Exhibit 4(w)
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XXXXX FARGO & COMPANY
Floating Rate Convertible
Senior Debentures due 2033
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INDENTURE
Dated as of April 15, 2003
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CITIBANK, N.A.
TRUSTEE
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XXXXX FARGO & COMPANY
CROSS REFERENCE SHEET*
THIS CROSS REFERENCE SHEET SHOWS THE LOCATION IN THE INDENTURE OF THE PROVISIONS
INSERTED PURSUANT TO SECTION 310-318(a), INCLUSIVE, OF THE TIA.
SECTIONS OF
TRUST INDENTURE ACT INDENTURE
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310(a)(1)(2)........................................................... 5.09
(3)(4)........................................................... Inapplicable
(5)........................................................... 5.09
(b)................................................................. 5.07 and 5.09
(b)(1)(A)(C)........................................................ Inapplicable
(c)................................................................. Inapplicable
311(a)(b).............................................................. 5.10
(c)................................................................. Inapplicable
313(a)................................................................. 6.03
(b)(1).............................................................. Inapplicable
(2).............................................................. 6.03
(c)................................................................. 17.03
(d)................................................................. 6.03
314(a)................................................................. 6.04, 9.04 and 17.03
(b)................................................................. Inapplicable
(c)(1)(2)........................................................... 1.02
(3)........................................................... Inapplicable
(d)................................................................. Inapplicable
(e)................................................................. 1.02
315(a)(b)(d)........................................................... 5.01
(b)................................................................. 5.05
(e)................................................................. 4.14
316(a)(1).............................................................. 4.12 and 4.13
(2).............................................................. Inapplicable
(b)................................................................. 4.08
(c)................................................................. 1.04(e)
317(a)................................................................. 4.03 and 4.04
(b)................................................................. 9.03
318(a)(c).............................................................. 1.05
(b)................................................................. Inapplicable
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* 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. Compliance Certificates and Opinions...........................................11
Section 1.03. Forms of Documents Delivered to Trustee........................................12
Section 1.04. Acts of Holders................................................................12
Section 1.05. Conflict with Trust Indenture Act of 1939......................................13
Section 1.06. Effect of Headings and Table of Contents.......................................13
Section 1.07. Separability Clause............................................................13
Section 1.08. Benefits of Indenture..........................................................13
Section 1.09. Legal Holidays.................................................................14
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating................................................................14
Section 2.02. Execution and Authentication...................................................15
Section 2.03. Registrar, Paying Agent, Conversion Agent and Calculation Agent................16
Section 2.04. Paying Agent to Hold Money and Securities in Trust.............................16
Section 2.05. Transfer and Exchange..........................................................17
Section 2.06. Replacement Securities.........................................................18
Section 2.07. Outstanding Securities; Determinations of Holders' Actions.....................19
Section 2.08. Temporary Securities...........................................................20
Section 2.09. Cancellation...................................................................20
Section 2.10. Persons Deemed Owners..........................................................21
Section 2.11. Global Securities..............................................................21
Section 2.12. Legends........................................................................22
Section 2.13. Payment of Interest; Interest Rights Preserved.................................23
Section 2.14. CUSIP Numbers..................................................................25
Section 2.15. Calculation of Tax Original Issue Discount.....................................25
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01. Discharge of Liability on Securities...........................................26
Section 3.02. Repayment of Moneys Held by Trustee............................................26
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ARTICLE 4
REMEDIES
Section 4.01. Events of Default..............................................................27
Section 4.02. Acceleration of Maturity; Rescission and Annulment.............................28
Section 4.03. Collection of Indebtedness and Suits for Enforcement by Trustee................29
Section 4.04. Trustee May File Proofs of Claim...............................................30
Section 4.05. Trustee May Enforce Claims without Possession of Securities....................31
Section 4.06. Application of Money Collected.................................................31
Section 4.07. Limitation on Suits............................................................31
Section 4.08. Unconditional Right of Holders To Receive Principal and Interest...............32
Section 4.09. Restoration of Right and Remedies..............................................32
Section 4.10. Rights and Remedies Cumulative.................................................33
Section 4.11. Delay or Omission Not Waiver...................................................33
Section 4.12. Control by Holders.............................................................33
Section 4.13. Waiver of Past Defaults........................................................33
Section 4.14. Undertaking for Costs..........................................................34
Section 4.15. Waiver of Stay or Extension Laws...............................................34
ARTICLE 5
THE TRUSTEE
Section 5.01. Duties of Trustee..............................................................35
Section 5.02. Rights of Trustee..............................................................36
Section 5.03. Individual Rights of Trustee...................................................37
Section 5.04. Trustee's Disclaimer...........................................................38
Section 5.05. Notice of Defaults.............................................................38
Section 5.06. Compensation and Indemnity.....................................................38
Section 5.07. Replacement of Trustee.........................................................39
Section 5.08. Successor Trustee by Merger....................................................40
Section 5.09. Eligibility; Disqualification..................................................40
Section 5.10. Preferential Collection of Claims Against Company..............................40
Section 5.11. Authenticating Agent...........................................................40
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01. Company to Furnish Trustee Information as to Names and Addresses of Holders....42
Section 6.02. Preservation of Information; Communications to Holders.........................42
Section 6.03. Reports by Trustee.............................................................44
Section 6.04. Reports by Company.............................................................44
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ARTICLE 7
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 7.01. Consolidations and Mergers of Company Permitted Subject to Certain Conditions..45
Section 7.02. Rights and Duties of Successor Entity..........................................45
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders.............................46
Section 8.02. Supplemental Indentures with Consent of Holders................................47
Section 8.03. Execution of Supplemental Indentures...........................................48
Section 8.04. Effect of Supplemental Indentures..............................................49
Section 8.05. Reference in Securities to Supplemental Indentures.............................49
ARTICLE 9
COVENANTS OF THE COMPANY
Section 9.01. Payment of Principal, Premium and Interest.....................................49
Section 9.02. Maintenance of Office or Agency................................................49
Section 9.03. Money for Securities Payments to be Held in Trust..............................50
Section 9.04. Compliance Certificate.........................................................51
Section 9.05. Restrictions Upon Sale Or Issuance Of Capital Stock Of Certain Subsidiary
Banks..........................................................................51
Section 9.06. Calculation Of Original Issue Discount.........................................52
Section 9.07. Further Instruments and Acts...................................................52
Section 9.08. Obligation To Conduct Remarketing..............................................52
ARTICLE 10
REDEMPTION OF SECURITIES
Section 10.01. Right to Redeem; Notices to Trustee............................................53
Section 10.02. Selection of Securities to Be Redeemed.........................................53
Section 10.03. Notice of Redemption...........................................................53
Section 10.04. Effect of Notice of Redemption.................................................54
Section 10.05. Deposit of Redemption Price....................................................55
Section 10.06. Securities Redeemed in Part....................................................55
Section 10.07. Conversion Arrangement on Call for Redemption..................................55
ARTICLE 11
CONVERSION
Section 11.01. Conversion Rights..............................................................56
Section 11.02. Conversion Rights Based on Common Stock Price..................................56
Section 11.03. Conversion Rights Upon Credit Rating Events....................................57
Section 11.04. Conversion Rights Upon Notice of Redemption....................................57
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Section 11.05. Conversion Rights Upon Occurrence of Certain Corporate Transactions............57
Section 11.06. Conversion Upon Satisfaction Of Trading Price Condition........................58
Section 11.07. Conversion Procedures..........................................................59
Section 11.08. Fractional Shares..............................................................61
Section 11.09. Taxes on Conversion............................................................62
Section 11.10. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock..........................................62
Section 11.11. Adjustment Of Conversion Rate..................................................63
Section 11.12. Adjustment for Tax Purposes....................................................72
Section 11.13. Notice of Certain Transactions.................................................72
Section 11.14. Effect of Reclassification, Consolidation, Merger or Sale on Conversion
Privilege......................................................................73
Section 11.15. Trustee's Disclaimer...........................................................74
Section 11.16. Rights Issued in Respect of Common Stock Issued Upon Conversion................74
Section 11.17. Company Determination Final....................................................75
ARTICLE 12
PURCHASE AT OPTION OF HOLDERS
Section 12.01. Right to Require Purchase......................................................75
Section 12.02. Purchase Procedures............................................................75
Section 12.03. Effect of Purchase Notice......................................................77
Section 12.04. Deposit of Purchase Price......................................................78
Section 12.05. Securities Purchased in Part...................................................78
Section 12.06. Repayment to the Company.......................................................78
ARTICLE 13
PURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
Section 13.01. Right to Require Purchase......................................................79
Section 13.02. Effect Of Change In Control Purchase Notice....................................82
Section 13.03. Deposit of Change in Control Purchase Price....................................83
Section 13.04. Securities Purchased in Part...................................................84
Section 13.05. Repayment to the Company.......................................................84
ARTICLE 14
CONTINGENT INTEREST
Section 14.01. Contingent Interest............................................................84
Section 14.02. Payment Of Contingent Interest.................................................87
Section 14.03. Notice Of Contingent Interest..................................................87
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ARTICLE 15
YIELD RESET AND REMARKETING
Section 15.01. Remarketing Reset Event........................................................88
Section 15.02. Reset Yield....................................................................88
Section 15.03. Remarketing Procedures.........................................................89
Section 15.04. Right To Require Purchase......................................................90
ARTICLE 16
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND
EMPLOYEES
Section 16.01. Exemption From Individual Liability............................................91
ARTICLE 17
MISCELLANEOUS PROVISIONS
Section 17.01. Successors and Assigns of Company Bound by Indenture...........................92
Section 17.02. Acts of Board, Committee or Officer of Successor Corporation Valid.............92
Section 17.03. Required Notices or Demands....................................................92
Section 17.04. GOVERNING LAW..................................................................93
Section 17.05. Indenture May Be Executed in Counterparts......................................93
ANNEX A -- Form of Global Security
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Exhibit 4(w)
INDENTURE, dated as of the 15th day of April, 2003, between XXXXX FARGO
& COMPANY, a Delaware corporation (the "Company"), and CITIBANK, N.A., a
national banking association organized under the laws of the United States (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.
"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.
"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.
"Applicable Stock Price" means, in respect of a Conversion Date, the
average of the Closing 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 May 1, 2008, 0%, (2) unless a
Remarketing Reset Event occurs, from and after May 1, 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 .25% and (3)
if a Remarketing Reset Event occurs, from and after such Remarketing Reset Event
Date, for any Interest Period, the Reset Yield for such Interest Period;
provided that in no event shall the Applicable Yield be less than 0%.
"Base Conversion Price" means the dollar amount derived by dividing the
Accreted Principal Amount by the Base Conversion Rate.
"Base Conversion Rate" means 10 shares of Common Stock, subject to
adjustment as set forth in Section 11.11.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board.
"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.
"Closing 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
2
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported 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 or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Company shall be entitled to determine the
Closing Sale Price on the basis it considers appropriate. The Closing Sale Price
shall be determined without reference to extended or after hours trading.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the shares of Common Stock, $1-2/3 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 Rate" with respect to any Conversion Date means:
(i) if the Applicable Stock Price is less than or equal to
the Base Conversion Price, the Base Conversion Rate; or
(ii) if the Applicable Stock Price is greater than the Base
Conversion Price, the number of shares of Common Stock determined in
accordance with the following formula:
(Applicable Stock Price -
Base Conversion Price)
Base Conversion Rate + [ -------------------------- x Incremental Share Factor ]
Applicable Stock Price
Notwithstanding the foregoing, in no event will the Conversion Rate exceed the
Maximum Conversion Rate. Unless a Remarketing Reset Event occurs, from and after
May 1, 2008, the Conversion Rate shall be fixed at the Conversion Rate
determined as set forth above assuming a Conversion Date that is eight
3
Trading Days prior to May 1, 2008 (the "Fixed Conversion Rate"), subject to
adjustment as set forth in Article 11.
"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 Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx,
Xxx Xxxx 00000, Attention: Agency & Trust Services, 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 any Person appointed by the Trustee to act as
custodian of Global Securities for the Depositary. The Trustee initially
appoints Xxxxx Fargo Bank Minnesota, N.A. as Custodian.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Effective 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 (assuming a Conversion Date eight Trading Days prior to the date of
determination); provided that from and after May 1, 2008 (or if such day is not
a Business Day, the immediately succeeding Business Day), the Effective
Conversion Price shall be the Accreted Principal Amount as of such date of
determination divided by the Fixed Conversion Rate.
"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.
"Fixed Conversion Rate" has the meaning set forth in the definition of
Conversion Rate."
"Global Security" or "Global Securities" means Securities that are in
the form of the Securities attached hereto as Annex A.
"Holder" means a person in whose name a Security is registered on the
Registrar's books.
"Incremental Share Factor" means 33.5 shares of Common Stock, subject to
adjustment as set forth in Article 11.
"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.
4
"Interest Payment Date" means February 1, May 1, August 1 and November 1
of each year, subject to Section 1.09, commencing August 1, 2003.
"Interest Period" means (1) prior to May 1, 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 April 15, 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 Change in Control Purchase
Date, (2) unless a Remarketing Reset Event occurs, from and after May 1, 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 Change in Control Purchase Date, and
(3) if a Remarketing Reset Event occurs, from and after such Remarketing Reset
Event Date, the period from and including the applicable Remarketing Reset Date
to but excluding the next succeeding Remarketing Reset Date, or, if earlier, the
Stated Maturity or any Remarketing Purchase Date.
