Exhibit 4.1
REEBOK INTERNATIONAL LTD.
4 1/4% Convertible Debentures due March 1, 2021
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INDENTURE
Dated as of February 28, 2001
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State Street Bank and Trust Company
TRUSTEE
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TABLE OF CONTENTS
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Page
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ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE..........................................................1
Section 1.1 Definitions.....................................................1
Section 1.2 Other Definitions...............................................6
Section 1.3 Incorporation by Reference of Trust Indenture Act...............7
Section 1.4 Rules of Construction...........................................8
Section 1.5 Acts of Holders.................................................8
ARTICLE II
THE SECURITIES.....................................................................................10
Section 2.1 Form and Dating................................................10
Section 2.2 Execution and Authentication...................................11
Section 2.3 Registrar, Paying Agent and Conversion Agent...................12
Section 2.4 Paying Agent to Hold Money in Trust............................13
Section 2.5 Securityholder Lists...........................................13
Section 2.6 Transfer and Exchange..........................................13
Section 2.7 Replacement Securities.........................................15
Section 2.8 Outstanding Securities; Determinations of
Holders' Action................................................16
Section 2.9 Temporary Securities...........................................17
Section 2.10 Cancellation...................................................17
Section 2.11 Persons Deemed Owners..........................................18
Section 2.12 Global Securities..............................................18
Section 2.13 CUSIP Numbers..................................................21
ARTICLE III
REDEMPTION AND PURCHASES...........................................................................22
Section 3.1 Right to Redeem; Notices to Trustee............................22
Section 3.2 Selection of Securities to Be Redeemed.........................22
Section 3.3 Notice of Redemption...........................................23
Section 3.4 Effect of Notice of Redemption.................................24
Section 3.5 Deposit of Redemption Price....................................24
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Section 3.6 Securities Redeemed in Part....................................25
Section 3.7 RESERVED.......................................................25
Section 3.8 Purchase of Securities at Option of the Holder.................25
Section 3.9 Purchase of Securities at Option of the
Holder upon Change in Control..................................28
Section 3.10 Effect of Purchase Notice or Change in Control
Purchase Notice................................................32
Section 3.11 Deposit of Purchase Price or Change in Control
Purchase Price.................................................33
Section 3.12 Securities Purchased in Part...................................34
Section 3.13 Covenant to Comply With Securities
Laws Upon Purchase of Securities...............................34
Section 3.14 Repayment to the Company.......................................34
ARTICLE IV
COVENANTS..........................................................................................35
Section 4.1 Payment of Securities..........................................35
Section 4.2 SEC and Other Reports..........................................35
Section 4.3 Compliance Certificate.........................................36
Section 4.4 Further Instruments and Acts...................................36
Section 4.5 Maintenance of Office or Agency................................36
Section 4.6 Delivery of Certain Information................................37
Section 4.7 Tax Treatment of Securities....................................37
Section 4.8 Liquidated Damages Amount......................................38
ARTICLE V
SUCCESSOR CORPORATION..............................................................................38
Section 5.1 When Company May Merge or Transfer Assets......................38
ARTICLE VI
DEFAULTS AND REMEDIES..............................................................................39
Section 6.1 Events of Default..............................................39
Section 6.2 Acceleration...................................................41
Section 6.3 Other Remedies.................................................42
Section 6.4 Waiver of Past Defaults........................................42
Section 6.5 Control by Majority............................................42
Section 6.6 Limitation on Suits............................................43
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Section 6.7 Rights of Holders to Receive Payment...........................43
Section 6.8 Collection Suit by Trustee.....................................43
Section 6.9 Trustee May File Proofs of Claim...............................44
Section 6.10 Priorities.....................................................45
Section 6.11 Undertaking for Costs..........................................45
Section 6.12 Waiver of Stay, Extension or Usury Laws........................45
ARTICLE VII
TRUSTEE............................................................................................46
Section 7.1 Duties of Trustee..............................................46
Section 7.2 Rights of Trustee..............................................48
Section 7.3 Individual Rights of Trustee...................................49
Section 7.4 Trustee's Disclaimer...........................................50
Section 7.5 Notice of Defaults.............................................50
Section 7.6 Reports by Trustee to Holders..................................50
Section 7.7 Compensation and Indemnity.....................................50
Section 7.8 Replacement of Trustee.........................................51
Section 7.9 Successor Trustee by Merger....................................52
Section 7.10 Eligibility; Disqualification..................................53
Section 7.11 Preferential Collection of Claims
Against Company................................................53
ARTICLE VIII
DISCHARGE OF INDENTURE.............................................................................53
Section 8.1 Discharge of Liability on Securities...........................53
Section 8.2 Repayment to the Company.......................................53
ARTICLE IX
AMENDMENTS.........................................................................................54
Section 9.1 Without Consent of Holders.....................................54
Section 9.2 With Consent of Holders........................................54
Section 9.3 Compliance with Trust Indenture Act............................55
Section 9.4 Revocation and Effect of Consents, Xxxxxxx and
Actions........................................................55
Section 9.5 Notation on or Exchange of Securities..........................55
Section 9.6 Trustee to Sign Supplemental Indentures........................56
Section 9.7 Effect of Supplemental Indentures..............................56
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ARTICLE X
CONVERSIONS........................................................................................56
Section 10.1 Conversion Privilege...........................................56
Section 10.2 Conversion Procedure...........................................58
Section 10.3 Fractional Shares..............................................59
Section 10.4 Taxes on Conversion............................................59
Section 10.5 Company to Provide Stock.......................................60
Section 10.6 Adjustment for Change In Capital Stock.........................60
Section 10.7 Adjustment for Rights Issue....................................61
Section 10.8 Adjustment for Other Distributions.............................63
Section 10.9 When Adjustment May Be Deferred................................66
Section 10.10 When No Adjustment Required....................................66
Section 10.11 Notice of Adjustment...........................................67
Section 10.12 Voluntary Decrease.............................................67
Section 10.13 Notice of Certain Transactions.................................67
Section 10.14 Reorganization of the Company; Special
Distributions..................................................68
Section 10.15 Company Determination Final....................................69
Section 10.16 Trustee's Adjustment Disclaimer................................69
Section 10.17 Simultaneous Adjustments.......................................69
Section 10.18 Successive Adjustments.........................................69
ARTICLE XI
MISCELLANEOUS......................................................................................70
Section 11.1 Trust Indenture Act Controls...................................70
Section 11.2 Notices........................................................70
Section 11.3 Communication by Holders with Other Holders....................71
Section 11.4 Certificate and Opinion as to
Conditions Precedent...........................................71
Section 11.5 Statements Required in Certificate or Opinion..................71
Section 11.6 Separability Clause............................................72
Section 11.7 Rules by Trustee, Paying Agent, Conversion
Agent and Registrar............................................72
Section 11.8 Legal Holidays.................................................72
Section 11.9 Governing Law..................................................72
Section 11.10 No Recourse Against Others.....................................72
Section 11.11 Successors.....................................................73
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Section 11.12 Multiple Originals.............................................73
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CROSS-REFERENCE TABLE*
Trust Indenture Act Section Indenture Section
310 (a)(1)...............................................................7.10
(a)(2) ..................................................................7.10
(a)(3)...................................................................N.A.
(a)(4)...................................................................N.A.
(a)(5)...................................................................N.A.
(b).................................................................7.8, 7.10
(c)......................................................................N.A.
311(a)...................................................................7.11
(b)......................................................................7.11
(c)......................................................................N.A.
312 (a)...................................................................2.5
(b)......................................................................11.3
(c)......................................................................11.3
313(a)....................................................................7.6
(b)(1)....................................................................7.6
(b)(2)....................................................................7.6
(c).......................................................................7.6
(d).......................................................................7.6
314(a)...............................................................4.2, 4.3
(b)......................................................................N.A.
(c)(1)...................................................................11.4
(c)(2)...................................................................11.4
(c)(3)...................................................................N.A.
(d)......................................................................N.A.
(e)......................................................................11.5
(f)......................................................................N.A.
315 (a)................................................................7.1(b)
(b).......................................................................7.5
(c) ...................................................................7.1(a)
(d)....................................................................7.1(c)
(e)......................................................................6.11
316(a)(1)(A)..............................................................6.5
(a)(1)(B).................................................................6.4
(a)(2)...................................................................N.A.
(b).......................................................................6.7
(c)....................................................................1.5(e)
317 (a)(1)................................................................6.8
(a)(2)....................................................................6.9
(b).......................................................................2.4
318 (a)..................................................................N.A.
N.A. means not applicable.
*This Cross-Reference Table is not part of the Indenture.
INDENTURE dated as of February 28, 2001 between REEBOK
INTERNATIONAL LTD., a Massachusetts corporation (the "Company"), and STATE
STREET BANK AND TRUST COMPANY, a Massachusetts trust company (the "Trustee").
Each party agrees as follows for the benefit of the other
party and for the equal and ratable benefit of the Holders of the Company's 4
1/4% Convertible Debentures due March 1, 2021 ("Securities"):
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 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.
"Board Resolution" means a copy of one or more resolutions,
certified by an Officer of the Company to have been duly adopted or consented to
by the
applicable Board of Directors and to be in full force and effect, and delivered
to the Trustee.
"Business Day" means, with respect to any Security, a day that
in the City of New York and the City of Boston, Massachusetts 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 Shares" shall mean shares of the Company's Common
Stock, $0.01 par value per share, together with the associated Common Stock
Purchase Rights, as they exist on the date of this Indenture or any other shares
of Capital Stock of the Company into which the Common Shares shall be
reclassified or changed.
"Common Stock Purchase Rights" shall mean the Common Stock
Purchase Rights issued under the Common Stock Rights Agreement dated as of June
14, 1990 between the Company and The First National Bank of Boston, as Rights
Agent, as amended from time to time.
