EXHIBIT 4.6
BERGEN XXXXXXXX CORPORATION
Liquid Yield Option(TM) Notes
due _____
(Zero Coupon-Subordinated)
________________________________
Indenture
Dated as of ___________, 199___
________________________________
CHEMICAL TRUST COMPANY OF CALIFORNIA,
as Trustee
(TM)Trademark of Xxxxxxx Xxxxx & Co., Inc.
CROSS REFERENCE TABLE(1)
TIA Indenture
Section Section
------- ---------
310(a)(1) .................................................. 7.10
(a)(2) .................................................. 7.10
(a)(3) .................................................. N.A
(a)(4) .................................................. N.A
(a)(5) .................................................. 7.10
(b) .................................................. 7.08; 7.10
(c) .................................................. N.A
311(a) .................................................. 7.11
(b) .................................................. 7.11
(c) .................................................. N.A
312(a) .................................................. 2.05
(b) .................................................. 12.03
(c) .................................................. 12.03
313(a) .................................................. 7.06
(b) .................................................. 7.06
(c) .................................................. 12.02
(d) .................................................. 7.06
314(a) .................................................. 4.02;4.03;12.02
(b) .................................................. N.A
(c)(1) .................................................. 12.04
(c)(2) .................................................. 12.04
(c)(3) .................................................. N.A.
(d) .................................................. N.A.
(e) .................................................. 12.05
(f) .................................................. 4.04
315(a) .................................................. 7.01
(b) .................................................. 7.05; 12.02
(c) .................................................. 7.01
(d) .................................................. 7.01
(e) .................................................. 6.11
316(a) (last sentence)...................................... 2.08
(a)(1)(A)................................................ 6.05
(a)(1)(B)................................................ 6.04
(a)(2) .................................................. N.A.
(b) .................................................. 6.07
(c) .................................................. 2.12
317(a)(1) .................................................. 6.08
------------------
(1) This Cross Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
(a)(2) .................................................. 6.09
(b) .................................................. 2.04
318(a) .................................................. 12.01
N.A. means Not Applicable.
TABLE OF CONTENTS(2)
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01 Definitions.............................................. 1
SECTION 1.02 Other Definitions........................................ 5
SECTION 1.03 Incorporation by Reference of Trust Indenture Act........ 5
SECTION 1.04 Rules of Construction.................................... 6
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating.......................................... 6
SECTION 2.02 Execution and Authentication............................. 6
SECTION 2.03 Registrar, Paying Agent and Conversion Agent............. 7
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust....... 8
SECTION 2.05 Securityholder Lists..................................... 8
SECTION 2.06 Transfer and Exchange.................................... 8
SECTION 2.07 Replacement Securities................................... 9
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action 9
SECTION 2.09 Temporary Securities..................................... 10
SECTION 2.10 Cancellation............................................. 11
SECTION 2.11 Persons Deemed Owners.................................... 11
SECTION 2.12 Acts of Holders.......................................... 11
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee...................... 12
SECTION 3.02 Selection of Securities to Be Redeemed................... 13
SECTION 3.03 Notice of Redemption..................................... 13
SECTION 3.04 Effect of Notice of Redemption........................... 14
SECTION 3.05 Deposit of Redemption Price.............................. 14
SECTION 3.06 Securities Redeemed in Part.............................. 14
SECTION 3.07 Conversion Arrangement on Call for Redemption............ 14
--------------------------
(2) This Table of Contents shall not, for any purpose, be deemed to be part
of the Indenture.