"Interest Reset Date" means February 1, May 1, August 1 and November 1
of each year, commencing August 1, 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.
"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.
"Liquidated Damages" means the Liquidated Damages Amount (as defined in
the Registration Rights Agreement).
"London banking day" means a day on which commercial banks are open for
business, including dealings in United States dollars, in London.
"Maximum Conversion Rate" means 21.0748 shares of Common Stock, subject
to adjustment as set forth in Article 11.
"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.
5
"Nasdaq" means the National Association of Securities Dealers Automated
Quotation System.
"Officer" means the Chairman of the Board, a Vice Chairman of the Board,
the President, any Vice President, the Treasurer, any Assistant Treasurer, the
Controller, any Assistant Controller, the Secretary, any Assistant Treasurer or
any Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Section 1.02, signed in the name of the Company by any
two Officers and delivered to the Trustee. An Officers' Certificate given
pursuant to Section 9.04 need not contain the information specified in Section
1.02.
"Opinion of Counsel" means a written opinion containing the information
specified in Section 1.02 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.
"Principal Subsidiary Bank" means any Subsidiary Bank at the time having
total assets as set forth in its most recent statement of condition equal to
more than 10% of the total consolidated assets of the Company and its
Subsidiaries determined on a consolidated basis from the Company's most recent
financial statements filed with the Commission pursuant to the Exchange Act.
"Purchase Agreement" means the Purchase Agreement dated as of April 9,
2003 among the Company and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated,
Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co., as managers 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.
6
"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 Liquidated Damages, if any) to, but excluding, the Redemption Date.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of April 15, 2003 among the Company, Xxxxxxx Lynch, Pierce, Xxxxxx &
Xxxxx Incorporated, Xxxxxx Xxxxxxx & Co. Incorporated and Xxxxxxx, Sachs & Co.,
as managers of the initial purchasers named in the Purchase Agreement.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the January 15, April 15, July 15 or October 15, as the case may be,
immediately preceding such Interest Payment Date.
"Remarketing Agent" means the remarketing agent appointed by the Company
and any successor or replacement remarketing agent appointed by the Company.
"Remarketing Agreement" means, with respect to a remarketing on a
Remarketing Reset Date, the remarketing agreement entered into between the
Company and the Remarketing Agent with respect to the remarketing of Securities
on such Remarketing Reset Date.
"Remarketing Purchase Date" means a Remarketing Reset Date on which the
Company is required to purchase Securities pursuant to Section 15.04.
"Remarketing Purchase Price" has the meaning set forth in Section 15.04.
"Remarketing Reset Date" means the date on which a Remarketing Reset
Event occurs and each May 1 thereafter until May 1, 2032 or if any such day is
not a Business Day, the immediately succeeding Business Day.
"Remarketing Reset Event" has the meaning set forth in Section 15.01.
"Remarketing Reset Event Date" means May 1 of 2008, 2013, 2018, 2023 and
2028 or, if any such day is not a Business Day, the immediately succeeding
Business Day.
"Required Remarketing Date" has the meaning set forth in Section 15.03.
"Reset Yield" has the meaning set forth in Section 15.02.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department (or any successor group)
7
including without limitation any vice president, any assistant vice president,
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 May 1, 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.
"Subsidiary Bank" means any commercial bank or trust company organized
in the United States under Federal or state law, at least a majority of the
shares of the Voting Stock of which shall at the time be owned, directly or
indirectly, by the Company or by one or more Subsidiaries or by the Company and
one or more 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 Treasury Regulation Section
1.1275-4 or any successor provision.
"3-month LIBOR," as determined by the Calculation Agent, means with
respect to any Interest Period:
8
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
if no rate appears on the particular LIBOR Determination Date on the Moneyline
Telerate Page 3750, the rate calculated by the Calculation Agent as the
arithmetic mean of at least two offered quotations obtained by the Calculation
Agent after requesting the principal London offices of each of four major
reference banks in the London interbank market to provide the Calculation Agent
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
if fewer than two offered quotations referred to in clause (b) are provided as
requested, the rate calculated by the Calculation Agent 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 Calculation Agent for loans in United States dollars to leading
European banks for a period of three months and in a principal amount that is
representative for a single transaction in United States dollars in that market
at that time, or
if the banks so selected by the Calculation Agent are not quoting as mentioned
in clause (c), 3-month LIBOR in effect on the preceding LIBOR Determination Date
(or 1.28875% per annum in the case of the Interest Reset Date on August 1,
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 for the Securities obtained by the Calculation Agent 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
9
recognized securities dealers selected by the Company; provided that if at least
three such bids cannot reasonably be obtained by the Calculation Agent, 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 Calculation Agent, one bid shall
be used; and provided further that if the Calculation Agent 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 shall be deemed to be less than 98% of the product of (a) the
Conversion Rate on such date (determined using the Closing Sale Price on such
date rather than the Applicable Stock Price) and (b) the Closing Sale Price on
such date.
"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.
(b) Other Definitions.
DEFINED IN
TERM SECTION
------------------------------------------------------- -------------
"Act".................................................. 1.04(a)
"Adjustment Event"..................................... 11.11(m)
"Agent Members"........................................ 2.11(f)
"applicants"........................................... 6.02(b)
"Associate"............................................ 13.01
"Bankruptcy Law"....................................... 4.01
"Calculation Agent".................................... 2.03
"Change in Control".................................... 13.01(a)
"Change in Control Purchase Date"...................... 13.01(a)
"Change in Control Purchase Notice".................... 13.01(c)
"Change in Control Purchase Price"..................... 13.01(a)
"Conversion Agent"..................................... 2.03
"Conversion Date"...................................... 11.07
"Current Market Price"................................. 11.11(i)
"Custodian"............................................ 4.01
"Determination Date"................................... 11.11(m)
"Defaulted Interest"................................... 2.13
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"Depositary"........................................... 2.01
"Distributed Securities"............................... 11.11(d)
"Event of Default"..................................... 4.01
"Ex-Dividend Date"..................................... 11.11(g)
"Ex-Dividend Time"..................................... 11.05
"Expiration Time"...................................... 11.11(f)
"Fair Market Value".................................... 11.11(i)
"Failed Remarketing"................................... 15.03
"Legend"............................................... 2.05(e)
"Notice of Default".................................... 4.01
"Notice of Remarketing"................................ 15.03
"Paying Agent"......................................... 2.03
"Principal Value Conversion"........................... 11.06
"Purchase Date"........................................ 12.01
"Purchased Shares"..................................... 11.11(f)
"Purchase Notice"...................................... 12.01
"Purchase Price"....................................... 12.01
"QIB".................................................. 2.01
"Record Date".......................................... 11.11(i)
"Registrar"............................................ 2.03
"Rights"............................................... 11.16
"Rights Agreement"..................................... 11.16
"S&P".................................................. 11.03
"Trigger Event"........................................ 11.11(d)
Section 1.02. Compliance Certificates and Opinions. Upon any application
or request by the Company to the Trustee to take any action under any provision
of this Indenture, the Company shall furnish to the Trustee an Officers'
Certificate stating that all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with and an Opinion
of Counsel stating that in the opinion of such counsel all such conditions
precedent, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such
certificate or opinion has read such covenant or condition and the
definitions herein relating thereto;
(ii) 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;
11
(iii) a statement that, in the opinion of each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or
not such covenant or condition has been complied with; and
(iv) a statement as to whether or not, in the opinion of each
such individual, such condition or covenant has been complied with.
Section 1.03. 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,
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 stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care (but without having made an investigation specifically for
the purpose of rendering such opinion) should know, 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 1.04. Acts of Holders. 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)
12
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
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 1.05. 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 1.06. 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 1.07. 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 1.08. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
13
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.09. 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, Remarketing
Purchase Date or Change in Control 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 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, Remarketing Purchase Date or Change in Control 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, Remarketing Purchase Date or
Change in Control Purchase Date to such next succeeding Business Day.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating. The Securities designated "Floating Rate
Convertible Senior Debentures due 2033" of the Company shall be substantially in
the form set forth in Annex A hereto, which is incorporated into and shall be
deemed a part of this Indenture, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing the Securities, as evidenced
by their execution of the Securities. Each Security shall be dated the date of
its authentication.
All of the Securities are initially being offered and sold to qualified
institutional buyers as defined in Rule 144A (collectively, "QIBs" or
individually a "QIB") in reliance on Rule 144A under the Securities Act and
shall be issued initially in the form of one or more restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, or any Custodian, as custodian
for the
14
depositary, The Depository Trust Company (such depositary, or any successor
thereto, being hereinafter referred to as the "Depositary"), and registered in
the name of its nominee, Cede & Co., duly executed by the Company and
authenticated by the Trustee as hereinafter provided.
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 or Custodian in accordance with
the standing instructions and procedures existing between the Depositary and the
Trustee or Custodian.
Certificated Securities shall be issued only under the limited
circumstances provided in Section 2.11(b) hereof.
Section 2.02. Execution and Authentication. The Securities shall be
executed by the Company by any Officer. The signature of any Officer on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee or any Authenticating Agent by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
The Trustee shall authenticate and deliver Securities for original issue
in an aggregate Original Principal Amount of $3,000,000,000 (up to
$3,450,000,000 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
15
forth in the first sentence of this paragraph, subject to the parenthetical set
forth therein, except as provided in Section 2.06.
Section 2.03 Registrar, Paying Agent, Conversion Agent and Calculation
Agent. The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for purchase or payment ("Paying
Agent") and an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and 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 also appoint an agent to perform the calculations
required pursuant to this Indenture (the "Calculation 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, Calculation
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 5.06. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Calculation Agent, Conversion Agent or co-registrar.
The Company initially appoints Xxxxx Fargo Bank Minnesota, N.A. as
Registrar, Conversion Agent, Calculation 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
16
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 of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the 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 Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(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
17
or in this Indenture as periods during which such registration of transfers and
exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing the
legends on the form of Security attached hereto as Annex 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, which Securities
shall thereupon be canceled in accordance with Section 2.09 of this Indenture.
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
18
may, instead of issuing a new Security, pay or purchase such Security, as the
case may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the 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 bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date, a Remarketing
Purchase Date or a Change in Control 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
19
Date, Change in Control Purchase Date or Stated Maturity, as the case may be,
such Securities shall cease to be outstanding and interest (including Contingent
Interest and Liquidated Damages, 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.
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, Article 13 and Section 15.04,
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 may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly 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 expressly
permitted by this Indenture. All canceled Securities held by the
20
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, Remarketing Purchase Price or Change in Control 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, (ii) the
Company decides to discontinue the use of the system of book-entry transfer
through the Depositary (or any successor Depositary) or (iii) an Event of
Default has occurred and is continuing with respect to the Securities. Any
Global Security exchanged pursuant to clause (i) above shall be so exchanged in
whole and not in part, and any Global Security exchanged pursuant to clause
(iii) above may be exchanged in whole or from time to time in part as directed
by the Depositary. Any Security issued in exchange for a Global Security or any
portion thereof shall be a Global Security; provided that any such Security so
issued that is registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.
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(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.
(a) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend including the
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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 any Contingent Interest, 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
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.
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Any interest or Contingent Interest on any Security of which 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.
On conversion of a Holder's Securities, such Holder shall not receive
any cash payment of interest. Except as set forth in the next succeeding
paragraph, the Company's delivery to a Holder of the full number of shares of
Common Stock into which a Security is convertible, together with any cash
payment for such Holder's fractional shares, or cash or a combination of cash
and Common Stock in lieu thereof, shall be deemed to satisfy the Company's
obligation to pay
24
the Accreted Principal Amount of the Security and to satisfy the Company's
obligation to pay accrued but unpaid interest (including Contingent Interest, if
any) attributable to the period from the most recent Interest Payment Date
through the Conversion Date.
Notwithstanding the above, if any Securities are converted 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, such Securities 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 Business Day
immediately preceding the Interest Payment Date to which such Regular Record
Date relates, (2) the Company has specified a Change in Control 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.
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. Calculation of Tax Original Issue Discount. 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(b). For United States
federal income tax purposes, 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 the fair market value of the Common
Stock received upon the conversion of a Security as a contingent payment for
purposes of Treasury Regulation Section 1.1275-4(b) and to accrue interest with
25
respect to outstanding Securities as original issue discount for United States
federal income tax purposes (i.e., Tax Original Issue Discount) according to the
"noncontingent bond method," set forth in Section 1.1275-4(b) of the Treasury
Regulations, using the comparable yield of 5.83% compounded quarterly. Holders
or beneficial owners may obtain a copy of the projected payment schedule by
contacting the Company: Xxxxx Fargo & Co., Xxxxx Fargo Center, MAC #N9305-173,
Sixth and Marquette, Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: Xxxxxx X.
Xxxxxxxx.
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
schedule of projected payments 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.
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, any
Remarketing Purchase Date, a Change in Control Purchase Date, or upon conversion
or otherwise, and the Company deposits with the Trustee, any Paying Agent or the
Conversion Agent, if applicable, 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 5.06, 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.