"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 office of the Trustee at
which at any time the trust created by this Indenture shall be administered,
which office at the date hereof is located at 0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx,
Xxxxxx, XX 00000, Attention: Corporate Trust Administration (Reebok
International Ltd. 4 1/4% Convertible Debentures due March 1, 2021), 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
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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.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"Global Securities" means Securities that are in the form of
the Securities attached hereto as Exhibit A-1, and to the extent that such
Securities are required to bear the Legend required by Section 2.6, 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.
"Initial Purchaser" shall mean Credit Suisse First Boston
Corporation.
"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.
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"Liquidated Damages Amount" has the meaning set forth in the
Registration Rights Agreement dated as of February 28, 2001 between the Company
and the Initial Purchaser.
"Non-Recourse Indebtedness" means Indebtedness upon the
enforcement of which recourse may be had by the holder(s) thereof only to
identified assets of the Company or any Subsidiary and not to the Company or any
Subsidiary personally.
"Officer" means the Chairman of the Board of Directors, the
Chief Executive Officer, the President, any Executive Vice President, any Senior
Vice President, any Vice President, the Chief Financial Officer, the Treasurer
or the Clerk, any Assistant Treasurer or Assistant Clerk or any Director 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" or "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.
"Principal Amount" or "principal amount" of a Security means
the Principal Amount as set forth on the face of the Security.
"Redemption Date" or "redemption date" shall mean the date
specified for redemption of the Securities in accordance with the terms of the
Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the
meaning set forth in paragraph 5 of the Securities.
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"Responsible Officer" shall mean, when used with respect to
the Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant 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 4 1/4% Convertible
Debentures due March 1, 2021, as amended or supplemented from time to time,
issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
"Stated Maturity", when used with respect to any Security,
means the date specified in such Security as the fixed date on which an amount
equal to the Principal Amount of such Security is due and payable.
"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 con trolled 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
5
date, TIA means, to the extent required by any such amendment, the TIA as so
amended.
"trading day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Shares are not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Common Shares are then listed or, if
the Common Shares are not listed on a national or regional securities exchange,
on the National Association of Securities Dealers Automated Quotation System or,
if the Common Shares are not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
Common Shares are then traded.
"Trustee" means the party named as the "Trustee" in the first
para graph 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:
"Agent Members"............................................... 2.12(e)
"Associate"................................................... 3.9(a)
"Average Sale Price".......................................... 10.7
"beneficial owner"............................................ 3.9(a)
"cash"........................................................ 3.8(b)
"Change in Control"........................................... 3.9(a)
"Change in Control Purchase Date"............................. 3.9(a)
"Change in Control Purchase Notice"........................... 3.9(a)
"Change in Control Purchase Price"............................ 3.9(c)
"Company Notice".............................................. 3.8(c)
"Company Notice Date"......................................... 3.8(b)
"Conversion Agent"............................................ 2.3
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"Conversion Date"............................................. 10.2
"Conversion Price"............................................ 10.1
"Depositary".................................................. 2.1(a)
"DTC"......................................................... 2.1(a)
"Event of Default"............................................ 6.1
"Ex-Dividend Time"............................................ 10.1
"Extraordinary Cash Dividend"................................. 10.8
"Legal Holiday"............................................... 11.8
"Legend"...................................................... 2.6(f)
"Notice of Default"........................................... 6.1
"Paying Agent"................................................ 2.3
"Purchase Date"............................................... 3.8(a)
"Purchase Notice"............................................. 3.8(a)
"Purchase Price".............................................. 3.8(a)
"QIB"......................................................... 2.1(a)
"Registrar"................................................... 2.3
"Rule 144A Information"....................................... 4.6
"Sale Price".................................................. 10.1
"Spin-off".................................................... 10.8
"Time of Determination"....................................... 10.1
Section 1.3 Incorporation by Reference of Trust Indenture Act.
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Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by a TIA reference to another statute or defined by an SEC rule
have the
7
meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context
---------------------
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles 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.
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(a) Any request, demand, authorization, direction, notice,
consent, waiver or other action provided by this Indenture to be given or taken
by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing; and, except as herein otherwise expressly provided, such
action shall become effective when such instrument or instruments are delivered
to the Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and conclusive in favor of the Trustee and the Company, if made in the
manner provided in this Section.
(b) The fact and date of the execution by any Person of any
such instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority.
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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 Registered Securities shall be proved
by the Register.
(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 I
THE SECURITIES
Section 1.1 Form and Dating. The Securities and the Trustee's
---------------
certificate of authentication shall be substantially in the forms set forth on
Exhibits A-1 and A-2, which are a part of this Indenture. The Securities may
have notations, legends or endorsements required by law, stock exchange rule or
usage (provided
9
that any such notation, legend or endorsement required by usage is in a form
accept able 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 Securities, which shall be deposited with the Trustee at its
Corporate Trust Office, as custodian for the Depositary and registered in the
name of The Depository Trust Company ("DTC") or the nominee thereof (such
depositary, or any successor thereto, and any such nominee being hereinafter
referred to as the "Depositary"), duly executed by the Company and authenticated
by the Trustee as hereinafter provided. 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.
(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. 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 REEBOK INTERNATIONAL LTD. (THE "COMPANY") OR ITS
AGENT FOR REGISTRATION
10
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."
Section 1.2 Execution and Authentication. The Securities shall
----------------------------
be executed on behalf of the Company by any Officer, under its corporate seal
reproduce thereon. The signature of the officer of the Company on the Securities
may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of the Securities the proper
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 Securities for
original issue in an aggregate Principal Amount of up to $250,000,000 upon a
Company Order without any further action by the Company. The aggregate Principal
Amount of Securities outstanding at any time may not exceed the amount set forth
in the foregoing sentence, except as provided in Section 2.7.
11
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 1.3 Registrar, Paying Agent and Conversion Agent. The
--------------------------------------------
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and ex change. 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 (other than
the Trustee). The agreement shall implement the provisions of this Indenture
that relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent 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.
Section 1.4 Paying Agent to Hold Money in Trust. Except as
-----------------------------------
otherwise provided herein, on or prior to each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due date) 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 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
so held in trust. If the Company,
12
a Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money 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 held
by it to the Trustee and to account for any funds disbursed by it. Upon doing
so, the Paying Agent shall have no further liability for the money.
Section 1.5 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 May 1 and November 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 1.6 Transfer and Exchange. 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. 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 that the Holder making the exchange is
entitled to receive.
The Company shall not be required to make, and the Registrar
need not register, transfers or exchanges of Securities selected for redemption
(except, in
13
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 Change in
Control 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.
(a) 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 nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(b) 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.
(c) 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 ex change of Securities.
(d) 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.
(e) 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 Securities 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)
14
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
an Affiliate of the Company, the Legend shall be reinstated.
Section 1.7 Replacement Securities. If any mutilated Security
----------------------
is surrendered to the Trustee, or the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute, and upon the Company's 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 Xxxxxx, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
15
Section 1.8 Outstanding Securities; Determinations of Holders'
--------------------------------------------------
Action. Securities outstanding at any time are all the Securities authenticated
------
by the Trustee except for those cancelled by it, those paid pursuant to Section
2.7 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 protected purchaser.
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
Change in Control Purchase Date, or on Stated Maturity, money sufficient to pay
amounts owed with respect to Securities payable on that date, then immediately
after such Redemption Date, Purchase Date, Change in Control 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 10, then
from and after the time of conversion on the Conversion Date, such Security
shall cease to be outstanding and interest, if any, shall cease to accrue on
such Security.
Section 1.9 Temporary Securities. Pending the preparation of
--------------------
definitive Securities, the Company may execute and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
16
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 1.10 Cancellation. All Securities surrendered for
------------
payment, purchase by the Company pursuant to Article 3, conversion, redemption
or registration of transfer or exchange (other than Securities exchanged
pursuant to Section 10.2) 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 that 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 10. 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 1.11 Persons Deemed Owners. Prior to due presentment
---------------------
of a Security for registration of transfer, the Company, the Trustee and any
agent of the Company or the Trustee may treat the Person in whose name such
Security is registered as the owner of such Security for the purpose of
receiving payment of the Principal Amount of the Security or the payment of any
Redemption Price, Purchase Price or Change in Control Purchase Price in respect
thereof, and accrued 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.
17
Section 1.12 Global Securities.
-----------------
(a) A Global Security may not be transferred, in whole or in
part, to any Person other than the Depositary or a nominee or any successor
thereof, and no such transfer to any such other Person may be registered;
provided that the foregoing 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. Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.6 and this Section 2.12.
(b) Subject to the succeeding paragraph, 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, 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 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
18
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, 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, a Global Security shall not be exchanged
in whole or in part for a Security registered in the name
of any Person other than the Depositary or one or more
nominees thereof, provided that a Global Security may be
exchanged for Securities registered in the names of any
person designated by the Depositary in the event that (i)
the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such
Global Security or such Depositary has ceased to be a
"clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company
within 90 days, (ii) the Company has provided the
Depositary with written notice that it has decided to
discontinue use of the system of book-entry transfer
through the Depositary or any successor Depositary or
(iii) an Event of Default has occurred and is continuing
with respect to the Securities. Any Global Security
exchanged pursuant to clauses (i) or (ii) above shall be
so exchanged in whole and not in part, and any Global
Security exchanged pursuant to clause (iii) above may be
exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof
shall be a Global Security; provided that any such
Security so issued that is registered in the name of a
Person other than the Depositary or a nominee thereof
shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or any
19
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
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
20
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 1.13 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.
ARTICLE II
REDEMPTION AND PURCHASES
Section 2.1 Right to Redeem; Notices to Trustee.
-----------------------------------
(a) Optional Redemption. The Company, at its option, may
redeem the Securities in accordance with the provisions of paragraph 5 of the
Securities and at the Redemption Prices specified in paragraph 5 of the
Securities, together with accrued interest up to but not including the
Redemption Date and Liquidated Damages Amount, if any, thereon; provided that if
the Redemption Date is on or after an interest record date but on or prior to
the related interest payment date, interest will be payable to the Holders in
whose names the Securities are registered at the close of business on the
relevant record date for payment of such interest.
