Exhibit 4.4
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LOCKHEED XXXXXX CORPORATION
Floating Rate Convertible
Senior Debentures due 2033
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INDENTURE
Dated as of August 13, 2003
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THE BANK OF NEW YORK
TRUSTEE
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LOCKHEED XXXXXX CORPORATION
CROSS REFERENCE SHEET*
Sections of
TRUST INDENTURE ACT Indenture
--------------------
310(a)(1)(2)............................................. 5.10
(3)(4)............................................. Inapplicable
(5)............................................. 5.10
(b)................................................... 5.08 and 5.10
(b)(1)(A)(B)(C)....................................... Inapplicable
(c)................................................... Inapplicable
311(a)(b)................................................ 5.11
(c)................................................... Inapplicable
313(a) ................................................. 5.06
(b)(1)................................................ Inapplicable
(2)................................................ 5.06
(c)................................................... 17.03
(d)................................................... 5.06
314(a) ................................................. 9.07, 9.08 and 17.03
(b)................................................... Inapplicable
(c)(1)(2)............................................. 17.04
(3)............................................. Inapplicable
(d)................................................... Inapplicable
(e)................................................... 17.05
315(a)(c)(d)............................................. 5.01
(b)................................................... 5.05
(e)................................................... 4.13
316(a)(1)................................................ 4.11 and 4.12
(2)................................................ Inapplicable
(b)................................................... 4.08
(c)................................................... 1.03(e)
317(a)................................................... 4.03 and 4.05
(b)................................................... 2.04
318(a)(c)................................................ 1.04
(b)................................................... Inapplicable
----------------
* The Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
____________________________
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Certain Terms Defined ........................................ 1
Section 1.02. Forms of Documents Delivered to Trustee ...................... 10
Section 1.03. Acts of Holders .............................................. 11
Section 1.04. Conflict with Trust Indenture Act of 1939 .................... 12
Section 1.05. Effect of Headings and Table of Contents ..................... 12
Section 1.06. Separability Clause .......................................... 12
Section 1.07. Benefits of Indenture ........................................ 12
Section 1.08. Legal Holidays ............................................... 12
ARTICLE 2
The Securities
Section 2.01. Designation, Form and Dating ................................. 13
Section 2.02. Execution and Authentication ................................. 14
Section 2.03. Registrar, Paying Agent, Conversion Agent and Trustee ........ 15
Section 2.04. Paying Agent to Hold Money and Securities in Trust ........... 15
Section 2.05. Transfer and Exchange ........................................ 15
Section 2.06. Replacement Securities ....................................... 17
Section 2.07. Outstanding Securities; Determinations of Holders' Actions ... 18
Section 2.08. Temporary Securities ......................................... 19
Section 2.09. Cancellation ................................................. 19
Section 2.10. Persons Deemed Owners ........................................ 20
Section 2.11. Global Securities ............................................ 20
Section 2.12. Legends ...................................................... 21
Section 2.13. Payment of Interest; Interest Rights Preserved ............... 22
Section 2.14. CUSIP Numbers ................................................ 24
Section 2.15. Securityholder Lists ......................................... 24
ARTICLE 3
Satisfaction and Discharge
Section 3.01. Discharge of Liability on Securities ......................... 24
Section 3.02. Repayment of Moneys Held by Trustee .......................... 25
i
ARTICLE 4
Remedies
Section 4.01. Events of Default ............................................ 25
Section 4.02. Acceleration of Maturity; Rescission and Annulment ........... 26
Section 4.03. Collection Suit by Trustee ................................... 27
Section 4.04. Other Remedies ............................................... 27
Section 4.05. Trustee May File Proofs of Claim ............................. 27
Section 4.06. Application of Money Collected ............................... 27
Section 4.07. Limitation on Suits .......................................... 28
Section 4.08. Unconditional Right of Holders to Receive Principal and
Interest ................................................... 28
Section 4.09. Rights and Remedies Cumulative ............................... 29
Section 4.10. Delay or Omission Not Waiver ................................. 29
Section 4.11. Control by Holders ........................................... 29
Section 4.12. Waiver of Past Defaults ...................................... 29
Section 4.13. Undertaking for Costs ........................................ 30
ARTICLE 5
The Trustee
Section 5.01. Duties of Trustee ............................................ 30
Section 5.02. Rights Of Trustee ............................................ 31
Section 5.03. Individual Rights of Trustee, etc ............................ 33
Section 5.04. Trustee's Disclaimer ......................................... 33
Section 5.05. Notice of Defaults ........................................... 33
Section 5.06. Reports by Trustee to Holders ................................ 33
Section 5.07. Compensation and Indemnity ................................... 33
Section 5.08. Replacement of Trustee ....................................... 34
Section 5.09. Successor Trustee by Merger, etc ............................. 35
Section 5.10. Eligibility; Disqualification ................................ 35
Section 5.11. Preferential Collection of Claims Against Company ............ 35
ARTICLE 6
[Reserved]
ARTICLE 7
Consolidation, Merger, Sale or Conveyance
Section 7.01. Consolidations and Mergers of Company Permitted Subject
to Certain Conditions ...................................... 36
Section 7.02. Rights and Duties of Successor Entity ........................ 36
ii
ARTICLE 8
Supplemental Indentures
Section 8.01. Supplemental Indentures Without Consent of Holders .............. 37
Section 8.02. Supplemental Indentures with Consent of Holders ................. 38
Section 8.03. Execution of Supplemental Indentures ............................ 40
Section 8.04. Effect of Supplemental Indentures ............................... 40
Section 8.05. Notation on or Exchange of Securities ........................... 40
ARTICLE 9
Covenants of the Company
Section 9.01. Payment of Principal and Interest ............................... 40
Section 9.02. Maintenance of Office or Agency ................................. 41
Section 9.03. Calculation of Tax Original Issue Discount ...................... 41
Section 9.04. Further Instruments and Acts .................................... 41
Section 9.05. Notice of Additional Interest ................................... 41
Section 9.06. Contingent Debt Treatment ....................................... 42
Section 9.07. Reports by Company .............................................. 42
Section 9.08. Compliance Certificate .......................................... 43
ARTICLE 10
Redemption of Securities
Section 10.01. Right to Redeem; Notices to Trustee ............................. 43
Section 10.02. Selection of Securities to Be Redeemed .......................... 43
Section 10.03. Notice of Redemption ............................................ 44
Section 10.04. Effect of Notice of Redemption .................................. 45
Section 10.05. Deposit of Redemption Price ..................................... 45
Section 10.06. Securities Redeemed in Part ..................................... 45
ARTICLE 11
Conversion
Section 11.01. Right to Convert ................................................ 46
Section 11.02. Conversion Procedures ........................................... 49
Section 11.03. Payment of Cash in Lieu of Common Stock ......................... 51
Section 11.04. Fractional Shares ............................................... 53
Section 11.05. Taxes on Conversion ............................................. 53
Section 11.06. Reservation of Shares, Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common
Stock ......................................................... 53
Section 11.07. Adjustment of Conversion Rate ................................... 54
Section 11.08. When No Adjustment Required ..................................... 64
Section 11.09. Notice of Certain Transactions .................................. 64
iii
Section 11.10. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege ........................................... 64
Section 11.11. Trustee's Disclaimer ............................................. 66
Section 11.12. Rights Issued in Respect of Common Stock Issued Upon Conversion .. 66
Section 11.13. Company Determination Final ...................................... 67
ARTICLE 12
Purchase at Option of Holders
Section 12.01. Right to Require Purchase ........................................ 67
Section 12.02. Purchase Procedures .............................................. 67
Section 12.03. Effect of Purchase Notice ........................................ 69
Section 12.04. Deposit of Purchase Price ........................................ 70
Section 12.05. Securities Purchased in Part ..................................... 70
Section 12.06. Repayment to the Company ......................................... 70
ARTICLE 13
Purchase at Option of Holder Upon a Fundamental Change
Section 13.01. Right to Require Purchase ........................................ 71
Section 13.02. Effect of Fundamental Change Purchase Notice ..................... 75
Section 13.03. Deposit of Fundamental Change Purchase Price ..................... 76
Section 13.04. Securities Purchased in Part ..................................... 76
Section 13.05. Repayment to the Company ......................................... 77
ARTICLE 14
Contingent Interest
Section 14.01. Contingent Interest .............................................. 77
Section 14.02. Payment of Contingent Interest ................................... 77
Section 14.03. Notice of Contingent Interest .................................... 77
ARTICLE 15
[RESERVED]
ARTICLE 16
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 16.01. Exemption from Individual Liability .............................. 78
iv
ARTICLE 17
Miscellaneous Provisions
Section 17.01. Successors and Assigns of Company Bound by Indenture ............. 78
Section 17.02. Acts of Board, Committee or Officer of Successor Company Valid ... 79
Section 17.03. Required Notices or Demands ...................................... 79
Section 17.04. Certificate and Opinion as to Conditions Precedent ............... 79
Section 17.05. Statements Required in Certificate or Opinion .................... 80
Section 17.06. GOVERNING LAW .................................................... 80
Section 17.07. Indenture May Be Executed in Counterparts ........................ 80
EXHIBIT A -- Form of Security
v
INDENTURE, dated as of the 13th day of August, 2003, between LOCKHEED
XXXXXX CORPORATION, a Maryland corporation (the "Company"), and THE BANK OF NEW
YORK, a New York banking corporation (the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company deems it necessary
to issue its securities and has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its Floating Rate Convertible
Senior Debentures due 2033 (the "Securities").
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed by the Company and
by the Trustee, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
Definitions and Other Provisions of General Application
Section 1.01. Certain Terms Defined.
(a) Definitions.
"Accreted Interest" means, for any Interest Period for any Security as of
any date of determination, (i) the Accreted Principal Amount of such Security at
the beginning of the Interest Period in which such date occurs, multiplied by
(ii) the Applicable Yield for such Interest Period, multiplied by (iii) the
quotient of the actual number of days elapsed from and including the first day
of such Interest Period, to but excluding the date of determination divided by
360; provided that the Accreted Interest for any full Interest Period shall be
calculated by reference to the actual number of days in such Interest Period
divided by 360.
"Accreted Principal Amount" means, for any Security as of any date of
determination, (i) the Original Principal Amount of such Security, plus (ii) the
sum of the Accreted Interest for each Interest Period concluding on or prior to
such date, plus (iii) the Accreted Interest for the Interest Period in which
such date occurs as of the date of determination.
"Additional Interest" has the meaning specified in the Registration Rights
Agreement.
"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 Stock Price" means, in respect of a Conversion Date, the
average of the Last Reported Sale Prices per share of Common Stock over the
five-Trading Day period starting the third Trading Day following such Conversion
Date.
"Applicable Yield" means (1) prior to August 15, 2008, 0% and (2) from and
after August 15, 2008, for any Interest Period, a rate equal to 3-Month LIBOR
determined on the LIBOR Determination Date relating to the Interest Reset Date
for such Interest Period, minus 0.25% provided that in no event shall the
Applicable Yield be less than 0%.
"Bankruptcy Law" means Xxxxx 00, Xxxxxx Xxxxxx Code, or any similar Federal
or state law for the relief of debtors.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of such board or any person or persons to whom the
board of directors of the Company or a committee thereof has properly delegated
the appropriate authority.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law, regulation or executive order to close; provided such day is also a London
banking day.
"Capital Stock" means, as to shares of a corporation, outstanding shares of
stock of any class, whether now or hereafter authorized, irrespective of whether
such class shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of assets upon the voluntary liquidation, dissolution or winding up
of such corporation.
2
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the shares of Common Stock, $1 par value, of the
Company as it exists on the date of this Indenture, or any other shares of
capital stock of the Company into which the Common Stock shall be reclassified
or changed.
"Company" means the party named as the "Company" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any such subsequent successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any Officer and delivered to the Trustee.
"Contingent Interest" means such cash interest payable as described in
Article 14.
"Conversion Settlement Date" means (i) the Conversion Date or (ii) if the
Company elects to pay cash in lieu of Common Stock pursuant to Section 11.03,
the Business Day following the final day of the Cash Settlement Averaging
Period.
"Conversion Price" means, as of any date of determination, a dollar amount
derived by dividing the Accreted Principal Amount as of such date of $1,000
Original Principal Amount of Securities by the Conversion Rate then in effect.
"Conversion Rate" means 13.1939 shares of Common Stock per $1,000 Original
Principal Amount of Securities, subject to adjustment pursuant to Section 11.07.
"Corporate Trust Office" means the principal office of the Trustee at which
at any time its corporate trust business shall be administered, which office at
the date hereof is located at 000 Xxxxxxx Xxxxxx, Xx. 0X, Xxx Xxxx, XX 00000,
Attention: Corporate Trust Administration, or such other address as the Trustee
may designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Custodian" means the Trustee or any Person appointed by the Trustee to act
as custodian of Global Securities for the Depositary.
3
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Depositary" means, the clearing agency registered under the Exchange Act
that is designated to act as the Depositary for the Global Securities. The
Depository Trust Company shall be the initial Depositary, until a successor
shall have been appointed and become such pursuant to the applicable provisions
of this Indenture, and thereafter, "Depositary" shall mean or include such
successor.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Holder" means a person in whose name a Security is registered on the
Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date" means February 15, May 15, August 15 and November
15 of each year, subject to Section 1.08, commencing November 15, 2003.
"Interest Period" means (1) prior to August 15, 2008, the period from and
including the most recent Interest Payment Date to which interest has been paid
or duly made available for payment (or August 13, 2003 if no interest has been
paid or been duly made available for payment) to, but excluding, the next
succeeding Interest Payment Date, or any earlier Fundamental Change Purchase
Date and (2) from and after August 15, 2008, the period from and including each
Interest Reset Date to but excluding the next succeeding Interest Reset Date,
or, if earlier, the Stated Maturity, any Redemption Date, any Purchase Date or
any Fundamental Change Purchase Date.
"Interest Reset Date" means February 15, May 15, August 15 and November 15
of each year, commencing November 15, 2003; provided that, if any Interest Reset
Date would otherwise be a day that is not a Business Day, such Interest Reset
Date shall be postponed to the next succeeding Business Day, except, if such
Business Day falls in the next succeeding calendar month, such Interest Reset
Date will be the immediately preceding Business Day.
"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.
4
"Last Reported Sale Price" of the shares of Common Stock on any date means
the closing sale price per share (or, if no closing sale price is reported, the
average of the bid and asked prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported in composite transactions on the principal United States securities
exchange on which shares of Common Stock are traded or, if the shares of Common
Stock are not listed on a United States national or regional securities
exchange, as reported by Nasdaq. The Last Reported Sale Price will be determined
without reference to after-hours or extended market trading. If the shares of
Common Stock are not listed for trading on a U.S. national or regional
securities exchange and not reported by the Nasdaq National Market on the
relevant date, the Last Reported Sale Price will be the last quoted bid for the
shares of Common Stock in the over-the-counter market on the relevant date as
reported by the National Quotation Bureau or similar organization. If the shares
of Common Stock are not so quoted, the Last Reported Sale Price will be the
average of the midpoint of the last bid and asked prices for the shares of
Common Stock on the relevant date from each of at least three nationally
recognized independent investment banking firms selected by the Company for this
purpose.
"Legal Holiday" means a day that is not a Business Day.
"LIBOR Determination Date" means the second London banking day preceding
the related Interest Reset Date.
"London banking day" means a day on which commercial banks are open for
business, including dealings in United States dollars, in London, England.
"Moneyline Telerate Page 3750" means the display on Moneyline Telerate (or
any successor service) on such page (or any other page as may replace such page
on such service) for the purpose of displaying the London interbank rates of
major banks for United States dollars.
"Nasdaq" means the National Association of Securities Dealers Automated
Quotation System.
"Officer" means the Chairman of the Board, the Chief Executive Officer, the
President, the Chief Operating Officer, any Executive Vice President, Senior
Vice President or Vice President, the Treasurer, or the Secretary of the
Company.
"Officers' Certificate" means a written certificate containing the
information specified in Section 17.05, signed in the name of the Company by any
two Officers or any Officer and an Assistant Treasurer or Assistant Secretary of
the Company and delivered to the Trustee. An Officers' Certificate
5
given pursuant to Section 9.08 need not contain the information specified in
Section 17.05.
"Opinion of Counsel" means a written opinion containing the information
specified in Section 17.05 from legal counsel that is delivered to the Trustee.
The counsel may be an employee of, or counsel to, the Company.
"Original Principal Amount" of a Security means the stated Original
Principal Amount as set forth on the face of such Security.
"person" or "Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Purchase Agreement" means the Purchase Agreement dated as of August 7,
2003 among the Company and Citigroup Global Markets Inc., Xxxxxxx, Xxxxx & Co.
and X.X. Xxxxxx Securities Inc. as representatives of the initial purchasers
named therein.
"Redemption Date" means the date specified for redemption of the Securities
in accordance with the terms of the Securities and this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, 100% of the Accreted Principal Amount of such Security as of the
Redemption Date, plus accrued and unpaid interest (including Contingent Interest
and Additional Interest, if any) to, but excluding, the Redemption Date.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of August 13, 2003 among the Company, Citigroup Global Markets Inc.,
Xxxxxxx, Xxxxx & Co. and X.X. Xxxxxx Securities Inc. as representatives of the
initial purchasers named in the Purchase Agreement.
"Regular Record Date" for the interest payable on any Interest Payment Date
means the February 1, May 1, August 1 or November 1, as the case may be,
immediately preceding such Interest Payment Date.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department (or any successor group)
6
including without limitation any vice president, any assistant vice president,
any assistant treasurer, any trust officer or any other officer of the Trustee
customarily performing functions similar to those performed by any of the
above-designated officers and also means, with respect to a particular corporate
trust matter, any other officer to whom such matter is referred because of his
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration 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.
"Securities" or "Security" means any of the Company's Floating Rate
Convertible Senior Debentures due 2033, as amended or supplemented from time to
time, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder.
"Security Register" means the register maintained by the Registrar that
evidences ownership of the Securities.
"Special Record Date" means, for the payment of any Defaulted Interest, the
date fixed by the Trustee pursuant to Section 2.13.
"Stated Maturity" means August 15, 2033.
"Subsidiary" means any corporation more than 50% of the outstanding shares
of Voting Stock, except for directors' qualifying shares, of which shall at the
time be owned, directly or indirectly, by the Company or by one or more of the
Subsidiaries, or by the Company and one or more other Subsidiaries.