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
26
Holders for two years after the date upon which the principal of or interest on
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
(whatever the reason for such Event of Default and whether it shall be voluntary
or involuntary or be effected by operation of law, pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(a) a default in the payment of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price or
Change in Control Purchase Price with respect to any Security when such
payment becomes due and payable pursuant to the terms hereof; or
(b) default in the payment of any interest (including
Contingent Interest and Liquidated Damages, if any) upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(c) the failure of the Company to observe and perform the
covenants contained in Section 9.05; or
(d) default in the performance, or breach, of any covenant
or warranty of the Company in this Indenture (other than a covenant or
warranty 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 as been given by
registered or certified mail, 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
(e) the entry by a court having jurisdiction in the premises
of (i) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or (ii) a
decree or order adjudging the Company a bankrupt or insolvent, or
27
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or state law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or state bankruptcy, insolvency,
reorganization or other similar law or of any other case or proceeding
to be adjudicated a bankrupt or insolvent, or the consent by it to the
entry of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or state
bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against
it, or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or
the consent by it to the filing of such petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee,
trustee, sequestrator or similar official of the Company or of any
substantial part of its property, or the making by it of an assignment
for the benefit of creditors, or the admission by it in writing of its
inability to pay its debts generally as they become due, or the taking
of corporate action by the Company in furtherance of any such action.
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 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 Liquidated Damages, 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 Liquidated Damages, 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 Liquidated
Damages, if any) on all the Securities to the date of the occurrence of such
Event of Default shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
28
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in Original Principal Amount of the
Securities then outstanding, by written notice to the Company and the Trustee,
may rescind and annul such declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest (including Contingent
Interest and Liquidated Damages, if any) on all Securities,
(B) the Accreted Principal Amount of the Securities
that have become due otherwise than by such declaration of
acceleration and interest thereon at the rate or rates
prescribed therefor in such Securities or, if no such rate or
rates are so prescribed, at the rate borne by the Securities
during the period of such default, or if such default is after
May 1, 2008, the Applicable Yield of the Securities during the
period of such default,
(C) to the extent that payment of such interest is
enforceable under applicable law, interest upon overdue interest
or overdue Contingent Interest to the date of such payment or
deposit at the rate or rates prescribed therefor in such
Securities or, if no such rate or rates are so prescribed, at
the rate borne by the Securities during the period of such
default, or if such default is after May 1, 2008, the Applicable
Yield of the Securities during the period of such default, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(ii) all Events of Default with respect to the Securities,
other than the non-payment of the Accreted Principal Amount of the
Securities that have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 4.13.
No such waiver or rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 4.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that (i) in case default shall be made in the
payment of any installment of interest (including Contingent Interest and
29
Liquidated Damages, if any) on any Security, as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (ii) in case default shall be made in the payment of the Accreted Principal
Amount of any Security when the same becomes due in accordance with the terms
thereof and such default shall have continued for a period of five Business Days
then, upon demand of the Trustee, the Company will pay to the Trustee, for the
benefit of the Holders of such Securities, the whole amount that then shall have
become due and payable on all such Securities for principal or interest
(including Contingent Interest and Liquidated Damages, if any), or both, as the
case may be, with interest upon the overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) upon overdue
installments of interest at the rate borne by the Securities during the period
of such default; and, in addition thereto, such further amount as shall be
sufficient to cover reasonable compensation to the Trustee, its agents,
attorneys and counsel, and all other expenses and liabilities incurred, and all
advances made, by the Trustee except as a result of its own negligence or
willful misconduct.
If an Event of Default with respect to Securities occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of the Securities by such appropriate
judicial proceedings as the Trustee shall deem necessary to protect and enforce
any such rights, whether for the specific enforcement of any covenant or
agreement in this Indenture or in aid of the exercise of any power granted
herein, or to enforce any other proper remedy.
Section 4.04. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Accreted Principal Amount, Redemption Price, Purchase Price,
Remarketing Purchase Price, Change in Control Purchase Price or interest
(including Contingent Interest and Liquidated Damages, if any) in respect of the
Securities shall then be due and payable as therein expressed or by declaration
or otherwise and irrespective of whether the Trustee shall have made any demand
on the Company for the payment of any such amount) shall be entitled and
empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the entire Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase
Price, Change in Control Purchase Price and interest (including
Contingent Interest and Liquidated Damages, if any) owing and unpaid in
respect of the Securities and to file such other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding; and
30
(ii) to collect and receive any moneys or other property
payable or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders, to
pay to the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 4.05. Trustee May Enforce Claims without Possession of
Securities. All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment shall,
after provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, be for the
ratable benefit of the Holders of the Securities in respect of which such
judgment has been recovered.
Section 4.06. Application of Money Collected. Any money collected by
the Trustee pursuant to this Article shall be applied in the following order:
FIRST: To the payment of all amounts due the Trustee under
Section 5.06;
SECOND: To the payment of the amounts then due and unpaid for
Accreted Principal Amount, Redemption Price, Purchase Price, Remarketing
Purchase Price, Change in Control Purchase Price and interest (including
Contingent Interest and Liquidated Damages, if any) on the Securities in
respect of 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. No Holder of any Security shall have
any right to institute any proceeding, judicial or otherwise, with respect to
this
31
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;
(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) the Trustee for 60 days after its receipt of such
notice, request and offer of indemnity shall have failed to institute
any such proceeding; and
(v) no direction inconsistent with such written request
shall have been given to the Trustee pursuant to Section 4.12 during
such 60-day period by the Holders of a majority in Original Principal
Amount of the outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable and common benefit of
all of such Holders.
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, Remarketing Purchase Price, Change in Control Purchase Price and interest
(including Contingent Interest and Liquidated Damages, 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 after such respective dates, and such
rights shall not be impaired without the consent of such Holder.
Section 4.09. Restoration of Right and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
Indenture and such proceeding has been discontinued or abandoned for any
32
reason, or has been determined adversely to the Trustee or to such Holder, then
and in every such case, subject to any determination in such proceeding, the
Company, the Trustee and the Holders shall be restored severally and
respectively to their former positions hereunder and thereafter all rights and
remedies of the Trustee and the Holders shall continue as though no such
proceeding had been instituted.
Section 4.10. 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 4.11. 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 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 4.12. 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 4.13. Waiver of Past Defaults. The Holders of at least a
majority in aggregate Original Principal Amount of the outstanding Securities
33
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:
(i) that is an Event of Default described in Section
4.01(a); 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; or
(iii) that constitutes a failure to convert any Security in
accordance with the terms of Article 11.
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 4.14. Undertaking for Costs. All parties to this Indenture
agree, and each Holder of any Security by his 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 4.14 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
Section 4.15. Waiver of Stay or Extension Laws. The Company covenants
(to the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay or extension law wherever enacted, now or at any time
hereafter in force, which would prohibit or forgive the Company from paying all
or any portion of the Accreted Principal Amount, Redemption Price, Purchase
Price, Remarketing Purchase Price, Change in Control Purchase Price or interest
(including Contingent Interest and Liquidated Damages, if any) in respect of
Securities, as contemplated herein, or which may affect the covenants or the
performance of this Indenture; and the Company (to the extent that it may
34
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 5
THE TRUSTEE
Section 5.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; 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 or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture. However, in case of any such certificates or opinions which
by provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture (but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein).
This Section 5.01(b) shall be in lieu of Section 315(a) of the TIA and
such Section 315(a) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
(c) The Trustee shall 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 (c) does not limit the effect of
paragraph (b) of this Section 5.01;
(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
35
(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 4.02 and Section 4.12.
Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 5.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 5.02. Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) The Trustee may conclusively 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
a Company Request or Company Order, an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
(c) The Trustee may act through agents and attorneys and shall not
be responsible for the misconduct or negligence of any agent or attorney
appointed with due care.
(d) Subject to the provisions of Section 5.01(c), 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 selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel.
36
(f) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby.
(g) 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) The Trustee shall not be liable for any action taken, suffered,
or omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture.
(j) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 5.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or
37
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 5.09 and 5.10.
Section 5.04. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in the Indenture or the
Securities (other than its certificate of authentication), or the determination
as to which beneficial owners are entitled to receive any notices hereunder.
Section 5.05. Notice of Defaults. If a Default occurs and if it is
known to the Trustee, the Trustee shall give to each Holder notice of the
Default within 90 days after it occurs unless such Default shall have been cured
or waived before the giving of such notice. Except in the case of a Default
described in Section 4.01(b) or (a), 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 Holders. The second sentence of
this Section 5.05 shall be in lieu of the proviso to Section 315(b) of the TIA
and such proviso is hereby expressly excluded from this Indenture, as permitted
by the TIA.
Section 5.06. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as shall be
determined to have been caused by its own negligence or willful misconduct; and
(c) to fully indemnify the Trustee or any predecessor trustee and
their agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including reasonable attorneys' fees and expenses
and taxes (other than taxes based upon, measured by or determined by the income
of the Trustee)) incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs and expenses of defending itself against any claim
(whether asserted by the Company, any Holder or any other Person) or liability
in
38
connection with the exercise or performance of any of its powers or duties
hereunder.
To secure the Company's payment obligations in this Section 5.06, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase Price,
Change in Control Purchase Price or interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 5.06 shall
survive the discharge of this Indenture and resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 4.01(e) or Section 4.01(f), the expenses, including the
reasonable fees and expenses of its counsel, are intended to constitute expenses
of administration under any bankruptcy or insolvency law.
Section 5.07. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
5.07. The Holders of a majority in aggregate Original Principal Amount of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 5.09;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
In addition, the Company may remove the Trustee if the Company shall
determine by a Board Resolution that the services provided by the Trustee
hereunder may be obtained at a substantially lower cost to the Company.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall upon payment of its charges hereunder
promptly transfer all
39
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 5.06.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of a majority in aggregate Original
Principal Amount of the Securities at the time outstanding may petition at the
expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 5.09 any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Section 5.08. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee; provided that such corporation shall otherwise be qualified
and eligible under this Article.
Section 5.09. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
shall have a combined capital and surplus of at least $50,000,000 as set forth
in its most recent published annual report of condition. Nothing herein
contained shall prevent the Trustee from filing with the Commission the
application referred to in the penultimate paragraph of TIA Section 310(b).
Section 5.10. 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.
Section 5.11. Authenticating Agent.
The Trustee shall upon Company request appoint one or more
authenticating agents (including, without limitation, the Company or any
Affiliate thereof) which shall be authorized on behalf of the Trustee in
authenticating Securities in connection with the issue, delivery, registration
of transfer, exchange, partial redemption or repayment thereof (an
"Authenticating Agent"). Wherever reference is made in this Indenture to the
authentication of Securities by the Trustee or the Trustee's certificate of
authentication, such reference shall be deemed to include authentication on
behalf of the Trustee by an Authenticating Agent and a certificate of
authentication executed on behalf of the Trustee by an Authenticating Agent.
Each Authenticating Agent must be acceptable to the Company and must be a
corporation organized and doing business under the laws of the United States or
of any State, having a combined capital and surplus of at least $1,000,000,
40
authorized under such laws to do a trust business and subject to supervision or
examination by Federal or State authorities or the equivalent foreign authority
in the case of an Authenticating Agent who is not organized and doing business
under the laws of the United States or of any State thereof or the District of
Columbia.
The Trustee hereby initially appoints Xxxxx Fargo Bank Minnesota, N.A.
as its Authenticating Agent.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent.
An Authenticating Agent may at any time resign by giving written notice
of resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any Authenticating Agent by giving written notice of
termination to such Authenticating Agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
The provisions of Sections 1.04, 1.08, 2.06, 2.09, 5.02, 5.03, 5.04, and
5.06 shall be applicable to any Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities may
have endorsed thereon, in lieu of the Trustee's certificate of authentication,
an alternate certificate of authentication in substantially the following form:
41
This is one of the Securities described in the within-mentioned
Indenture.
CITIBANK, N.A.
By
------------------------------------------
As Authenticating Agent for the Trustee
By
------------------------------------------
Authorized Signatory
Dated
---------------------------------------
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(a) Semi-annually, not later than May 1 and November 1 in each year,
commencing May 1, 2004, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not more than 15
days prior to the time such list is furnished and
(b) at such other times as the Trustee may request in writing,
within 30 days after the receipt by the Company of any such request, a list of
similar form and content as of a date not more than 15 days prior to the time
such list is furnished;
provided, however, that so long as the Trustee is the Registrar, no such list
shall be required to be furnished.
Section 6.02. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, all information as to the names and addresses of the Holders of
Securities (1) contained in the most recent list furnished to it as provided in
Section 6.01 and (2) received by it in the capacity of Paying Agent or Registrar
(if so acting) hereunder.
The Trustee may destroy any list furnished to it as provided in Section
6.01 upon receipt of a new list so furnished.
42
(b) In case three or more Holders of Securities (hereinafter called
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Indenture or under
the Securities, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information
preserved at the time by the Trustee in accordance with the provisions
of subsection (a) of this Section 6.02, or
(ii) inform such applicants as to the approximate number of
Holders of Securities whose names and addresses appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, and as to the
approximate cost of mailing to such Holders the form of proxy or other
communication, if any, specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities, or would be in violation of applicable law. Such written statement
shall specify the basis of such opinion. If the Commission, after opportunity
for a hearing upon the objections specified in the written statement so filed,
shall enter an order refusing to sustain any of such objections or if, after the
entry of an order sustaining one or more of such objections, the Commission
shall find, after notice and opportunity for hearing, that all the objections so
sustained have been met and shall enter an order so declaring, the Trustee shall
mail copies of such material to all such Holders with reasonable promptness
after the entry of such order and the renewal of such tender; otherwise the
Trustee shall be relieved of any obligation or duty to such applicants
respecting their application.