(b) Notice to Trustee. If the Company elects to redeem
Securities pursuant to this Section 3.1, it shall notify the Trustee in writing
of the Redemption
21
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 this
Section 3.1(b) by a Company Order at least 20 days before the Redemption Date
(unless a shorter notice shall be satisfactory to the Trustee).
Section 2.2 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 on a pro rata basis (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 15 days but not more than 60 days
before the Redemption Date from outstanding Securities not previously called for
redemption. The Trustee may select for redemption portions of the Principal
Amount of Securities that have denominations larger than $1,000.
Securities and portions of them 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 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
that 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 2.3 Notice of Redemption. At least 15 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;
(2) the Redemption Price;
(3) the Conversion Price;
22
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at
any time before the close of business on the Business Day
immediately preceding the Redemption Date;
(6) that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 8 of the
Securities;
(7) that Securities called for redemption must be surrendered
to the Paying Agent to collect the Redemption Price
therefor, together with all accrued interest;
(8) if fewer than all 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 on Securities called for
redemption will cease to accrue on and after the
Redemption Date; and
(10) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that
the Company makes such request at least 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 2.4 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, together with accrued interest up to but
not including the Redemption Date and Liquidated Damages Amount, if any,
thereon.
23
Section 2.5 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, together
with accrued interest up to but not including the Redemption Date and Liquidated
Damages Amount, if any, thereon, other than Securities or portions of Securities
called for redemption that 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 10. If
such money is then held by the Company in trust and is not required for such
purpose it shall be discharged from such trust.
Section 2.6 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 2.7 RESERVED.
--------
Section 2.8 Purchase of Securities at Option of the Holder.
----------------------------------------------
(a) General. Securities shall be purchased by the Company in
accordance with the provisions of paragraph 6 of the Securities as of March 1,
2008, March 1, 2011 and March 1, 2016 (each, a "Purchase Date") at a purchase
price per Security equal to 100% of the aggregate Principal Amount of the
Security (the "Purchase Price"), together with accrued interest up to but not
including the Purchase Date and Liquidated Damages Amount, if any, thereon;
provided that if the Purchase Date is on or after an interest record date but on
or prior to the related interest payment date, interest will be payable to the
Holders in whose names the Securities are registered at the close of business on
the relevant record date.
Purchases of Securities hereunder shall be made, at the option of the
Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written
notice of purchase (a "Purchase Notice") at any time from
the opening of business on the date that is 20 Business
Days prior to the Purchase Date until the close of
business on the fifth Busi-
24
ness Day prior to such Purchase Date stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased,
(B) the portion of the Principal Amount of the
Security which the Holder will deliver to be
purchased, which portion must be in principal amounts
at maturity of $1,000 or an integral multiple
thereof,
(C) that such Security shall be purchased as of the
Purchase Date pursuant to the terms and conditions
specified in paragraph 6 of the Securities and in
this Indenture, and
(D) delivery of such Security to the Paying Agent
prior to, on or after the Purchase Date (together
with all necessary endorsements) at the offices of
the Paying Agent, such delivery being a condition to
receipt by the Holder of the Purchase Price therefor,
together with all accrued interest; provided,
however, that such Purchase Price, together with all
accrued interest, 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 in the related Purchase Notice,
as determined by the Company.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.8, a portion of a Security if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 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
3.8(a) shall have the right to withdraw such Purchase Notice at any time prior
to the close of business on the Purchase Date by delivery of a written notice of
withdrawal to the
25
Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of withdrawal thereof.
(b) Manner of Payment of Purchase Price. The Purchase Price of
Securities in respect of which a Purchase Notice pursuant to Section 3.8(a) has
been given shall be paid in U.S. legal tender ("cash").
(c) Company Notice. In connection with any purchase of
Securities pursuant to Section 3.8, the Company shall give written notice of the
Purchase Date to the Holders (the "Company Notice"). The Company Notice shall be
sent by first-class mail to the Trustee and to each Holder (and to each
beneficial owner as required by applicable law) not less than 20 Business Days
prior to any Purchase Date (the "Company Notice Date"). Each Company Notice
shall include a form of Purchase Notice to be completed by a Securityholder and
shall state:
(i) the Purchase Price and the Conversion Price;
(ii) the name and address of the Paying Agent and
the Conversion Agent;
(iii) that Securities as to which a Purchase Notice
has been given may be converted if they are otherwise convertible only
in accordance with Article 10 hereof and paragraph 8 of the Securities
if the applicable Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(iv) that Securities must be surrendered to the
Paying Agent to collect payment;
(v) that the Purchase Price for, and any accrued
interest on, any Security as to which a Purchase Notice has been given
and not withdrawn will be paid promptly following the later of the
Purchase Date and the time of surrender of such Security as described in
subclause (iv) above;
(vi) the procedures the Holder must follow to
exercise rights under Section 3.8 and a brief description of those
26
rights;
(vii) briefly, the conversion rights of the
Securities;
(viii) the procedures for withdrawing a Purchase
Notice (including pursuant to the terms of Section 3.10);
(ix) that, unless the Company defaults in making
payment on Securities for which a Purchase Notice has been submitted, interest
on such Securities will cease to accrue on the Purchase Date; and
(x) the CUSIP number of the Securities.
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.
(d) Procedure upon Purchase. The Company shall deposit cash,
in respect of purchases under this Section 3.8, at the time and in the manner as
provided in Section 3.11, sufficient to pay the aggregate Purchase Price of all
Securities, together with all accrued interest to, but not including, the
Purchase Date and Liquidated Damages Amount, if any, thereon, to be purchased
pursuant to this Section 3.8.
Section 2.9 Purchase of Securities at Option of the Holder
----------------------------------------------
upon Change in Control.
----------------------
(a) If at any time the Securities remain outstanding there
shall have occurred a Change in Control, Securities 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 "Change in Control Purchase Price"), as of
the date that is 45 Business Days after the occurrence of the Change in Control
(the "Change in Control Purchase Date"), subject to satisfaction by or on behalf
of the Holder of the requirements set forth in Section 3.9(c).
A "Change in Control" shall be deemed to have occurred at such
time as either of the following events shall occur:
(i) There shall be consummated any share ex-
27
change, consolidation or merger of the Company pursuant to which the
Common Shares would be converted into cash, securities or other
property, in each case other than a share exchange, consolidation or
merger of the Company in which the holders of the Common Shares
immediately prior to the share exchange, consolidation or merger have,
directly or indirectly, at least a majority of the total voting power
in the aggregate of all classes of Capital Stock of the continuing or
surviving corporation immediately after the share exchange,
consolidation or merger; or
(ii) There is a report filed on Schedule 13D or TO
(or any successor schedule, form or report) pursuant to the Exchange
Act, disclosing that any person (for the purposes of this Section 3.9
only, as the term "person" is used in Section 13(d)(3) or Section
14(d)(2) of the Exchange Act) has become the beneficial owner (as the
term "beneficial owner" is defined under Rule 13d-3 or any successor
rule or regulation promulgated under the Exchange Act) of 50% or more of
the voting power of the Common Shares then outstanding; provided,
however, that a person shall not be deemed beneficial owner of, or to
own beneficially, (A) any securities tendered pursuant to a tender or
exchange offer made by or on behalf of such person or any of such
person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange thereunder, or (B) any securities if
such beneficial ownership (1) arises solely as a result of a revocable
proxy delivered in response to a proxy or consent solicitation made
pursuant to the applicable rules and regulations under the Exchange Act,
and (2) is not also then reportable on Schedule 13D (or any successor
schedule) under the Exchange Act.
Notwithstanding the foregoing provisions of this Section 3.9, a Change in
Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit plan
of the Company or any Subsidiary, or any person holding Common Shares for or
pursuant to the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or Schedule TO
(or any successor schedule, form or report) under the Exchange Act disclosing
beneficial ownership by it of shares of Common Shares, whether in excess of 50%
or otherwise.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on
28
the date hereof.
(b) Within 30 days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control 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 Change in
Control Purchase Notice to be completed by the Securityholder and shall state:
(1) briefly, the events causing a Change in Control and the
date of such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.9 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Securities as to which a Change in Control Purchase
Notice has been given may be converted pursuant to
Article 10 hereof only if the Change in Control Purchase
Notice has been withdrawn in accordance with the terms of
this Indenture;
(8) that Securities must be surrendered to the Paying Agent
to collect payment;
(9) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase Notice
has been duly given and not withdrawn will be paid
promptly following the later of the Change in Control
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 3.9;
29
(11) briefly, the conversion rights of the Securities;
(12) the procedures for withdrawing a Change in Control
Purchase Notice;
(13) that, unless the Company defaults in making payment of
such Change in Control Purchase Price, interest on
Securities surrendered for purchase by the Company will
cease to accrue on and after the Change in Control
Purchase Date; and
(14) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section
3.9(a) upon delivery of a written notice of purchase (a
"Change in Control Purchase Notice") to the Paying Agent
at any time prior to the close of business on the fifth
business day prior to the Change in Control Purchase
Date, stating:
(1) the certificate number of the Security that 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 prior to, on
or after the Change in Control Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Purchase Price therefor;
provided, however, that such Change in Control Purchase Price shall be so paid
pursuant to this Section 3.9 only if the Security so delivered to the Paying
Agent shall conform in all respects to the description thereof set forth in the
related Change in Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.9, a portion of a Security if the Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
30
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.9 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Change in Control Purchase Date and the time of delivery of the Security to the
Paying Agent in accordance with this Section 3.9.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.9(c) shall have the right to withdraw such Change
in Control Purchase Notice at any time prior to the close of business on the
Change in Control Purchase Date by delivery of a written notice of withdrawal to
the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written withdrawal
thereof.