"Tax Original Issue Discount" means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for United States
federal income tax purposes pursuant to United States Treasury Regulation
Section 1.1275-4 or any successor provision.
"3-month LIBOR," as determined by the Trustee, means with respect to any
Interest Period:
(i) the rate for three-month deposits in United States dollars
commencing on the related Interest Reset Date, that appears on the
Moneyline Telerate Page 3750 as of 11:00 A.M., London time, on the LIBOR
Determination Date, or
7
(ii) if no rate appears on the particular LIBOR Determination Date on
the Moneyline Telerate Page 3750, the rate calculated by the Trustee as the
arithmetic mean of at least two offered quotations obtained by the Trustee
after requesting the principal London offices of each of four major
reference banks in the London interbank market to provide the Trustee with
its offered quotation for deposits in United States dollars for the period
of three months, commencing on the related Interest Reset Date, to prime
banks in the London interbank market at approximately 11:00 A.M., London
time, on that LIBOR Determination Date and in a principal amount that is
representative for a single transaction in United Sates dollars in that
market at that time, or
(iii) if fewer than two offered quotations referred to in clause (ii)
are provided as requested, the rate calculated by the Trustee as the
arithmetic mean of the rates quoted at approximately 11:00 A.M., New York
time, on the particular LIBOR Determination Date by three major banks in
The City of New York selected by the Trustee for loans in United States
dollars to leading European banks for a period of three months commencing
on the related Interest Reset Date, and in a principal amount that is
representative for a single transaction in United States dollars in that
market at that time, or
(iv) if the banks so selected by the Trustee are not quoting as
mentioned in clause (iii), 3-month LIBOR in effect on the preceding LIBOR
Determination Date (or 1.13688% per annum in the case of the Interest Reset
Date on November 15, 2003).
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, on Nasdaq or,
if the Common Stock is not quoted on Nasdaq, on the principal other market on
which the Common Stock is then traded.
"Trading Price" means, on any date, the average of the secondary market bid
quotations per $1,000 Original Principal Amount of Securities obtained by the
Trustee for $10,000,000 Original Principal Amount of Securities at approximately
3:30 p.m., New York City time, on such date from three independent nationally
recognized securities dealers selected by the Company;
8
provided that if at least three such bids cannot reasonably be obtained by the
Trustee, but two bids are obtained, then the average of the two bids shall be
used, and if only one such bid can reasonably be obtained by the Trustee, one
bid shall be used; and provided further that if the Trustee cannot reasonably
obtain at least one bid for $10,000,000 Original Principal Amount of Securities
from a nationally recognized securities dealer or in the Company's reasonable
judgment, the bid quotations are not indicative of the secondary market value of
the Securities, then the Trading Price per $1,000 Original Principal Amount of
Securities (i) as such term is used in Article 11 shall be deemed to be less
than 98% of the product of the Last Reported Sale Price on such date and the
Conversion Rate on such date and (ii) as such term is used in Article 14, shall
equal the product of (A) the Conversion Rate on such date and (B) the average of
the Last Reported Sale Prices of the shares of Common Stock for the five Trading
Days ending on the determination date of the Trading Price.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Voting Stock," as applied to the stock (or the equivalent thereof) of any
corporation, means stock (or the equivalent thereof) of any class or classes,
however designated, having ordinary voting power for the election of a majority
of the directors of such corporation, other than stock (or such equivalent)
having such power only by reason of the happening of a contingency.
"United States" means the United States of America. The Commonwealth of
Puerto Rico, the Virgin Islands and other territories and possessions are not
part of the United States.
(b) Other Definitions.
Defined in
Term Section
-------------------------------------------------------------- ---------------
"Act" ........................................................ 1.03(a)
"Adjustment Event" ........................................... 11.07(n)
"Agent Members" .............................................. 2.11(f)
"capital stock" .............................................. 13.01(a)
"Cash Amount" ................................................ 11.03(a)(iii)
"Cash Settlement Averaging Period" ........................... 11.03(a)(ii)(B)
"Cash Settlement Notice Period" .............................. 11.03(a)
"Continuing Director" ........................................ 13.01(a)
"Conversion Agent" ........................................... 2.03
"Conversion Date" ............................................ 11.02
9
"Conversion Obligation" ......................................... 11.01(a)
"Conversion Retraction Period" .................................. 11.03(a)
"Conversion Settlement Distribution" ............................ 11.03(a)
"Current Market Price" .......................................... 11.07(j)(i)
"Custodian" ..................................................... 4.01
"Defaulted Interest" ............................................ 2.13
"Determination Date" ............................................ 11.07(n)
"Distributed Assets or Securities" .............................. 11.07(d)
"Dividend Threshold Amount" ..................................... 11.07(e)
"Event of Default" .............................................. 4.01
"Ex-Dividend Date" .............................................. 11.07(g)(i)
"Ex-Dividend Time" .............................................. 11.01(e)(i)
"Expiration Time" ............................................... 11.07(f)
"Fair Market Value" ............................................. 11.07(j)(ii)
"Final Notice Date" ............................................. 11.03(a)
"Fundamental Change" ............................................ 13.01(a)
"Fundamental Change Purchase Date" .............................. 13.01(a)
"Fundamental Change Purchase Notice" ............................ 13.01(c)
"Fundamental Change Purchase Price" ............................. 13.01(a)
"Global Security" or "Global Securities" ........................ 2.01
"Legend" ........................................................ 2.05(f)
"Maximum Conversion Rate" ....................................... 11.07(h)
"Measurement Period" ............................................ 14.01
"Moody's" ....................................................... 11.01(f)
"non-electing share" ............................................ 11.10
"Notice of Conversion ........................................... 11.02
"Notice of Default" ............................................. 4.01(c)
"Paying Agent" .................................................. 2.03
"Principal Value Conversion" .................................... 11.01(c)
"Publicly Traded Securities" .................................... 13.01(a)
"Purchase Date" ................................................. 12.01(a)
"Purchased Shares" .............................................. 11.07(f)(i)
"Purchase Notice" ............................................... 12.02(a)
"Purchase Price" ................................................ 12.02
"Record Date" ................................................... 11.07(j)(iii)
"Registrar" ..................................................... 2.03
"Rights" ........................................................ 11.12
"Rights Agreement" .............................................. 11.12
"S&P" ........................................................... 11.01(f)
"Trigger Event" ................................................. 11.07(d)
Section 1.02. Forms of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
10
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer actually knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company, unless such counsel actually knows that the certificate or opinion
or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.03. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an 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 the 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 (subject to Section 5.01) 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 in any manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder
11
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) The Company may, but shall not be obligated to, set a record date for
purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No action approved by such vote or consent shall be taken more than
six months after such record date.
Section 1.04. Conflict with Trust Indenture Act of 1939. If any provision
hereof limits, qualifies or conflicts with a provision of the TIA that is
required under the TIA to be part of and govern this Indenture, the TIA shall
control. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, such provision shall be deemed
either to apply to this Indenture so modified or to be excluded, as the case may
be.
Section 1.05. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.06. Separability Clause. In case any provision in this Indenture
or in any Security 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 1.07. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.08. Legal Holidays. Subject to the next two succeeding sentences,
if any specified date (including a date for giving notice) on which action is to
be taken under this Indenture is a Legal Holiday, the action shall be taken on
the next succeeding day that is not a Legal Holiday. In any case where an
Interest Payment Date (other than an Interest Payment Date coinciding with the
Stated Maturity or earlier Redemption Date, Purchase Date or Fundamental Change
Purchase Date) of a Security falls on a day that is not a Business Day, such
Interest Payment Date will be postponed to the next succeeding Business
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Day and no interest on such payment will accrue for the period from and after
the Interest Payment Date to such next succeeding Business Day, provided that,
if such Business Day falls in the next succeeding calendar month, the Interest
Payment Date will be the Business Day immediately preceding such Interest
Payment Date. If the Stated Maturity, Redemption Date, Purchase Date or
Fundamental Change Purchase Date of a Security would fall on a day that is not a
Business Day, the required payment of interest, if any, and principal will be
made on the next succeeding Business Day and no interest on such payment will
accrue for the period from and after the Stated Maturity, Redemption Date,
Purchase Date or Fundamental Change Purchase Date to such next succeeding
Business Day.
ARTICLE 2
The Securities
Section 2.01. Designation, Form and Dating. The Securities shall be
designated as "Floating Rate Convertible Senior Debentures due 2033."
The Securities and the Trustee's certificate of authentication to be borne
by such Securities shall be substantially in the form set forth in Exhibit A.
The terms and provisions contained in the form of Security attached as Exhibit A
hereto shall constitute, and are hereby expressly made, a part of this Indenture
and, to the extent applicable, the Company and the Trustee, by their execution
and delivery of this Indenture, expressly agree to such terms and provisions and
to be bound thereby.
Any of the Securities may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Trustee, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Debentures to
be tradable on The PORTAL(R) Market or as may be required for the Securities to
be tradable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Securities may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Securities are subject.
So long as the Securities are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
Section 2.11(b), all of the Securities will be represented by one or more
Securities in global form registered in the name of the Depositary or the
nominee
13
of the Depositary (a "Global Security"). The transfer and exchange of beneficial
interests in any such Global Security shall be effected through the Depositary
in accordance with this Indenture and the applicable procedures of the
Depositary. Except as provided in Section 2.11(b), beneficial owners of a Global
Security shall not be entitled to have certificates registered in their names,
will not receive or be entitled to receive physical delivery of certificates in
definitive form and will not be considered holders of such Global Security.
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 Original Principal Amount of outstanding Securities from time to time
endorsed thereon and that the aggregate Original Principal Amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the Original Principal Amount of outstanding Securities
represented thereby shall be made by the Trustee in accordance with the standing
instructions and procedures existing between the Depositary and the Trustee.
Each Security shall be dated the date of its authentication.
Section 2.02. Execution and Authentication. Two Officers (or one Officer
and an Assistant Treasurer or an Assistant Secretary) shall sign the Securities
for the Company by manual or facsimile signature.
If an Officer whose signature is on a Security no longer holds that office
at the time the Trustee authenticates the Security, the Security shall be valid
nevertheless.
A Security shall not be valid until the Trustee manually signs the
certificate of authentication on the Security. The signature shall be conclusive
evidence that the Security has been authenticated under this Indenture.
The Trustee shall authenticate and deliver Securities for original issue in
an aggregate Original Principal Amount of $850,000,000 (up to $1,000,000,000 if
the Initial Purchasers' option set forth in the Purchase Agreement is exercised
in full) upon a Company Order without any further action by the Company. The
Securities shall be issued only in registered form without coupons and only in
denominations of $1,000 Original Principal Amount and any integral multiple
thereof. The aggregate Original Principal Amount of Securities outstanding at
any time may not exceed the amount set forth in the first sentence of this
paragraph, subject to the parenthetical set forth therein, except as provided in
Section 2.06.
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Section 2.03. Registrar, Paying Agent, Conversion Agent and Trustee. 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 exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent and the term
Conversion Agent includes any additional conversion 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, Trustee or
Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 5.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Trustee, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion Agent
and Paying Agent in connection with the Securities.
Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as
otherwise provided herein, on or prior to each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due date) or, if applicable,
Common Stock sufficient to make such payments when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Holders and/or the
Trustee all money and Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money and Common Stock held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money and Common Stock held by it to the
Trustee and to account for any funds and Common Stock disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money or
Common Stock.
Section 2.05. Transfer and Exchange. (a) Subject to Section 2.11 hereof,
upon surrender for registration or transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the
15
Holder or such Holder's attorney duly authorized in writing, at the office or
agency of the Company designated as Registrar or co-registrar pursuant to
Section 2.03, the Company shall execute, and the Trustee 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 Original 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 Holder requesting such transfer or exchange.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Fundamental
Change Purchase Notice has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Securities
to be purchased in part, the portion thereof not to be purchased) or any
Securities for a period of 15 days before the mailing of a notice of redemption
of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.11 and this Section 2.05(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.
(c) Successive registrations and registrations of transfers and exchanges
as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall provide
to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) Prior to the expiration of the holding period applicable to sales
thereof under Rule 144(k) under the Securities Act (or any successor provision),
16
if Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends on the
form of Security attached hereto as Exhibit A setting forth such restrictions
(collectively, the "Legend"), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the Company and
the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence or (ii) notification by the Company to
the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
at the written direction of the Company, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by an Affiliate of the
Company, the Legend shall be reinstated. Any shares of Common Stock issued upon
conversion of Securities that bear the Legend shall bear a restricted legend
substantially identical to the Legend (except that such Legend shall not refer
to any shares of Common Stock issuable upon conversion of Securities).
(g) Nothing in this Indenture or in the Securities shall prohibit the sale
or other transfer of any Securities (including beneficial interests in Global
Securities) to the Company or any of its Subsidiaries.
Section 2.06. Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and Original Principal Amount, 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 Articles 12 or 13 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
17
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 mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.07. Outstanding Securities; Determinations of Holders' Actions.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those delivered to it pursuant to Section 2.06 and those described in this
Section 2.07 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 Original
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 4 and 8).
If a Security is replaced pursuant to Section 2.06, 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
Fundamental Change Purchase Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that date, then
immediately after such Redemption Date, Purchase Date, Fundamental Change
Purchase Date or Stated Maturity, as the case may be, such Securities shall
cease
18
to be outstanding and interest (including Contingent Interest and Additional
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 11, then from and
after the time of conversion on the Conversion Date, such Security shall cease
to be outstanding and interest (including Contingent Interest, if any) shall
cease to accrue on such Security, unless the Holder of such Security retracts
the Notice of Conversion pursuant to Section 11.02.
Section 2.08. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
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 Original Principal Amount
of definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.09. Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 12 and Article 13, conversion,
redemption or registration of transfer or exchange shall, if surrendered to any
person other than the Trustee, be delivered to the Trustee and shall be promptly
canceled by it. The Company or any Subsidiary may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder that the Company or any Subsidiary may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. The Company may not issue new Securities to replace Securities it has
paid or delivered to the Trustee for cancellation or that any Holder has
converted pursuant to Article 11. No Securities shall be authenticated in lieu
of or in exchange for any Securities canceled as provided in this Section,
except as
19
expressly permitted by this Indenture. All canceled Securities held by the
Trustee shall be disposed of by the Trustee in accordance with its customary
practice.
Section 2.10. 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
principal of the Security or the payment of any Redemption Price, Purchase Price
or Fundamental Change Purchase Price in respect thereof, and interest thereon,
for the purpose of conversion and for all other purposes whatsoever, whether or
not such Security be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
Section 2.11. Global Securities.
(a) 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 2.05 and this Section 2.11. A Global Security
may not be transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer to any
such other Person may be registered; provided that this clause (a) shall not
prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture unless and until such Security
has been registered in the name of such Person.
(b) 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 or (ii) the
Company decides to discontinue the use of the system of book-entry transfer
through the Depositary (or any successor Depositary). Any Global Security
exchanged pursuant to clause (a) above shall be so exchanged in whole and not in
part. 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.
20
(c) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, without interest
coupons, shall have an aggregate Original 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 or the 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 Original 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.
(d) Subject to the provisions of Section 2.11(f) 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.
(e) In the event of the occurrence of any of the events specified in
Section 2.11(b) above, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form, without interest coupons.
(f) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to any
Global Security registered in the name of the Depositary or any nominee thereof,
or under any such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
Section 2.12. Legends.
21
(a) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of a certification or an Opinion of Counsel as set forth in the Legend,
if so requested by the Company or the Registrar.
(b) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and the Registrar
and in form acceptable to the Company, to the effect that the transfer of such
Security has been made in compliance with Rule 144 or such successor provision),
be exchanged for a new Security, of like tenor and aggregate Original Principal
Amount, which shall not bear the restrictive Legend. The Company shall inform
the Trustee of the effective date of any registration statement registering the
Securities under the Securities Act. The Trustee and the Registrar shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
(c) 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.
Section 2.13. Payment of Interest; Interest Rights Preserved. Interest,
including Contingent Interest and Additional Interest, if any, on any Security
that is payable, and is punctually paid or duly provided for, on any Interest
Payment Date shall be paid to the Person in whose name that Security (or one or
more Predecessor Securities) is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose pursuant to Section 9.02. However, the Company may
make such interest payments by check payable to or upon the written order of the
Person entitled thereto pursuant to Section 17.03, to the address of such Person
as it appears on the Security Register; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest (including Contingent Interest, if any) on all Global Securities and
all
22
Securities of Holders of more than $25,000,000 aggregate Original Principal
Amount of Securities that have requested such method of payment and provided
wire transfer instructions to the Company or the Paying Agent at least five
Business Days prior to the applicable Interest Payment Date.
Any interest or Contingent Interest on any Security that is payable but
is not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Securities (or Predecessor Securities) are
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed payment, and
at the same time the Company shall deposit with the Trustee an amount of money
equal to the aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for such deposit
on or prior to the date of the proposed payment, such money when deposited to be
held in trust for the benefit of the Persons entitled to such Defaulted Interest
as in this clause provided. Thereupon the Trustee shall fix a Special Record
Date for the payment of such Defaulted Interest which shall be not more than 15
days and not less than 10 days prior to the date of the proposed payment and not
less than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Securities
at his address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or Predecessor Securities) are registered at the close of business
on such Special Record Date and shall no longer be payable pursuant to the
following clause (b).
(b) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
23
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.14. CUSIP Numbers. The Company in issuing the Securities may
use "CUSIP" numbers (if then generally in use), and, if so, the Trustee shall
use "CUSIP" numbers in notices of redemption as a convenience to Holders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.15. 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 Holders of Securities. If the Trustee is not the
Registrar, the Company shall furnish or cause to be furnished to the Trustee on
or before each Interest Payment Date and at such other times as the Trustee may
request in writing a list in such form and as of such date as the Trustee may
reasonably require of the names and addresses of Holders of Securities.
ARTICLE 3
Satisfaction and Discharge
Section 3.01. Discharge of Liability on Securities. When (i) the Company
delivers to the Trustee or any Paying Agent all outstanding Securities (other
than Securities replaced pursuant to Section 2.06 of the Indenture) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether at Stated Maturity, any Redemption Date, any Purchase Date, a
Fundamental Change Purchase Date, or upon conversion or otherwise, and the
Company deposits with the Trustee or any Paying Agent cash or, if expressly
permitted by the terms of the Securities, Common Stock sufficient to pay all
amounts due and owing on all outstanding Securities (other than Securities
replaced pursuant to Section 2.06), and if in either case the Company pays all
other sums payable hereunder by the Company, then this Indenture shall, subject
to Section 5.07, cease to be of further effect, except for the indemnification
of the Trustee, which shall survive such satisfaction and discharge. 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
reasonable cost and expense of the Company.