(c) Each and every Holder of Securities, by receiving and holding
the same, agrees with the Company and the Trustee that neither the Company nor
43
the Trustee or any Registrar or any Paying Agent shall be held accountable by
reason of the disclosure of any such information as to the names and addresses
of the Holders in accordance with the provisions of subsection (b) of this
Section 6.02, regardless of the source from which such information was derived,
and that the Trustee shall not be held accountable by reason of mailing any
material pursuant to a request made under said subsection (b).
Section 6.03. Reports by Trustee. Within 60 days after each May 1
beginning with May 1, 2004, the Trustee shall mail to each Holder a brief report
dated as of such May 1 that complies with TIA Section 313(a), if required by
such Section 313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders shall be
filed with the Commission and each securities exchange, if any, on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
Section 6.04. 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. In the event the Company is
at any time no longer subject to the reporting requirements of Section 13 or
15(d) of the Exchange Act, it shall continue to provide the Trustee with reports
containing substantially the same information as would have been required to be
filed with the Commission had the Company continued to have been subject to such
reporting requirements. In such event, such reports shall be provided at the
times the Company would have been required to provide reports had it continued
to have been subject to such reporting requirements. The Company also shall
comply with the other provisions of TIA Section 314(a).
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely 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
44
Rule 144A(d)(4) (or any successor thereto) under the Securities Act in
connection with the offer, sale or transfer of Securities.
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 its properties and assets
substantially as an entirety to any Person, unless:
(a) 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, the properties and assets of the Company
substantially as an entirety shall be a corporation, limited liability
company, partnership, trust or other entity 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, Remarketing
Purchase Price or Change in Control Purchase Price with respect to any
Security and any interest (including Contingent Interest and Liquidated
Damages, 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
Event of Default, and no event which, after notice or lapse of time, or
both, would become an 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 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
45
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
paragraph of this instrument or any successor entity which shall theretofore
have become such in the manner presented in this Article) 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. 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, and the assumption by
the successor corporation or entity of the covenants, agreements and
obligations of the Company under this Indenture;
(ii) to add to the covenants of the Company or to add
additional rights for the benefit of the Holders of Securities or to
surrender any right or power herein conferred upon the Company;
(iii) to cure any ambiguity, omission, defect or inconsistency
herein, to correct or supplement any provision herein or in any
supplemental indenture which may be defective or inconsistent with any
other provision herein or in any supplemental indenture, or to make such
other provisions with respect to matters or questions arising under this
Indenture, provided such action shall not adversely affect the interests
of the Holders of Securities in any material respect;
(iv) to evidence and provide for the acceptance of
appointment hereunder by a successor 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;
(v) to add any additional Events of Default for the benefit
of the Holders of Securities;
(vi) to add any additional Purchase Dates on which the
Holders may require the Company to purchase their Securities pursuant to
Article 12;
(vii) to secure the Securities; and
46
(viii) to comply with any requirement of the Commission in
connection with the qualification of the Indenture under the TIA.
Any amendment described in clause (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 and adversely affect the interests of Holders.
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.
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:
(i) change the maturity of any payment of Accreted Principal
Amount of, or any installment of interest (including the payment of
Contingent Interest or Liquidated Damages, if any) on the Securities, or
(ii) reduce the Original Principal Amount or Accreted
Principal Amount thereof, or
(iii) alter the manner or rate of accretion of principal or
the manner or rate of accrual of interest (including Contingent Interest
and Liquidated Damages), or
(iv) change any place of payment where, or the coin or
currency in which, the Securities or any premium or interest (including
the payment of Contingent Interest or Liquidated Damages, if any)
thereon is payable, or
47
(v) impair the right to institute suit for the enforcement
of any such payment on or after the Stated Maturity (or, in the case of
redemption or purchase, on or after the Redemption Date or the Purchase
Date, Change in Control Purchase Date or Remarketing Purchase Date, as
the case may be), or
(vi) adversely affect the conversion rights of the Holders
under Article 11 of this Indenture or the right of Holders to require
the Company to purchase the Securities under Article 12, Article 13 and
Section 15.04 of this Indenture or the right of Holders to elect to have
their Securities remarketed as set forth in Article 15, or the
obligations of the Company pursuant to Section 9.08, or
(vii) reduce the quorum or voting requirements under this
Indenture, or
(viii) reduce the percentage in aggregate Original Principal
Amount of the outstanding Securities, the consent of whose Holders is
required for any such modification, or the consent of whose Holders is
required for any waiver of compliance with the provisions of this
Indenture or for any waiver of an Event of Default; or
(ix) modify this Section 8.02, except to increase any
percentages required for approval 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 thereby.
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.
Section 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article 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 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.
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Section 8.04. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture pursuant to the provisions of this Article, 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. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
ARTICLE 9
COVENANTS OF THE COMPANY
Section 9.01. Payment of Principal, Premium 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, Remarketing Purchase Price,
Change in Control Purchase Price and interest (including Contingent Interest and
Liquidated Damages, if any), shall be considered paid on the applicable date due
if on such date (or, in the case of a Purchase Price, Remarketing Purchase Price
or Change in Control Purchase Price, on the Business Day following the
applicable Purchase Date or Change in Control Purchase Date, as the case may be)
the Trustee or the Paying Agent holds, in accordance with this Indenture, money
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
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the Securities and this Indenture may be served. The office of the Paying Agent,
at Xxxxx Fargo Bank Minnesota, N.A., Sixth & Marquette, MAC X0000-000,
Xxxxxxxxxxx, Xxxxxxxxx, Attention: Corporate Trust Services, shall initially be
such office or agency for all of the aforesaid purposes. 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 Company shall also appoint
and maintain a Calculation Agent to perform the duties required in this
Indenture.
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. Money for Securities Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price, Change in
Control Purchase Price and interest (including Contingent Interest and
Liquidated Damages, if any) on any of the Securities, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
such sums so becoming due until such sums shall be paid to such Persons or
otherwise disposed of as herein provided. The Company will promptly notify the
Trustee of any failure by the Company to take such action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or prior to each due date of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price, Change in
Control Purchase Price and interest (including Contingent Interest and
Liquidated Damages, if any) on any Securities, deposit with a Paying Agent a sum
sufficient to pay such amounts so becoming due, such sum to be held in trust for
the benefit of the Persons entitled to such amounts, and (unless such Paying
Agent is the Trustee) the Company will promptly notify the Trustee of its action
or failure so to act.
The Company will cause each Paying Agent, other than the Trustee or an
Affiliate of the Company, to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase
Price, Change in Control Purchase Price and interest (including
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Contingent Interest and Liquidated Damages, if any) on the Securities
(whether such sums have been paid to it by the Company or by any other
obligor on the Securities) in trust for the benefit of the Persons
entitled thereto;
(ii) give the Trustee notice of any failure by the Company
(or any other obligor upon the Securities) to make any payment of the
Accreted Principal Amount, Redemption Price, Purchase Price, Remarketing
Purchase Price, Change in Control Purchase Price and interest (including
Contingent Interest and Liquidated Damages, if any) on the Securities
when the same shall be due and payable; and
(iii) at any time during the continuance of any Event of
Default, upon the written request of the Trustee, forthwith pay to the
Trustee all sums so held in trust by such Paying Agent.
Anything in this Section to the contrary notwithstanding, the Company
may, at any time, for the purpose of obtaining satisfaction and discharge of
this Indenture, or for any other reason, pay, or by Company Order direct any
Paying Agent to pay, to the Trustee all sums held in trust by the Company or
such Paying Agent, such sums to be held by the Trustee upon the same trusts as
those upon which such sums were held by the Company or such Paying Agent; and,
upon such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 9.04. Compliance Certificate. The Company will deliver to the
Trustee, on or before a date not more than 120 days after the end of each fiscal
year ending after the date hereof, an Officers' Certificate, stating, as to each
officer signing such certificate, whether or not to the best of his knowledge
the Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof (without regard to any period of grace or
requirement of notice provided hereunder), and, if the Company shall be in
default, specifying all such defaults and the nature thereof of which he may
have knowledge.
Section 9.05. Restrictions Upon Sale Or Issuance Of Capital Stock Of
Certain Subsidiary Banks. The Company will not, and will not permit any
Subsidiary to, sell, assign, pledge, transfer or otherwise dispose of, or permit
any Principal Subsidiary Bank to issue, any shares of Capital Stock of, or any
securities convertible into Capital Stock of, any Principal Subsidiary Bank or
any shares of Capital Stock of any Subsidiary owning, directly or indirectly, in
whole or in part, Capital Stock of any Principal Subsidiary Bank, except:
(i) any sale, assignment, pledge, transfer or other
disposition or issuance made, in the minimum amount required by law, to
any person for the purpose of the qualification of such person to serve
as a director;
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(ii) any sale, assignment, pledge, transfer or other
disposition or issuance if, after giving effect to such disposition and
to the issuance of any shares issuable upon conversion or exchange of
securities convertible or exchangeable into Capital Stock, the Company
would own directly or indirectly through other Subsidiaries not less
than 80% of the shares of each class of Capital Stock of such Principal
Subsidiary Bank;
(iii) any sale, assignment, pledge, transfer or other
disposition or issuance made in compliance with an order or direction of
a court or regulatory authority of competent jurisdiction; or
(iv) any sale by any Principal Subsidiary Bank of additional
shares of Capital Stock to its stockholders at any price, so long a (a)
prior to such sale the Company owns, directly or indirectly, shares of
the same class and (b) immediately after such sale, the percentage of
the shares of such class of Capital Stock owned by the Company shall not
have been reduced.
Section 9.06. Calculation Of 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 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 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.
Section 9.07. 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 request to carry out more
effectively the purposes of this Indenture.
Section 9.08. Obligation To Conduct Remarketing.
(a) The Company shall appoint a Remarketing Agent and enter into a
remarketing agreement at least 30 calendar days prior to any Remarketing Reset
Event Date and each subsequent Remarketing Reset Date.
(b) The Company shall use its reasonable best efforts to effect the
remarketing of the Securities as described in Article 15. If in the judgment of
counsel to the Company or counsel to the Remarketing Agent a registration
statement is required to effect the Remarketing, the Company shall use its
reasonable best efforts to (i) ensure that a registration statement covering the
Accreted Principal Amount of all Securities to be remarketed will be effective
in a form that will enable the Remarketing Agent to rely on it in connection
with the Remarketing or (ii) effect such Remarketing pursuant to Rule 144A or
any other applicable exemption from registration requirements under the
Securities Act.
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ARTICLE 10
REDEMPTION OF SECURITIES
Section 10.01. Right to Redeem; Notices to Trustee. Prior to May 5,
2008, the Securities shall not be redeemable at the option of the Company.
Unless a Remarketing Reset Event has occurred, beginning on May 5, 2008 and
until the earlier of the date on which a Remarketing Reset Event occurs and
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 Liquidated Damages, 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 to the Trustee provided for in this
Section 10.01 by a Company Order at least 30 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 selection at least 15 days but not more than 60 days before the Redemption
Date from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the 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 termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
Section 10.03. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed.
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The notice shall identify the Securities to be redeemed and shall at a
minimum state:
(a) the Redemption Date;
(b) the Redemption Price;
(c) the Conversion Rate;
(d) the name and address of the Paying Agent and Conversion Agent;
(e) 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;
(f) that Holders who want to convert Securities must satisfy the
requirements set forth in the applicable provisions of the Securities;
(g) 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;
(h) that Securities called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(i) 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;
(j) that, unless the Company defaults in making payment of such
Redemption Price, interest (including Contingent Interest and Liquidated
Damages, if any) on Securities called for redemption will cease to accrue on and
after the Redemption Date; and
(k) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least three Business Days prior to 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.
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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.
Section 10.07. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion of any Securities called for redemption by an agreement
with one or more investment bankers or other purchasers to purchase such
Securities by paying to a Paying Agent in trust for the Holders, on or before
11:00 A.M. New York City time on the Redemption Date, an amount that, together
with any amounts deposited with such Paying Agent by the Company for the
redemption of such Securities, is not less than the Redemption Price of such
Securities. Notwithstanding anything to the contrary contained in this Article,
the obligation of the Company to pay the Redemption Price of such Securities
shall be deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers; provided, however, that nothing in this Section 10.07
shall relieve the Company of its obligation to pay the Redemption Price of the
Securities called for redemption. If such an agreement is entered into, any
Securities called for redemption and not surrendered for conversion by the
Holders thereof prior to the relevant Redemption Date may, at the option of the
Company upon written notice to the Trustee, be deemed, to the fullest extent
permitted by law, acquired by such purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article 11) surrendered
by such purchasers for conversion, all as of immediately prior to the close of
business on the Business Day immediately prior to the Redemption Date, subject
to payment of the above amount as aforesaid. The Paying Agent shall hold and pay
to the Holders whose Securities are selected for redemption any such amount paid
to it for purchase in the same manner as it would money deposited with it by the
Company for the redemption of the Securities. Without the Paying Agent's prior
written consent, no arrangement between the Company and such purchasers for the
purchase and conversion of any Securities shall increase or otherwise affect any
of the powers, duties, responsibilities or obligations of the
55
Paying Agent as set forth in this Indenture, and the Company agrees to indemnify
the Paying Agent from, and hold it harmless against, any loss, liability or
expense arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and such
purchasers, including the costs and expenses incurred by the Paying Agent in the
defense of any claim or liability reasonably incurred without negligence or bad
faith on its part arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or obligations under
this Indenture, in accordance with the indemnity provisions applicable to the
Trustee set forth herein.