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SECTION 3.08 Purchase of Securities at Option of the Holder........... 15
SECTION 3.09 Effect of Purchase Notice................................ 22
SECTION 3.10 Deposit of Purchase Price................................ 22
SECTION 3.11 Securities Purchased in Part............................. 23
SECTION 3.12 Covenant to Comply with Securities Laws
Upon Purchase of Securities............................ 23
SECTION 3.13 Repayment to the Company................................. 23
SECTION 3.14 CUSIP Numbers............................................ 23
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Securities.................................... 24
SECTION 4.02 SEC Reports.............................................. 24
SECTION 4.03 Compliance Certificate................................... 24
SECTION 4.04 Further Instruments and Acts............................. 24
SECTION 4.05 Maintenance of Office or Agency.......................... 24
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets................ 25
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default........................................ 26
SECTION 6.02 Acceleration............................................. 27
SECTION 6.03 Other Remedies........................................... 27
SECTION 6.04 Waiver of Past Defaults.................................. 28
SECTION 6.05 Control by Majority...................................... 28
SECTION 6.06 Limitation on Suits...................................... 28
SECTION 6.07 Rights of Holders to Receive Payment..................... 29
SECTION 6.08 Collection Suit by Trustee............................... 29
SECTION 6.09 Trustee May File Proofs of Claim......................... 29
SECTION 6.10 Priorities............................................... 30
SECTION 6.11 Undertaking for Costs.................................... 30
SECTION 6.12 Waiver of Stay, Extension or Usury Laws.................. 30
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee........................................ 31
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SECTION 7.02 Rights of Trustee........................................ 32
SECTION 7.03 Individual Rights of Trustee............................. 32
SECTION 7.04 Trustee's Disclaimer..................................... 33
SECTION 7.05 Notice of Defaults....................................... 33
SECTION 7.06 Reports by Trustee to Holders............................ 33
SECTION 7.07 Compensation and Indemnity............................... 33
SECTION 7.08 Replacement of Trustee................................... 34
SECTION 7.09 Successor Trustee by Merger.............................. 35
SECTION 7.10 Eligibility; Disqualification............................ 35
SECTION 7.11 Preferential Collection of Claims Against Company........ 35
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities..................... 36
SECTION 8.02 Repayment to the Company................................. 36
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders............................... 36
SECTION 9.02 With Consent of Holders.................................. 37
SECTION 9.03 Compliance with Trust Indenture Act...................... 38
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions... 38
SECTION 9.05 Notation on or Exchange of Securities.................... 38
SECTION 9.06 Trustee to Sign Supplemental Indentures.................. 39
SECTION 9.07 Effect of Supplemental Indentures........................ 39
ARTICLE 10
SUBORDINATION
SECTION 10.01 Securities Subordinate to Senior Indebtedness........... 39
SECTION 10.02 Payment Over of Proceeds upon Dissolution, Etc.......... 40
SECTION 10.03 Acceleration of Securities.............................. 41
SECTION 10.04 Default on Senior Indebtedness.......................... 42
SECTION 10.05 Payment Permitted if no Default......................... 43
SECTION 10.06 Subrogation to Rights of Holders of Senior Indebtedness. 43
SECTION 10.07 Provisions Solely to Define Relative Rights............. 43
SECTION 10.08 Trustee to Effectuate Subordination..................... 44
SECTION 10.09 No Waiver of Subordination Provisions................... 44
SECTION 10.10 Notice to Trustee....................................... 44
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SECTION 10.11 Reliance on Judicial Order or Certificate
of Liquidating Agent.................................. 45
SECTION 10.12 Trustee Not Fiduciary for Holders of Senior Indebtedness 45
SECTION 10.13 Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights...................... 46
SECTION 10.14 Article 10 Applicable to Paying Agents.................. 46
ARTICLE 11
CONVERSION
SECTION 11.01 Conversion Privilege.................................... 46
SECTION 11.02 Conversion Procedure.................................... 48
SECTION 11.03 Fractional Shares....................................... 48
SECTION 11.04 Taxes on Conversion..................................... 49
SECTION 11.05 Company to Provide Stock................................ 49
SECTION 11.06 Adjustment for Change in Capital Stock.................. 49
SECTION 11.07 Adjustment for Rights Issue............................. 50