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Section 3.02. Repayment of Moneys Held by Trustee. Any moneys deposited
with the Trustee or any Paying Agent for the payment of the principal of or
interest on any Security and not applied but remaining unclaimed by the Holders
for two years after the date upon which the payment for such Security shall have
become due and payable, shall be repaid to the Company by the Trustee or such
Paying Agent on demand; and the Holder of any of the Securities entitled to
receive such payment shall thereafter look only to the Company for the payment
thereof and all liability of the Trustee or such Paying Agent with respect to
such moneys shall thereupon cease.
ARTICLE 4
Remedies
Section 4.01. Events of Default. "Event of Default", wherever used
herein with respect to the Securities, means any one of the following events:
(a) default in the payment of any interest (including Contingent
Interest and Additional Interest, if any) upon any Security when it becomes due
and payable and continuance of such default for a period of 30 days; or
(b) default in the payment of the Accreted Principal Amount, Redemption
Price, Purchase Price or Fundamental Change Purchase Price with respect to any
Security when such payment becomes due and payable pursuant to the terms hereof;
or
(c) following the exercise by a Holder of the right to convert a
Security in accordance with Article 11 hereof, the Company (x) fails to deliver
the cash, if any, required to be delivered as part of the applicable Conversion
Settlement Distribution pursuant to Section 11.03 or as part of the Principal
Value Conversion pursuant to Section 11.01(c), whichever is applicable, or (y)
fails to deliver the Common Stock required to be delivered pursuant to Section
11.02 or 11.03, in each case within the time periods set forth in Section 11.02
and such failure continues for ten days following receipt by the Company and the
Trustee of written notice of such failure from the converting Holder; or
(d) default in the performance, or breach, of any covenant or agreement
of the Company in this Indenture (other than a covenant or agreement a default
in whose performance or whose breach is elsewhere in this Section specifically
dealt with), and continuance of such default or breach for a period of 90 days
after there has been given, to the Company by the Trustee, or to the Company and
the Trustee by the Holders of at least 25% in aggregate Original Principal
Amount of the Securities then outstanding, a written notice specifying such
default or breach and requiring it to be remedied and stating that such notice
is a "Notice of Default" hereunder; or
25
(e) the Company pursuant to or within the meaning of any Bankruptcy
Law:
(i) commences a voluntary case,
(ii) consents to the entry of an order for relief against it in
an involuntary case,
(iii) consents to the appointment of a Custodian of it or for
all or substantially all of its property, or
(iv) makes a general assignment for the benefit of its
creditors; or
(f) a court of competent jurisdiction enters an order or decree under
any Bankruptcy Law that:
(i) is for relief against the Company in an involuntary case,
(ii) appoints a Custodian of the Company or for all or
substantially all of the property of the Company, or
(iii) orders the winding up or liquidation of the Company,
and the order or decree remains unstayed and in effect for 90 days.
"Custodian" means, for the purposes of this Section 4.01(e) and (f)
only, any receiver, trustee, assignee, liquidator, custodian or similar official
under any Bankruptcy Law.
Section 4.02. Acceleration of Maturity; Rescission and Annulment.
(a) If an Event of Default (other than an Event of Default specified in
Sections 4.01(e) or 4.01(f)) occurs and is continuing, the Trustee by written
notice to the Company, or the Holders of at least 25% in aggregate Original
Principal Amount of the Securities at the time outstanding by written notice to
the Company and the Trustee, may declare the Accreted Principal Amount of the
Securities through the date of such declaration, and any accrued and unpaid
interest (including Contingent Interest and Additional Interest, if any) through
the date of such declaration, on all the Securities to be immediately due and
payable. Upon such a declaration, such Accreted Principal Amount, and such
accrued and unpaid interest (including Contingent Interest and Additional
Interest, if any) shall be due and payable immediately. If an Event of Default
specified in Sections 4.01(e) or 4.01(f)) occurs and is continuing, the Accreted
Principal Amount, and any accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any) on all the Securities to the date of
the
26
occurrence of such Event of Default shall become and be immediately due and
payable without any declaration or other act on the part of the Trustee or any
Holders.
Section 4.03. Collection Suit by Trustee. If an Event of Default in
payment of interest or principal specified in Section 4.01(a) or (b) occurs and
is continuing, subject to Section 4.02 and 4.12 the Trustee may recover judgment
in its own name and as trustee of an express trust against the Company for the
whole amount of Accreted Principal Amount and interest, if any, remaining
unpaid.
Section 4.04. Other Remedies. If an Event of Default with respect to
the Securities occurs and is continuing, the Trustee may pursue any available
remedy by proceeding at law or in equity to collect the payment of the Accreted
Principal Amount, Redemption Price, Purchase Price, Fundamental Change Purchase
Price or interest (including Contingent Interest and Additional Interest, if
any) on the Securities or to enforce the performance of any provision of such
Securities or this Indenture.
The Trustee may maintain a proceeding even if it does not possess any
of the Securities or does not produce any of them in the proceeding. A delay or
omission by the Trustee or any Holder in exercising any right or remedy accruing
upon an Event of Default shall not impair the right or remedy or constitute a
waiver 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 4.05. Trustee May File Proofs of Claim. The Trustee may file
such proofs of claim and other papers or documents as may be necessary or
advisable in order to have the claims of the Trustee and the Holders allowed in
any judicial proceedings relative to the Company, or any of its creditors or
property, and unless prohibited by law or applicable regulations, may vote on
behalf of the Holders in any election of a trustee in bankruptcy or other person
performing similar functions.
Section 4.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article 4 shall be applied in the following order:
FIRST: To the payment of all amounts due the Trustee under
Section 5.07;
SECOND: To the payment of the amounts then due and unpaid for
Accreted Principal Amount, Redemption Price, Purchase Price,
Fundamental Change Purchase Price and interest (including Contingent
Interest and Additional Interest, if any) on the Securities in respect
of
27
which or for the benefit of which such money has been collected,
ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities; and
THIRD: To the payment of the remainder, if any, to the Company
or as a court of competent jurisdiction may direct.
Section 4.07. Limitation on Suits.
(a) No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless
(i) such Holder shall have previously given written notice
to the Trustee of a continuing Event of Default with respect to the
Securities held by that Holder;
(ii) the Holders of not less than 25% in aggregate Original
Principal Amount of the outstanding Securities shall have made written
request to the Trustee to institute proceedings in respect of such
Event of Default in its own name as Trustee hereunder;
(iii) such Holder or Holders shall have offered to the Trustee
reasonable indemnity satisfactory to it as it may require against the
costs, expenses and liabilities to be incurred in compliance with such
request;
(iv) no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 4.11 during
such 60-day period by the Holders of a majority in Original Principal
Amount of the outstanding Securities; and
(v) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding.
(b) A Holder may not use this Indenture to prejudice the rights of
another Holder or to obtain preference or priority over any other Holder.
Section 4.08. Unconditional Right of Holders to Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the Accreted Principal Amount, Redemption Price, Purchase
Price, Fundamental Change Purchase Price and interest (including Contingent
Interest and Additional Interest, if any) on such Security after the respective
due dates expressed in such Security, and to convert the Securities in
accordance with Article 11, and to institute suit for the enforcement of any
such payment on or
28
after such respective dates, and such rights shall not be impaired without the
consent of such Holder.
Section 4.09. Rights and Remedies Cumulative. Except as otherwise
provided with respect to the replacement or payment of mutilated, destroyed,
lost or stolen Securities in the last paragraph of Section 2.06, no right or
remedy herein conferred upon or reserved to the Trustee or to the Holders is
intended to be exclusive of any other right or remedy, and every right and
remedy shall, to the extent permitted by law, be cumulative and in addition to
every other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 4.10. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article 4 or by law to the Trustee or to
the Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 4.11. Control by Holders. The Holders of a majority in
aggregate Original Principal Amount of the outstanding Securities shall have the
right to direct the time, method and place of conducting any proceeding for any
remedy available to the Trustee, or exercising any trust or power conferred on
the Trustee, with respect to the Securities; provided, however, that
(i) such direction shall not be in conflict with any rule of
law or with this Indenture,
(ii) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
(iii) such direction is not unduly prejudicial to the rights
of Holders not taking part in such direction, and
(iv) such direction would not involve the Trustee in personal
liability, as the Trustee, upon being advised by counsel, shall
reasonably determine.
Section 4.12. Waiver of Past Defaults.
(a) Before a declaration that the Accreted Principal Amount of the
Securities and any accrued or unpaid interest (including Contingent Interest and
29
Additional Interest, if any) shall be due and payable immediately is made
pursuant to Section 4.02(a), the Holders of at least a majority in aggregate
Original Principal Amount of the outstanding Securities may on behalf of the
Holders of all the Securities by notice to the Trustee waive any past default
hereunder with respect to such Securities and its consequences, except a Default
that is (i) an Event of Default described in Section 4.01(a) or Section 4.01(b)
or (ii) in respect of a covenant or provision hereof which under Article 8
cannot be modified or amended without the consent of the Holder of each
outstanding Security.
(b) Upon any such waiver, such Default shall cease to exist, and any
Event of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture, and the Company, the Trustee and Holders shall be
restored to their former positions and rights hereunder, respectively; but no
such waiver shall extend to any subsequent or other Default or impair any right
consequent thereon.
Section 4.13. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by the Holder's acceptance thereof shall
be deemed to have agreed, that any court may in its discretion require, 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, suffered or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay
the costs of such suit, and that such court may in its discretion assess
reasonable costs, including reasonable attorneys' fees and expenses, against any
party litigant in such suit, having due regard to the merits and good faith of
the claims or defenses made by such party litigant; but the provisions of this
Section shall not apply to any suit instituted by the Company, to any suit
instituted by the Trustee, to any suit instituted by any Holder, or group of
Holders, holding in the aggregate more than 10% in Original Principal Amount of
the outstanding Securities, or to any suit instituted by any Holder pursuant to
Section 4.08. This Section 4.13 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.
ARTICLE 5
The Trustee
Section 5.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall with respect to Securities
exercise its rights and powers and use the same degree of care and skill in
their exercise as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
30
(i) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others; and
(ii) 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, notices or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, the Trustee shall examine the certificates, notices and
opinions to determine whether or not they conform to the requirements of
this Indenture.
(c) The Trustee may not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) 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
(iii) 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 4.11.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee may refuse to perform any duty or exercise any right or
power unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) The Trustee shall not be liable for interest on any money received by
it except as the Trustee may agree with the Company.
Section 5.02. Rights Of Trustee. (a) Subject to Section 5.01, the Trustee
may rely on any document believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require an
Officers' Certificate or an Opinion of Counsel. The Trustee shall not be liable
for any action it takes or omits to take in good faith in reliance on the
Officers' Certificate or Opinion of Counsel.
31
(c) The Trustee may act through agents and shall not be responsible for the
misconduct or negligence of any agent appointed with due care.
(d) The Trustee shall not be liable for any action it takes or omits to
take in good faith which it believes to be authorized or within its rights or
powers.
(e) The Trustee may consult with counsel of its selection and, to the
maximum extent permitted by the TIA, the advice of such counsel or any Opinion
of Counsel shall be full and complete authorization and protection in respect of
any action taken, suffered or omitted by it hereunder in good faith and in
reliance thereon.
(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 or direction of any of
the Holders pursuant to this Indenture, unless such Holders shall have offered
to the Trustee security or indemnity satisfactory to the Trustee against the
costs, expenses and liabilities which might be incurred by it in compliance with
such request or direction.
(g) The Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) To the maximum extent permitted by the TIA, in no event shall the
Trustee be responsible or liable for special, indirect, or consequential loss or
damage of any kind whatsoever (including, but not limited to, loss of profit)
irrespective of whether the Trustee has been advised of the likelihood of such
loss or damage and regardless of the form of action.
(i) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless written notice of any event which is in fact such a default is
received by the Trustee at the Corporate Trust Office of the Trustee, and such
notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits given to
the Trustee, including, without limitation, its right to be indemnified, are
32
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and each agent, custodian and other Person employed to act hereunder.
(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 suspended.
Section 5.03. Individual Rights of Trustee, etc. 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 any of its Affiliates with the same
rights it would have if it were not Trustee. Any Agent may do the same with like
rights. However, the Trustee must comply with Section 5.10 and 5.11.
Section 5.04. Trustee's Disclaimer. The Trustee makes no representations as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use of the proceeds from the Securities, and it
shall not be responsible for any statement in the Securities other than its
certificate of authentication.
Section 5.05. Notice of Defaults. If a Default occurs with respect to the
Securities and is continuing and if it is known to the Trustee, the Trustee
shall mail to each Holder of Securities of that series notice of the Default
within 90 days after it occurs. Except in the case of a default in payment on
any Security, 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 such Holders.
Section 5.06. Reports by Trustee to Holders. If required pursuant to TIA
Section 313(a), the Trustee, within 60 days after each May 15, shall mail to
each Securityholder a brief report dated as of May 15 that complies with TIA
Section 313(a). The Trustee also shall comply with the reporting obligations of
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 stock exchange on which the Securities are
listed. The Company agrees to notify the Trustee whenever the Securities become
listed on any stock exchange.
Section 5.07. Compensation and Indemnity. The Company shall pay to the
Trustee from time to time such compensation for its services as shall be agreed
upon in writing by the Company and the Trustee. The Company shall
33
reimburse the Trustee upon request for all reasonable out-of-pocket expenses
incurred by it. Such expenses shall include the reasonable compensation and
expenses of the Trustee's agents and counsel. The Company shall indemnify the
Trustee against any and all loss, liability, damage, claim or expense, including
taxes (other than those based upon, measured by or determined by the income of
the Trustee) incurred by it in connection with the administration of this trust
and its duties hereunder. The Trustee shall notify the Company promptly of any
claim for which it may seek indemnity. The Company need not pay for any
settlement made without its consent. The Company need not reimburse any expense
or indemnify against any loss or liability incurred by the Trustee through
negligence or bad faith.
To secure the Company's payment obligations in this Section, the Trustee
shall have a senior claim to which the Securities are hereby made subordinate on
all money or property held or collected by the Trustee, except that held in
trust to pay principal of and interest, if any, on particular Securities.
When the Trustee incurs expenses or renders services in connection with an
Event of Default specified in Section 4.01(e) or Section 4.01(f), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable Federal or state bankruptcy, insolvency or
other similar law.
The provisions of this Section shall survive the termination of this
Indenture and the resignation or removal of the Trustee.
Section 5.08. Replacement of Trustee. The Trustee may resign with respect
to the Securities by so notifying the Company. The Holders of a majority in
principal amount of the Securities may remove the Trustee by so notifying the
removed Trustee and may appoint a successor Trustee with the Company's consent.
The Company may remove the Trustee if:
(a) the Trustee fails to comply with Section 5.10;
(b) the Trustee is adjudged a bankrupt or an insolvent;
(c) a receiver or other public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the office
of trustee for any reason, the Company shall promptly appoint a successor
Trustee.
34
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company. Immediately after that, the retiring
Trustee shall transfer all property held by it as Trustee for the benefit of the
series with respect to which it is retiring to the successor Trustee, the
resignation or removal of the retiring Trustee shall then become effective, and
the successor Trustee shall have all the rights, powers and duties of the
Trustee under this Indenture with respect to that series. A successor Trustee
shall mail notice of its succession to each Holder of the Securities.
If a successor Trustee with respect to the Securities does not take office
within 60 days after the retiring Trustee resigns or is removed, the retiring
Trustee, the Company or the Holders of a majority in principal amount of the
Securities may petition any court of competent jurisdiction, at the expense of
the Company in the case of the Trustee, for the appointment of a successor
Trustee.
If the Trustee with respect to the Securities fails to comply with Section
5.10, any Holder of Securities of that series may petition any court of
competent jurisdiction for the removal of the Trustee and the appointment of a
successor Trustee.
If there are two or more Trustees at any time under this Indenture, each
will be the Trustee of a separate trust held under this Indenture for the
benefit of the series of Securities for which it is acting as Trustee and the
rights and obligations of each Trustee will be determined as if it were acting
under a separate indenture.
Section 5.09. Successor Trustee by Merger, etc. If the Trustee consolidates
with, merges or converts into or transfers all or substantially all its
corporate trust assets to another corporation, the resulting, surviving or
transferee corporation without any further act shall be the successor Trustee.
Section 5.10. Eligibility; Disqualification. This Indenture shall always
have a Trustee that satisfies the requirements of TIA Section 310(a). The
Trustee shall have a combined capital and surplus of at least $5,000,000 as set
forth in its most recent published annual report of condition. The Trustee shall
comply with TIA Section 310(b).
Section 5.11. 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.
35
ARTICLE 6
[Reserved]
ARTICLE 7
Consolidation, Merger, Sale or Conveyance
Section 7.01. Consolidations and Mergers of Company Permitted Subject to
Certain Conditions. The Company shall not consolidate with or merge into any
other corporation or convey, transfer or lease substantially all of its assets
to any Person, unless:
(a) either (i) the Company shall be the continuing Company or (ii) the
corporation formed by such consolidation or into which the Company is merged or
the Person which acquires by conveyance or transfer, or which leases,
substantially all of the assets of the Company shall be a corporation organized
and existing under the laws of the United States of America, any political
subdivision thereof or any State thereof and shall expressly assume, by an
indenture supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the Accreted
Principal Amount, Redemption Price, Purchase Price or Fundamental Change
Purchase Price with respect to any Security and any interest (including
Contingent Interest and Additional Interest, if any) on all the Securities and
the performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(b) immediately after giving effect to such transaction, no Default or
Event of Default, shall have happened and be continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel each stating that such consolidation, merger, conveyance,
transfer or lease and such supplemental indenture comply with this Article 7 and
that all conditions precedent herein provided for relating to such transaction
have been met.
Section 7.02. Rights and Duties of Successor Entity. Upon any consolidation
with or merger into any other corporation, or any conveyance, transfer or lease
of the properties and assets of the Company substantially as an entirety in
accordance with Section 7.01, the successor entity formed by such consolidation
or into which the Company is merged or 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, the Company (which term for this purpose shall mean the
Person named as the "Company" in the first
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paragraph of this instrument or any successor entity which shall theretofore
have become such in the manner presented in this Article 7) shall be relieved of
all obligations and covenants under this Indenture and the Securities.