ARTICLE 11
CONVERSION
Section 11.01. Conversion Rights. The Securities shall be convertible
in accordance with their terms and in accordance with and subject to this
Article into a number of shares of Common Stock per $1,000 Original Principal
Amount of Securities equal to the Conversion Rate. Notwithstanding the
foregoing, if a Remarketing Reset Event occurs, from and after the date of such
Remarketing Reset Event, the Securities shall no longer be convertible into
Common Stock.
A Holder of a Security otherwise entitled to a fractional share upon the
conversion thereof shall receive cash in an amount equal to the value of such
fractional share based on the Applicable Stock Price with respect to such
conversion. Upon a conversion, the Company may deliver cash or a combination of
cash and Common Stock in lieu of Common Stock, as described in Section 11.07.
Upon determination that Holders are or will be entitled to convert their
Securities pursuant to this Article 11, the Company shall issue a press release
and publish such determination on the Company's Web site on the World Wide Web.
Holders may surrender Securities for conversion into shares of Common
Stock only if at least one of the conditions described in Sections 11.02 through
11.06 is satisfied. In addition, a Security in respect of which a Holder has
delivered a Purchase Notice or Change in Control Purchase Notice exercising the
option of such Holder to require the Company to purchase such Security may be
converted only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture.
Section 11.02. Conversion Rights Based on Common Stock Price. At any
time after September 30, 2003, Securities may be surrendered for conversion into
shares of Common Stock in integral multiples of $1,000 Original Principal
Amount, if, as of the last day of any calendar quarter, the Closing Sale Price
of the Common Stock for at least 20 Trading Days in a period of 30 consecutive
56
Trading Days ending on the last Trading Day of such calendar quarter is more
than 120% of the Base Conversion Price as of the last day of such calendar
quarter.
Section 11.03. Conversion Rights Upon Credit Rating Events. Securities
may be surrendered for conversion in integral multiples of $1,000 Original
Principal Amount any time after the earlier of (a) the date the Securities are
assigned a credit rating by both Standard & Poor's Ratings Services, a division
of The XxXxxx-Xxxx Companies Inc., and its successors ("S&P"), and Xxxxx'x
Investors Services and its successors ("Moody's") and (b) April 30, 2003, during
any period in which (1) the credit rating assigned to the Securities by S&P is
below A-, (2) the credit rating assigned to the Securities by Xxxxx'x is below
A1 or (3) no credit rating is assigned to the Securities by either S&P or
Moody's.
Section 11.04. Conversion Rights Upon Notice of Redemption. Holders may
surrender for conversion in integral multiples of $1,000 Original Principal
Amount any Securities called for redemption under Article 10 hereof 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.
Section 11.05. Conversion Rights Upon Occurrence of Certain Corporate
Transactions.
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 11.14(ii), any Security may
be surrendered for conversion in integral multiples of $1,000 Original Principal
Amount 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
date of such transaction 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.
If the Company distributes to all holders of Common Stock (1) rights or
warrants entitling them to purchase, for a period expiring within 45 days of the
record date for such distribution, Common Stock at less than the average Closing
Sale Price for the 10 Trading Days preceding the declaration date for such
distribution, or (2) cash, assets, debt securities or rights to purchase the
Company's securities, which distribution has a per share value exceeding 10% of
the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the declaration date for such distribution, the Securities may be
surrendered for conversion in integral multiples of $1,000 Original Principal
Amount beginning on the date that the Company gives notice to the Holders of
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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 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. Notwithstanding the
foregoing, Holders shall not have the right to surrender Securities for
conversion pursuant to this Section 11.05 if they will otherwise participate in
the distribution described above without first converting Securities into Common
Stock.
Section 11.06. Conversion Upon Satisfaction Of Trading Price Condition.
(a) Securities may be surrendered for conversion in integral
multiples of $1,000 Original Principal Amount any time during the five Business
Day period after any five consecutive Trading Day period in which the Trading
Price per $1,000 Original Principal Amount of the Securities for each day of
such five Trading Day period was less than 98% of the product of the Closing
Sale Price and the Conversion Rate as of such Trading Day (determined based on
such Closing Sale Price rather than the Applicable Stock Price).
(b) Notwithstanding the foregoing, if, on the date of any conversion
pursuant to Section 11.06(a)on or after May 1, 2028, the Closing Sale Price of
the Common Stock is greater than the Effective Conversion Price, 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 Liquidated Damages, 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 Liquidated Damages, 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 greater of the Effective Conversion Price on the Conversion Date
and the Applicable Stock Price as of the Conversion Date. The Company will pay
such Holder any portion of the Accreted Principal Amount plus accrued and unpaid
Contingent Interest and Liquidated Damages, 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 Liquidated Damages, if
any, to be paid in Common Stock, no later than the third Business Day following
the determination of the Applicable Stock Price.
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(c) In connection with any conversion pursuant to this Section
11.06, the Calculation Agent 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 per Security would be less than 98% of the product of the Closing Sale
Price of the Common Stock and the number of shares of Common Stock issuable upon
conversion of such Security. At such time, the Company shall instruct the
Calculation Agent to determine the Trading Price of the Securities beginning on
the next Trading Day and on each successive Trading Day until the Trading Price
per such Security is greater than or equal to 98% of the product of the Closing
Sale Price of the Common Stock and the Conversion Rate as of such Trading Day
(determined based on such Closing Sale Price rather than the Applicable Stock
Price).
Section 11.07. Conversion Procedures. To convert a Security, a Holder
must (a) complete and manually sign the Conversion Notice or a facsimile of the
Conversion Notice on the back of the Security and deliver such notice to the
Conversion Agent, (b) surrender the Security to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Registrar or
the Conversion Agent, (d) pay any transfer or similar tax, if required and (e)
if required, pay funds equal to the interest payable on the next Interest
Payment Date. The date on which the Holder satisfies all of those requirements
is the "Conversion Date." Except as set forth in Section 11.06, within two
Business Days following the Conversion Date, the Company shall deliver to the
Holder, through the Conversion Agent, written notice of whether such Securities
shall be converted into Common Stock or paid in cash or a combination of cash
and Common Stock (unless the Company shall have already done so pursuant to a
notice of redemption pursuant to Section 10.03 in respect of a Conversion Date
occurring before the Redemption Date set forth in such notice). If the Company
shall have notified the Holder that all of such Securities shall be converted
into Common Stock or a combination of cash and Common Stock, or if such
conversion is a Principal Value Conversion, the Company shall deliver to the
Holder through the Conversion Agent, no later than the third 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 11.08. Except as otherwise
provided in this Article 11, if the Company shall have notified the Holder that
all or a portion of such Security shall be paid solely in cash, the Company
shall deliver to the Holder surrendering such Security the amount of cash per
Security (or a portion of a Security) equal to the Applicable Stock Price
multiplied by the Conversion Rate in effect with respect to such Conversion Date
no later than the tenth Business Day following such Conversion Date. Except as
otherwise provided in this Article 11, the Company may not change its election
with respect to the consideration to be delivered upon conversion of a Security
once
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the Company has notified the Holder in accordance with this paragraph. Anything
herein to the contrary notwithstanding, in the case of Global Securities,
Conversion Notices may be delivered and such Securities may be surrendered for
conversion in accordance with the applicable procedures of the Depositary as in
effect from time to time. 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 date on which the Applicable Stock Price is determined with
respect to the applicable Conversion 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.
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. On conversion of a Security, except 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, in which case the Holder on such Regular
Record Date shall receive the interest payable on such Interest Payment Date,
that portion of accrued and unpaid interest, including Contingent Interest, if
any, on the converted Security attributable to the period from the most recent
Interest Payment Date (or, if no Interest Payment Date has occurred, from the
Issue Date) through the Conversion Date shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through delivery of the Common Stock (together with the cash payment, if any, in
lieu of fractional shares), 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 such shares of Common Stock
(together with any such cash payment 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 accrued and unpaid interest
(including Contingent Interest, if any) accrued through the Conversion Date and
the balance, if any, of such fair market value of such Common Stock (and any
such cash payment), or cash in lieu thereof, shall be treated as issued in
exchange for the Accreted Principal Amount of the Security being converted
pursuant to the provisions hereof.
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 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, or a combination of
cash and Common Stock as a contingent payment on the Security for purposes of
Treasury Regulation Section 1.1275-4(b).
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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.
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 Business Day immediately preceding the
Interest Payment Date to which such Regular Record Date relates, (2) the Company
has specified a Change in Control 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.
The Holders' rights to convert Securities into Common Stock are subject
to the Company's right to elect instead to pay each such Holder the amount of
cash determined pursuant to this Article (or an equivalent amount in a
combination of cash and shares of Common Stock), in lieu of delivering such
Common Stock; provided, however, that 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
this Article, whether or not the Company has delivered a notice pursuant to this
Section 11.07 to the effect that the Securities would be paid in cash or a
combination of cash and Common Stock.
Section 11.08. 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 Applicable
Stock Price in effect with respect to the applicable Conversion Date of a full
share of Common Stock by the fractional amount and rounding the product to the
nearest whole cent.
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Section 11.09. Taxes on Conversion. If a Holder converts a Security,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on the issue of shares of Common Stock upon 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 11.10. 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 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 non-assessable by the Company and free from all taxes, liens and charges
with respect to the issue thereof.
(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
62
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 11.11. Adjustment Of Conversion Rate. The Base 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 Base Conversion Rate shall be increased so that the same shall equal
the rate determined by multiplying the Base 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
distribution of the type described in this Section 11.11(a) is declared but not
so paid or made, the Base Conversion Rate shall again be adjusted to the Base
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 forty-five (45) 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 average of
the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding
the declaration date for such distribution, the Base Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Base Conversion Rate in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or warrants by a
fraction,
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(i) the numerator of which shall be the number of shares of
Common Stock outstanding on the 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
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 average of the Closing Sale Prices of the Common Stock for
the 10 Trading Days preceding the declaration date for such
distribution.
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
Base Conversion Rate shall be readjusted to the Base 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 Base Conversion Rate shall again be adjusted to be the Base 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 Common Stock at a price less than the average of the
Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the
declaration date for such distribution, 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 Base 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 Base 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.
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(d) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock shares of any class of capital stock of the
Company or evidences of its indebtedness or assets (including securities, but
excluding (x) any rights or warrants referred to in Section 11.11(b), (y) any
dividend or distribution (I) paid exclusively in cash or (II) referred to in
Section 11.11(a) and (z) any distribution referred to in Section 11.11(g)) (any
of the foregoing hereinafter in this Section 11.11(d) called the "Distributed
Securities")), then, in each such case, the Base Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying
the Base 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 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 then Fair Market
Value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than
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 Distributed 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 Base
Conversion Rate shall again be adjusted to be the Base 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 11.11(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 11.11 (and no adjustment to the Base Conversion Rate
under this
65
Section 11.11 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 Base
Conversion Rate shall be made under this Section 11.11(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 Base Conversion Rate under this Section 11.11 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 Base 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 redemption or repurchase, and (2) in the
case of such rights or warrants that shall have expired or been terminated
without exercise thereof, the Base Conversion Rate shall be readjusted as if
such expired or terminated rights and warrants had not been issued.
For purposes of this Section 11.11(d) and Section 11.11(a) and (b), any
dividend or distribution to which this Section 11.11(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Base Conversion Rate adjustment required by this Section 11.11(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 Base Conversion Rate adjustment
required by Sections 11.11(a) and 11.11(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 11.11(a) and 11.11(b) and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed "outstanding at the close of
66
business on the date fixed for such determination" within the meaning of Section
11.11(a).
(e) In case the Company shall, by dividend or otherwise, distribute
to all holders of its Common Stock cash, excluding any dividend or distribution
in connection with the liquidation, dissolution or winding up of the Company,
whether voluntary or involuntary, to the extent that the aggregate amount of
cash distributions per share of Common Stock in any twelve month period exceeds
the greater of (x) the annualized amount per share of Common Stock of the next
preceding quarterly cash dividend on the Common Stock to the extent that such
preceding quarterly dividend did not require any adjustment of the Base
Conversion Rate pursuant to this Section 11.11(e) (as adjusted to reflect
subdivisions, or combinations of the Common Stock), and (y) 10% of the average
of the Closing Sale Price during the ten Trading Days immediately prior to the
date of declaration of such dividend, then, in such case, the Base Conversion
Rate shall be increased so that the same shall equal the rate determined by
multiplying the Base 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
(including only the amount of cash distributed in excess of the
threshold set forth above) 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
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 Base Conversion Rate shall
again be adjusted to be the Base 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 11.11(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 amount of the quarterly cash
dividend permitted to be excluded pursuant hereto. If an adjustment is required
to be made as set forth in this Section 11.11(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
67
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 Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Base Conversion Rate shall be increased so
that the same shall equal the rate determined by multiplying the Base 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 Closing 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 Closing Sale Price of a share
of Common Stock on the Trading Day next succeeding the Expiration Time,
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 Base Conversion Rate shall again be
adjusted to be the Base 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 Base Conversion Rate shall be increased so that the
same shall be equal to the rate determined by multiplying the Base 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 Closing Sale Prices of the Common Stock for the ten (10)
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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 11.11(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
Closing 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 Closing 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
11.11(g) applies (as calculated in Section 11.11(g)(ii)(B) above) is less than
$1.00, then the adjustment provided by for by this Section 11.11(g) shall not be
made and in lieu thereof the provisions of Section 11.14 shall apply to such
distribution.
(h) If any adjustment or readjustment is made to the Base Conversion
Rate pursuant to this Section 11.11, the same proportional adjustment shall be
made to the Incremental Share Factor, the Maximum Conversion Rate and any Fixed
Conversion Rate.
