this
Security in larger type. Requests may be made to:
Mirant Corporation
0000 Xxxxxxxxx Xxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Attn: Corporate Secretary
21. Registration Rights.
----------------------------
The Holders of the Securities are entitled to the benefits of
a Registration Rights Agreement, dated as of May 31, 2001, between the Company
and Xxxxxxx Xxxxx Xxxxxx Inc., including the receipt of liquidated damages upon
a registration default (as defined in such agreement).
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the form below: To convert this Security into Common Stock
of the Company, check the box [ ]
I or we assign and transfer this Security to To convert only part of this Security,
_________________________ state the principal amount to be converted
_________________________ (which must be $1,000 or an integral
(Insert assignee's soc. sec. or tax ID no.) multiple of $1,000):
_________________________ If you want the stock certificate made out
_________________________ in another person's name fill in the form
11
(Print or type assignee's name, address and zip below:
code) _________________________
and irrevocably appoint (Insert the other person's soc. sec. tax
ID no.)
____________________ agent to transfer this
Security on the books of the Company. The __________________________
agent may substitute another to act for him. __________________________
(Print or type other person's name,
address and zip code)
Date: __________ Your Signature: _________________________________
(Sign exactly as your name appears on the other side of this Security)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
12
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
Initial Principal Amount of Global Security: ____________($___________).
Date Amount of Increase Amount of Decrease in Principal Amount of Notation by
in Principal Amount Principal Amount of Global Security Registrar or
of Global Security Global Security After Increase or Security Custodian
Decrease
13
EXHIBIT A-2
[FORM OF FACE OF CERTIFICATED SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS GOVERNING
CONTINGENT PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. AS REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE COMPANY HAS SET
FORTH THE "COMPARABLE YIELD" IN SECTION 4.7 OF THE INDENTURE PURSUANT TO WHICH
THIS SECURITY IS BEING ISSUED. THE HOLDER OF THIS SECURITY MAY OBTAIN THE
PROJECTED PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION
TO MIRANT CORPORATION, 0000 XXXXXXXXX XXXXXX XXXX, XXXXXXX, XXXXXXX 00000,
ATTENTION: CORPORATE SECRETARY'S OFFICE.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE
CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES
ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE 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 MIRANT
CORPORATION THAT THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT
(A)(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO AN INSTITUTIONAL INVESTOR THAT IS AN
"ACCREDITED INVESTOR" WITHIN THE MEANING OF RULE 501(A)(1), (2), (3) OR (7) OF
REGULATION D UNDER THE SECURITIES ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION
UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL
APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
The foregoing legend may be removed from this Security on
satisfaction of the conditions specified in the Indenture.
MIRANT CORPORATION
2.5% Convertible Senior Debentures due 2021
No. CUSIP: 000000XX0
Issue Date: May 31, 2001
Issue Price: 100% of principal amount
MIRANT CORPORATION, a Delaware corporation, promises to pay to
___________________. or registered assigns, the principal amount of [($ )
on June 15, 2021.
This Security shall bear interest at a rate of 2.5% per year
except as specified on the other side of this Security. This Security is
convertible as specified on the other side of this Security.
Additional provisions of this Security are set forth on the
other side of this Security.
Dated: MIRANT CORPORATION
By: _______________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BANKERS TRUST COMPANY,
as Trustee, certifies that this
is one of the Securities referred
to in the within-mentioned Indenture.