ARTICLE 8
Supplemental Indentures
Section 8.01. Supplemental Indentures Without Consent of Holders.
(a) The Company, when authorized by a Board Resolution, and the Trustee may
from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of the execution thereof) for one or more of the following
purposes:
(i) to evidence the succession of another corporation or entity to
the Company, or successive successions, under the provisions of Section
7.01 hereof and the assumption by the successor corporation or entity of
the covenants, agreements and obligations of the Company under this
Indenture and under the Securities;
(ii) to surrender any of the Company's rights or powers under the
indenture, to add to the Company's covenants further covenants,
restrictions, conditions, or provisions for the protection of the holders
of the Securities, and to make a default in any of these additional
covenants, restrictions, conditions, or provisions a Default or an Event of
Default under the indenture;
(iii) to cure any ambiguity or to make corrections to any provision
herein or to make such other provisions with respect to matters or
questions arising under this Indenture, provided such action shall not
materially adversely affect the interests of the Holders of Securities
(excluding any change for which the consent of the Holder of each Security
affected by such change is required by Section 8.02);
(iv) to modify or amend this Indenture to permit the qualification of
this Indenture or any supplemental indenture under the Trust Indenture Act
of 1939 as then in effect;
(v) to add guarantees with respect to the Securities or to secure
the Securities;
(vi) to make any change (excluding any change for which the consent
of the Holder of each Security affected by such change is
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required by Section 8.02) that does not materially adversely affect the
rights of any Holder; and
(vii) to evidence and provide for the acceptance of appointment
hereunder by a successor or separate Trustee with respect to the Securities
and to add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder.
(b) Any amendment described in clause (a)(iii) above made solely to conform
this Indenture to the final offering memorandum provided to investors in
connection with the initial offering of the Securities by the Company will not
be deemed to materially adversely affect the interests of Holders.
(c) The Trustee is hereby authorized to join with the Company in the
execution of any such supplemental indenture, to make any further appropriate
agreements and stipulations which may be therein contained and to accept the
conveyance, transfer, assignment, mortgage or pledge of any property thereunder.
(d) Any supplemental indenture authorized by the provisions of this Section
8.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the outstanding Securities, notwithstanding any of the
provisions of Section 8.02.
Section 8.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of at least a majority in Original Principal Amount of
the outstanding Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of this
Indenture or of any supplemental indenture or of modifying in any manner the
rights of the Holders of Securities; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
outstanding Security affected thereby:
(a) reduce the percentage in Original Principal Amount of the Securities
the consent of whose holders is required for any amendment to this Indenture;
(b) reduce the rate of or extend the time for payment on interest of any
Security or reduce the amount of any interest payment to be made with respect to
any Security or to alter the manner of calculation or rate of Contingent
Interest
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or Additional Interest payable on any Security or extend the time for payment of
any such amount; or to alter the manner of calculation of Accreted Interest or
Accreted Principal Amount or to alter the definition of Applicable Yield;
(c) reduce the Original Principal Amount or Accreted Principal Amount of or
change the stated maturity of Accreted Principal Amount of, or any installment
of Accreted Principal Amount or interest on, any Security;
(d) reduce the Redemption Price, Purchase Price or Fundamental Change
Purchase Price or change the time at which any Security may or shall be redeemed
or purchased;
(e) make any Security payable in a different currency;
(f) make any change in provisions of this Indenture relating to waivers of
defaults or amendments that require unanimous consent;
(g) change any place of payment where any Security or interest thereon is
payable;
(h) make any change that adversely affects the right of the Holders to
convert the Securities under Article 11 of this Indenture or reduces the amount
payable upon conversion;
(i) impair the right to bring a lawsuit for the enforcement of any payment
on or after the Stated Maturity (or in the case of redemption pursuant to
Article 10 hereof or purchase pursuant to Article 12 or Article 13 hereof, on or
after the Redemption Date, Purchase Date or Fundamental Change Purchase Date, as
the case may be); or
(j) modify any of the provisions of this Section 8.02, except to increase
the percentage in Original Principal Amount of Securities whose holders must
consent to an amendment or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of each
outstanding Security affected by such modification or waiver.
Upon the request of the Company accompanied by a copy of a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture. It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
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Section 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article 8 or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and (subject to Section 5.01)
shall be fully protected in relying upon, an Opinion of Counsel and an Officers'
Certificate stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture. The Trustee may, but shall not be
obligated to enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Section 8.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article 8, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
shall thereafter be determined, exercised and enforced hereunder subject in all
respects to such modifications and amendments, and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
Section 8.05. Notation on or Exchange of Securities. If an amendment,
supplement or waiver changes the terms of a Security, the Trustee may require
the Holder of the Security to deliver it to the Trustee. The Trustee may place
an appropriate notation on the Security about the changed terms and return it to
the Holder. Alternatively, if the Company or the Trustee so determine, the
Company in exchange for the Security shall issue and the Trustee shall
authenticate a new Security that reflects the changed terms.
ARTICLE 9
Covenants of the Company
Section 9.01. Payment of Principal and Interest. The Company covenants and
agrees that it will duly and punctually pay or cause to be paid all payments in
respect of the Securities in accordance with the terms of the Securities and
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 at the latest on the day such payment is due. Accreted Principal
Amount, Redemption Price, Purchase Price, Fundamental Change Purchase Price and
interest (including Contingent Interest and Additional Interest, if any), shall
be considered paid on the applicable date due if on such date (or, in the case
of a Purchase Price or Fundamental Change Purchase Price, on the Business Day
following the applicable Purchase Date or Fundamental Change Purchase Date, as
the case may be) the Trustee or the
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Paying Agent holds, in accordance with this Indenture, money or securities, if
permitted hereunder, sufficient to pay all such amounts then due.
Section 9.02. Maintenance of Office or Agency. The Company shall maintain
an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where the Securities may be presented or surrendered for payment, where the
Securities may be surrendered for registration of transfer or exchange, where
the Securities may be surrendered for 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 Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency. 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
Corporate Trust Office of the Trustee, and the Company hereby appoints the
Trustee as its agent to receive all such presentations, surrenders, notices and
demands. The Corporate Trust Office of the Trustee, shall initially be such
office or agency for all of the aforesaid purposes.
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.
Section 9.03. Calculation of Tax Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of Tax Original Issue Discount (including daily
rates and accrual periods) accrued on the Securities as of the end of such year
and (ii) such other specific information relating to such Tax Original Issue
Discount as may then be reasonably requested by the Trustee and relevant under
the Internal Revenue Code of 1986, as amended from time to time or the Treasury
Regulations promulgated thereunder.
Section 9.04. Further Instruments and Acts. The Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper or as the Trustee may reasonably request to carry out more
effectively the purposes of this Indenture.
Section 9.05. Notice of Additional Interest.
(a) As soon as practicable following the first Business Day of an Interest
Period for which Additional Interest will be payable, the Company shall issue a
press release containing this information and publish the information on its
website on the World Wide Web.
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(b) On any Interest Payment Date on which Additional Interest is payable,
the Company shall issue a press release stating the amount of such Additional
Interest and setting forth the manner in which such amount was calculated, and
publish such information on its website on the World Wide Web.
Section 9.06. Contingent Debt Treatment. The Company agrees, and by
acceptance of a beneficial interest in a Security each Holder and any beneficial
owner of a Security shall be deemed to agree, to treat, for United States
federal income tax purposes, the Securities as debt instruments that are subject
to Treasury Regulation Section 1.1275-4 or any successor provision (the
"contingent debt regulations") and to be bound (in the absence of an
administrative determination or judicial ruling to the contrary) by the
Company's determination of the comparable yield and projected payment schedule
within the meaning of the contingent debt regulations. Holders or beneficial
owners may obtain the issue price, amount of Tax Original Issue Discount, issue
date, yield to maturity, comparable yield and a copy of the projected payment
schedule, determined by the Company pursuant to the contingent debt regulations,
by submitting a written request for it to the Company at the following address:
Lockheed Xxxxxx Corporation, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx, 00000,
Attention: Treasurer.
The Company acknowledges and agrees, and by acceptance of a beneficial
interest in a Security each Holder and any beneficial owner of a Security shall
be deemed to acknowledge and agree, that (i) the comparable yield means the
annual yield the Company would pay, as of the issue date, on a noncontingent,
nonconvertible, fixed-rate debt instrument with terms and conditions otherwise
similar to those of the Securities and (ii) the comparable yield and the
projected payment schedule that a Holder or beneficial owner may obtain as
described above do not constitute a representation by the Company regarding the
actual amounts that will be paid on the Securities or the value of the Common
Stock into which the Securities may be converted.
Section 9.07. Reports by Company. 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 Commission, 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 Commission may by rules and regulations prescribe)
which the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act. The Company also shall comply with the other
provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of
42
its covenants hereunder (as to which the Trustee is entitled to rely exclusively
on Officers' Certificates).
If at any time while any of the Securities are "restricted securities"
within the meaning of Rule 144, the Company is no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare and will furnish to any Holder, any beneficial owner of Securities
and any prospective purchaser of Securities designated by a Holder or a
beneficial owner of Securities, promptly upon request, the information required
pursuant to Rule 144A(d)(4) (or any successor thereto) under the Securities Act
in connection with the offer, sale or transfer of Securities.
Section 9.08. Compliance Certificate. The Company shall deliver to the
Trustee within 120 days after the end of each fiscal year of the Company an
Officers' Certificate, one of the signatories to which is the chief executive,
chief accounting or chief financial officer, stating whether or not the signers
know of any default by the Company in performing its covenants in this Article
9. If they do know of such a default, the certificate shall describe the
default. The certificate need not comply with Section 17.05.
ARTICLE 10
Redemption of Securities
Section 10.01. Right to Redeem; Notices to Trustee. Prior to August 15,
2008, the Securities shall not be redeemable at the option of the Company.
Beginning on August 15, 2008 and until the Stated Maturity, the Securities are
redeemable for cash as a whole, or from time to time in part, at the option of
the Company at the Redemption Price; provided that if the Redemption Date is an
Interest Payment Date, accrued and unpaid interest (including Contingent
Interest or Additional Interest, if any) shall be paid to the Holder of record
as of the applicable Regular Record Date, rather than to the Holder presenting
the Security for redemption. If the Company elects to redeem Securities, it
shall notify the Trustee in writing of the Redemption Date, the Original
Principal Amount of Securities to be redeemed and the Redemption Price.
The Company shall give the notice by mail to the Trustee provided for in
this Section 10.01 by a Company Order not less than 50 days before the
Redemption Date.
Section 10.02. Selection of Securities to Be Redeemed. If less than all the
Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by any other method the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall make
the
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selection at least 20 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 Original Principal Amount of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in Original 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
the Business Day immediately preceding the Redemption Date, the converted
portion of such Security shall be deemed (so far as may be) to be the portion
selected for redemption. Securities which have been converted during a selection
of Securities to be redeemed may be treated by the Trustee as outstanding for
the purpose of such selection.
Section 10.03. Notice of Redemption. (a) At least 20 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.
(b) The notice shall identify the Securities to be redeemed (including the
CUSIP numbers) and shall at a minimum state:
(i) the Redemption Date;
(ii) the Redemption Price;
(iii) the Conversion Rate;
(iv) the name and address of the Paying Agent and Conversion Agent;
(v) 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;
(vi) that Holders who want to convert Securities must satisfy the
requirements set forth in the applicable provisions of the Securities;
(vii) whether the Company will deliver cash, Common Stock or a
combination of cash and Common Stock in the event a Holder converts
Securities called for redemption;
44
(viii) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price;
(ix) if fewer than all the outstanding Securities are to be
redeemed, the certificate number and Original Principal Amounts of the
particular Securities to be redeemed;
(x) that, unless the Company defaults in making payment of such
Redemption Price, interest (including Contingent Interest and Additional
Interest, if any) on Securities called for redemption will cease to accrue
on and after the Redemption Date; and
(xi) the CUSIP number of the Securities.
(c) 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 such notice of
redemption.
Section 10.04. 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
Price stated in the notice.
Section 10.05. Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 11. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 10.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Original Principal Amount to the unredeemed portion of the
Security surrendered.
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ARTICLE 11
Conversion
Section 11.01. Right to Convert.
(a) Subject to and upon compliance with the provisions of this Indenture
the holder of any Security shall have the right, at such holder's option, to
convert the Original Principal Amount of the Security, or any portion of such
Original Principal Amount which is a multiple of $1,000, into fully paid and
nonassessable shares of Common Stock (as such shares shall then be constituted)
at the Conversion Rate in effect at such time, by surrender of the Security so
to be converted in whole or in part, together with any required funds, only
under the circumstances described in this Section 11.01 and in the manner
provided in Section 11.02.
Notwithstanding any other provision of the Securities or this Indenture,
all Holders' rights with respect to conversion of the Securities and the
Company's obligation to deliver shares of Common Stock at the Conversion Rate
upon such conversion (the "Conversion Obligation"), are subject, in their
entirety, to the Company's right, in its sole and absolute discretion, to elect
to satisfy such Conversion Obligation in any manner permitted pursuant to
Section 11.03.
(b) Securities may be surrendered for conversion into shares of Common
Stock in integral multiples of $1,000 Original Principal Amount
(i) during any calendar quarter commencing prior to August 15, 2028
(and only during such calendar quarter), if the Last Reported Sale Price of
the Common Stock for at least 20 Trading Days in a period of 30 consecutive
Trading Days ending on the last Trading Day of the previous calendar
quarter is more than 130% of the Conversion Price as of the last day of
such previous calendar quarter and
(ii) at any time after August 15, 2028 and prior to the Stated
Maturity if, the Last Reported Sale Price of the Common Stock is greater
than or equal to 130% of the Conversion Price on any day after August 15,
2028.
(c) Securities may be surrendered for conversion into shares of Common
Stock in integral multiples of $1,000 Original Principal Amount at any time
during the five Business Day period after any five consecutive Trading Day
period in which the Trading Price of the Securities for each day of such five
Trading Day period was less than 98% of the product of the Last Reported Sale
Price and the Conversion Rate as of each such Trading Day.
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Notwithstanding the foregoing, if, on the date of any conversion pursuant to
this Section 11.01(c), the Last Reported Sale Price of the Common Stock is
between 100% and 130% of the Conversion Price as of such date, the Holders of
Securities surrendered for conversion shall receive, in lieu of Common Stock
based on the Conversion Rate, cash or Common Stock or a combination of cash and
Common Stock, at the Company's option, with a value equal to the Accreted
Principal Amount of Securities plus accrued and unpaid interest, if any,
including Contingent Interest and Additional Interest, if any, as of the
Conversion Date ("Principal Value Conversion"). If a Holder surrenders its
Securities for a Principal Value Conversion, the Company shall notify such
Holder by the second Trading Day following the Conversion Date whether the
Company will pay such Holder all or a portion of the Accreted Principal Amount
plus accrued and unpaid Contingent Interest and Additional Interest, if any, in
cash, Common Stock or a combination of cash and Common Stock, and in what
percentage. Any Common Stock delivered upon a Principal Value Conversion will be
valued at the Applicable Stock Price. The Company will pay such Holder any
portion of the Accreted Principal Amount plus accrued and unpaid Contingent
Interest and Additional Interest, if any, to be paid in cash and deliver Common
Stock with respect to any portion of the Accreted Principal Amount plus accrued
and unpaid Contingent Interest and Additional Interest, if any, to be paid in
Common Stock, no later than the fifth Business Day following the determination
of the Applicable Stock Price.
In connection with any conversion pursuant to this Section 11.01(c), the Trustee
shall not have any obligation to determine the Trading Price of the Securities
unless the Company has requested such determination and the Company shall have
no obligation to make such request unless a Holder provides the Company with
reasonable evidence that the Trading Price is less than 98% of the product of
the Last Reported Sale Price of the Common Stock and the Conversion Rate. At
such time, the Company shall instruct the Trustee to determine the Trading Price
of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price is greater than or equal to 98% of the
product of the Last Reported Sale Price of the Common Stock and the Conversion
Rate as of such Trading Day.
(d) Any Securities called for redemption under Article 10 hereof may be
surrendered for conversion into shares of Common Stock in integral multiples of
$1,000 Original Principal Amount at any time prior to the close of business on
the Business Day immediately preceding the Redemption Date, even if the
Securities are not otherwise convertible at such time.
(e) Securities may be surrendered for conversion into shares of Common
Stock in integral multiples of $1,000 Original Principal Amount
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(i) if the Company elects to distribute to all holders of Common
Stock
(A) rights or warrants entitling them to purchase, for a period
expiring within 60 days of the date of such distribution, Common Stock
at less than the Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding the declaration date for such
distribution or
(B) assets, debt securities or rights to purchase the Company's
securities, which distribution has a per share value as determined by
the Board of Directors exceeding 5% of the Last Reported Sale Price of
the Common Stock on the Trading Day immediately preceding the
declaration date for such distribution
beginning on the date that the Company gives notice to the Holders of such
right, which shall not be less than 20 days prior to the time ("Ex-Dividend
Time") immediately prior to the commencement of "ex-dividend" trading for
such distribution on the New York Stock Exchange or such other principal
national or regional exchange or market on which the Common Stock is then
listed or quoted for such dividend or distribution, and Securities may be
surrendered for conversion at any time thereafter until the earlier of the
close of business on the Business Day prior to the Ex-Dividend Time and the
date the Company announces that such dividend or distribution will not take
place; provided that Holders shall not have the right to surrender
Securities for conversion pursuant to this Section 11.01(e)(i) if they will
otherwise participate in the distribution described above without first
converting Securities into Common Stock; or
(ii) if the Company is a party to a consolidation, merger or binding
share exchange pursuant to which shares of Common Stock would be converted
into cash, securities or other property as set forth in Section 11.10(ii),
at any time from and after the date that is 15 days prior to the
anticipated effective date of the transaction until 15 days after the
actual effective date of such transaction (or, if such transaction
constitutes a Fundamental Change, until the applicable Fundamental Change
Purchase Date) and, at the effective time of the transaction, the right to
convert a Security into shares of Common Stock shall be changed into a
right to convert such Security into the kind and amount of cash, securities
or other property of the Company or another person that the Holder would
have received if the Holder had converted such Security immediately prior
to the transaction as set forth in Section 11.10.