(i) For purposes of this Section 11.11, the following terms shall
have the meaning indicated:
(i) "Current Market Price" shall mean the average of the
daily Closing Sale Prices per share of Common Stock for the ten
consecutive Trading Days selected by the Company commencing no more than
30 Trading Days before and ending not later than 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 Closing Sale Price was obtained without the right
69
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 11.11 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 Closing 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.
(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).
(j) The Company may make such increases in the Base Conversion Rate
in addition to those required by Section 11.11(a), (b), (c), (d), (e) or (f) 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 Base Conversion Rate by any amount for any period of time if
the period is at least twenty (20) 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 Base 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 Base
Conversion Rate takes effect, and such notice shall state the increased Base
Conversion Rate (and, as applicable, the Incremental Share Factor, the Maximum
Conversion Rate and any Fixed Conversion Rate) and the period during which they
will be in effect.
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(k) No adjustment in the Base Conversion Rate (and, as applicable,
the Incremental Share Factor, the Maximum Conversion Rate and any Fixed
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 11.11(k) 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. No adjustment need be made for rights
to purchase Common Stock pursuant to a Company plan for reinvestment of
dividends or interest or, except as set forth in this Article 11, for any
issuance of Common Stock or convertible or exchangeable securities or rights to
purchase Common Stock or convertible or exchangeable securities. To the extent
the Securities become convertible into cash, assets, property or securities
(other than capital stock of the Company), subject to Section 11.14, no
adjustment need be made thereafter as to the cash, assets, property or such
securities. Interest will not accrue on any cash into which the Securities are
convertible.
(l) Whenever the Base Conversion Rate (and, as applicable, the
Incremental Share Factor, the Maximum Conversion Rate and any Fixed 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 Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed 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
adjustment of the Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed Conversion Rate) and may
assume that the last Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed 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 Base
Conversion Rate (and, as applicable, the Incremental Share Factor, the Maximum
Conversion Rate and any Fixed Conversion Rate) setting forth the adjusted Base
Conversion Rate (and, as applicable, the Incremental Share Factor, the Maximum
Conversion Rate and any Fixed Conversion Rate) and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of
the Base Conversion Rate (and, as applicable, the Incremental Share Factor, the
Maximum Conversion Rate and any Fixed 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.
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(m) In any case in which this Section 11.11 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 11.11(a), (3)
a date fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 11.11(b), or (4) the Expiration Time for any tender
or exchange offer pursuant to Section 11.11(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 by reason of the adjustment required by such
Adjustment Event over and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (y) paying to such holder any amount
in cash in lieu of any fraction pursuant to Section 11.08. For purposes of this
Section 11.11(m), 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.
(n) For purposes of this Section 11.11, 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
11.11, but shall include shares issuable in respect of scrip certificates issued
in lieu of fractions of shares of Common Stock.
Section 11.12. Adjustment for Tax Purposes. The Company shall be
entitled to make such increases in the Base Conversion Rate (and, as applicable,
the Incremental Share Factor, the Maximum Conversion Rate and any Fixed
Conversion Rate), in addition to those required by Section 11.11, as in its
discretion shall determine to be advisable in order that any stock dividends,
subdivisions of shares, distributions of rights to purchase stock or securities
or distributions of securities convertible into or exchangeable for stock
hereafter made by the Company to its stockholders shall not be taxable.
Section 11.13. Notice of Certain Transactions. In the event that:
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(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 11.14; 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 11.13.
Section 11.14. 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 11.11(c) applies), (ii) any
consolidation, merger 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 conveyance 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,
combination, sale or conveyance 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, sale or conveyance 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,
combination, sale or conveyance (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
conveyance 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 11.14 the kind and amount of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation,
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merger, combination, sale or conveyance 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.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 11.14 applies to any event or occurrence, Section 11.11
shall not apply.
Section 11.15. Trustee's Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article 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 11.11(l). 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.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 11.14, 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 11.11(l).
Section 11.16. 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
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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 Base Conversion Rate (and
as applicable, the Incremental Share Factor, the Maximum Conversion Rate and any
Fixed Conversion Rate) as a result of the issuance of Rights, but an adjustment
to the Base Conversion Rate (and as applicable, the Incremental Share Factor,
the Maximum Conversion Rate and any Fixed Conversion Rate) shall be made
pursuant to Section 11.11(d) upon the separation of the Rights from the Common
Stock.
Section 11.17. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to Sections 11.07, 11.08,
11.11, 11.12 or 11.14 shall be conclusive.
ARTICLE 12
PURCHASE AT OPTION OF HOLDERS
Section 12.01. Right to Require Purchase.
(a) Unless a Remarketing Reset Event occurs, each Holder has the
right to require the Company to purchase all or a portion of the Securities held
by such Holder on May 1, 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"), if the Securities are not immediately convertible into Common
Stock on such Purchase Date.
(b) The Company shall give notice of each Purchase Date and of the
procedures set forth in Section 12.02 that each Holder must follow to exercise
its purchase right to each Holder at its address set forth in the Security
Register and to the Depositary, not later than 21 Business Days prior to each
Purchase Date.
Section 12.02. Purchase Procedures. If the Holders have the right to
require the purchase of Securities pursuant to Section 12.01, 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 and Liquidated Damages, 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
Liquidated Damages, 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:
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(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 21 Business Days prior to a Purchase Date until the close of
business on 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 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 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, 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 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.
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 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
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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 in accordance with the
Purchase Notice 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
(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.
There shall be no purchase of any Securities pursuant to this Article 12
if there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Purchase Notice) and is
continuing an Event of Default (other than a default in the payment of the
Purchase Price with respect to such Securities). The Paying Agent will promptly
return to the respective Holders thereof any Securities (x) with respect to
which a Purchase Notice has been withdrawn in compliance with this Indenture, or
(y) held by it during the continuance of an Event of Default (other than a
default in the payment of the Purchase Price with respect to such Securities) in
which case,
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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 11:00 a.m. (New York
City time) on the Business Day immediately following 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 Business Day)
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 Contingent
Interest and Liquidated Damages, 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, or any Authenticating Agent, 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 which 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 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 or Common Stock 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
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payment must look to the Company for payment as general creditors, unless an
applicable abandoned property law designates another Person.
ARTICLE 13
PURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
Section 13.01. Right to Require Purchase.
(a) Unless a Remarketing Reset Event occurs, if at any time prior to
Stated Maturity that Securities remain outstanding there shall occur a Change in
Control, 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 occurrence of the Change in Control (the "Change
in Control 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 "Change in Control 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
Liquidated Damages, if any) to, but excluding, the Change in Control Purchase
Date, unless such Change in Control 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 Liquidated Damages, if any) payable on such Interest
Payment Date to the holder of record at the close of business on such Regular
Record Date.
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger
of the Company pursuant to which the Common Stock would be converted
into cash, securities or other property, in each case other than a
consolidation or merger of the Company in which the holders of the
Common Stock immediately prior to the consolidation or merger have,
directly or indirectly, at least a majority of the total voting power in
the aggregate of all classes of capital stock of the continuing or
surviving corporation immediately after such consolidation or merger; or
(ii) There is a report filed on Schedule 13D or 14D-1 (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person, including such person's Affiliates or
Associates (for the purposes of this Section 13.01 only, as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of the Exchange
Act) has become the beneficial owner (as the term "beneficial owner" is
defined under Rule 13d-3 or any successor rule or regulation
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promulgated under the Exchange Act) of 50% or more of the voting power
of the Common Stock or other Capital Stock into which the Common Stock
is reclassified or changed; provided, however, that a person shall not
be deemed beneficial owner of, or to own beneficially, (A) any
securities tendered pursuant to a tender or exchange offer made by or on
behalf of such person or any of such person's Affiliates or Associates
until such tendered securities are accepted for purchase or exchange
thereunder, or (B) any securities if such beneficial ownership (1)
arises solely as a result of a revocable proxy delivered in response to
a proxy or consent solicitation made pursuant to the applicable rules
and regulations under the Exchange Act, and (2) is not also then
reportable on Schedule 13D (or any successor schedule) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 13.01, a Change
in Control shall not be deemed to have occurred by virtue of the Company, any
Subsidiary, any employee stock ownership plan or any other employee benefit plan
of the Company or any Subsidiary, or any person holding Common Stock for or
pursuant to the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report) under the Exchange Act
disclosing beneficial ownership by it of shares of Common Stock, whether in
excess of 50% or otherwise.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2
of the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(b) Within 15 Business Days after the occurrence of a Change in
Control, the Company shall mail a written notice of the Change in Control to the
Trustee and any Paying Agent and to each Holder.
The notice shall include the form of a Change in Control Purchase Notice
to be completed by the Holder and shall state:
(i) the date of such Change in Control and, briefly, the
events causing such Change in Control;
(ii) the date by which the Change in Control Purchase Notice
pursuant to this Section 13.01 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price that will be
accrued and payable with respect to the Securities as of the Change in
Control Purchase Date;
(v) briefly, the conversion rights of the Securities;
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(vi) the name and address of each Paying Agent and Conversion
Agent;
(vii) the Base Conversion Rate, the Maximum Conversion Rate
and the current Conversion Rate (using the Applicable Stock Price as
determined as of the Business Day prior to the date on which the notice
pursuant to this Section 13.01(b) is mailed by the Company to the
Trustee or Paying Agent (assuming a Conversion Date eight Trading Days
prior to such date), and any adjustments thereto;
(viii) that Securities as to which a Change in Control Purchase
Notice has been given may be converted into Common Stock pursuant to
Article 11 only to the extent that the Change in Control 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;
(x) the procedures for withdrawing a Change in Control
Purchase Notice, including a form of notice of withdrawal;
(xi) that the Holder must satisfy the requirements set forth
in the Securities in order to convert the Securities; and
(xii) the last date on which the purchase right may be
exercised.
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.
(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 "Change in Control
Purchase Notice") to any Paying Agent at any time prior to the close of business
on the Change in Control 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 Change in Control 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
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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 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 Change in Control
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 Change in Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control 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
business on the Change in Control 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 Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control 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 Change In Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control Purchase
Notice specified in Section 13.01(c), the Holder of the Security in respect of
which such Change in Control Purchase Notice was given shall (unless such Change
in Control Purchase Notice is withdrawn as specified below) thereafter be
entitled to receive the Change in Control Purchase Price with respect to such
Security. Such Change in Control Purchase Price shall be paid to such Holder
promptly following the later of (a) the Change in Control 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 Change in Control 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 Change in Control Purchase Notice unless such Change in
Control Purchase Notice has first been validly withdrawn as specified in the
following paragraph.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
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accordance with the Change in Control Purchase Notice at any time prior to the
close of business on the applicable Change in Control 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
(iii) the Original Principal Amount, if any, of such
Securities that remain subject to the original Change in Control
Purchase Notice and have been or will be delivered for purchase by the
Company.
There shall be no purchase of any Securities pursuant to this Article if
there has occurred (prior to, on or after, as the case may be, the giving, by
the Holders of such Securities, of the required Change in Control Purchase
Notice) and is continuing an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Change in Control Purchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such Securities)
in which case, upon such return, the Change in Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 13.03. Deposit of Change in Control Purchase Price. On or
before 11:00 a.m. New York City time on the Business Day immediately following
the Change in Control 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 such Business Day) sufficient to pay the aggregate Change in
Control Purchase Price of all the Securities or portions thereof that are to be
purchased as of such Change in Control 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 Change in Control Purchase Price of any Security for which
a Change in Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture on the Business Day following the Change in
Control Purchase Date then, immediately following the Change in Control Purchase
Date, such Security will cease to be outstanding, interest (including
83
Contingent Interest and Liquidated Damages, if any) will cease to accrue and the
rights of the Holder in respect thereof shall terminate (other than the right to
receive the Change in Control Purchase Price). The Company shall publicly
announce the Original Principal Amount of Securities purchased as a result of
such Change in Control on or as soon as practicable after the Change in Control
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 Change in Control 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, 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 Change in Control 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 Change
in Control Purchase Price of the Securities or portions thereof which the
Company is obligated to purchase as of the Change in Control Purchase Date, then
on the Business Day following the 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.
(a) Unless a Remarketing Reset Event occurs, the Company will pay
Contingent Interest to Holders during any Interest Period commencing on or after
May 1, 2008, if (x) the average Trading Price of the Securities for the five
Trading Day measurement period 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 first day of such
Measurement Period and (y) the Securities are immediately convertible into
Common Stock on the first day of such Measurement Period. The amount of
Contingent Interest payable in any Interest Period pursuant to this Section
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14.01(a) will be equal to the Fixed Conversion Rate multiplied by the Payment
Factor for such Interest Period. The "Payment Factor" for each Interest Period
is set forth in the table below, subject to adjustment for any subdivisions,
combinations or reclassifications of shares of the Common Stock.