Section 2.10 Effect of Purchase Notice or Change in Control
----------------------------------------------
Purchase Notice. Upon receipt by the Paying Agent of the Purchase Notice or
---------------
Change in Control Purchase Notice specified in Section 3.8(a) or Section 3.9(c),
as applicable, the Holder of the Security in respect of which such Purchase
Notice or Change in Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change in Control Purchase Notice is withdrawn
as specified in the following two paragraphs) thereafter be entitled to receive
solely the Purchase Price, together with all accrued interest to, but not
including, the Purchase Date and Liquidated Damages Amount, if any, thereon, or
Change in Control Purchase Price, as the case may be, with respect to such
Security. Such Purchase Price, together with all accrued interest to, but not
including, the Purchase Date and Liquidated Damages Amount, if any, thereon, or
Change in Control Purchase Price, as the case may be, shall be paid to such
Holder, subject to receipt of funds and/or securities by the Paying Agent,
promptly following the later of (x) the Purchase Date or the Change in Control
Purchase Date, as the case may be, with respect to such Security (provided the
conditions in Section 3.8(a) or Section 3.9(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 3.8(a) or Section 3.9(c),
as applicable. Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice, as the case may be, has been given by the Holder
thereof may not be converted pursuant to Article 10 hereof on or after the date
of the delivery of such Purchase Notice or Change in Control Purchase Notice, as
the case may be, unless such Purchase Notice or Change in Control Purchase
Notice, as the case may be, has first been validly withdrawn as specified in the
following two paragraphs.
31
A Purchase Notice or Change in Control Purchase Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent in accordance with the Purchase
Notice or Change in Control Purchase Notice, as the case may be, at any time
prior to the close of business on the Purchase Date or the Change in Control
Purchase Date, as the case may be, 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 Change
in Control 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 shall be
in the form set forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to
Section 3.8 or 3.9 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 Change in Control 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 Change in Control 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 Change in Control 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 Change in Control Purchase Price, as the case may be, with
respect to such Securities) in which case, upon such return, the Purchase Notice
or Change in Control Purchase Notice with respect thereto shall be deemed to
have been withdrawn.
32
Section 2.11 Deposit of Purchase Price or Change in Control
----------------------------------------------
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 Change in Control 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 money (in immediately available funds if
deposited on such Business Day) sufficient to pay the aggregate Purchase Price,
together with all accrued interest to, but not including, the Purchase Date and
Liquidated Damages Amount, if any, thereon, or Change in Control 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 Change in Control Purchase Date, as the
case may be.
Section 2.12 Securities Purchased in Part. Any Certificated
----------------------------
Security that 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 Holder'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 2.13 Covenant to Comply With Securities Laws Upon
--------------------------------------------
Purchase of Securities. When complying with the provisions of Section 3.8 or 3.9
----------------------
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 in all material respects with Rule 13e-4
and Rule 14e-1 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 in all material respects with all Federal and state securities laws so as
to permit the rights and obligations under Sections 3.8 and 3.9 to be exercised
in the time and in the manner specified in Sections 3.8 and 3.9.
Section 2.14 Repayment to the Company. The Trustee and the
------------------------
Paying Agent shall return to the Company any cash that remains unclaimed as
provided in paragraph 12 of the Securities, together with interest or dividends,
if any, thereon (subject to the provisions of Section 7.1(f)), held by them for
the payment of
33
the Purchase Price or Change in Control Purchase Price, as the case may be, and
accrued interest; provided, however, that to the extent that the aggregate
amount of cash deposited by the Company pursuant to Section 3.11 exceeds the
aggregate Purchase Price or Change in Control 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 Change in Control Purchase Date, as the case
may be, and accrued interest thereon, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Purchase Date or
Change in Control 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 III
COVENANTS
Section 3.1 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 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. Interest
installments, Principal Amount, Redemption Price, Purchase Price, Change in
Control Purchase Price and interest, if any, due on overdue amounts shall be
considered paid on the applicable date due if on such date (or, in the case of a
Purchase Price or Change in Control Purchase Price, on the Business Day
following the applicable Purchase Date or Change in Control Purchase Date, as
the case may be) the Trustee or the Paying Agent holds, in accordance with this
Indenture, money sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law, pay
interest on overdue amounts at the rate per annum set forth in paragraph 1 of
the Securities, compounded semiannually, which interest shall accrue from the
date such overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand. The accrual of such interest on overdue
amounts shall be in addition to the continued accrual of interest on the
Securities.
34
Section 3.2 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.
In addition, the Company shall comply with the other
provisions of TIA Section 314(a).
Section 3.3 Compliance Certificate. The Company shall deliver
----------------------
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2001) an Officers'
Certificate, 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 3.4 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 3.5 Maintenance of Office or Agency. The Company will
-------------------------------
maintain in the Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The office of State Street Bank and Trust
Company, N.A., an Affiliate of the Trustee, 00 Xxxxxxxx, 00xx Xxxxx, Xxx Xxxx,
XX 00000 (Attention: Corporate Trust Administration (Reebok International Ltd.
4 1/4% Convertible
35
Debentures due March 1, 2021)], 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 3.6 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 Common Shares delivered upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder or any beneficial owner of Securities or holder or
beneficial owner of Common Shares, 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 or any successor provisions. Whether a
person is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 3.7 Tax Treatment of Securities. The Company and the
---------------------------
Trustee, on behalf of the Holders, agree that (i) the Securities are contingent
payment debt instruments as described in Treasury Regulation (S) 1.1275-4, (ii)
each Holder shall be bound by the Company's application of the Treasury
regulations to the Securities, including the Company's determination of the rate
at which interest will be deemed to accrue on the Securities for United States
federal income tax purposes, (iii) each Holder shall use the projected payment
schedule with respect to the Securities provided by the Company to the Holder,
as provided in Treasury Regulations (S) 1.1275-4(b)(4), to determine its
interest accruals and adjustments as provided in Treasury Regulation
(S) 1.1275-4(b)(4)(iv), and (iv) the Company and each Holder
36
will not take any position on a tax return inconsistent with (i), (ii), or
(iii), unless required by applicable law.
Section 3.8 Liquidated Damages Amount. If at any time
-------------------------
Liquidated Damages Amounts become payable by the Company pursuant to the
Registration Rights Agreement, the Company shall promptly deliver to the Trustee
a certificate to that effect and stating (i) the amount of such Liquidated
Damages Amounts that are payable and (ii) the date on which such damages are
payable pursuant to the terms of the Registration Rights Agreement. Unless and
until a Responsible Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no Liquidated Damages Amounts are
payable. If the Company has paid Liquidated Damages Amounts directly to the
persons entitled to them, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.
ARTICLE IV
SUCCESSOR CORPORATION
Section 4.1 When Company May Merge or Transfer Assets. The
-----------------------------------------
Company shall not consolidate with or merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an entirety
to any person, unless:
(a) (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance, transfer
or lease the properties and assets of the Company substantially as an entirety
(i) shall be organized and validly existing under the laws of the United States
or any State thereof or the District of Columbia, or (B) if such merger,
consolidation or other transaction would not impair the rights of
Securityholders, any other country and (ii) shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger,
37
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 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 V
DEFAULTS AND REMEDIES
Section 5.1 Events of Default. An "Event of Default" occurs
-----------------
if:
(1) the Company defaults in the payment of interest, if any, payable on
any Security when the same becomes due and payable and such default continues
for a period of 30 days after receipt by the Company of a Notice of Default;
(2) the Company defaults in the payment of the Principal Amount,
Redemption Price, Purchase Price or Change in Control Purchase Price 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;
38
(3) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clauses (1) and
(2) above) and such failure continues for 90 days after receipt by the Company
of a Notice of Default;
(4) an event of default, as defined in any indenture, including this
Indenture, or instrument evidencing or under which the Company, on the date any
determination shall be made under this clause (4), shall have outstanding at
least $25,000,000 aggregate principal amount of Indebtedness for borrowed money
(other than Non-Recourse Indebtedness), shall happen and be continuing and such
event of default shall involve (x) the failure to pay the principal of or
premium, if any, on such Indebtedness (or any part thereof) on the final
maturity date thereof after the expiration of any applicable grace period with
respect thereto, or (y) such Indebtedness shall have been accelerated so that
the same shall be or become due and payable prior to the date on which the same
would otherwise have become due and payable, and such acceleration shall not be
rescinded or annulled within ten Business Days after notice thereof shall have
been given to the Company by the Trustee (if such event be known to it) or to
the Company and the Trustee by the Holders of at least 25% in aggregate
principal amount of all of the Securities at the time outstanding; provided
that, if such event of default under such indenture or instrument shall be
remedied or cured by the Company or waived by the requisite holders of such
indebtedness, then the Event of Default by reason thereof shall be deemed
likewise to have been thereupon remedied, cured or waived without further action
upon the part of either the Trustee or any of the Securityholders, and provided
further, however, that subject to the provisions of Section 7.1 and 7.2, the
Trustee shall not be charged with knowledge of any such event of default unless
written notice thereof shall have been given to the Trustee by the Company, by
the holder or an agent of the holder of any such Indebtedness, by the trustee
then acting under any indenture or other instrument under which such default
shall have occurred, or by the Holders of not less than 25% in the aggregate
principal amount of the Securities at the time outstanding;
(5) a court having jurisdiction in the premises shall enter a decree or
order for relief in respect of the Company in an involuntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter in
effect, or appointing a receiver, liquidator, assignee, custodian, trustee or
sequestrator (or similar official) of the Company or for any substantial part of
its property or ordering the winding up or liquidation of its affairs and such
decree or order shall remain unstayed and in effect for a period of 60
consecutive days; or
(6) the Company shall commence a voluntary case under any applicable
bankruptcy, insolvency or other similar law now or hereafter in effect, or
consent to
39
the entry of an order for relief in an involuntary case under any such law, or
consent to the appointment of or taking possession by a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of the
Company or for any substantial part of its property or make any general
assignment for the benefit of creditors.
A Default under clause (3) or (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 (3)
or (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 become an Event
of Default under clauses (3) or (4) above, its status and what action the
Company is taking or proposes to take with respect thereto.
Section 5.2 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 Principal Amount of all the
Securities plus all accrued interest thereon through the date of declaration to
be immediately due and payable. Upon such a declaration, such Principal Amount
plus all accrued interest shall become and be immediately due and payable. If an
Event of Default specified in Section 6.1(5) or (6) occurs and is continuing,
the Principal Amount of all the Securities plus all accrued interest thereon
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 Principal Amount plus all accrued
interest 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.