By ________________________
Authorized Signatory
Dated:
2
[FORM OF REVERSE OF CERTIFICATED SECURITY IS IDENTICAL TO EXHIBIT A-1]
EXHIBIT B-1
2.5% Convertible Senior Debentures due 2021
Transfer Certificate
In connection with any transfer of any of the Securities
within the period prior to the expiration of the holding period applicable to
the sales thereof under Rule 144(k) under the Securities Act of 1933, as amended
(the "Securities Act") (or any successor provision), the undersigned registered
owner of this Security hereby certifies with respect to $____________ principal
amount of the above-captioned Securities presented or surrendered on the date
hereof (the "Surrendered Securities") for registration of transfer, or for
exchange or conversion where the securities issuable upon such exchange or
conversion are to be registered in a name other than that of the undersigned
registered owner (each such transaction being a "transfer"), that such transfer
complies with the restrictive legend set forth on the face of the Surrendered
Securities for the reason checked below:
[_] A transfer of the Surrendered Securities is made to the
Company or any subsidiaries; or
[_] The transfer of the Surrendered Securities complies with
Rule 144A under the U.S. Securities Act of 1933, as amended
(the "Securities Act"); or
[_] The transfer of the Surrendered Securities is pursuant to
an effective registration statement under the Securities
Act, or
[_] The transfer of the Surrendered Securities
is pursuant to another available exemption
from the registration requirement of the
Securities Act.
and unless the box below is checked, the undersigned confirms
that, to the undersigned's knowledge, such Securities are not being transferred
to an "affiliate" of the Company as defined in Rule 144 under the Securities Act
(an "Affiliate").
[_] The transferee is an Affiliate of the Company.
DATE: __________________________________
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the person signing on behalf of such registered owner
must be stated.)
1
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By: _____________________________
Authorized Signatory
2
SCHEDULE A
Projected Payment Schedule*
Period Projected Payment per DEBENTURE
------- -------------------------------
May 31, 2001 - June 15, 2001 $0.00
June 15, 2001 - December 15, 2001 $13.53
December 15, 2001- June 15, 2002 $12.50
June 15, 2002 - December 15, 2002 $12.50
December 15, 2002 - June 15, 2003 $12.50
June 15, 2003 - December 15, 2003 $12.50
December 15, 2003 - June 15, 2004 $12.50
June 15, 2004 - December 15, 2004 $12.50
December 15, 2004 - June 15, 2005 $12.50
June 15, 2005 - December 15, 2005 $12.50
December 15, 2005 - June 15, 2006 $12.50
June 15, 2006 - December 15, 2006 $12.50
December 15, 2006 - June 15, 2007 $12.50
June 15, 2007 - December 15, 2007 $12.50
December 15, 2007 - June 15, 2008 $12.50
June 15, 2008 - December 15, 2008 $12.50
December 15, 2008 - June 15, 2009 $12.50
June 15, 2009 - December 15, 2009 $12.50
December 15, 2009 - June 15, 2010 $12.50
June 15, 2010 - December 15, 2010 $12.50
December 15, 2010 - June 15, 2011 $12.50
June 15, 2011 - December 15, 2011 $12.50
December 15, 2011 - June 15, 2012 $12.50
June 15, 2012 - December 15, 2012 $12.50
December 15, 2012 - June 15, 2013 $12.50
June 15, 2013 - December 15, 2013 $12.50
December 15, 2013 - June 15, 2014 $12.50
June 15, 2014 - December 15, 2014 $12.50
December 15, 2014 - June 15, 2015 $12.50
June 15, 2015 - December 15, 2015 $12.50
December 15, 2015 - June 15, 2016 $12.50
June 15, 2016 - December 15, 2016 $12.50
December 15, 2016 - June 15, 2017 $12.50
June 15, 2017 - December 15, 2017 $12.50
December 15, 2017 - June 15, 2018 $12.50
June 15, 2018 - December 15, 2018 $12.50
December 15, 2018 - June 15, 2019 $12.50
June 15, 2019 - December 15, 2019 $12.50
December 15, 2019 - June 15, 2020 $12.50
June 15, 2020 - December 15, 2020 $12.50
December 15, 2020 - June 15, 2021 $4,075.49
-----------------------
* The comparable yield and the schedule of projected payments are determined on
the basis of certain assumptions and are not determined for any purpose other
than for the determination of interest accruals and adjustments thereof in
respect of the Securities for United States federal income tax purposes. The
comparable yield and the schedule of projected payments do not constitute a
projection or representation regarding the amounts payable on Securities.
3