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(f) Securities may be surrendered for conversion into shares of Common
Stock in integral multiples of $1,000 Original Principal Amount, during any
period in which (i) the credit rating assigned to the Securities by Standard &
Poor's Ratings Services, a division of The XxXxxx-Xxxx Companies Inc., and its
successors ("S&P") is below BB+, (ii) the credit rating assigned to the
Securities by Xxxxx'x Investors Services and its successors ("Xxxxx'x") is below
Ba1 or (iii) the Securities by are no longer rated by at least one of S&P or
Moody's.
Section 11.02. Conversion Procedures. To convert a Security, a Holder must
(a) complete and manually sign the Notice of Conversion or a facsimile of the
Notice of Conversion on the back of the Security (the "Notice of Conversion")
and deliver such notice to the Conversion Agent, (b) surrender the Security to
the Conversion Agent, (c) furnish appropriate endorsements and transfer
documents if required by the Registrar or the Conversion Agent, (d) if required,
pay all transfer or similar taxes and (e) if required, pay funds equal to the
interest payable on the next Interest Payment Date. To convert a beneficial
interest in the Security, the holder thereof must comply with clauses (c)
through (e) of the preceding sentence and comply with the Depositary's
procedures for conversion. The date on which the Holder satisfies all of those
requirements is the "Conversion Date."
Subject to the next succeeding sentence, the Company will, as soon as
practicable following the Conversion Settlement Date, (i) pay the cash component
(including cash in lieu of any fraction of a share to which such Holder would
otherwise be entitled), if any, of the Conversion Settlement Distribution
determined pursuant to Section 11.03 to the Holder of a Security surrendered for
conversion, or such Holder's nominee or nominees, and (ii) issue, or cause to be
issued, and deliver to the Conversion Agent or to such Holder, or such Holder's
nominee or nominees, certificates for the number of full shares of Common Stock,
if any, to which such Holder shall be entitled as part of such Conversion
Settlement Distribution. If a conversion is a Principal Value Conversion
pursuant to 11.01(c), the Company shall deliver to the Conversion Agent or to
the Holder, no later than the fifth Business Day following the date on which the
Applicable Stock Price is determined, a certificate for the number of whole
shares of Common Stock issuable upon the conversion and, if applicable, cash in
lieu of such Common Stock and cash in lieu of any fractional shares pursuant to
Section 11.04.
The Person in whose name the Common Stock certificate is registered shall
be deemed to be a shareholder of record at the close of business on the
applicable Conversion Settlement Date; provided however, that if any such date
is a date when the stock transfer books of the Company are closed, such Person
shall be deemed a shareholder of record as of the next date on which the stock
transfer books of the Company are open.
49
No payment or adjustment shall be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article 11. On conversion of a Security, any accrued and unpaid interest
(including Contingent Interest, if any, Accreted Interest for all Interest
Periods concluding prior to the Conversion Date, if any, and Accreted Interest
for the Interest Period in which the Conversion Date occurs, if any) with
respect to such Security that is attributable to the period from the Issue Date
to the Conversion Date shall not be cancelled, extinguished or forfeited but
rather shall be deemed paid in full to the Holder of such Security through the
delivery of the Common Stock (together with the cash payment, if any, in lieu of
fractional shares), or cash or a combination of cash and Common Stock in lieu
thereof, in exchange for the Security being converted pursuant to the provisions
hereof, and the fair market value of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares), or cash or a combination of cash
and Common Stock in lieu thereof, shall be treated as issued, to the extent
thereof, first in exchange for any accrued and unpaid interest (including
Contingent Interest, if any, Accreted Interest for all Interest Periods
concluding prior to the Conversion Date, if any, and Accreted Interest for the
Interest Period in which the Conversion Date occurs, if any) attributable to the
period from the Issue Date to the Conversion Date, and the balance, if any, of
such fair market value shall be treated as issued in exchange for the Original
Principal Amount of the Security being converted pursuant to the provisions
hereof. Notwithstanding the preceding sentence, on conversion of a Security
during the period from the close of business on any Regular Record Date
immediately preceding any Interest Payment Date to the close of business on the
Business Day immediately preceding such Interest Payment Date, the Holder on
such Regular Record Date shall receive the interest payable on such Interest
Payment Date.
The Company agrees, and by acceptance of a beneficial interest in a
Security each Holder and any beneficial owner of a Security shall be deemed to
agree, to be bound (in the absence of an administrative determination or
judicial ruling to the contrary) by the Company's determination of the projected
payment schedule within the meaning of the contingent debt regulations, and
accordingly shall treat, for United States federal income tax purposes, the fair
market value of the Common Stock received upon the conversion of a Security
(together with any cash payment in lieu of fractional shares) or cash in lieu
thereof, or a combination of cash and Common Stock as a contingent payment on
the Security for purposes of Treasury Regulation Section 1.1275-4 or any
successor provision.
If a Holder converts more than one Security at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the
aggregate Original Principal Amount of Securities converted.
50
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security equal in Original Principal Amount to the Original Principal Amount of
the unconverted portion of the Security surrendered.
Securities or portions thereof surrendered for conversion during the period
from the close of business on any Regular Record Date immediately preceding any
Interest Payment Date to the close of business on the Business Day immediately
preceding such Interest Payment Date shall be accompanied by payment to the
Company or its order, in New York Clearing House funds or other funds acceptable
to the Company, of an amount equal to the interest payable on such Interest
Payment Date with respect to the Original Principal Amount of Securities or
portions thereof being surrendered for conversion; provided that no such payment
need be made if (1) the Company has specified a Redemption Date that occurs
during the period from the close of business on a Regular Record Date to the
close of business on the Interest Payment Date to which such Regular Record Date
relates, (2) the Company has specified a Fundamental Change Purchase Date during
such period or (3) only to the extent of overdue interest or overdue Contingent
Interest, any overdue interest or overdue Contingent Interest exists on the
Conversion Date with respect to the Securities converted.
Section 11.03. Payment of Cash in Lieu of Common Stock.
(a) If a Holder elects to convert all or any portion of a Security into
shares of Common Stock as set forth in Section 11.01 and the Company receives
such Holder's Notice of Conversion on or prior to the day that is 20 days prior
to the Stated Maturity, or with respect to Securities called for redemption
pursuant to Section 10.01, the applicable Redemption Date (the "Final Notice
Date"), the Company may choose to satisfy all or any portion of the Conversion
Obligation in cash. Upon such election, the Company will notify such Holder
through the Trustee of the dollar amount to be satisfied in cash (which must be
expressed either as 100% of the Conversion Obligation or as a fixed dollar
amount) at any time on or before the date that is two Business Days following
the Company's receipt of the Notice of Conversion (such period, the "Cash
Settlement Notice Period"). If the Company elects to pay cash for any portion of
the shares otherwise issuable to the Holder, the Holder may retract the Notice
of Conversion at any time during the two Business Day period beginning on the
day after the final day of the Cash Settlement Notice Period (the "Conversion
Retraction Period"); no such retraction can be made (and a Notice of Conversion
shall be irrevocable) if the Company does not elect to deliver cash in lieu of
shares of Common Stock (other than cash in lieu of fractional shares). With
respect to any Notice of Conversion received by the Company prior to the Final
Notice Date, the "Conversion Settlement Distribution" for any Security
51
subject to such Notice of Conversion shall consist of cash, Common Stock or a
combination thereof, as selected by the Company as set forth below:
(i) if the Company elects to satisfy the entire Conversion
Obligation in shares of Common Stock, the Conversion Settlement
Distribution shall be a number of shares equal to (1) the aggregate
Original Principal Amount of the Securities to be converted divided by
1,000, multiplied by (2) the Conversion Rate, plus cash for any fractional
shares pursuant to Section 11.04;
(ii) if the Company elects to satisfy the entire Conversion
Obligation in cash, the Conversion Settlement Distribution shall be cash in
an amount equal to the product of:
(A) a number equal to the product of (x) the aggregate
Original Principal Amount of Securities to be converted divided by
1,000 multiplied by (y) the Conversion Rate, and
(B) the average of the Last Reported Sale Prices of the
Common Stock for the 10 Trading Days beginning on the Trading Day
immediately following the final day of the Conversion Retraction
Period (the "Cash Settlement Averaging Period"); and
(iii) if the Company elects to satisfy a fixed portion (other than
100%) of the Conversion Obligation in cash, the Conversion Settlement
Distribution shall consist of such cash amount ("Cash Amount") and a number
of shares equal to the greater of (1) zero and (2) the excess, if any, of
the number of shares calculated as set forth in clause (i) above over the
number of shares equal to the sum, for each day of the Cash Settlement
Averaging Period, of (x) 10% of the Cash Amount, divided by (y) the Last
Reported Sale Price of the Common Stock on such day, plus cash for any
fractional shares pursuant to Section 11.04.
(b) At any time on or before any Final Notice Date, the Company will
notify the Trustee whether it intends to satisfy all or any portion of the
Conversion Obligation with respect to conversions of Securities for which the
Company receives a Notice of Conversion after such Final Notice Date and the
dollar amount to be satisfied in cash (which must be expressed either as 100% or
as a fixed dollar amount). In such case, the applicable Conversion Settlement
Distribution will be computed in the same manner as set forth in clause (a)
above except that the Cash Settlement Averaging Period shall be the 10 Trading
Days beginning on the first Trading Day following the Company's receipt of the
Notice of Conversion or in the event that the Company receives a Notice of
52
Conversion on the Business Day prior to the Stated Maturity, the 10 Trading Days
beginning on the first Trading Day after the Stated Maturity.
Section 11.04. Fractional Shares. The Company shall not issue a fractional
share of Common Stock upon conversion of a Security. Instead, the Company will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share of Common Stock shall be determined, to the
nearest 1/1,000th of a share, by multiplying the Last Reported Sale Price of a
full share of Common Stock on the Trading Day immediately preceding the
Conversion Settlement Date by the fractional amount and rounding the product to
the nearest whole cent.
Section 11.05. Taxes on Conversion. If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer taxes due
on the issue of shares of Common Stock upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may refuse
to deliver the certificate representing the Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section 11.06. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock.
(a) The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
Common Stock to provide for the conversion of the Securities from time to time
as such Securities are presented for conversion.
(b) Before taking any action which would cause an adjustment increasing
the Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock issuable
upon conversion of the Securities, the Company will take all corporate action,
if any, which may, in the opinion of its counsel, be necessary in order that the
Company may validly and legally issue shares of such Common Stock at such
adjusted Conversion Rate.
(c) (i) The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities will upon issue be fully paid and
nonassessable by the Company and, subject to the provisions of Section 11.05,
free from all taxes, liens and charges with respect to the issue thereof.
53
(ii) The Company covenants that, if any shares of Common Stock to be
provided for the purpose of conversion of Securities hereunder require
registration with or approval of any governmental authority under any
federal or state law before such shares may be validly issued upon
conversion, the Company will in good faith and as expeditiously as
possible, to the extent then permitted by the rules and interpretations of
the Securities and Exchange Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
(d) The Company further covenants that, if at any time the Common Stock
shall be listed on the NYSE or any other national securities exchange or
automated quotation system, the Company will, if permitted by the rules of such
exchange or automated quotation system, list and keep listed, so long as the
Common Stock shall be so listed on such exchange or automated quotation system,
all Common Stock issuable upon conversion of the Security; provided, however,
that, if the rules of such exchange or automated quotation system permit the
Company to defer the listing of such Common Stock until the first conversion of
the Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
exchange or automated quotation system at such time.
Section 11.07. Adjustment of Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the sum of the number of shares
of Common Stock outstanding at the close of business on the date fixed for
the determination of stockholders entitled to receive such dividend or
other distribution plus the total number of shares of Common Stock
constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the date fixed for
such determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. If any dividend or
54
distribution of the type described in this Section 11.07(a) is declared but not
so paid or made, the Conversion Rate shall again be adjusted to the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared.
(b) In case the Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock entitling them (for a period expiring
within sixty (60) days after the date fixed for determination of stockholders
entitled to receive such rights or warrants) to subscribe for or purchase shares
of Common Stock at a price per share less than the Current Market Price as of
the date immediately preceding the record date fixed for determination of
stockholders entitled to receive such rights or warrants, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the date fixed
for determination of stockholders entitled to receive such rights or warrants by
a fraction,
(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the record date fixed for determination of
stockholders entitled to receive such rights or warrants plus the total
number of additional shares of Common Stock offered for subscription or
purchase, and
(ii) the denominator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the record
date fixed for determination of stockholders entitled to receive such
rights or warrants plus the number of shares that the aggregate offering
price of the total number of shares so offered would purchase at a price
equal to the Current Market Price as of the date immediately preceding the
record date fixed for determination of stockholders entitled to receive
such rights or warrants.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
55
Common Stock at a price less than the Current Market Price as of the date
immediately preceding the record date fixed for determination of stockholders
entitled to receive such rights or warrants, and in determining the aggregate
offering price of such shares of Common Stock, there shall be taken into account
any consideration received by the Company for such rights or warrants and any
amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of business
on the day following the day upon which such combination becomes effective shall
be proportionately reduced, such increase or reduction, as the case may be, to
become effective immediately after the opening of business on the day following
the day upon which such subdivision or combination becomes effective.
(d) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock assets, debt securities, shares of any class of
capital stock of the Company or rights or warrants to purchase any securities of
the Company excluding (x) any dividend or distribution or issuance referred to
in Section 11.07(a), (b) or (g) and (y) any dividend or distribution paid
exclusively in cash (any of the foregoing hereinafter in this Section 11.07(d)
called the "Distributed Assets or Securities")), then, in each such case, the
Conversion Rate shall be increased so that the same shall be equal to the rate
determined by multiplying the Conversion Rate in effect on the Record Date with
respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price on
such Record Date; and
(ii) the denominator of which shall be the Current Market Price
on such Record Date less the Fair Market Value (as determined by the Board
of Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of
the Distributed Assets or Securities so distributed applicable to one share
of Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that if the difference between
the Current Market Price on the Record Date and the then Fair Market Value (as
so determined) of the portion of the Distributed Securities so
56
distributed applicable to one share of Common Stock is less than $1.00, in lieu
of the foregoing adjustment, adequate provision shall be made so that each
Holder shall have the right to receive upon conversion the amount of Distributed
Assets or Securities such holder would have received had such holder converted
each Security on the Record Date. If such dividend or distribution is not so
paid or made, the Conversion Rate shall again be adjusted to be the Conversion
Rate that would then be in effect if such dividend or distribution had not been
declared. If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 11.07(d) by reference to the actual or
when issued trading market for any securities, it must in doing so consider the
prices in such market over the same period used in computing the Current Market
Price on the applicable Record Date.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 11.07 (and no adjustment to the Conversion Rate under
this Section 11.07 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 11.07(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 11.07 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such
57
redemption or repurchase, and (2) in the case of such rights or warrants that
shall have expired or been terminated without exercise thereof, the Conversion
Rate shall be readjusted as if such expired or terminated rights and warrants
had not been issued.
For purposes of this Section 11.07(d) and Section 11.07(a) and (b), any
dividend or distribution to which this Section 11.07(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock described in Section 11.07(b) (or both), shall
be deemed instead to be (1) a dividend or distribution of the evidences of
assets, debt securities or shares of capital stock other than such shares of
Common Stock or rights or warrants (and any Conversion Rate adjustment required
by this Section 11.07(d) with respect to such dividend or distribution shall
then be made) immediately followed by (2) a dividend or distribution of such
shares of Common Stock or such rights or warrants (and any further Conversion
Rate adjustment required by Sections 11.07(a) and 11.07(b) with respect to such
dividend or distribution shall then be made), except (A) the Record Date of such
dividend or distribution shall be substituted as "the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution", "the date fixed for the determination of stockholders entitled to
receive such rights or warrants" and "the date fixed for such determination"
within the meaning of Section 11.07(a) and 11.07(b) and (B) any shares of Common
Stock included in such dividend or distribution shall not be deemed "outstanding
at the close of business on the date fixed for such determination" within the
meaning of Section 11.07(a).
(e) In case the Company shall, by dividend or otherwise, make
distributions consisting exclusively of cash to all holders of its Common Stock,
excluding any quarterly cash dividend on the Common Stock to the extent that the
aggregate cash dividend per share of Common Stock in any quarter does not exceed
$0.12 (the "Dividend Threshold Amount") then, in such case, the Conversion Rate
shall be increased so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to the close of
business on such record date by a fraction,
(i) the numerator of which shall be the Current Market Price on
such record date; and
(ii) the denominator of which shall be the Current Market Price
on such record date less the amount of cash so distributed applicable to
one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
58
the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of cash such holder would have
received had such holder converted each Security on the Record Date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again
be adjusted to be the Conversion Rate that would then be in effect if such
dividend or distribution had not been declared. If any adjustment is required to
be made as set forth in this Section 11.07(e) as a result of a distribution that
is a quarterly dividend, such adjustment shall be based upon the amount by which
such distribution exceeds the Dividend Threshold Amount. If an adjustment is
required to be made as set forth in this Section 11.07(e) above as a result of a
distribution that is not a quarterly dividend, such adjustment shall be based
upon the full amount of the distribution.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Last Reported Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair
Market Value (determined as aforesaid) of the aggregate consideration
payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares
validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted up to any such maximum, being referred to as
the "Purchased Shares") and (y) the product of the number of shares of
Common Stock outstanding (less any Purchased Shares) at the Expiration Time
and the Last Reported Sale Price of a share of Common Stock on the Trading
Day next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding (including any tendered or exchanged shares) at
the Expiration Time multiplied by the Last Reported Sale Price of a share
of Common Stock on the Trading Day next succeeding the Expiration Time,
59
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(g) If the Company pays a dividend or makes a distribution to all holders
of its Common Stock consisting of capital stock of any class or series, or
similar equity interests, of or relating to a Subsidiary or other business unit
of the Company, the Conversion Rate shall be increased so that the same shall be
equal to the rate determined by multiplying the Conversion Rate in effect on the
Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the sum of (A) the average
of the Last Reported Sale Prices of the Common Stock for the ten (10)
Trading Days commencing on and including the fifth Trading Day after the
date on which "ex-dividend trading" commences for such dividend or
distribution on The New York Stock Exchange or such other national or
regional exchange or market which such securities are then listed or quoted
(the "Ex-Dividend Date") plus (B) the fair market value of the securities
distributed in respect of each share of Common Stock for which this Section
11.07(g) applies and shall equal the number of securities distributed in
respect of each share of Common Stock multiplied by the average of the
closing sale prices of those securities distributed for the ten (10)
Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date; and
(ii) the denominator of which shall be the average of the Last
Reported Sale Prices of the Common Stock for the ten (10) Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend
Date,
such adjustment to become effective immediately prior to the opening of business
on the day following fifteenth Trading Day after the Ex-Dividend Date; provided
that if (x) the average of the Last Reported Sale Prices of the Common Stock for
the ten (10) Trading Days commencing on and including the fifth Trading Day
after the Ex-Dividend Date minus (y) the fair market value of the securities
distributed in respect of each share of Common Stock for which this Section
11.07(g) applies (as calculated in Section 11.07(g)(i)(B) above) is less than
$1.00, then the adjustment provided by for by this Section 11.07(g) shall not be
made and in lieu thereof the provisions of Section 11.10 shall apply to such
distribution.