40
Section 5.3 Other Remedies. If an Event of Default occurs and
--------------
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Principal Amount of all the Securities plus all accrued interest
thereon or to enforce the performance of any provision of the Securities or this
Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative to the extent permitted by law.
Section 5.4 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) or 6.1(2), (b) a Default in
respect of a provision that under Section 9.2 cannot be amended without the
consent of each Securityholder affected or (c) a Default which constitutes a
failure to convert any Security in accordance with the terms of Article 10. 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 5.5 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.
41
Section 5.6 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.
Section 5.7 Rights of Holders to Receive Payment.
------------------------------------
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of interest installments, the Principal Amount, Redemption
Price, Purchase Price, Change in Control Purchase Price or interest, if any, due
on overdue amounts in respect of the Securities held by such Holder, on or after
the respective due dates expressed in the Securities, and to convert the
Securities in accordance with Article 10, 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 5.8 Collection Suit by Trustee. If an Event of
--------------------------
Default described in Section 6.1(1) or 6.1(2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express trust
against the Company for the whole amount owing with respect to the Securities
and the amounts provided for in Section 7.7.
42
Section 5.9 Trustee May File Proofs of Claim. In case of the
--------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether interest installments, the Principal Amount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, due on overdue amounts 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 any accrued and unpaid
interest installments, the whole amount of the Principal Amount, Redemption
Price, Purchase Price, Change in Control Purchase Price or interest, if any, due
on overdue amounts in respect of the Securities, 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 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.
43
Section 5.10 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;
SECOND: to Securityholders for amounts due and unpaid on the Securities
for any accrued and unpaid interest installments, the Principal Amount,
Redemption Price, Purchase Price, Change in Control Purchase Price or interest,
if any, due on overdue amounts in respect of the Securities, as the case may be,
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 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 5.12 Waiver of Stay, Extension or Usury Laws. The
---------------------------------------
Company covenants (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 any interest installment,
the Principal Amount, Redemption Price, Purchase Price, Change in Control
Purchase Price or interest, if any, due on overdue amounts in respect of the
securities, as contemplated herein, or
44
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 VI
TRUSTEE
Section 6.1 Duties of Trustee.
-----------------
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and
the correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, 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 3.15(a) of the TIA and such Section
315(a) is hereby expressly excluded from this Indenture,
as permitted by the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except
45
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.
(d) Every provision of this Indenture that in any way relates
to the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section
7.1.
(e) 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.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 6.2 Rights of Trustee. Subject to its duties and
-----------------
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
46
(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
47
shall incur no liability or additional liability of any kind by reason of such
inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any
Default or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is in fact
such a default is received by the Trustee at the Corporate Trust Office of the
Trustee, and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and
benefits given to the Trustee, including 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 6.3 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 6.4 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.
48
Section 6.5 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 Sections 6.1(1) and 6.1(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 6.6 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 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 6.7 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 out-of-pocket 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
attributable to its negligence, bad faith or willful misconduct; and
(c) to indemnify the Trustee or any predecessor Trustee and
their
49
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and taxes (other than
taxes based upon, measured by or determined by the income of the Trustee))
incurred without negligence 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
interest installments, the Principal Amount, Redemption Price, Purchase Price,
Change in Control Purchase Price or interest, if any, due on overdue amounts, as
the case may be, in respect of any Securities.
The Company's payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.1(5), the expenses,
including the reasonable charges and expenses of its counsel, are intended to
constitute expenses of administration under any bankruptcy law.
Section 6.8 Replacement of Trustee. The Trustee may resign by
----------------------
so notifying the Company; provided, however, that 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
(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.
50
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 Xxxxxxx does not take office within 30 days
after the retiring Trustee resigns or is removed, the retiring Trustee, the
Company or the Holders of a majority in aggregate Principal Amount 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 6.9 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 (including the administration of the
trust created by this Indenture) to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 6.10 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 SEC the application referred to in the penultimate paragraph of
TIA Section 310(b).
Section 6.11 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.
51
ARTICLE VII
DISCHARGE OF INDENTURE
Section 7.1 Discharge of Liability on Securities. When (i) the Company
------------------------------------
delivers to the Trustee all outstanding Securities (other than Securities
replaced 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 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 7.2 Repayment to the Company. The Trustee and the Paying Agent
------------------------
shall return to the Company upon written request any money 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, as applicable, Holders entitled to the money 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 VIII
AMENDMENTS
Section 8.1 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;
(2) to comply with Article 5 or Section 10.14;
52
(3) to secure the Company's obligations under the Securities and this
Indenture;
(4) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the Company;
or
(5) 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.
Section 8.2 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) change the record or payment dates for interest installments, or
reduce the rate of interest referred to in paragraph 1 of the Securities, or
extend the time for payment of interest on any Security;
(2) reduce the Principal Amount or extend the Stated Maturity of any
Security;
(3) reduce the Redemption Price, Purchase Price or Change in Control
Purchase Price of any Security;
(4) make any Security payable in money or securities other than that
stated in the Security;
(5) make any change in Section 6.4, Section 6.7 or this Section 9.2,
except to increase any percentage set forth therein;
(6) make any change that adversely affects the right to convert any
Security; or
(7) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and this
Indenture.
It shall not be necessary for the consent of the Holders under this
53
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 8.3 Compliance with Trust Indenture Act. Every supplemental
-----------------------------------
indenture executed pursuant to this Article shall comply with the TIA.
Section 8.4 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 Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
Section 8.5 Notation on or Exchange of Securities. Securities
-------------------------------------
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 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
of the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 8.6 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.
54
Section 8.7 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.
ARTICLE IX
CONVERSIONS
Section 9.1 Conversion Privilege. Subject to the further provisions of
--------------------
this Article 10 and paragraph 8 of the Securities, a Holder of a Security may
convert such Security into Common Shares at any time prior to the close of
business on the Business Day that is immediately preceding the Stated Maturity
of such Security. The number of shares of Common Shares deliverable upon
conversion of a Security is determined by dividing (x) the Principal Amount of
the Security or the portion thereof being converted by (y) the conversion price
in effect on the Conversion Date (the "Conversion Price"). The initial
Conversion Price shall be that set forth in paragraph 8 of the Securities. The
Conversion Price shall be subject to adjustment from time to time as herein set
forth.
A Holder may convert a portion of the Principal Amount of a Security if
the portion is $1,000 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.
A Security in respect of which a Holder has delivered a Purchase Notice
pursuant to Section 3.8 or a Change in Control Purchase Notice pursuant to
Section 3.9 exercising the option of such Holder to require the Company to
purchase such Security may be converted only if such Purchase Notice or Change
in Control Purchase Notice is withdrawn by a written notice of withdrawal
complying in all respects with each of the provisions of this Indenture relating
to such notice and delivered to the Paying Agent prior to the close of business
on the Purchase Date or Change in Control Purchase Date, as the case may be.
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), (3) or (5) applies occurs during
the period applicable for
55
calculating "Average Sale Price" pursuant to the definition in Section 10.7,
"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 Sale Price of the Common
Shares during such period.
The "Sale Price" of the Common Shares 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 average ask prices) on such date as reported in the composite
transactions for the principal United States securities exchange on which the
Common Shares are traded or, if the Common Shares are not listed on a United
States national or regional securities exchange, as reported by the National
Association of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated. In the absence of such quotations, the Company
shall be entitled to determine the sales price on the basis of such quotations
as it reasonably considers appropriate.
"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 New York Stock Exchange or such other national or regional exchange or
market on which the Common Shares are then listed or quoted.
Section 9.2 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 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 Common Shares deliverable 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 on and after the next Business Day following the
Conversion Date. Upon conversion of a Security, such person shall no longer be a
Holder of such Security. No payment or adjustment will be made for dividends on,
or other distributions with respect to, any Common Shares except as provided in
this Article 10.
56
If any Holder surrenders a Security for conversion (in whole or in
part) during the period from the close of business on any regular record date
for the payment of an installment of interest to the opening of business on the
next succeeding interest payment date, then such Security so surrendered shall
be accompanied by payment in funds acceptable to the Company of an amount equal
to the interest payable on such interest payment date on the Principal Amount of
such Security then being converted, and such interest installment shall be
payable to such registered Holder notwithstanding the conversion of the
Security, subject to the provisions of this Indenture relating to the payment of
defaulted interest by the Company. Notwithstanding the preceding sentence, in
the event that a Holder surrenders a Security or portion thereof (i) called for
redemption, (ii) that the Company may be obligated to purchase in accordance
with Section 3.9 upon a Change of Control or (iii) surrendered for conversion
after the Company declares a dividend or distribution described in Section 10.7,
or a dividend or a distribution described in Section 10.8 where the fair market
value of such dividend or distribution per Common Share exceeds 15% of the Sale
Price of the Common Shares as of the Business Day prior to the date of
declaration, and the Redemption Date, Change in Control Purchase Date or
Ex-Dividend Date with respect to the distribution, as the case may be, occurs
during the period from the close of business on a record date and ending on the
opening of business on the first Business Day after the next interest payment
date, or if this interest payment date is not a Business Day, the second
Business Day after the interest payment date, such Holder shall not be required
to pay an amount equal to the interest payable on the Principal Amount of the
Security being converted. Except as otherwise provided in this Section 10.2, no
payment or adjustment will be made for accrued interest or Liquidated Damages
Amount, if any, on a converted Security. If the Company defaults in the payment
of interest payable on such interest payment date, the Company shall promptly
repay such funds to such Holder.
Nothing in this Section 10.2 shall affect the right of a Holder in
whose name any Security is registered at the close of business on a record date
to receive the interest payable on such Security on the related interest payment
date in accordance with the terms of this Indenture and the Securities. If the
Holder converts more than one Security at the same time, the number of Common
Shares deliverable upon the conversion shall be based on the total Principal
Amount of the Securities converted.
If the last day on which a Security may be converted is a Legal
Holiday, the Security may be surrendered on the next succeeding day that is not
a Legal Holiday.