SECTION 11.08 Adjustment for Other Distributions...................... 51
SECTION 11.09 When Adjustment May Be Deferred........................ 54
SECTION 11.10 When No Adjustment Required............................. 54
SECTION 11.11 Notice of Adjustment.................................... 54
SECTION 11.12 Voluntary Increase...................................... 54
SECTION 11.13 Notice of Certain Transactions.......................... 55
SECTION 11.14 Reorganization of Company; Special Distributions........ 56
SECTION 11.15 Company Determination Final............................. 56
SECTION 11.16 Trustee's Adjustment Disclaimer......................... 56
SECTION 11.17 Simultaneous Adjustments................................ 56
SECTION 11.18 Successive Adjustments.................................. 56
SECTION 11.19 Rights Issued in Respect of Class A
Common Stock Issued Upon Conversion................... 56
ARTICLE 12
MISCELLANEOUS
SECTION 12.01 Trust Indenture Act Controls............................ 57
SECTION 12.02 Notices................................................. 57
SECTION 12.03 Communication by Holders with Other Holders............. 58
SECTION 12.04 Certificate and Opinion as to Conditions Precedent...... 58
SECTION 12.05 Statements Required in Certificate or Opinion........... 58
SECTION 12.06 Separability Clause..................................... 59
SECTION 12.07 Rules by Trustee, Paying Agent, Conversion
Agent and Registrar................................... 59
SECTION 12.08 Legal Holidays.......................................... 59
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SECTION 12.09 Governing Law........................................... 59
SECTION 12.10 No Recourse Against Others.............................. 59
SECTION 12.11 Successors.............................................. 59
SECTION 12.12 Multiple Originals...................................... 59
EXHIBIT A - Form of Security
- v -
THIS INDENTURE, dated as of ____________________, 199__, is between
BERGEN XXXXXXXX CORPORATION, a New Jersey corporation (the "Company"), and
CHEMICAL TRUST COMPANY OF CALIFORNIA, as trustee (the "Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's Liquid Yield
Option(TM) Notes due _____ (Zero Coupon - Subordinated) (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. 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 the management and policies of such person, directly or indirectly,
whether through the ownership of voting securities, partnerships or other
ownership interests, by contract or otherwise; and the terms ''controlling" and
"controlled" have meanings correlative to the foregoing.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board or any committee of officers of
the Company acting pursuant to authority granted by such board or any committee
of such board.
"Business Day" means each day of the year on which banking institutions
are not required or authorized to close in the City of New York or at the
principal corporate trust office of the Trustee.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) capital stock issued by that
corporation.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its President or
a Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary or
an Assistant Secretary, and delivered to the Trustee.
---------------------------
(TM) Trademark of Xxxxxxx Xxxxx & Co., Inc.
"Debt" means with respect to any person at any date, without
duplication, (i) all obligations of such person for borrowed money, (ii) all
obligations of such person evidenced by bonds, debentures, notes or other
similar instruments, (iii) all Debt of others secured by a lien on any asset of
such person, whether or not such Debt is assumed by such person, (iv) all
obligations of such person pursuant to capitalized leases, (v) all Debt of
others for the payment of which such person is responsible or liable as obligor
or guarantor and (vi) all obligations of such person with respect to letters of
credit or bankers' acceptances issued for the account of such person or with
respect to interest rate protection agreements or currency exchange or purchase
agreements and (vii) all obligations of such person issued or assumed as the
deferred purchase price of property, all conditional sale obligations of such
person and all obligations of such person under any title retention agreement.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
"Event of Default" means the events defined as "Events of Default" in
Section 6.01.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof.
"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.
"Issue Price" of any Security means, in connection with the original
issuance of such Security, the initial issue price at which the Security is sold
as set forth on the face of the Security.
"Officer" means the Chairman, the President, any Vice President, the
Treasurer or the Secretary or any Assistant Treasurer or Assistant Secretary of
the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 12.04 and 12.05, signed in the name of the
Company by its Chairman, its President or a Vice President, and by its
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 12.04 and 12.05, from legal counsel who is acceptable to
the Trustee. The counsel may be an employee of, or counsel to, the Company or
the Trustee.