60
(h) Notwithstanding anything to the contrary, in the event of an
adjustment to the Conversion Rate pursuant to Section 11.07 (e) or (f), in no
event with the Conversion Rate exceed 20.1207 (the "Maximum Conversion Rate").
The Maximum Conversion Rate is subject to the same proportional adjustments made
to the Conversion Rate pursuant to Section 11.07(a), (b), (c), (d) or (g).
(i) If any adjustment or readjustment is made to the Conversion Rate
pursuant to this Section 11.07 (other than pursuant to Section 11.07 (e)), the
same proportional adjustment shall be made to the Dividend Threshold Amount;
provided that the Dividend Threshold Amount shall be decreased whenever the
Conversion Rate is increased and increased whenever the Conversion Rate is
decreased.
(j) For purposes of this Section 11.07, the following terms shall have the
meaning indicated:
(i) "Current Market Price" shall mean the average of the daily Last
Reported Sale Prices per share of Common Stock for the twenty consecutive
Trading Days ending on the earlier of such date of determination and the
day before the "ex" date with respect to the issuance, distribution,
subdivision or combination requiring such computation immediately prior to
the date in question. For purpose of this paragraph, the term "ex" date,
(1) when used with respect to any issuance or distribution, means the first
date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Last Reported Sale Price
was obtained without the right to receive such issuance or distribution,
and (2) when used with respect to any subdivision or combination of shares
of Common Stock, means the first date on which the Common Stock trades,
regular way, on such exchange or in such market after the time at which
such subdivision or combination becomes effective.
If another issuance, distribution, subdivision or combination to which
Section 11.07 applies occurs during the period applicable for calculating
"Current Market Price" pursuant to the definition in the preceding
paragraph, "Current Market Price" shall be calculated for such period in a
manner determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on the Last Reported
Sale Price of the Common Stock during such period.
(ii) "Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
61
(iii) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive such
cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(k) The Company may make such increases in the Conversion Rate in addition
to those required by Section 11.07(a), (b), (c), (d), (e), (f) or (g) as the
Board of Directors considers to be advisable to avoid or diminish any income tax
to holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) Business Days, the increase is irrevocable during
the period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to Holders a notice of the increase
at least fifteen (15) days prior to the date the increased Conversion Rate takes
effect, and such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
(l) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
such rate; provided that any adjustments that by reason of this Section 11.07(l)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 11 shall be made
by the Company and shall be made to the nearest cent or to the nearest one-ten
thousandth (1/10,000) of a share, as the case may be. To the extent the
Securities become convertible into cash, assets or property, subject to Section
11.10, no adjustment need be made thereafter as to the cash, assets or property.
Interest will not accrue on any cash into which the Securities are convertible.
(m) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee or Conversion
Agent shall have received such Officers' Certificate, the Trustee or Conversion
Agent, as the case may be, shall not be deemed to have knowledge of any
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adjustment of the Conversion Rate and may assume that the last Conversion Rate
of which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the
Conversion Rate setting forth the adjusted Conversion Rate and the date on which
each adjustment becomes effective and shall mail such notice of such adjustment
of the Conversion Rate to the Holder of each Security at his last address
appearing on the Security Register within twenty (20) days after execution
thereof. Failure to deliver such notice shall not affect the legality or
validity of any such adjustment.
(n) In any case in which this Section 11.07 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 11.07(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 11.07(b), or (4) the Expiration Time for any tender
or exchange offer pursuant to Section 11.07(f) (each a "Determination Date"),
the Company may elect to defer until the occurrence of the applicable Adjustment
Event (as hereinafter defined) (x) issuing to the holder of any Security
converted after such Determination Date and before the occurrence of such
Adjustment Event, the additional shares of Common Stock or other securities
issuable upon such conversion, or cash in lieu thereof, by reason of the
adjustment required by such Adjustment Event over and above the Common Stock
issuable upon such conversion, or cash in lieu thereof, before giving effect to
such adjustment and (y) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 11.04. For purposes of this Section 11.07(n), the
term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence
of such event,
(ii) in any case referred to in clause (2) hereof, the date any
such dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a sale
or exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(o) For purposes of this Section 11.07, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company, unless such treasury shares participate in any distribution or
dividend that requires an adjustment pursuant to this Section
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11.07, but shall include shares issuable in respect of scrip certificates issued
in lieu of fractions of shares of Common Stock.
Section 11.08. When No Adjustment Required. When No Adjustment Required. No
adjustment to the Conversion Rate need be made:
(a) upon the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional optional
amounts in shares of Common Stock under any plan;
(b) upon the issuance of any shares of Common Stock or options or rights
to purchase or acquire those shares pursuant to any present or future employee,
director or consultant benefit plan or program of or assumed by the Company or
any of its Subsidiaries;
(c) upon the issuance of any shares of Common Stock pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible security not
described in paragraph (b) above and outstanding as of the date of this
Indenture;
(d) for a change in the par value or no par value of the Common Stock; or
(e) for accrued and unpaid interest (including Contingent Interest or
Additional Interest, if any).
Section 11.09. Notice of Certain Transactions. In the event that:
(i) the Company takes any action which would require an adjustment
in the Conversion Rate;
(ii) the Company takes any action that requires a supplemental
indenture pursuant to Section 11.10; or
(iii) there is a dissolution or liquidation of the Company;
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least fifteen days before such date. Failure to mail such notice
or any defect therein shall not affect the validity of any transaction referred
to in clause (i), (ii) or (iii) of this Section 11.09.
Section 11.10. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege. If any of the following events occur, namely (i) any
reclassification or change of the outstanding shares of Common Stock (other than
a subdivision or combination to which Section 11.07(c) applies), (ii) any
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consolidation, merger, binding share exchange or combination of the Company with
another Person as a result of which holders of Common Stock shall be entitled to
receive stock, other securities or other property or assets (including cash)
with respect to or in exchange for such Common Stock, or (iii) any sale or
transfer of all or substantially all of the properties and assets of the Company
to any other Person as a result of which holders of Common Stock shall be
entitled to receive stock, other securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock, then the
Company or the successor or purchasing Person, as the case may be, shall execute
with the Trustee a supplemental indenture (which shall comply with the Trust
Indenture Act as in force at the date of execution of such supplemental
indenture) providing that each Security shall be convertible into the kind and
amount of shares of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, binding share exchange, combination, sale or transfer by a holder of a
number of shares of Common Stock issuable upon conversion of such Securities
(assuming, for such purposes, a sufficient number of authorized shares of Common
Stock are available to convert all such Securities) immediately prior to such
reclassification, change, consolidation, merger, combination, binding share
exchange, sale or transfer assuming such holder of Common Stock did not exercise
his rights of election, if any, as to the kind or amount of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, binding share exchange,
combination, sale or transfer (provided that, if the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
transfer is not the same for each share of Common Stock in respect of which such
rights of election shall not have been exercised ("non-electing share"), then
for the purposes of this Section 11.10 the kind and amount of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, binding share exchange,
combination, sale or transfer for each non-electing share shall be deemed to be
the kind and amount so receivable per share by a plurality of the non-electing
shares). Such supplemental indenture shall provide for adjustments which shall
be as nearly equivalent as may be practicable to the adjustments provided for in
this Article 11.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Securities, at its address appearing on
the Security register, within twenty (20) days after execution thereof and shall
issue a press release containing such information and publish such information
on its website on the World Wide Web. Failure to deliver such notice shall not
affect the legality or validity of such supplemental indenture.
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The above provisions of this Section 11.10 shall similarly apply to
successive reclassifications, changes, consolidations, mergers, binding share
exchanges, combinations, sales and transfers.
If this Section 11.10 applies to any event or occurrence, Section 11.07
shall not apply.
Section 11.11. Trustee's Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article 11 should be made, how it should
be made or what such adjustment should be, but may accept as conclusive evidence
of that fact or the correctness of any such adjustment, and shall be protected
in relying upon, an Officers' Certificate including the Officers' Certificate
with respect thereto which the Company is obligated to file with the Trustee
pursuant to Section 11.07(m). The Trustee makes no representation as to the
validity or value of any securities or assets issued upon conversion of
Securities, and the Trustee shall not be responsible for the Company's failure
to comply with any provisions of this Article 11.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 11.10, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 11.07(m).
Section 11.12. Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 shall be entitled to receive the appropriate number
of common stock or preferred stock purchase rights, as the case may be (the
"Rights"), if any, that shares of Common Stock are entitled to receive and the
certificates representing the Common Stock issued upon such conversion shall
bear such legends, if any, in each case as may be provided by the terms of any
shareholder rights agreement adopted by the Company, as the same may be amended
from time to time (in each case, a "Rights Agreement"). Provided that such
Rights Agreement requires that each share of Common Stock issued upon conversion
of Securities at any time prior to the distribution of separate certificates
representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 11, there shall
not be any adjustment to the conversion privilege or Conversion Rate as a result
of the issuance of Rights, but an adjustment to the Conversion Rate shall be
made pursuant to Section 11.07(d) upon the separation of the Rights from the
Common Stock.
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Section 11.13. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to Sections 11.02, 11.04,
11.07 or 11.10 shall be conclusive.
ARTICLE 12
Purchase At Option of Holders
Section 12.01. Right to Require Purchase.
(a) Each Holder has the right to require the Company to purchase all or a
portion of the Securities held by such Holder on August 15, 2008, 2013, 2018,
2023, and 2028, or if any such day is not a Business Day, on the immediately
succeeding Business Day (each, a "Purchase Date").
(b) On or before the 20/th/ Business Day prior to each Purchase Date, the
Company shall mail a written notice to the Trustee and any Paying Agent and to
each Holder at its address shown in the Security Register.
The notice shall include the form of Purchase Notice to be completed by the
Holder and shall state:
(i) the Purchase Price;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) the Conversion Rate and any adjustments to the Conversion
Rate;
(iv) that the Securities with respect to which a Purchase Notice has
been given by the Holder may be converted only if the Holder withdraws the
Purchase Notice in accordance with the terms of the Indenture; and
(v) the procedures set forth in Section 12.02 that each Holder must
follow to exercise its right to require the Company to purchase such
Holder's Securities.
In connection with providing such notice, the Company shall issue a press
release containing the information included in the notice and publish such
information on its website on the World Wide Web.
Section 12.02. Purchase Procedures. The Company shall purchase such
Securities for cash at a Purchase Price equal to 100% of the Accreted Principal
Amount thereof, plus accrued and unpaid interest (including Contingent Interest
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and Additional Interest, if any) to, but excluding, the Purchase Date (the
"Purchase Price") (provided that if the Purchase Date is an Interest Payment
Date, any accrued and unpaid interest, Contingent Interest or Additional
Interest, shall be paid to the Holder of record as of the applicable Regular
Record Date, rather than to the Holder presenting the Security for purchase), at
the option of the Holder thereof, upon:
(a) 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 a Purchase Date until the close of
business on the Business Day immediately preceding such Purchase Date stating:
(i) if a certificated Security has been issued, the certificate
number of the Security which the Holder will deliver to be purchased or if
not, such information as may be required under applicable procedures of the
Depositary,
(ii) the portion of the Original 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
(iii) that such Security shall be purchased as of the applicable
Purchase Date pursuant to the provisions of the Securities and this Article
12; and
(b) delivery of such Security to the Paying Agent prior to, on or after
the Purchase Date (together with all necessary endorsements) at the offices of
the Paying Agent, such delivery being a condition to receipt by the Holder of
the Purchase Price therefor; provided, however, that such Purchase Price shall
be so paid pursuant to this Article 12 only if the Security so delivered to the
Paying Agent shall conform in all respects to the description thereof in the
related Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Article 12, a portion of a Security if the Original 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
Article 12 shall be consummated by the payment of the Purchase Price to be
received by the Holder in cash promptly following the later of the Purchase Date
and the time of delivery of the Security as set forth in Section 12.04.
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Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 12.02 shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the Business Day immediately preceding the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 12.03.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
The Company may, at its option, specify additional dates on which Holders
will have the right to require it to purchase Securities upon written notice to
the Paying Agent, the Trustee and the Holders. Such notice shall specify the
additional dates upon which the Company shall be required to purchase the
Securities at the option of the Holders and shall be delivered to the Paying
Agent, the Trustee and the Holders no less than 25 Business Days prior to the
earliest purchase date specified in such notice.
Section 12.03. Effect of Purchase Notice. Upon receipt by the Paying Agent
of the Purchase Notice specified in Section 12.02(a), the Holder of the Security
in respect of which such Purchase Notice was given shall (unless such Purchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price with respect to such Security.
Such Purchase Price shall be paid to such Holder, subject to receipt of funds by
the Paying Agent, promptly following the later of (x) the Purchase Date with
respect to such Security (provided the conditions in Section 12.02 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 12.02. Securities in
respect of which a Purchase Notice has been given by the Holder thereof may not
be converted pursuant to Article 11 hereof on or after the date of the delivery
of such Purchase Notice unless such Purchase Notice has first been validly
withdrawn as specified in the following two paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent at any time prior to the
close of business on the applicable Purchase Date specifying:
(i) if certificated Securities have been issued, the certificate
number of the Security in respect of which such notice of withdrawal is
being submitted, or if not, such information as may be required under
appropriate procedures of the Depositary;
(ii) the Original Principal Amount of the Security with respect to
which such notice of withdrawal is being submitted; and
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(iii) the Original Principal Amount, if any, of such Security that
remain subject to the original Purchase Notice and have been or will be
delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any
Securities with respect to which a Purchase Notice has been withdrawn in
compliance with this Indenture, in which case, upon such return, the Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
Section 12.04. Deposit of Purchase Price. Prior to 10:00 a.m. (New York
City time) on the Purchase Date, the Company shall deposit with the Trustee or
with the Paying Agent an amount of cash (in immediately available funds if
deposited on such Purchase Date) sufficient to pay the aggregate Purchase Price
of all of the Securities or portions thereof which are to be purchased as of the
Purchase Date. The manner in which the deposit required by this Section 12.04 is
made by the Company shall be at the option of the Company, provided, however,
that such deposit shall be made in a manner such that the Trustee or a Paying
Agent shall have immediately available funds on the date of deposit.
If a Paying Agent holds, in accordance with the terms hereof, cash
sufficient to pay the Purchase Price of any Security for which a Purchase Notice
has been tendered and not withdrawn in accordance with this Indenture on the
Business Day following the Purchase Date then, immediately after such Purchase
Date, such Security will cease to be outstanding, interest (including Accreted
Interest, Contingent Interest and Additional Interest, if any) will cease to
accrue and the rights of the Holder in respect thereof shall terminate (other
than the right to receive the Purchase Price as aforesaid).
Section 12.05. Securities Purchased in Part. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company, the Paying Agent or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Paying Agent or 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 except for any taxes to be paid by the Holder in the
event a Security is registered under a new name, a new Security or Securities,
of any authorized denomination as requested by such Holder in aggregate Original
Principal Amount equal to, and in exchange for, the portion of the Original
Principal Amount of the Security so surrendered that is not purchased.
Section 12.06. Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed for two
70
years, subject to applicable unclaimed property law, together with interest, if
any, thereon held by them for the payment of the Purchase Price, provided,
however, that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 12.04 exceeds the aggregate Purchase Price of the
Securities or portions thereof which the Company is obligated to purchase as of
the Purchase Date, then promptly after the Business Day following the Purchase
Date, the Trustee or the Paying Agent, as applicable, shall return any such
excess to the Company. Thereafter, any Holder entitled to payment must look to
the Company for payment as a general creditor, unless an applicable abandoned
property law designates another Person.
ARTICLE 13
Purchase at Option of Holder Upon a Fundamental Change
Section 13.01. Right to Require Purchase.
(a) If at any time prior to Stated Maturity that Securities remain
outstanding there shall occur a Fundamental Change, Securities shall be
purchased by the Company in integral multiples of $1,000 Original Principal
Amount at the option of the Holders thereof as of the date specified by the
Company that is not less than 20 Business Days nor more than 35 Business Days
after the date of the Company's notice, pursuant to clause (b) below, of the
occurrence of the Fundamental Change (the "Fundamental Change Purchase Date")
subject to satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (c) of this Section 13.01. The purchase price of such
Securities (the "Fundamental Change Purchase Price") shall be equal to 100% of
the Accreted Principal Amount of the Securities to be purchased plus accrued and
unpaid interest (including Contingent Interest and Additional Interest, if any)
to, but excluding, the Fundamental Change Purchase Date, unless such Fundamental
Change Purchase Date falls after a Regular Record Date and on or prior to the
corresponding Interest Payment Date, in which case the Company shall pay the
full amount of accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) payable on such Interest Payment Date to the holder
of record at the close of business on such Regular Record Date.