Upon surrender of a Security that is converted in part, the Company
57
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 9.3 Fractional Shares. Securityholders will not receive a
-----------------
fractional share upon conversion of a Security. Instead, the Holder will receive
cash for the current market value of the fractional share. The current market
value of a fractional share shall be determined, to the nearest 1/1,000th of a
share, by multiplying the Sale Price, on the last trading day prior to the
Conversion Date, of a full share by the fractional amount and rounding the
product to the nearest whole cent.
Section 9.4 Taxes on Conversion. If a Holder submits a Security for
-------------------
conversion, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of Common Shares upon the conversion. However, the
Holder shall pay any such tax which is due because the Holder requests the
Common Shares to be delivered in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificates representing the Common
Shares being delivered in a name other than the Holder's name until the
Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be delivered in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
Section 9.5 Company to Provide Stock. All Common Shares delivered upon
------------------------
conversion of the Securities 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 Common Shares upon
conversion of Securities, if any, and will list or cause to have quoted such
Common Shares on each national securities exchange or in the over-the-counter
market or such other market on which the Common Shares are then listed or
quoted.
Section 9.6 Adjustment for Change In Capital Stock. If, after the Issue
--------------------------------------
Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on its Common Shares in
Common Shares;
(2) subdivides its outstanding Common Shares into a greater number of
shares;
58
(3) combines its outstanding shares of Common Shares into a smaller
number of shares;
(4) pays a dividend or makes a distribution on its Common Shares in
shares of its Capital Stock (other than Common Shares or rights, warrants or
options for its Capital Stock); or
(5) issues by reclassification of its Common Shares any shares of its
Capital Stock (other than rights, warrants or options for its Capital Stock),
then the conversion privilege and the Conversion Price in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company that such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Price shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article 10 with respect to the Common Shares, on terms
comparable to those applicable to Common Shares in this Article 10.
Section 9.7 Adjustment for Rights Issue. If after the Issue Date of the
---------------------------
Securities, the Company distributes any rights, warrants or options, including
the Common Stock Purchase Rights, to all holders of its Common Shares entitling
them, for a period expiring within 60 days after the record date for such
distribution, to purchase Common Shares at a price per share less than the
Average Sale Price as of the Time of Determination, the Conversion Price shall
be adjusted in accordance with the formulas:
R' = R x (O + N)
--------------------
(O + (N x P)/M)
and
59
P' = $1,000 / R'
where:
R' = the number of shares of Common Shares deliverable upon conversion
of a Security per $1,000 of Principal Amount thereof, based upon the adjusted
Conversion Price.
R = the number of shares of Common Shares deliverable upon conversion
of a Security per $1,000 of Principal Amount thereof, based upon the current
Conversion Price.
O = the number of Common Shares outstanding on the record date for the
distribution to which this Section 10.7 is being applied.
N = the number of additional Common Shares offered pursuant to the
distribution.
P' = the adjusted Conversion Price
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 Common
Share in such Section 10.6(4) distribution, and
(2) assets of the Company or debt securities or any rights, warrants or
options to purchase securities of the Company distributed in respect of each
Common Share 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.
60
"Average Sale Price" means the average of the Sale Prices of the Common
Shares for the shorter of
(i) 30 consecutive trading days ending on the last
full trading day prior to the Time of Determination with respect to the
rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated, or
(ii) the period (x) commencing on the date next
succeeding the first public announcement of (a) the issuance of rights,
warrants or options or (b) the distribution, in each case, in respect
of which the Average Sale Price is being calculated and (y) proceeding
through the last full trading day prior to the Time of Determination
with respect to the rights, warrants or options or distribution in
respect of which the Average Sale Price is being calculated (excluding
days within such period, if any, which are not trading days), or
(iii) the period, if any, (x) commencing on the date
next succeeding the Ex-Dividend Time with respect to the next preceding
(a) issuance of rights, warrants or options or (b) distribution, in
each case, for which an adjustment is required by the provisions of
Section 10.6(4), 10.7 or 10.8 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).
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 Common Shares
subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Price shall promptly be
readjusted to the Conversion Price that 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 Common Shares 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 P'
that is equal to or more than the value of P.
61
Section 9.8 Adjustment for Other Distributions. If, after the Issue
----------------------------------
Date of the Securities, the Company distributes to all holders of its Common
Shares any of its assets, or debt securities or any rights, warrants or options
to purchase securities of the Company (including securities or cash, but
excluding (x) distributions of Capital Stock referred to in Section 10.6 and
distributions of rights, warrants or options referred to in Section 10.7 and (y)
cash dividends or other cash distributions that are paid out of consolidated
current net earnings or earnings retained in the business as shown on the books
of the Company unless such cash dividends or other cash distributions are
Extraordinary Cash Dividends) the Conversion Price shall be adjusted, subject to
the provisions of the last paragraph of this Section 10.8, in accordance with
the formulas:
R' = R x M
------
(M-F)
and
P' = $1,000 / R'
where:
R' = the number of shares of Common Shares deliverable upon conversion
of Security per $1,000 of Principal Amount thereof, based upon the adjusted
Conversion Price.
R = the number of shares of Common Shares deliverable upon conversion
of Security per $1,000 of Principal Amount thereof, based upon the current
Conversion Price.
M = the Average Sale Price, minus, in the case of a distribution to
which Section 10.6(4) applies, for which (i) the record date shall occur on or
before the record date for the distribution to which this Section 10.8 applies
and (ii) the Ex-Dividend Time shall occur on or after the date of the Time of
Determination for the distribution to which this Section 10.8 applies, the fair
market value (on the record date for the distribution to which this Section 10.8
applies) of any Capital Stock of the Company distributed in respect of each
share of Common Shares in such Section 10.6(4) distribution.
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
62
distributed in respect of each Common Share 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).
P' = the adjusted Conversion Price.
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 Sale 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 Sale Prices shall mean the average Sale
Prices for the Common Shares 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 shall mean the Sale Price
for the Common Shares on the same trading day.
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 any cash dividend with respect to the Common Shares the
amount of which, together with the aggregate amount of cash dividends on the
Common Shares to be aggregated with such cash dividend in accordance with the
provisions of this paragraph, equals or exceeds the threshold percentage set
forth in the following paragraph. For purposes of the following paragraph, the
"Measurement Period" with respect to a cash dividend on the Common Shares shall
mean the 365 consecutive day period ending on the date prior to the Ex-Dividend
Time with respect to such cash dividend, and the "Relevant Cash Dividends" with
respect to a cash dividend on the Common Shares shall mean the cash dividends on
the Common Shares with Ex-Dividend Times occurring in the Measurement Period.
63
If, upon the date prior to the Ex-Dividend Time with respect to a cash
dividend on the Common Shares, the aggregate amount of such cash dividend
together with the amounts of all Relevant Cash Dividends equals or exceeds on a
per share basis 5% of the Sale Price of the Common Shares on the last trading
day preceding the date of declaration by the Board of Directors of the Company
of the cash dividend with respect to which this provision is being applied, then
such cash dividend together with all Relevant Cash Dividends, shall be deemed to
be an Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 10.8, the value of "F" shall be equal to (y) the
aggregate amount of such cash dividend together with the amount of all Relevant
Cash Dividends, minus (z) the aggregate amount of all Relevant Cash Dividends
for which a prior adjustment in the Conversion Price was previously made under
this Section 10.8.
In making the determinations required by the preceding paragraph, the
amount of cash dividends paid on a per share basis and the amount of any
Relevant Cash Dividends specified in the preceding paragraph, shall be
appropriately adjusted to reflect the occurrence during such period of any event
described in Section 10.6.
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 10.14 shall apply to such distribution.
Section 9.9 When Adjustment May Be Deferred. No adjustment in the
-------------------------------
Conversion Price need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Price. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 10 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be.
Section 9.10 When No Adjustment Required. No adjustment need be made
---------------------------
for a transaction referred to in Section 10.6, 10.7, 10.8 or 10.14 if
Securityholders are to participate in the transaction without conversion on a
basis and with notice that the Board of Directors of the Company determines to
be fair and appropriate in light of the basis and notice on which holders of
Common Shares participate in the transaction. No adjustment need be made for
rights to purchase Common Shares pursuant to the Company plan for reinvestment
of dividends or interest.
64
No adjustment need be made for a change in the par value or no par
value of the Common Shares.
To the extent the Securities become convertible pursuant to this
Article 10 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 9.11 Notice of Adjustment. Whenever the Conversion Price is
--------------------
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit the same
to any Holder desiring inspection thereof.
Section 9.12 Voluntary Decrease. The Company from time to time may
------------------
decrease the Conversion Price by any amount for any period of time. Whenever the
Conversion Price is decreased, the Company shall mail to Securityholders and
file with the Trustee and the Conversion Agent a notice of the decrease. The
Company shall mail the notice at least 15 days before the date the decreased
Conversion Price takes effect. The notice shall state the decreased Conversion
Price and the period it will be in effect. A voluntary decrease of the
Conversion Price does not change or adjust the Conversion Price otherwise in
effect for purposes of Section 10.6, 10.7 or 10.8.
Section 9.13 Notice of Certain Transactions. If:
------------------------------
(1) the Company takes any action that would require an adjustment in
the Conversion Price pursuant to Section 10.6, 10.7 or 10.8 (unless no
adjustment is to occur pursuant to Section 10.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
65
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
Section 9.14 Reorganization of the 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 Common Shares 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 Common Shares, 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 to the Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated 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 10. The 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 Common Shares
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 Price pursuant to the provisions of Section 10.8, then, from and
after the record date for determining the holders of Common Shares entitled to
receive the distribution, a Holder of a Security that converts such Security in
accordance with the provisions of this Indenture shall upon such conversion be
entitled to receive, in addition to the shares of Common
66
Shares into which the Security is convertible, the kind and amount of
securities, cash or other assets comprising the distribution that such Holder
would have received if such Holder had converted the Security immediately prior
to the record date for determining the holders of Common Shares entitled to
receive the distribution.