"Original Issue Discount" of any Security means the difference between
the Issue Price and the Principal Amount of the Security as set forth on the
face of the Security.
"person" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
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"Principal" or "Principal Amount" of a Security means the principal
amount due at the Stated Maturity of the Security as set forth on the face of
the Security.
"Redemption Date" or "redemption date" shall mean the date specified
for redemption of the Securities in accordance with the terms of the Securities
and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in paragraph 5 of the Securities.
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's Liquid Yield Option(TM) Notes
due _____ (Zero Coupon-Subordinated), as amended or supplemented from time to
time in accordance with the terms hereof, issued under this Indenture.
"Securityholder" or "Holder" means a person in whose name a Security is
registered on the Registrar's books.
"Stated Maturity", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the Principal of such
Security is due and payable.
"Subsidiary" means a corporation of which a majority of the Capital
Stock having voting power under ordinary circumstances to elect a majority of
the board of directors of such corporation is directly or indirectly owned by
(i) the Company, (ii) the Company and one or more Subsidiaries or (iii) one or
more Subsidiaries.
"TIA" means the Trust Indenture Act of 1939, as amended, and as in
affect on the date of this Indenture, except as provided in Section 9.03.
"trading day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Class A Common Stock is not
listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the Class A Common Stock is then listed
or, if the Class A Common Stock is not listed on a national or regional
securities exchange, on the National Association of Securities Dealers Automated
Quotation System or, if the Class A Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotation System, on the principal
other market on which the Class A Common Stock is then traded.
"Trust Officer" means any officer of the Trustee assigned by the
Trustee to administer its corporate trust matters.
"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.
- 3 -
SECTION 1.02. Other Definitions.
Term Defined in
---- Section
----------
"Average Quoted Price"............................................ 11.01
"Bankruptcy Law".................................................. 6.01
"cash"............................................................ 3.08(b)
"Class A Common Stock"............................................ 3.08(b)
"Company Notice".................................................. 3.08(e)
"Company Notice Date"............................................. 3.08(c)
"Conversion Agent"................................................ 2.03
"Conversion Date"................................................. 11.02
"Conversion Rate"................................................. 11.01
"Custodian"....................................................... 6.01
"Event of Default"................................................ 6.01
"Exchange Act".................................................... 3.08(d)
"Ex-Dividend Time"................................................ 11.01
"Extraordinary Cash Dividend"..................................... 11.08
"Legal Holiday"................................................... 12.08
"Market Price".................................................... 3.08(d)
"Notice of Default"............................................... 6.01
"Over-Allotment Option"........................................... 2.02
"Pari Passu Debt"................................................. 10.01
"Paying Agent".................................................... 2.03
"Purchase Date"................................................... 3.08(a)
"Purchase Notice"................................................. 3.08(a)
"Purchase Price".................................................. 3.08(a)
"Quoted Price".................................................... 11.01
"Registrar"....................................................... 2.03
"Rights".......................................................... 3.08(d)
"Rights Agreement"................................................ 3.08(d)
"Sale Price"...................................................... 3.08(d)
"Securities Act".................................................. 3.08(d)
"Senior Indebtedness"............................................. 10.01
"Time of Determination"........................................... 11.01
SECTION 1.03. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission'' means the SEC.
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"indenture securities" means the Securities.
"indenture security holder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04. Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
from time to time in the United States of America;
(3) ''or'' is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A,
which is a part of this Indenture. The Securities may have notations, legends
or endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company and the Trustee). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each Security shall be dated
the date of its authentication.
SECTION 2.02. Execution and Authentication. The Securities shall be
executed on behalf of the Company by its Chairman, its President or one of its
Vice Presidents, under its corporate seal reproduced thereon and attested by its
Secretary or one of its Assistant Secretaries. The signature of any of these
officers on the Securities may be manual or facsimile.