A "Fundamental Change" shall be deemed to have occurred at such time after
the original issuance of the Securities as any of the following occurs:
(i) the Common Stock or other common stock into which the Securities
are convertible is neither listed for trading on a United States national
securities exchange nor approved for trading on the Nasdaq National Market
or another established automated over the counter trading market in the
United States;
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(ii) a "person" or "group" within the meaning of Section 13(d) of the
Exchange Act, other than the Company, any Subsidiary of the Company or any
employee benefit plan of the Company or any such Subsidiary, files a
Schedule TO (or any other schedule, form or report under the Exchange Act)
disclosing that such person or group has become the direct or indirect
ultimate beneficial owner (as defined in Rule 13d-3 of the Exchange Act) of
Voting Stock of the Company representing more than 50% of the voting power
of the Company's Voting Stock;
(iii) consummation of any share exchange, consolidation or merger of
the Company pursuant to which the Common Stock will be converted into cash,
securities or other property or any sale, lease or other transfer (in one
transaction or a series of transactions) of all or substantially all of the
consolidated assets of the Company and its Subsidiaries, taken as a whole,
to any Person (other than the Company or one or more of the Company's
Subsidiaries); provided, however, that a transaction where the holders of
the Company's Voting Stock immediately prior to such transaction own,
directly or indirectly, more than 50% of the aggregate voting power of all
classes of Voting Stock of the continuing or surviving corporation or
transferee or lessee immediately after such event shall not be a
Fundamental Change; or
(iv) Continuing Directors cease to constitute at least a majority of
the Board of Directors;
provided, however, that a Fundamental Change shall not be deemed to have
occurred in respect of any of the foregoing if either (x) the Last Reported Sale
Price per share of Common Stock for any five Trading Days within the period of
10 consecutive Trading Days ending immediately before the later of the
Fundamental Change or the public announcement thereof shall equal or exceed 105%
of the Conversion Price of the Notes in effect immediately before the
Fundamental Change or the public announcement thereof; or (y) at least 90% of
the consideration (excluding cash payments for fractional shares) in the
transaction or transactions constituting the Fundamental Change consists of
shares of capital stock traded on a national securities exchange or reported by
the NASDAQ National Market (or which shall be so traded or reported when issued
or exchanged in connection with such Fundamental Change) (such securities being
referred to as "Publicly Traded Securities") and as a result of such transaction
or transactions the Securities become convertible into such Publicly Traded
Securities (excluding cash payments for fractional shares). For purposes of the
foregoing proviso the term "capital stock" of any Person means any and all
shares, interests, participations or other equivalents however designated of
corporate stock or other equity participations, including partnership interests,
whether general or limited, of such Person and any rights (other than debt
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securities convertible or exchangeable into an equity interest), warrants or
options to acquire an equity interest in such Person.
A "Continuing Director" shall mean a director who either was a member of the
Board of Directors on August 13, 2003 or who becomes a member of the Board of
Directors subsequent to that date and whose appointment, election or nomination
for election by the Company's stockholders is duly approved by a majority of the
Continuing Directors on the Board of Directors at the time of such approval,
either by a specific vote or by approval of the proxy statement issued by the
Company on behalf of the Board of Directors in which such individual is named as
nominee for director.
(b) On or before the 30/th/ day after the occurrence of a Fundamental
Change, the Company shall mail a written notice of the Fundamental Change to the
Trustee and any Paying Agent and to each Holder.
The notice shall include the form of a Fundamental Change Purchase Notice
to be completed by the Holder and shall state:
(i) the events causing such Fundamental Change and the date of such
Fundamental Change;
(ii) the date by which the Fundamental Change Purchase Notice
pursuant to Section 13.01(c) must be given;
(iii) the Fundamental Change Purchase Date;
(iv) the Fundamental Change Purchase Price that will be payable with
respect to the Securities as of the Fundamental Change Purchase Date;
(v) briefly, the conversion rights of the Securities;
(vi) the name and address of each Paying Agent and Conversion Agent;
(vii) the Conversion Rate and any adjustments thereto;
(viii) that Securities as to which a Fundamental Change Purchase
Notice has been given may be converted into Common Stock pursuant to
Article 11 only to the extent that the Fundamental Change Purchase Notice
has been withdrawn in accordance with the terms of this Indenture;
(ix) the procedures that the Holder must follow to exercise rights
under this Section 13.01;
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(x) the procedures for withdrawing a Fundamental Change Purchase
Notice, including a form of notice of withdrawal; and
(xi) that the Holder must satisfy the requirements set forth in the
Securities in order to convert the Securities.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the purchase of Global Securities. In
connection with providing such notice, the Company shall issue a press release
containing the information included in the notice and publish such information
on its website on the World Wide Web.
(c) A Holder may exercise its rights specified in subsection (a) of this
Section 13.01 upon delivery of a written notice (which shall be in substantially
the form included as an attachment to the Securities and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "Fundamental Change Purchase
Notice") to any Paying Agent at any time prior to the close of business on the
Business Day immediately preceding the Fundamental Change Purchase Date.
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Fundamental Change Purchase Price.
The Company shall purchase from the Holder thereof, pursuant to this
Section 13.01, a portion of a Security if the Original 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 pursuant to this
Section 13.01 through Section 13.05 also apply to the purchase of such portion
of such Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 13.01 shall be consummated by the delivery of the consideration to be
received by the Holder promptly following the later of the Fundamental Change
Purchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 13.01 as set forth in Section 13.02.
Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Fundamental Change Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Fundamental Change Purchase
Notice in whole or as to a portion thereof that is an Original Principal Amount
of $1,000 or an integral multiple thereof at any time prior to the close of
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business on the Business Day immediately preceding the Fundamental Change
Purchase Date by delivery of a written notice of withdrawal to the Paying Agent
in accordance with Section 13.02.
A Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Fundamental Change Purchase Notice may be delivered or withdrawn
and such Securities may be surrendered or delivered for purchase in accordance
with the applicable procedures of the Depositary as in effect from time to time.
Section 13.02. Effect of Fundamental Change Purchase Notice.
Upon receipt by any Paying Agent of the Fundamental Change Purchase Notice
specified in Section 13.01(c), the Holder of the Security in respect of which
such Fundamental Change Purchase Notice was given shall (unless such Fundamental
Change Purchase Notice is withdrawn as specified below) thereafter be entitled
to receive the Fundamental Change Purchase Price with respect to such Security.
Such Fundamental Change Purchase Price shall be paid to such Holder promptly
following the later of (a) the Fundamental Change Purchase Date with respect to
such Security (provided the conditions in Section 13.01(c) have been satisfied)
and (b) the time of delivery of such Security to a Paying Agent by the Holder
thereof in the manner required by Section 13.01(c). Securities in respect of
which a Fundamental Change Purchase Notice has been given by the Holder thereof
may not be converted into Common Stock on or after the date of the delivery of
such Fundamental Change Purchase Notice unless such Fundamental Change Purchase
Notice has first been validly withdrawn as specified in the following paragraph.
A Fundamental Change Purchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent at any time
prior to the close of business on the Business Day immediately preceding the
applicable Fundamental Change Purchase Date specifying:
(i) if certificated Securities have been issued, the certificate
numbers for Securities in respect of which such notice of withdrawal is
being submitted, or if not, such information as required by the Depositary;
(ii) the Original Principal Amount, in integral multiples of $1,000,
of the Securities with respect to which such notice of withdrawal is being
submitted; and
75
(iii) the Original Principal Amount, if any, of such Securities that
remain subject to the original Fundamental Change Purchase Notice and have
been or will be delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders thereof any
Securities with respect to which a Fundamental Change Purchase Notice has been
withdrawn in compliance with this Indenture, in which case, upon such return,
the Fundamental Change Purchase Notice with respect thereto shall be deemed to
have been withdrawn.
Section 13.03. Deposit of Fundamental Change Purchase Price. On or before
10:00 a.m. New York City time on the Fundamental Change Purchase Date, the
Company shall deposit with the Trustee or with a Paying Agent an amount of cash
(in immediately available funds if deposited on the Fundamental Change Purchase
Date) sufficient to pay the aggregate Fundamental Change Purchase Price of all
the Securities or portions thereof that are to be purchased as of such
Fundamental Change Purchase Date. The manner in which the deposit required by
this Section 13.03 is made by the Company shall be at the option of the Company,
provided, however, that such deposit shall be made in a manner such that the
Trustee or a Paying Agent shall have immediately available funds on the date of
such deposit.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Fundamental Change Purchase Price of any Security for
which a Fundamental Change Purchase Notice has been tendered and not withdrawn
in accordance with this Indenture on the Fundamental Change Purchase Date then,
immediately following the Fundamental Change Purchase Date, such Security will
cease to be outstanding, interest (including Accreted Interest, Contingent
Interest and Additional Interest, if any) will cease to accrue and the rights of
the Holder in respect thereof shall terminate (other than the right to receive
the Fundamental Change Purchase Price). The Company shall publicly announce the
Original Principal Amount of Securities purchased as a result of such
Fundamental Change on or as soon as practicable after the Fundamental Change
Purchase Date.
Section 13.04. Securities Purchased in Part. Any Security that is to be
purchased only in part shall be surrendered at the office of a Paying Agent and
promptly after the Fundamental Change Purchase Date the Company shall execute
and the Trustee, or any Authenticating Agent, shall authenticate and deliver to
the Holder of such Security, without service charge (other than amounts to be
paid in respect of applicable transfer taxes), a new Security or Securities, of
such authorized denomination or denominations in integral multiples of $1,000
Original Principal Amount as may be requested by such Holder, in aggregate
Original Principal Amount equal to, and in exchange for,
76
the portion of the Original Principal Amount of the Security so surrendered that
is not purchased.
Section 13.05. Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed for two years,
subject to applicable unclaimed property law, together with interest, if any,
thereon held by them for the payment of the Fundamental Change Purchase Price;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 13.03 exceeds the aggregate
Fundamental Change Purchase Price of the Securities or portions thereof which
the Company is obligated to purchase as of the Fundamental Change Purchase Date,
then on the Business Day following the Fundamental Change Purchase Date, the
Trustee or Paying Agent, as applicable, shall return any such excess to the
Company. Thereafter, any Holder entitled to payment must look to the Company for
payment as general creditors, unless an applicable abandoned property law
designates another Person.
ARTICLE 14
Contingent Interest
Section 14.01. Contingent Interest. The Company will pay Contingent
Interest to Holders during any Interest Period commencing on or after August 15,
2008, if the average Trading Price of the Securities for the five Trading Day
measurement period ending on the second Trading Day immediately preceding the
first day of the applicable Interest Period (the "Measurement Period") equals
120% or more of the Accreted Principal Amount of the Securities as of the last
day of the Measurement Period. The amount of Contingent Interest payable in any
Interest Period pursuant to this Section 14.01 shall equal 0.125% of the average
Trading Price of the Securities for the applicable Measurement Period.
Section 14.02. Payment of Contingent Interest. The Company shall pay
Contingent Interest owed pursuant to Section 14.01 for any Interest Period on
the Interest Payment Date immediately succeeding the applicable Interest Period,
to Holders of Securities as of the Regular Record Date relating to such Interest
Payment Date.
Section 14.03. Notice of Contingent Interest.
(a) As soon as practicable following the first Business Day of an Interest
Period for which Contingent Interest will be payable pursuant to Section 14.01,
the Company shall issue a press release containing this information and publish
the information on its website on the World Wide Web.
77
(b) On any Interest Payment Date on which Contingent Interest is payable
pursuant to this Article 14, the Company shall issue a press release stating the
amount of such Contingent Interest and setting forth the manner in which such
amount was calculated, and publish such information on its website on the World
Wide Web.
ARTICLE 15
[RESERVED]
ARTICLE 16
Immunity of Incorporators, Stockholders, Officers, Directors and Employees
Section 16.01. Exemption from Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, whether by virtue of any constitution,
statute or rule of law, or by the enforcement of any assessment or penalty or
otherwise; it being expressly understood that this Indenture and the obligations
issued hereunder are solely corporate obligations of the Company, and that no
such personal liability whatever shall attach to, or is or shall be incurred by,
the incorporators, stockholders, officers, directors or employees, as such, of
the Company or of any successor corporation, or any of them, because of the
creation of the indebtedness hereby authorized, or under or by reason of the
obligations, covenants or agreements contained in this Indenture or in any of
the Securities or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
stockholders, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations,
covenants or agreements contained in this Indenture or in any of the Securities
or implied therefrom, are hereby expressly waived and released as a condition
of, and as a consideration for, the execution of this Indenture and the issue of
such Securities.
ARTICLE 17
Miscellaneous Provisions
Section 17.01. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture
78
contained by or in behalf of the Company shall bind its successors and assigns,
whether so expressed or not.
Section 17.02. Acts of Board, Committee or Officer of Successor Company
Valid. Any act or proceeding by any provision of this Indenture authorized or
required to be done or performed by any board, committee or officer of the
Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any corporation that shall at that time be
the successor of the Company.
Section 17.03. Required Notices or Demands. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the Holders to or on the Company may be given or served by
being mailed postage prepaid in the United States addressed (until another
address is filed by the Company with the Trustee), as follows: Lockheed Xxxxxx
Corporation, 0000 Xxxxxxxxx Xxxxx, Xxxxxxxx, Xxxxxxxx 00000, Attention:
Treasurer (with a copy, which shall not constitute notice, to the Senior Vice
President and General Counsel). Any notice, direction, request or demand by the
Company or by any Holder to or upon the Trustee may be given or made, for all
purposes, by being mailed postage prepaid in the United States addressed to the
Corporate Trust Office of the Trustee. Any notice required or permitted to be
mailed to a Holder by the Company or the Trustee pursuant to the provisions of
this Indenture shall be deemed to be properly mailed by being mailed postage
prepaid in the United States addressed to such Holder at the address of such
Holder as shown on the Security Register. In any case, where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in any
notice so mailed, to any particular Holder shall affect the sufficiency of such
notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impractical to mail notice of any event to Holders when
such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall be satisfactory to the Trustee
shall be deemed to be a sufficient giving of such notice.
Section 17.04. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
79
(a) 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
(b) an Opinion of Counsel stating that, in the opinion of such counsel, all
such conditions precedent have been complied with.
Section 17.05. Statements Required in Certificate or Opinion. Each
certificate or opinion with respect to compliance with a condition or covenant
provided for in this Indenture shall include:
(a) a statement that the person making such certificate or opinion has read
such covenant or condition;
(b) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(c) a statement that, in the opinion of such person, the person has made
such examination or investigation as is necessary to enable the person to
express an informed opinion as to whether such covenant or condition has been
complied with;
(d) a statement as to whether or not, in the opinion of such person, such
condition or covenant has been complied with.
Section 17.06. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
Section 17.07. Indenture May Be Executed in Counterparts. This Indenture
may be executed in any number of counterparts, each of which when so executed
shall be deemed an original; and all such counterparts shall together constitute
but one and the same instrument.
80
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.
LOCKHEED XXXXXX CORPORATION
By: /s/ Xxxxxxx X. Xxx Xxxxxxx
-------------------------------
Name: Xxxxxxx X. Xxx Xxxxxxx
Title: Vice President and
Treasurer
THE BANK OF NEW YORK
By: /s/ Xxxxxxxx Xxxxxx
----------------------------
Name: Xxxxxxxx Xxxxxx
Title: Vice President
EXHIBIT A
FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE
DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS AUGUST 13, 2003. IN ADDITION,
THIS SECURITY IS SUBJECT TO THE UNITED STATES FEDERAL INCOME TAX REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272,
1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE COMPARABLE YIELD OF THIS
SECURITY IS 6.52%, COMPOUNDED QUARTERLY (WHICH WILL BE TREATED AS THE YIELD TO
MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).
LOCKHEED XXXXXX CORPORATION (THE "COMPANY") AGREES, AND BY ACCEPTING A
BENEFICIAL OWNERSHIP INTEREST IN THIS SECURITY EACH HOLDER AND ANY BENEFICIAL
OWNER OF THIS SECURITY WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES (1) TO TREAT THIS SECURITY AS A DEBT INSTRUMENT THAT IS
SUBJECT TO U.S. TREAS. REG. SEC. 1.1275-4 OR ANY SUCCESSOR PROVISION (THE
"CONTINGENT DEBT REGULATIONS") AND (2) TO BE BOUND (IN THE ABSENCE OF AN
ADMINISTRATIVE DETERMINATION OR JUDICIAL RULING TO THE CONTRARY) BY THE
COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT
SCHEDULE" WITHIN THE MEANING OF THE CONTINGENT DEBT REGULATIONS, WITH RESPECT TO
THIS SECURITY. THE COMPANY AGREES TO PROVIDE PROMPTLY TO THE HOLDER OF THIS
SECURITY, UPON WRITTEN REQUEST, THE ISSUE PRICE, AMOUNT OF TAX ORIGINAL ISSUE
DISCOUNT, ISSUE DATE, YIELD TO MATURITY, COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD BE SENT TO THE COMPANY AT THE
FOLLOWING ADDRESS: LOCKHEED XXXXXX CORPORATION, 0000 XXXXXXXXX XXXXX, XXXXXXXX,
XXXXXXXX 00000, ATTENTION: TREASURER.
[Insert if Global Security:] [UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED
A-1
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.]
[Insert if restricted Security:] [THIS SECURITY AND ANY COMMON STOCK
ISSUABLE UPON THE CONVERSION OF THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE
U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY
NOTIFIED THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM
THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON THE CONVERSION OF THIS
SECURITY MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)
(1) TO A PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A "QUALIFIED
INSTITUTIONAL BUYER" WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT
ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE), (3) TO LOCKHEED XXXXXX CORPORATION OR ANY SUBSIDIARY
THEREOF OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT, AND (B) IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE
STATES OF THE UNITED STATES AND OTHER JURISDICTIONS.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND
ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO
MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS
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SECURITY AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR
REGULATION (OR THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE
RESALE OR TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS
SECURITY AND SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND
ANY SUCH SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.]
A-3
LOCKHEED XXXXXX CORPORATION
Floating Rate Convertible Senior Debentures due 2033
No. ___ Original Principal Amount: $___________
Issue Date: __________ CUSIP: _______
LOCKHEED XXXXXX CORPORATION, a Maryland corporation (the "Company"), for
value received, hereby promises to pay to ______________, or registered assigns,
the Accreted Principal Amount (as defined in the Indenture referred to on the
reverse side of this Security) on August 15, 2033.
This Security shall bear interest and Accreted Interest (as defined in the
Indenture) as specified on the reverse side of this Security and in the
Indenture. Contingent Interest, if any, on this Security, will be payable as
specified on the reverse side of this Security and in the Indenture. This
Security is convertible, is subject to redemption at the option of the Company
or purchase at the option of the Holder hereof, all as specified on the reverse
side of this Security and in the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-4
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
LOCKHEED XXXXXX CORPORATION
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
Dated:______________
THE BANK OF NEW YORK, as Trustee,
certifies that this is one of the Securities referred
to in the within-mentioned Indenture.