INTEREST PERIOD COMMENCING PAYMENT FACTOR
------------------------------- --------------
May 1, 2008.................... $ 0.44
August 1, 2008................. 0.44
November 1, 2008............... 0.44
February 1, 2009............... 0.46
May 1, 2009.................... 0.46
August 1, 2009................. 0.46
November 1, 2009............... 0.48
February 1, 2010............... 0.48
May 1, 2010.................... 0.48
August 1, 2010................. 0.50
November 1, 2010............... 0.50
February 1, 2011............... 0.50
May 1, 2011.................... 0.52
August 1, 2011................. 0.52
November 1, 2011............... 0.52
February 1, 2012............... 0.54
May 1, 2012.................... 0.54
August 1, 2012................. 0.54
November 1, 2012............... 0.56
February 1, 2013............... 0.56
May 1, 2013.................... 0.56
August 1, 2013................. 0.58
November 1, 2013............... 0.58
February 1, 2014............... 0.58
May 1, 2014.................... 0.60
August 1, 2014................. 0.60
November 1, 2014............... 0.60
February 1, 2015............... 0.62
May 1, 2015.................... 0.62
August 1, 2015................. 0.62
November 1, 2015............... 0.64
February 1, 2016............... 0.64
May 1, 2016.................... 0.64
August 1, 2016................. 0.66
November 1, 2016............... 0.66
February 1, 2017............... 0.66
May 1, 2017.................... 0.68
August 1, 2017................. 0.68
November 1, 2017............... 0.68
February 1, 2018............... 0.70
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INTEREST PERIOD COMMENCING PAYMENT FACTOR
------------------------------- --------------
May 1, 2018.................... 0.70
August 1, 2018................. 0.70
November 1, 2018............... 0.72
February 1, 2019............... 0.72
May 1, 2019.................... 0.72
August 1, 2019................. 0.74
November 1, 2019............... 0.74
February 1, 2020............... 0.74
May 1, 2020.................... 0.76
August 1, 2020................. 0.76
November 1, 2020............... 0.76
February 1, 2021............... 0.78
May 1, 2021.................... 0.78
August 1, 2021................. 0.78
November 1, 2021............... 0.80
February 1, 2022............... 0.80
May 1, 2022.................... 0.80
August 1, 2022................. 0.82
November 1, 2022............... 0.82
February 1, 2023............... 0.82
May 1, 2023.................... 0.84
August 1, 2023................. 0.84
November 1, 2023............... 0.84
February 1, 2024............... 0.86
May 1, 2024.................... 0.86
August 1, 2024................. 0.86
November 1, 2024............... 0.88
February 1, 2025............... 0.88
May 1, 2025.................... 0.88
August 1, 2025................. 0.90
November 1, 2025............... 0.90
February 1, 2026............... 0.90
May 1, 2026.................... 0.92
August 1, 2026................. 0.92
November 1, 2026............... 0.92
February 1, 2027............... 0.94
May 1, 2027.................... 0.94
August 1, 2027................. 0.94
November 1, 2027............... 0.96
February 1, 2028............... 0.96
May 1, 2028.................... 0.96
August 1, 2028................. 0.98
November 1, 2028............... 0.98
February 1, 2029............... 0.98
May 1, 2029.................... 1.00
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INTEREST PERIOD COMMENCING PAYMENT FACTOR
------------------------------- --------------
August 1, 2029................. 1.00
November 1, 2029............... 1.00
February 1, 2030............... 1.02
May 1, 2030.................... 1.02
August 1, 2030................. 1.02
November 1, 2030............... 1.04
February 1, 2031............... 1.04
May 1, 2031.................... 1.04
August 1, 2031................. 1.06
November 1, 2031............... 1.06
February 1, 2032............... 1.06
May 1, 2032.................... 1.08
August 1, 2032................. 1.08
November 1, 2032............... 1.08
February 1, 2033............... 1.10
(b) Unless a Remarketing Reset Event occurs, the Company will pay
Contingent Interest (in addition to Contingent Interest payable pursuant to
Section 14.01(a)) to Holders during any Interest Period commencing on or after
May 1, 2008, if (x) the average Trading Price of the Securities for the
applicable Measurement Period equals 200% or more of the Accreted Principal
Amount of the Securities as of the first day of such Measurement Period and (y)
the Securities are immediately convertible into Common Stock on the first day of
such Measurement Period. The amount of Contingent Interest payable in any
Interest Period pursuant to this Section 14.01(b) will be equal to .0625% 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(a) or (b) for any Interest
Period on the Interest Payment Date immediately succeeding the applicable
Interest Period (whether or not interest on the Securities is otherwise payable
on such Interest Payment Date), 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(a) or (b), the Company shall issue a press release containing this
information and publish the information on its website on the World Wide Web.
(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
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which such amount was calculated, and publish such information on its website on
the World Wide Web.
ARTICLE 15
YIELD RESET AND REMARKETING
Section 15.01. Remarketing Reset Event. Unless a Remarketing Reset Event
has previously occurred, if the average of the Closing Sale Prices of the Common
Stock over the five Trading Day period ending on the Trading Day immediately
preceding any Remarketing Reset Event Date is less than the Effective Conversion
Price as of such Trading Day (a "Remarketing Reset Event"), then following such
Remarketing Reset Event Date, the Company will not pay regular cash interest or
Contingent Interest on the Securities, the Securities will no longer be
convertible into Common Stock, the right of Holders to require the Company to
purchase Securities on a Purchase Date or upon a Change in Control shall cease,
and the yield on the Securities will be reset on such Remarketing Reset Event
Date and each Remarketing Reset Date thereafter.
Section 15.02. Reset Yield.
(a) The yield on the Securities will be reset by the Remarketing
Agent on each Remarketing Reset Date to the yield (the "Reset Yield") for the
applicable Interest Period (as defined in clause (3) of the definition thereof)
necessary for the proceeds from the remarketing of the Securities, net of any
fee to the Remarketing Agent, to be 100% of Accreted Principal Amount, as of
such Remarketing Reset Date, of the Securities remarketed; provided that the
Reset Yield shall not exceed the maximum rate permitted by law and shall not be
less than 0% per annum.
(b) Notwithstanding the foregoing, if (i) Holders of less than $50
million aggregate Original Principal Amount of Securities elect to have their
Securities remarketed on any Remarketing Reset Date pursuant to Section 15.03 or
(ii) a Failed Remarketing occurs on any Remarketing Reset Date, the Reset Yield
shall be the yield necessary, in the judgment of the Remarketing Agent based on
bids from at least three independent nationally recognized securities dealers
selected by the Remarketing Agent, for the Securities to trade at a price equal
to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset
Date. If the Remarketing Agent is not able to obtain bids from at least three
independent nationally recognized securities dealers on a Remarketing Reset
Date, the Reset Yield shall be the Reset Yield in effect on the previous
Remarketing Reset Date, or if no previous Remarketing Reset Date has occurred,
the regular interest rate or Applicable Yield in effect for the Securities
immediately prior to the applicable Remarketing Reset Date.
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(c) By approximately 4:30 p.m., New York City time, on any
Remarketing Reset Date, the Remarketing Agent shall notify the Company, the
Trustee, the Paying Agent and the Depositary of the Reset Yield. The Company
shall issue a press release stating such Reset Yield and publish such
information on its website on the World Wide Web.
Section 15.03. Remarketing Procedures.
(a) On any Remarketing Reset Event Date, each Holder of Securities
will have the right to elect to have its Securities remarketed by notice to the
Paying Agent on or prior to the Business Day immediately prior to any
Remarketing Reset Event Date of the Original Principal Amount of Securities such
Holder wants to have remarketed if a Remarketing Reset Event occurs. Following
the occurrence of a Remarketing Reset Event, each Holder, whether or not such
Holder elected to have its Securities remarketing on any prior Remarketing Reset
Date, may elect to participate in a remarketing by notice to the Paying Agent on
or prior to the Business Day prior to the applicable Remarketing Reset Date (a
"Notice of Remarketing").
(b) If on any Remarketing Reset Date a Remarketing Reset Event
occurs or has previously occurred and Holders of at least $50 million aggregate
Original Principal Amount of Securities have elected to have their Securities
remarketed (a "Required Remarketing Date"), the Remarketing Agent shall conduct
such remarketing in accordance with the terms of the Remarketing Agreement and
this Indenture.
(c) If the Securities are successfully remarketed by the Remarketing
Agent on any Required Remarketing Date, the Remarketing Agent shall deduct any
fee specified in the Remarketing Agreement from the proceeds of such remarketing
and remit the remaining proceeds, which shall be at least 100% of the Accreted
Principal Amount of the Securities remarketed, to the Holders who elected to
participate in such remarketing as promptly as possible following the applicable
Required Remarketing Date.
(d) If, by 4:00 p.m., New York City time, on any Required
Remarketing Date, the Remarketing Agent is unable to remarket all Securities for
which an election to remarket has been made or a condition precedent in the
Remarketing Agreement shall not have been fulfilled, a failed remarketing
("Failed Remarketing") shall be deemed to have occurred. In the event of a
Failed Remarketing, the Company shall issue a press release regarding such
Failed Remarketing and stating the aggregate Original Principal Amount of
Securities that the Company will repurchase as required pursuant to Section
15.04(a) and publish such information on its website on the World Wide Web.
(e) The Company will request, not later than 20 Business Days prior
to each date by which Holders are required to give notice pursuant to Section
15.03(a), that the Depositary notify its participants of the potential
remarketing
89
of the Securities, the procedures a beneficial owner must follow to elect to
participate in such remarketing, the date by which such election must be made
and the right of the beneficial owners of Securities to require the Company to
purchase Securities if there is a Failed Remarketing. The Company will also
issue a press release and publish such information on its website on the World
Wide Web.
(f) Securities in respect of which a Notice of Remarketing 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 Notice of Remarketing unless such
Notice of Remarketing has first been validly withdrawn as specified below.
A Notice of Remarketing may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Notice of Remarketing at any time prior to the close of business on the
applicable Remarketing Reset 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
(iii) the Original Principal Amount, if any, of such
Securities that remain subject to the original Notice of Remarketing and
have been or will be delivered for purchase by the Company.
Section 15.04. Right To Require Purchase.
(a) If a Failed Remarketing occurs on any Remarketing Reset Date,
each Holder of Securities will have the right to require to the Company to
purchase all or a portion of its Securities on such Remarketing Reset Date for
cash. The Company shall purchase such Securities at a purchase price (the
"Remarketing Purchase Price") equal to 100% of the Accreted Principal Amount
thereof as of the applicable Remarketing Reset Date, plus accrued and unpaid
interest (including Contingent Interest and Liquidated Damages, if any) to, but
excluding such Remarketing Reset Date. Each Holder must notify the Paying Agent
on or prior to each Remarketing Reset Event Date and any subsequent Remarketing
Reset Date of the aggregate Original Principal Amount of Securities it wants the
Company to repurchase in the event of a Failed Remarketing. The Holders of
Securities who elect to participate in any remarketing will be deemed to have
elected to exercise their right to require the Company to purchase the aggregate
Original Principal Amount of Securities for which they elected remarketing.
90
(b) If Holders of less than $50 million aggregate Original Principal
Amount of Securities elect to have their Securities remarketed on any
Remarketing Reset Date, there will not be a remarketing and such Holders who
elected remarketing, but only such Holders, will have the right to require to
the Company to purchase all or a portion of its Securities on such Remarketing
Reset Date for cash. Such Holders are deemed to exercise such right with respect
to the aggregate Original Principal Amount of Securities for which they elected
remarketing. The Company shall purchase such Securities at the Remarketing
Purchase Price.
(c) The procedures set forth in Sections 12.04 through 12.06 shall
apply to the purchase of Securities by the Company pursuant to Sections 15.04(a)
or (b), mutatis mutandis, except references to Purchase Date and Purchase Price
shall be deemed to refer instead to Remarketing Purchase Date and Remarketing
Purchase Price, respectively.
(d) Securities in respect of which a purchase notice pursuant to
Section 15.04(a) 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
Notice of Remarketing unless such Purchase Notice has first been validly
withdrawn as specified below.
A purchase notice pursuant to Section 15.04(a) 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 Remarketing Reset 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
(iii) the Original Principal Amount, if any, of such
Securities that remain subject to the original purchase notice and have
been or will be delivered for purchase by the Company.
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
91
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
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
Corporation 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: Xxxxx
Fargo & Company, Xxxxx Fargo Center, MAC #N9305-173, Sixth and Marquette,
Xxxxxxxxxxx, Xxxxxxxxx, 00000, Attention: Xxxxxx X. Xxxxxxxx. 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
92
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. 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 17.05. 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.
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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.
XXXXX FARGO & COMPANY
By: /s/ Xxxxxxxxx X. Xxxxx
------------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: Senior Vice President and Treasurer
CITIBANK, N.A.
By: /s/ Xxxxx Xxxxx
------------------------------------------
Name: Xxxxx Xxxxx
Title: Assistant Vice President
Exhibit 4(w)
[FORM OF FACE OF GLOBAL SECURITY]
[FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE
CODE OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH ORIGINAL ISSUE
DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS APRIL 15, 2003. IN ADDITION,
THIS SECURITY IS SUBJECT TO 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 5.83%, COMPOUNDED QUARTERLY (WHICH WILL BE TREATED AS THE YIELD TO
MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).
XXXXX FARGO & COMPANY (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 TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS"), (2)
TO TREAT THE FAIR MARKET VALUE OF ANY STOCK RECEIVED UPON ANY CONVERSION OF THIS
SECURITY OR UPON A PURCHASE OF THIS SECURITY AT THE HOLDER'S OPTION AS A
CONTINGENT PAYMENT FOR PURPOSES OF THE CONTINGENT PAYMENT REGULATIONS, AND (3)
TO ACCRUE INTEREST WITH RESPECT TO THE SECURITY AS ORIGINAL ISSUE DISCOUNT FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING TO THE "NONCONTINGENT BOND
METHOD," SET FORTH IN THE CONTINGENT PAYMENT REGULATIONS, AND TO BE BOUND BY THE
COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT
SCHEDULE," WITHIN THE MEANING OF THE CONTINGENT PAYMENT 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: XXXXX FARGO & COMPANY, XXXXX FARGO CENTER, MAC #N9305-173,
XXXXX XXX XXXXXXXXX, XXXXXXXXXXX, XXXXXXXXX, 00000, ATTENTION: XXXXXX X.