Section 9.15 Company Determination Final. Any determination that the
---------------------------
Company or its Board of Directors must make pursuant to Section 10.3, 10.6,
10.7, 10.8, 10.9, 10.10, 10.14 or 10.17 is conclusive, absent manifest error.
Section 9.16 Trustee's Adjustment Disclaimer. The Trustee has no duty
-------------------------------
to determine when an adjustment under this Article 10 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 10.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets delivered upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 10. Each Conversion Agent shall have the same protection under this
Section 10.16 as the Trustee. Unless and until the Trustee receives a
certificate from the Company setting forth the particulars of an adjustment
under this Article 10, the Trustee may assume without inquiry that no such
adjustment has been, or is required to be, made.
Section 9.17 Simultaneous Adjustments. In the event that this Article
------------------------
10 requires adjustments to the Conversion Price 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 9.18 Successive Adjustments. After an adjustment to the
----------------------
Conversion Price under this Article 10, any subsequent event requiring an
adjustment under this Article 10 shall cause an adjustment to the Conversion
Price as so adjusted.
67
ARTICLE X
MISCELLANEOUS
Section 10.1 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 10.2 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, to:
Reebok International Ltd.
1895 X.X. Xxxxxx Boulevard
Canton, Massachusetts 02021
Attn: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
in either case, with a copy to:
Ropes & Gray
Xxx Xxxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
if to the Trustee, to:
State Street Bank and Trust Company
0 Xxxxxx xx Xxxxxxxxx, 0xx Xxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Corporate Trust Administration (Reebok International Ltd. 4 1/4%
Convertible Debentures due March 1, 2021)
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the manner
68
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 10.3 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 10.4 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 10.5 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;
69
(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 10.6 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 10.7 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 10.8 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 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 10.9 Governing Law. THE LAWS OF THE STATE OF NEW YORK
-------------
SHALL GOVERN THIS INDENTURE AND THE SECURITIES.
Section 10.10 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 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.
70
Section 10.11 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 10.12 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.
71
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.
REEBOK INTERNATIONAL LTD.
By: /s/ Xxxxx X. Xxxx
---------------------------------------
Name: Xxxxx X. Xxxx
Title: Senior Vice President
STATE STREET BANK AND TRUST COMPANY,
as Trustee
By: /s/ Xxxxxx Xxxxx Bella
---------------------------------------
Name: Xxxxxx Xxxxx Bella
Title: Assistant Vice President
EXHIBIT A-1
-----------
[FORM OF FACE OF GLOBAL SECURITY]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE ISSUE PRICE OF EACH SECURITY IS $1,000 PER $1,000 OF PRINCIPAL AMOUNT, THE
ISSUE DATE IS FEBRUARY 28, 2001 AND THE COMPARABLE YIELD IS 7% PER ANNUM. U.S.
HOLDERS OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS
SECURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: REEBOK
INTERNATIONAL LTD., 1895 X.X. XXXXXX BOULEVARD, CANTON, MASSACHUSETTS 02021,
ATTN.: OFFICE OF INVESTOR RELATIONS.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO REEBOK INTERNATIONAL LTD. (THE "COMPANY") OR
ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON
IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURI-
A-1-2
TIES ACT"), AND THIS SECURITY, AND THE COMMON SHARES DELIVERABLE UPON CONVERSION
OF THIS SECURITY OR UPON PURCHASE OF THIS SECURITY BY THE COMPANY MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE
RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
A-1-3
REEBOK INTERNATIONAL LTD.
4 1/4% Convertible Debentures due March 1, 2021
No.: CUSIP: 758110 AD 2
----------------------
Issue Date: Principal Amount: $250,000,000
-----------------------
REEBOK INTERNATIONAL LTD., a Massachusetts corporation, promises to pay
to Cede & Co. or registered assigns, the Principal Amount of Two Hundred and
Fifty million dollars ($250,000,000)[, or such other amount as is indicated on
Schedule A hereof],* on March 1, 2021, subject to the further provisions of this
Debenture set forth on the reverse hereof, which further provisions shall for
all purposes have the same effect as if set forth at this place. This Security
is convertible as specified on the other side of this Security.
Interest Payment Dates: March 1 and September 1, commencing September
1, 2001
Record Dates: February 15 and August 15, commencing August 15, 2001
Dated: REEBOK INTERNATIONAL LTD.
By:
--------------------------------
Name:
Title:
---------------------------
*Applicable to Global Securities only
A-1-4
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
By:
-----------------------------------
Authorized Signatory
Dated:
A-1-5
[FORM OF REVERSE SIDE OF DEBENTURE]
REEBOK INTERNATIONAL LTD.
4 1/4% Convertible Debentures due March 1, 2021
1. Interest.
This Security shall accrue interest at an initial rate of 4 1/4% per
annum. The Company promises to pay interest on the Securities in cash
semiannually on each March 1 and September 1, commencing September 1, 2001, to
Holders of record on the immediately preceding February 15 and August 15,
respectively. Interest on the Securities will accrue from the most recent date
to which interest has been paid, or if no interest has been paid, from February
28, 2001, until the Principal Amount is paid or duly made available for payment.
Notwithstanding the foregoing, at the close of business on September 1, 2007,
September 1, 2010 and September 1, 2015 (each, a "Step-up Date") the interest
rate on this Debenture shall be automatically reset, and this Security shall
accrue interest, from such Step-up Date to but not including the next succeeding
Step-up Date, or, in the case of September 1, 2015, until the Principal Amount
is paid or duly made available for payment, at a rate per annum equal to the
interest rate payable on the date 120 days prior to such reset date on 5-year
U.S. Treasury Notes minus 66 basis points; provided, however, that in no event
will the interest rate on this Debenture be reset below 4 1/4% per annum or
above 6 1/4% per annum. Any change in the interest rate pursuant to the
preceding sentence shall not have any effect on any other provision of the
Indenture or this Security. Interest will be computed on the basis of a 360-day
year of twelve 30-day months. The Company will pay interest on any overdue
Principal Amount at the interest rate borne by the Securities at the time such
interest on the overdue Principal Amount accrues, compounded semiannually, and
it shall pay interest on overdue installments of interest and Liquidated Damages
Amount, if any (without regard to any applicable grace period), at the same
interest rate compounded semiannually.
2. Method of Payment.
The Company will pay interest on this Security (except defaulted
interest) to the Person who is the registered Holder of this Security at the
close of business on February 15 or August 15, as the case may be, next
preceding the related interest payment date. Subject to the terms and conditions
of the Indenture, the Company will make payments in respect of the Redemption
Price, Purchase Price, Change in Control Purchase Price and the Principal Amount
at Stated Maturity, as
A-1-6
the case may be, to the Holder who surrenders a Security to a Paying Agent to
collect such payments in respect of the Security. 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 pay
interest, the Redemption Price, Purchase Price, Change in Control Purchase Price
and the Principal Amount at Stated Maturity, as the case may be, by check or
wire payable in such money; provided, however, that a Holder holding Securities
with an aggregate Principal Amount in excess of $2,000,000 will be paid by wire
transfer in immediately available funds at the election of such Holder. The
Company may mail an interest check to the Holder's registered address.
Notwithstanding the foregoing, so long as this Security is registered in the
name of a Depositary or its nominee, all payments hereon shall be made by wire
transfer of immediately available funds to the account of the Depositary or its
nominee.
3. Paying Agent, Conversion Agent and Registrar.
Initially, State Street Bank and 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 February 28, 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.
A-1-7
The Securities are general unsecured obligations of the
Company limited to $250,000,000 aggregate Principal Amount (subject to Section
2.2 of the Indenture). 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 not redeemable prior to March 5, 2004. Beginning on March 5, 2004 and during
the periods thereafter to maturity, the Securities are redeemable as a whole, or
from time to time in part, in any integral multiple of $1,000, at any time at
the option of the Company at the Redemption Prices set forth below (which are
expressed as percentages of the Principal Amount), together with accrued and
unpaid interest up to but not including the Redemption Date and Liquidated
Damages Amount, if any, thereon; provided that, if the Redemption Date is on or
after an interest record date but on or prior to the related interest payment
date, interest will be payable to the Holders in whose names the Securities are
registered at the close of business on the relevant record date.
Period Redemption Price
Beginning March 5, 2004 and ending February 28, 2005........ 102.125%
Beginning March 1, 2005 and ending February 28, 2006........ 101.417%
Beginning March 1, 2006 and ending February 28, 2007........ 100.708%
Beginning March 1, 2007 and thereafter...................... 100.000%
6. Purchase By the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder, all or
any portion of the Securities held by such Holder, in any integral multiple of
$1,000, on March 1, 2008, March 1, 2011 and March 1, 2016 (each, a "Purchase
Date") at a purchase price per Security equal to 100% of the aggregate Principal
Amount of the Security (the "Purchase Price"), together with accrued and unpaid
interest up to but not including the Purchase Date and Liquidated Damages
Amount, if any, thereon (provided that, if the Purchase Date is on or after an
interest record date but on or prior to the related interest payment date,
interest will be payable to the Holders in whose names the Securities are
registered at the close of business on the relevant record date) upon delivery
of a Purchase Notice containing the information set forth in the Indenture, at
any time from the opening of business on the date that is 20 Business Days prior
to such Purchase Date until the close of business on the fifth
A-1-8
Business Day prior to such Purchase Date, and upon delivery of the Securities to
the Paying Agent by the Holder as set forth in the Indenture.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase the
Securities held by such Holder 45 Business Days after the occurrence of a Change
in Control of the Company for a Change in Control Purchase Price equal to 100%
of the Principal Amount thereof plus accrued and unpaid interest up to but not
including the Change in Control Purchase Date and Liquidated Damages Amount, if
any, thereon, which Change in Control Purchase Price shall be paid in cash.