By: ____________________________________________________
Authorized Signatory
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[FORM OF REVERSE SIDE OF SECURITY]
Floating Rate Convertible Senior Debentures due 2033
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") limited in aggregate Original Principal
Amount to $1,000,000,000, issued under an Indenture, dated as of August 13, 2003
(the "Indenture"), between the Company and The Bank of New York, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitations of rights, duties and
immunities thereunder of the Company, the Trustee and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. Capitalized terms used and not otherwise defined in
this Security are used as defined in the Indenture.
Interest.
This Security will bear interest from August 13, 2003 or from the most
recent date to which interest has been paid or duly provided for, quarterly in
arrears on February 15, May 15, August 15 and November 15 of each year (each, an
"Interest Payment Date"), subject to Section 1.08 of the Indenture, commencing
November 15, 2003, at the rate per annum equal to 3-month LIBOR, reset quarterly
on each Interest Reset Date, minus 0.25%, to but excluding August 15, 2008.
Regardless of the level of 3-month LIBOR, however, the annual rate of interest
on the Securities during any Interest Period will never be less than zero.
Interest on this Security shall be calculated on the basis of a 360-day year and
the actual number of days elapsed during the related Interest Period. Interest
payable on this Security on any Interest Payment Date will include interest for
the immediately preceding Interest Period. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest payment, which shall be the
February 1, May 1, August 1 or November 1, as the case may be, immediately
preceding the relevant Interest Payment Date. Any interest which is payable, but
is not punctually paid or duly provided for, on any Interest Payment Date shall
forthwith cease to be payable to the registered Holder hereof on the relevant
Regular Record Date by virtue of having been such Holder, and may be paid to the
Person in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Company, notice whereof shall be
given to the Holders of Securities not less than 10 days prior to such Special
Record Date, or may be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange on which the
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Securities may be listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture.
From and after August 15, 2008, the Company will no longer be required to
pay cash interest. The Original Principal Amount of this Security shall accrete
daily at the Applicable Yield for each Interest Period, which shall be 0% prior
to August 15, 2008.
Contingent Interest.
From and after August 15, 2008, the Company will pay Contingent Interest on
this Security under the circumstances and in the amounts described in Article 14
of the Indenture. Such Contingent Interest, if any, shall be payable quarterly
in arrears on each Interest Payment Date to the Holder of this Security as of
the close of business on the Regular Record Date relating to such Interest
Payment Date.
Interest on Overdue Amounts.
If the Accreted Principal Amount hereof or any portion of such Accreted
Principal Amount is not paid when due (whether upon acceleration pursuant to
Section 4.02 of the Indenture, upon the dates set for payment of the Redemption
Price, Purchase Price or Fundamental Change Purchase Price, or upon the Stated
Maturity of this Security) or if interest due hereon (including Contingent
Interest and Additional Interest, if any) (or any portion of such interest), is
not paid when due, then in each such case the overdue amount shall, to the
extent permitted by law, bear interest at the rate then borne by this Security
or, if any overdue amount exists on or after August 15, 2008, at the Applicable
Yield of this Security for the applicable Interest Period, compounded at the end
of such Interest Period, 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
as set forth in the Indenture.
Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will make
payments in respect of Redemption Price, Purchase Price, Fundamental Change
Purchase Price and at Stated Maturity to Holders who surrender Securities to a
Paying Agent to collect such payments in respect of the Securities; provided
that if any Redemption Date, Purchase Date or Fundamental Change Date is an
Interest Payment Date, accrued and unpaid interest (including Contingent
Interest and Additional Interest, if any) shall be paid to the Holder of record
as of the applicable Regular Record Date. The Company will pay cash amounts in
money of the United States that at the time of payment is legal tender
A-7
for payment of public and private debts. However, the Company may make such cash
payments by check payable in such money; provided that payment by wire transfer
of immediately available funds will be required with respect to principal of and
interest (including Contingent Interest, if any) on all Global Securities and
all Securities of Holders of more than $25,000,000 aggregate Original Principal
Amount of Securities that have requested such method of payment and provided
wire transfer instructions to the Company or the Paying Agent at least five
Business Days prior to the applicable Interest Payment Date. If any Interest
Payment Date (other than an Interest Payment Date coinciding with the Stated
Maturity or earlier Redemption Date, Purchase Date, or Fundamental Change
Purchase Date) falls on a day that is not a Business Day, such Interest Payment
Date will be postponed to the next succeeding Business Day and no interest on
such payment will accrue for the period from and after the Interest Payment Date
to such next succeeding Business Day, provided that, if such Business Day falls
in the next succeeding calendar month, the Interest Payment Date will be the
Business Day immediately preceding such Interest Payment Date. If the Stated
Maturity, Redemption Date, Purchase Date or Fundamental Change Purchase Date of
this Security would fall on a day that is not a Business Day, the required
payment of interest, if any, and principal will be made on the next succeeding
Business Day and no interest on such payment will accrue and no principal will
accrete for the period from and after the Stated Maturity, Redemption Date,
Purchase Date or Fundamental Change Purchase Date to such next succeeding
Business Day.
Paying Agent, Conversion Agent and Registrar.
Initially, the Trustee will act as Paying Agent, Conversion Agent and
Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent, Registrar or co-registrar without notice, other than notice to the
Trustee. The Company or any of its Subsidiaries or any of their Affiliates may
act as Paying Agent, Conversion Agent, Registrar or co-registrar.
Indenture.
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"). The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are general unsecured obligations. The Indenture does not
limit other indebtedness of the Company.
A-8
Redemption at the Option of the Company.
No sinking fund is provided for the Securities. Prior to August 15, 2008,
the Securities shall not be redeemable at the option of the Company. Beginning
on August 15, 2008 and until the Stated Maturity, the Securities are redeemable
for cash as a whole, or from time to time in part, at the option of the Company
at a Redemption Price equal to 100% of the Accreted Principal Amount of the
Securities, plus accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) to, but excluding, the Redemption Date, as provided
in Article 10 of the Indenture.
If the Company redeems less than all of the outstanding Securities, the
Trustee will select the Securities to be redeemed (i) by lot; (ii) pro rata; or
(iii) by another method the Trustee considers fair and appropriate. If the
Trustee selects a portion of a Holder's Securities for partial redemption and
the Holder converts a portion of the same Securities, the converted portion
shall be deemed to be from the portion selected for redemption.
Notice of Redemption.
Notice of redemption will be mailed at least 20 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 shall cease to accrue and principal will
cease to accrete on such Securities or portions thereof. Securities in
denominations larger than $1,000 Original Principal Amount may be redeemed in
part but only in integral multiples of $1,000.
Purchase By the Company at the Option of the Holder.
Each Holder has the right to require the Company to purchase the Securities
held by such Holder on August 15, 2008, 2013, 2018, 2023 and 2028, or if any
such day is not a Business Day, the next succeeding Business Day (each, a
"Purchase Date"). If required by any Holder, the Company shall purchase
Securities for cash at a Purchase Price equal to 100% of the Accreted Principal
Amount thereof, plus accrued and unpaid interest (including Contingent Interest
and Additional Interest, if any) to, but excluding, the Purchase 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
Business Day immediately preceding such Purchase Date and upon delivery of the
Securities to the Paying Agent by the Holder as set forth in the Indenture.
A-9
At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall purchase all or a portion of the Securities
held by such Holder as of the date that is not less than 20 nor more than 35
Business Days after the date of the Company's notice to Holders of the
occurrence of a Fundamental Change occurring prior to Stated Maturity for a
Fundamental Change Purchase Price equal to 100% of the Accreted Principal Amount
thereof, plus accrued and unpaid interest (including Contingent Interest and
Additional Interest, if any) to, but excluding, the Fundamental Change Purchase
Date, unless such Fundamental Change Purchase Date falls after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, in which case
the Company shall pay the full amount of accrued and unpaid interest (including
Contingent Interest and Additional Interest, if any) payable on such Interest
Payment Date to the Holder at the close of business on such Regular Record Date.
Holders have the right to withdraw any Purchase Notice or Fundamental
Change Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
As provided in the Indenture, if cash sufficient to pay the Purchase
Price or Fundamental Change Purchase Price, as the case may be, of all
Securities or portions thereof to be purchased as of the Purchase Date or the
Fundamental Change Purchase Date, as the case may be, is deposited with the
Paying Agent on the Purchase Date or the Fundamental Change Purchase Date, as
the case may be, all interest (including Contingent Interest and Additional
Interest, if any) ceases to accrue and principal ceases to accrete on such
Securities (or portions thereof) immediately after such Purchase Date or
Fundamental Change Purchase Date, as the case may be, and the Holder thereof
shall have no other rights as such (other than the right to receive the Purchase
Price or Fundamental Change Purchase Price, as the case may be, upon surrender
of such Security).
Conversion.
Subject to the terms of the Indenture, the Holder of a Security may
convert the Security into shares of Common Stock at the Conversion Rate under
the circumstances set forth in Section 11.01 of the Indenture; provided,
however, the Company may satisfy its obligation with respect to any demand for
conversion by delivering Common Stock, cash or a combination of cash and Common
Stock. The Conversion Rate for the Securities on any Conversion Date shall be
determined as set forth in the Indenture. Upon conversion of a Security, the
Company shall deliver the Conversion Settlement Distribution within the time
periods set forth in Section 11.02 of the Indenture.
A Security in respect of which a Holder has delivered a Purchase Notice
or a Fundamental Change Purchase Notice exercising the option of such Holder
A-10
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.
A Holder's right to convert the Securities into Common Stock of the
Company is also subject to the Company's right to elect pursuant to Section
11.03 of the Indenture to pay such Holder cash in lieu of delivering all or part
of such Common Stock; provided, however, that if such payment of cash is not
permitted pursuant to the provisions of the Indenture, the Company shall deliver
Common Stock (and cash in lieu of fractional shares of Common Stock) in
accordance with the Indenture, whether or not the Company has delivered a notice
pursuant to the Indenture to the effect that the Securities will be paid in
cash.
If an Event of Default (other than a default in a cash payment upon
conversion of the Securities) shall have occurred and be continuing, the Company
shall deliver Common Stock in accordance with the terms of the Indenture,
whether or not the Company has delivered a notice pursuant to Section 11.03 of
the Indenture to the effect that the Securities would be paid in cash or a
combination of cash and Common Stock.
A Holder may convert a portion of a Security if the Original Principal
Amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment shall be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Security, any accrued and unpaid interest
(including Contingent Interest, if any, Accreted Interest for all Interest
Periods concluding prior to the Conversion Date, if any, and Accreted Interest
for the Interest Period in which the Conversion Date occurs, if any) with
respect to such Security that is attributable to the period from the Issue Date
to the Conversion Date shall not be cancelled, extinguished or forfeited but
rather shall be deemed paid in full to the Holder of such Security through the
delivery of the Common Stock (together with the cash payment, if any, in lieu of
fractional shares), or cash or a combination of cash and Common Stock in lieu
thereof, in exchange for the Security being converted pursuant to the provisions
hereof, and the fair market value of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares), or cash or a combination of cash
and Common Stock in lieu thereof, shall be treated as issued, to the extent
thereof, first in exchange for any accrued and unpaid interest (including
Contingent Interest, if any, Accreted Interest for all Interest Periods
concluding prior to the Conversion Date, if any, and Accreted Interest for the
Interest Period in which the Conversion Date occurs, if any) attributable to the
period from the Issue Date to the Conversion Date, and the balance, if any, of
such fair market value shall be treated as issued in exchange for the Original
Principal Amount of the Security being converted pursuant to the provisions
hereof. Notwithstanding the preceding sentence, on conversion of a Security
during the period from the close of business on any Regular Record Date
immediately preceding any Interest
A-11
Payment Date to the close of business on the Business Day immediately preceding
such Interest Payment Date, the Holder on such Regular Record Date shall receive
the interest payable on such Interest Payment Date.
Securities or portions thereof surrendered for conversion during the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the close of business on the Business Day
immediately preceding such Interest Payment Date shall be accompanied by payment
to the Company or its order, in New York Clearing House funds or other funds
acceptable to the Company, of an amount equal to the interest payable on such
Interest Payment Date with respect to the Original Principal Amount of
Securities or portions thereof being surrendered for conversion; provided that
no such payment need be made if (1) the Company has specified a Redemption Date
that occurs during the period from the close of business on a Regular Record
Date to the close of business on the Interest Payment Date to which such Regular
Record Date relates, (2) the Company has specified a Fundamental Change Purchase
Date during such period or (3) only to the extent of overdue interest or overdue
Contingent Interest, any overdue interest or overdue Contingent Interest exists
on the Conversion Date with respect to the Securities converted.
No fractional shares will be issued upon conversion; in lieu thereof,
an amount will be paid in cash pursuant to Section 11.04 of the Indenture. The
Company shall deliver cash or a check in lieu of any fractional share of Common
Stock
The Company agrees, and by acceptance of a beneficial interest in a
Security each Holder and any beneficial owner of a Security shall be deemed to
agree to be bound (in the absence of an administrative determination or judicial
ruling to the contrary) by the Company's determination of the projected payment
schedule within the meaning of the contingent debt regulations, and accordingly
shall treat, for United States federal income tax purposes, the fair market
value of the Common Stock received upon the conversion of a Security (together
with any cash payment in lieu of fractional shares) or cash in lieu thereof, or
a combination of cash and Common Stock as a contingent payment on the Security
for purposes of Treasury Regulation Section 1.1275-4 or any successor provision.
To convert a Security, a Holder must fulfill the conditions set forth
in Section 11.02 of the Indenture.
The Conversion Rate will be adjusted as set forth in Article 11 of the
Indenture.
A-12
Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Original 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 the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Fundamental Change
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
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.
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 Original 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 Original Principal
Amount of the Securities at the time outstanding. The Company and the Trustee
may amend the Indenture under certain circumstances without the consent of the
Holders, as described in the Indenture.
A-13
Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate Original Principal Amount of the Securities
at the time outstanding, may declare all the Securities to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which will result in the Securities becoming due and payable immediately upon
the occurrence of such Events of Default.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Original 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 Holders notice of
any continuing Default (except a Default in payment on any Security if it
determines that withholding notice is in their interests.
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.
No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Securities.
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.
Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
A-14
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).
GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture.
Lockheed Xxxxxx Corporation
0000 Xxxxxxxxx Xxxxx
Xxxxxxxx, Xxxxxxxx 00000
Attention: Treasurer
A-15
Schedule I
[Include Schedule I only for a Global Security]
LOCKHEED XXXXXX CORPORATION
Floating Rate Convertible Senior Debenture Due 2033
No. _______
===========================================================================================================
Notation Explaining Original Authorized Signature
Date Original Principal Amount Principal Amount Recorded of Trustee or Trustee
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A-16
ASSIGNMENT FORM
To assign this Security, fill in the form below:
For value received ______________________________hereby sell(s),
assign(s) and transfer(s) unto ___________________________________ (Please
insert social security or other Taxpayer Identification Number of assignee) the
within Security, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Security on the
books of Lockheed Xxxxxx Corporation (the "Company"), with full power of
substitution in the premises.
In connection with any transfer of the Security prior to the expiration
of the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Security is being transferred:
[_] To the Company or a subsidiary thereof; or
[_] To a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
[_] Pursuant to a Registration Statement which has been declared
effective under the Securities Act of 1933, as amended, and which
continues to be effective at the time of transfer; or
[_] Pursuant to and in compliance with another available exemption
from the registration requirements of the Securities Act of 1933,
as amended.
Unless one of the boxes is checked, the Trustee or Registrar will
refuse to register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof.
Dated: ______________________
______________________________
______________________________
Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution"
meeting the requirements of the
Security registrar, which requirements
include membership or participation in
the Security Transfer Agent Medallion
Program ("STAMP") or such other
A-17
"signature guarantee program" as may
be determined by the Security
registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
______________________________
Signature Guarantee
A-18
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
To convert only part of this Security, state the Original Principal Amount to be
converted (which must be $1,000 or an integral multiple of $1,000):
$___________________________
If you want the stock certificate made out in another person's name, fill in the
form below:
________________________________________________________________________________
(Insert other person's soc. sec. or tax ID no.)
________________________________________________________________________________
(Print or type other person's name, address and zip code)
Your
Signature: _____________________________________________
(Sign exactly as your name appears on the other side of this Security)
A-19
PURCHASE NOTICE
TO: LOCKHEED XXXXXX CORPORATION
THE BANK OF NEW YORK
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Lockheed Xxxxxx Corporation (the
"Company") regarding the right of holders to elect to require the Company to
purchase the Securities and requests and instructs the Company to purchase the
entire Original Principal Amount of this Security, or portion thereof (which is
$1,000 Original Principal Amount or an integral multiple thereof) designated
below, in accordance with the terms of the Indenture at the price of 100% of the
Accreted Principal Amount or proportional portion thereof, together with accrued
interest (including Contingent Interest and Additional Interest, if any) to, but
excluding, the Purchase Date, to the registered holder hereof. Capitalized terms
used herein but not defined shall have the meanings ascribed to such terms in
the Indenture. The Securities shall be purchased by the Company as of the
applicable Purchase Date pursuant to the terms and conditions specified in the
Indenture. This election is made pursuant to: Article 12, Purchase at Option of
Holders at August 15, 2008, 2013, 2018, 2023 and 2028.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Original Principal Amount to be purchased (if less than all):
Social Security or Other Taxpayer Identification Number:
A-20
OPTION OF HOLDER TO ELECT PURCHASE ON FUNDAMENTAL CHANGE
TO: LOCKHEED XXXXXX CORPORATION
THE BANK OF NEW YORK
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Lockheed Xxxxxx Corporation (the
"Company") regarding the right of holders to elect to require the Company to
purchase the Securities upon a Fundamental Change and requests and instructs the
Company pursuant to Section 13.01 to purchase the entire Original Principal
Amount of this Security, or portion thereof (which is $1,000 Original Principal
Amount or an integral multiple thereof) designated below, in accordance with the
terms of the Indenture at the price of 100% of the Accreted Principal Amount or
proportional portion thereof, together with accrued interest (including
Contingent Interest and Additional Interest, if any) to, but excluding, the
Fundamental Change Purchase Date, to the registered holder hereof. Capitalized
terms used herein but not defined shall have the meanings ascribed to such terms
in the Indenture. The Securities shall be repurchased by the Company as of the
Fundamental Change Purchase Date pursuant to the terms and conditions specified
in the Indenture.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Original Principal Amount to be purchased (if less than all):
Social Security or Other Taxpayer Identification Number:
A-21