XXXXXXXX.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST
A-1
COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO
SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE
RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE
REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY OR AFFILIATE THEREOF,
(B) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A,
TO A PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT THAT
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PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL
BUYER TO WHICH NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN RELIANCE ON
RULE 144A, (C) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT OR (D) PURSUANT TO ANOTHER AVAILABLE
EXEMPTION FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO
THE RIGHTS OF THE COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH
OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH
OF THEM, AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE
FORM APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY
THE TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER THE RESALE
RESTRICTION TERMINATION DATE UPON THE REQUEST OF THE HOLDER AND THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY.]
A-3
XXXXX FARGO & COMPANY
Floating Rate Convertible Senior Debentures due 2033
No. R-1 Original Principal Amount: $3,000,000,000
Issue Date: April 15, 2003 CUSIP: 000000XX0
XXXXX FARGO & COMPANY, a Delaware corporation (the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
Accreted Principal Amount (as defined in the Indenture referred to on the
reverse side of this Security) on May 1, 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 and is subject to remarketing,
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.
XXXXX FARGO & COMPANY
By:
-----------------------------------
Name:
Title:
Attest:
---------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
CITIBANK, N.A., as Trustee,
certifies that this is one of the Securities referred
to in the within-mentioned Indenture.
By:
---------------------------------
Authorized Signature
OR
XXXXX FARGO BANK MINNESOTA, N.A.,
as Authenticating Agent for the Trustee
By:
---------------------------------
Authorized Signature
Dated: April 15, 2003
A-5
[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 $3,000,000,000 ($3,450,000,000 Original Principal Amount if the
Initial Purchasers' option is exercised in full), issued under an Indenture,
dated as of April 15, 2003 (the "Indenture"), between the Company and Citibank,
N.A., 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.
1. INTEREST.
This Security will bear interest from April 15, 2003 or from the most
recent date to which interest has been paid or duly provided for, quarterly in
arrears on February 1, May 1, August 1 and November 1 of each year (each, an
"Interest Payment Date"), subject to Section 1.09 of the Indenture, commencing
August 1, 2003, at the rate per annum equal to 3-month LIBOR, reset quarterly on
each Interest Reset Date, minus 0.25%, to but excluding May 1, 2008. Regardless
of the level of 3-month LIBOR, however, the annual rate of interest on the
Securities 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, which shall be the January 15, April 15, July 15 or October 15, 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
A-6
which the 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 May 1, 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 May 1, 2008.
CONTINGENT INTEREST.
Unless a Remarketing Reset Event occurs, from and after May 1, 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 Dates.
If a Remarketing Reset Event occurs, from and after the applicable
Remarketing Reset Event Date, the Company will no longer be required to pay
Contingent Interest.
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 Change in Control Purchase Price, Remarketing Purchase
Price, or upon the Stated Maturity of this Security) or if interest due hereon
(including Contingent Interest and Liquidated Damages, 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 May 1, 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, Remarketing
Purchase Price, Change in Control 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,
A-7
Remarketing Purchase Date or Change in Control Date is an Interest Payment Date,
accrued and unpaid interest (including Contingent Interest and Liquidated
Damages, 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 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. If any Interest Payment Date
(other than an Interest Payment Date coinciding with the Stated Maturity or
earlier Redemption Date, Purchase Date, Remarketing Purchase Date or Change in
Control 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, Remarketing Purchase
Date or Change in Control 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, Remarketing Purchase
Date or Change in Control Purchase Date to such next succeeding Business Day.
PAYING AGENT, CONVERSION AGENT, CALCULATION AGENT AND REGISTRAR.
Initially, Xxxxx Fargo Bank Minnesota, N.A. will act as Paying Agent,
Conversion Agent, Calculation Agent and Registrar. The Company may appoint and
change any Paying Agent, Conversion Agent, Calculation 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, Calculation Agent, Registrar or co-registrar.
A-8
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, secured or unsecured.
REDEMPTION AT THE OPTION OF THE COMPANY.
No sinking fund is provided for the Securities. Prior to May 5, 2008,
the Securities shall not be redeemable at the option of the Company. Unless a
Remarketing Reset Event has occurred, beginning on May 5, 2008 and until the
earlier of the date on which a Remarketing Reset Event occurs and 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 Liquidated Damages, 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 30 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to or on the Redemption Date,
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.
A-9
PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER.
Unless a Remarketing Reset Event occurs, each Holder has the right to
require the Company to purchase the Securities held by such Holder on May 1,
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 this Security is not
immediately convertible into Common Stock on such 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 Liquidated Damages, 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 21 Business Days prior to such Purchase Date until the close
of business on such Purchase Date and upon delivery of the Securities to the
Paying Agent by the Holder as set forth in the Indenture.
Unless a Remarketing Reset Event occurs, 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 occurrence of a Change
in Control of the Company occurring prior to Stated Maturity for a Change in
Control Purchase Price equal to 100% of the Accreted Principal Amount thereof,
plus accrued and unpaid interest (including Contingent Interest and Liquidated
Damages, if any) to, but excluding, the Change in Control Purchase Date, unless
such Change in Control 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 Liquidated Damages, 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 Change in
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
As provided in the Indenture, if cash sufficient to pay the Purchase
Price, Remarketing Purchase Price or Change in Control Purchase Price, as the
case may be, of all Securities or portions thereof to be purchased as of the
Purchase Date, Remarketing Purchase Date or the Change in Control Purchase Date,
as the case may be, is deposited with the Paying Agent on the Business Day
following the Purchase Date, Remarketing Purchase Date or the Change in Control
Purchase Date, as the case may be, all interest (including Contingent Interest,
if any) ceases to accrue and principal ceases to accrete on such Securities (or
portions thereof) immediately after such Purchase Date, Remarketing Purchase
Date or Change in Control 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, Remarketing Purchase Price or Change in Control Purchase Price,
as the case may be, upon surrender of such Security).
A-10
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 Sections 11.02, 11.03, 11.04, 11.05 and 11.06 of
the Indenture. A Security in respect of which a Holder has delivered a Purchase
Notice or a Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the
Indenture. The Conversion Rate for the Securities on any Conversion Date shall
be determined as set forth in the Indenture.
The Company shall deliver cash or a check in lieu of any fractional
share of Common Stock.
A Holder's right to convert the Securities into Common Stock of the
Company is also subject to the Company's right to elect to pay such Holder the
amount of cash set forth in the next succeeding sentence 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 the Company shall elect to make such payment in shares
of Common Stock or a combination of cash and Common Stock, the Company shall
deliver to the Holder through the Conversion Agent, no later than the third
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. If, however, the Company shall
elect to make all or a portion of such payment solely in cash, the Company shall
deliver to the Holder surrendering a Security the amount of cash per Security
(or a portion of a Security) equal to the Applicable Stock Price multiplied by
the Conversion Rate in effect with respect to such Conversion Date no later than
the tenth Business Day following such Conversion Date. The payments referred to
in the preceding two sentences shall be subject to the limitations set forth in
Section 11.06(b) of the Indenture.
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 11.07 of
the Indenture to the effect that the Securities would be paid in cash or a
combination of cash and Common Stock.
A-11
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, except 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, in which case the Holder on
such Regular Record Date shall receive the interest payable on such Interest
Payment Date, that portion of accrued and unpaid interest (including Contingent
Interest, if any) on the converted Security attributable to the period from the
most recent Interest Payment Date (or, if no Interest Payment Date has occurred,
from the Issue Date) through the Conversion Date shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through delivery of the Common Stock (together with the cash
payment, if any, in lieu of fractional shares), or cash in lieu thereof, in
exchange for the Security being converted pursuant to the provisions hereof.
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 Business Day immediately preceding the
Interest Payment Date to which such Regular Record Date relates, (2) the Company
has specified a Change in Control 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 based upon the Applicable Stock Price.
The Company agrees, and each Holder and any beneficial owner of a
Security by its purchase thereof shall be deemed to agree, to 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, or a combination of cash and Common Stock as
a contingent payment on the Security for purposes of Treasury Regulation Section
1.1275-4(b).
A-12
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below or a facsimile thereof and deliver such notice
to a Conversion Agent, (b) surrender the Security to the Conversion Agent, (c)
furnish appropriate endorsements and transfer documents (including any
certification that may be required under applicable law) if required by the
Conversion Agent, (d) pay any transfer or similar tax, if required and (e) if
required pay funds equal to the interest payable on the next Interest Payment
Date.
The Conversion Rate will be adjusted as set forth in Article 11 of the
Indenture
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day immediately preceding the
Redemption Date, may be deemed to be purchased from the Holders of such
Securities at an amount not less than the Redemption Price, by one or more
investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into Common Stock of
the Company and to make payment for such Securities to the Trustee in trust for
such Holders.
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 Change in Control
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
PERSONS DEEMED OWNERS.
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
A-13
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.
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 of amounts specified in
clause (i) or (ii) of Section 4.01 of the Indenture) if it determines that
withholding notice is in their interests.
YIELD RESET AND REMARKETING.
If a Remarketing Reset Event occurs, then following the applicable
Remarketing Reset Event Date, the Company will not pay regular cash interest or
Contingent Interest on the Securities; the Securities will no longer be
convertible into Common Stock; the right of the Holder to require the Company to
purchase Securities on a Purchase Date or upon a Change in Control shall
A-14
cease; and the yield on the Securities will be reset on such Remarketing Reset
Event Date and each Remarketing Reset Date thereafter.
On each Remarketing Reset Date, the yield on the Securities shall be
reset to the Reset Yield and the Securities shall be remarketed at the option of
the Holder, as provided in Article 15 of the Indenture.
If a Failed Remarketing occurs on any Remarketing Reset Date, each
Holder of Securities will have the right to require the Company to purchase all
or a portion of its Securities on such Remarketing Reset Date for cash. The
Company shall purchase such Securities at a purchase price equal to 100% of the
Accreted Principal Amount thereof as of the applicable Remarketing Reset Date,
plus accrued and unpaid interest (including Contingent Interest and Liquidated
Damages, if any) to, but excluding such Remarketing Reset Date as provided in
the Indenture.
If Holders of less than $50 million aggregate Original Principal Amount
of Securities elect pursuant to the Indenture to have their Securities
remarketed on any Remarketing Reset Date, there will not be a remarketing and
such Holders, but only such Holders, will have the right to require the Company
to purchase all or a portion of its Securities on such Remarketing Reset Date
for cash. The Company shall purchase such Securities at a purchase price equal
to 100% of the Accreted Principal Amount thereof as of the applicable
Remarketing Reset Date, plus accrued and unpaid interest (including Contingent
Interest and Liquidated Damages, if any) to, but excluding such Remarketing
Reset Date as provided in the Indenture.
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.
A-15
AUTHENTICATION.
This Security shall not be valid until an authorized signatory of the
Trustee or any Authenticating Agent 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
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.
Xxxxx Fargo & Company
Xxxxx Fargo Center
MAC #N9305-173
Sixth and Marquette
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxxx
A-16
Schedule I
[Include Schedule I only for a Global Security]
XXXXX FARGO & COMPANY
Floating Rate Convertible Senior Debenture Due 2033
No. _______
Notation Explaining Original Authorized Signature of
Date Original Principal Amount Principal Amount Recorded Trustee or Custodian
---- ------------------------- ---------------------------- ------------------------
A-17
Exhibit 4(w)
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 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 Xxxxx Fargo & Company (the "Company") or a subsidiary or
affiliate 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
"signature guarantee program" as may be
determined
B-1
by the Security registrar in addition
to, or in substitution for, STAMP, al in
accordance with the Securities Exchange
Act of 1934, as amended.
----------------------------------------
Signature Guarantee
B-2
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)
B-3
PURCHASE NOTICE
TO: XXXXX FARGO & COMPANY
XXXXX FARGO BANK MINNESOTA, N.A.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Xxxxx Fargo & Company (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 Liquidated Damages, 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 or Remarketing 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 May 1, 2008, 2013, 2018,
2023 and 2028, or
[ ] Section 15.04(a), Right to Require Repurchase Upon a Failed Remarketing.
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:
B-4
OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN CONTROL
TO: XXXXX FARGO & COMPANY
XXXXX FARGO BANK MINNESOTA, N.A.
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from Xxxxx Fargo & Company (the "Company")
regarding the right of holders to elect to require the Company to purchase the
Securities upon a Change in Control 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 Liquidated Damages, if any) to, but excluding, the
Change in Control 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
Change in Control 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:
B-5
ELECTION TO REMARKET SECURITIES
TO: XXXXX FARGO BANK MINNESOTA, N.A.
The undersigned registered owner of this Security hereby elects to have
remarketed 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, on the next [Remarketing Reset Event Date if a
Remarketing Reset Event occurs] [Remarketing Reset Date] in accordance with the
terms of the Indenture and the Remarketing Agreement. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the
Indenture. The undersigned acknowledged that in the event of a Failed
Remarketing or the failure of Holders of at least $50 million aggregate Original
Principal Amount of Securities to elect remarketing, this election also serves
as an election to require the Company to purchase the Securities 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 Liquidated Damages, if any) to, but
excluding, the Remarketing Purchase Date, to the registered holder hereof.
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:
B-6