Holders have the right to withdraw any Purchase Notice or
Change in Control 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 sufficient to pay the Purchase Price or Change in
Control Purchase Price, as the case may be, and accrued and unpaid interest and
Liquidated Damages Amount, if any, of all Securities or portions thereof to be
purchased as of the Purchase Date or the Change in Control Purchase Date, as the
case may be, is deposited with the Paying Agent on the Business Day following
the Purchase Date or the Change in Control Purchase Date, interest ceases to
accrue on such Securities (or portions thereof) immediately after such Purchase
Date or Change in Control Purchase Date, and the Holder thereof shall have no
other rights as such other than the right to receive the Purchase Price or
Change in Control Purchase Price, as the case may be, upon surrender of such
Security.
7. Notice of Redemption.
Notice of redemption pursuant to paragraph 5 of this Security
will be mailed at least 15 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, immediately after such
Redemption Date interest ceases to accrue on such Securities or portions
thereof. 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.
A-1-9
8. Conversion.
The initial Conversion Price is $38.56, subject to adjustment
from time to time as described in the Indenture. The number of Common Shares
issuable upon conversion of a Security is determined by dividing (x) the
Principal Amount of the Security or the portion thereof being converted by (y)
the Conversion Price in effect on the Conversion Date. A Holder which surrenders
Securities for conversion will receive cash or a check in lieu of any fractional
Common Share.
A Security in respect of which a Holder has delivered a
Purchase Notice or Change in Control 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.
To surrender a Security for conversion, a Holder must (1)
complete and manually sign the conversion notice below (or complete and manually
sign a facsimile of such notice) and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay any transfer or
similar tax, if required.
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 Common Shares except as provided
in the Indenture. If any Holder surrenders a Security for conversion (in whole
or in part) during the period from the close of business on any regular record
date for payment of an installment of interest to the opening of business on the
next succeeding interest payment date, then such Security so surrendered shall
be accompanied by payment in funds acceptable to the Company of an amount equal
to the interest payable on such interest payment date on the Principal Amount of
such Security then being converted, and such interest installment shall be
payable to such registered Holder notwithstanding the conversion of the
Security, subject to the provisions of the Indenture relating to the payment of
defaulted interest by the Company. Notwithstanding the preceding sentence, in
the event that a Holder surrenders a Security or portion thereof (i) called for
redemption, (ii) that the Company may be obligated to purchase in accordance
with Section 3.9 of the Indenture upon a Change of Control or (iii) surrendered
for conversion after 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 Common Share exceeds 15% of the Sale Price of the Common Shares
as of the Business Day prior to the date of declaration, and the Redemption
Date, Change in Control Purchase Date or Ex-Dividend Date with
A-1-10
respect to the distribution, as the case may be, occurs during the period from
the close of business on a record date and ending on the opening of business on
the first Business Day after the next interest payment date, or if this interest
payment date is not a Business Day, the second Business Day after the interest
payment date, such Holder shall not be required to pay an amount equal to the
interest payable on the Principal Amount of the Security being converted. If the
Company defaults in the payment of interest payable on such interest payment
date, the Company shall promptly repay to such Holder any such funds paid by
such Holder to the Company. Except as otherwise provided in Section 10.2 of the
Indenture or in this paragraph 8, no payment or adjustment will be made for
accrued interest or Liquidated Damages Amount, if any, on a converted Security.
The Conversion Price will be adjusted for dividends or
distributions on Common Shares payable in Common Shares or other Capital Stock;
subdivisions, combinations or certain reclassifications of Common Shares;
distributions to all holders of Common Shares of certain rights to purchase
Common Shares for a period expiring within 60 days at less than the Average Sale
Price at the Time of Determination; and distributions to such holders of assets
or debt securities of the Company or certain rights to purchase securities of
the Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Securityholders may participate in the transaction
without conversion or in certain other cases. The Company from time to time may
voluntarily decrease the Conversion Price.
If the Company is a party to a consolidation, merger or
binding share exchange or a transfer of all or substantially all of its assets,
or upon certain distributions described in the Indenture, the right to convert a
Security into Common Shares may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
9. 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 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
A-1-11
the Security not to be redeemed) or any Securities in respect of which a
Purchase Notice or a Change in Control 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.
10. Persons Deemed Owners.
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
11. 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.
12. 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 Securityholder, the Company and the
Trustee may amend the Indenture or the Securities so long as such changes, other
than those in clause (ii), do not materially and adversely affect the interest
of Securityholders (i) to cure any ambiguity, omission, defect or inconsistency,
(ii) to comply with Article 5 or Section 10.14 of the Indenture, (iii) to add to
the covenants of the Company for the benefit of Securityholders or to secure the
Company's obligations under the Securities and this Indenture, or (iv) to comply
with any requirement of the SEC in connection with the qualification of the
Indenture under the TIA.
13. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default for
30 days in payment of any interest on any Securities after receipt by the
Company of a Notice of Default, (ii) default in payment of the Principal Amount,
Redemption Price, Purchase Price or Change in Control Purchase Price, as the
case may be, in respect of the Securities when the same becomes due and payable,
(iii) failure by the Company
A-1-12
to comply with other agreements in the Indenture or the Securities, subject to
notice and lapse of time; (iv) default by the Company in the payment at the
final maturity thereof, after the expiration of any applicable grace period, of
principal of or interest on indebtedness for money borrowed, other than non-
recourse indebtedness, in the principal amount then outstanding of $25 million
or more, or acceleration of any indebtedness in such principal amount so that it
becomes due and payable prior to the date on which it would otherwise have
become due and payable and such acceleration is not rescinded within 10 business
days after notice to the Company in accordance with the Indenture; and (v)
certain events of bankruptcy or insolvency.
Securityholders may not enforce the Indenture or the
Securities except as provided in the Indenture. The Trustee may refuse to
enforce the Indenture or the Securities unless it receives 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
Securityholders notice of any continuing Default (except a Default in payment of
amounts specified in clause (i) or (ii) above) if it determines that withholding
notice is in their interests.
14. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee
under the Indenture, in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Company or its Affiliates and may otherwise deal
with the Company or its Affiliates with the same rights it would have if it were
not Trustee.
15. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
16. 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.
A-1-13
17. Abbreviations.
Customary abbreviations may be used in the name of a
Securityholder or an assignee, such as TEN COM ("tenants in common"), TEN ENT
("tenants by the entireties"), JT TEN ("joint tenants with right of survivorship
and not as tenants in common"), CUST ("custodian") and U/G/M/A ("Uniform Gift to
Minors Act").
18. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE
AND THIS SECURITY.
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to:
Reebok International Ltd.
1895 X.X. Xxxxxx Boulevard
Canton, Massachusetts 02021
Attn: Xxxxx X. Xxxx
Facsimile No.: (000) 000-0000
A-1-14
----------------------------------------------------------------------------------------------
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the To convert this Security into
form below: Common Shares of the Company,
check the box [ ]
----------------------------------------------------------------------------------------------
I or we assign and transfer this To convert only part of this
Security to Security, state the Principal
______________________________________ Amount to be converted (which
______________________________________ must be $1,000 or an integral
(Insert assignee's soc. sec. or tax ID multiple of $1,000):
no.)
______________________________________ If you want the stock certificate
______________________________________ made out in another person's name
______________________________________ fill in the form below:
(Print or type assignee's name, __________________________________
address and zip code) __________________________________
(Insert the other person's soc. sec.
and irrevocably appoint 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
A-1-15
EXHIBIT A-2
-----------
[Form of Certificated Security]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE,
THE ISSUE PRICE OF EACH SECURITY IS $1,000 PER $1,000 OF PRINCIPAL AMOUNT, THE
ISSUE DATE IS FEBRUARY 28, 2001 AND THE COMPARABLE YIELD IS 7% PER ANNUM. U.S.
HOLDERS OF THIS SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS
SECURITY BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: REEBOK
INTERNATIONAL LTD., 1895 X.X. XXXXXX BOULEVARD, CANTON, MASSACHUSETTS 02021,
ATTN.: OFFICE OF INVESTOR RELATIONS.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY AND THE COMMON SHARES
DELIVERABLE UPON CONVERSION OF THIS SECURITY OR UPON PURCHASE OF THIS SECURITY
BY THE COMPANY MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING
ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED
BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT
(A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED, ONLY
(I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A
QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN A TRANSACTION COMPLYING WITH THE PROVISIONS OF RULE 904 UNDER THE
SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE
OF THE UNITED STATES, AND (B) THE HOLDER
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WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
THE FOREGOING LEGEND MAY BE REMOVED FROM THIS SECURITY ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
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REEBOK INTERNATIONAL LTD.
4 1/4% Convertible Debentures due March 1, 2021
No.: CUSIP: 758110 AD 2
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Issue Date: Principal Amount: $250,000,000
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REEBOK INTERNATIONAL LTD., a Massachusetts corporation, promises to pay
to Cede & Co. or registered assigns, the Principal Amount of Two Hundred and
Fifty Million dollars ($250,000,000)[, or such other amount as is indicated on
Schedule A hereof],** on March 1, 2021, subject to the further provisions of
this Debenture set forth on the reverse hereof, which further provisions shall
for all purposes have the same effect as if set forth at this place. This
Security is convertible as specified on the other side of this Security.
Interest Payment Dates: March 1 and September 1, commencing September
1, 2001
Record Dates: February 15 and August 15, commencing August 15, 2001
Dated: REEBOK INTERNATIONAL LTD.
By:
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Name:
Title:
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**Applicable to Global Securities only
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
STATE STREET BANK AND TRUST COMPANY, as Trustee, certifies that this is one of
the Securities referred to in the within-mentioned Indenture.
By
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Authorized Signatory
Dated:
A-2-4
[FORM OF REVERSE SIDE IS IDENTICAL TO EXHIBIT A-1]
A-2-5
EXHIBIT B
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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 $250,000,000 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 deliverable 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 being made to a
purchaser who is not a U.S. person (as defined in Regulation S
under the Securities Act) in an offshore transaction pursuant
to Regulation S under 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.
B-1-1
DATE:
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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.)
Signature Guaranteed
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Participant in a Recognized Signature
Guarantee Medallion Program
By:
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Authorized Signatory
B-1-2