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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 Issue Date of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate Principal Amount of up to $___,000,000 upon a Company
Order without any further action by the Company; [provided, however, that in the
event that the Company sells any Securities pursuant to the Underwriter's
over-allotment option (the "Over-Allotment Option") granted pursuant to Section
_____ of the Underwriting Agreement between the Company and __________ dated
_____________, 199__, then the Trustee shall authenticate and deliver Securities
for original issue in an aggregate Principal Amount of up to $___,000,000 plus
up to $___,000,000 aggregate Principal Amount of Securities sold pursuant to the
Over-Allotment Option upon a Company Order without any further action by the
Company.] The aggregate Principal Amount of Securities outstanding at any time
may not exceed the amount set forth in the foregoing sentence, subject to the
proviso set forth therein, except as provided in Section 2.07. The Securities
shall be issued only in registered form without coupons and only in
denominations of $1,000 in Principal Amount and any integral multiple thereof.
SECTION 2.03. Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and 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. The term
Conversion Agent includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (if not the Trustee).
The agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee and the Holders of the name
and address of any such agent and of any change in the office or agency referred
to in Section 4.05. If the Company fails to maintain a Registrar, Paying Agent
or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.07. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
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The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
SECTION 2.04. Paying Agent to Hold Money and Securities in Trust. In
accordance with Section 4.01 and except as otherwise provided herein, prior to
or on each due date of payments in respect of any Security, the Company shall
deposit with the Paying Agent a sum of money or, if permitted by the terms
hereof, securities sufficient to make such payments when so becoming due. The
Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and securities held by the Paying Agent
for the making of payments in respect of the Securities and shall notify the
Trustee in writing 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 securities 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
securities 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 securities
held by it to the Trustee and to account for any funds and securities disbursed
by it. Upon doing so, the Paying Agent shall have no further liability for the
money or securities.
SECTION 2.05. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable, the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, each obligor upon the Securities (including the Company) shall cause
to be furnished to the Trustee at least semiannually on _________ and __________
a list containing all information in the possession or control of each such
obligor, or any of its Paying Agents, as to the names and addresses of Holders
dated within 15 days of the date on which the list is furnished and at such
other times as the Trustee may request in writing a list in such form and as of
such date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. Transfer and Exchange. Upon surrender for registration
of transfer of any Security, together with a written instrument of transfer
satisfactory to the Trustee duly executed by the Securityholder or such
Securityholder's attorney duly authorized in writing, at the office or agency of
the Company designated as Registrar or co-registrar pursuant to Section 2.03 or
at the office or agency referred to in Section 4.05, the Company shall execute,
and the Trustee shall authenticate and deliver, in the name of the designated
transferee or transferees, one or more new Securities of any authorized
denomination or denominations, of a like aggregate Principal Amount. The
Company shall not charge a service charge for any registration of transfer or
exchange, but the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be imposed in
connection with the transfer or exchange of the Securities from the
Securityholder requesting such transfer or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
Principal Amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Trustee duly executed
by the Securityholder or such Securityholder's attorney duly authorized in
- 7 -
writing, at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities which the Holder making the exchange is entitled to
receive.
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 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 a selection of Securities to be redeemed.
SECTION 2.07. 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 Principal Xxxxxx, bearing a number
not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section, the Company
may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. Outstanding Securities; Determinations of Holders'
Action. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those delivered to it for
cancellation, those mutilated, destroyed, lost or stolen Securities for which
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the Trustee has authenticated and delivered a new Security in lieu thereof or
which have been paid pursuant to Section 2.07 and those described in this
Section 2.08 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite Principal
Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned shall
be so disregarded. Subject to the foregoing, only Securities outstanding at the
time of such determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or on the
Stated Maturity, money or securities, if permitted hereunder, sufficient to pay
Securities payable on that date, then on and after that date such Securities
shall cease to be outstanding and Original Issue Discount and interest, if any,
on such Securities shall cease to accrue and all other rights of the Holder
shall terminate (other than the right to receive the applicable Principal
Amount, Redemption Price or Purchase Price, as the case may be, upon delivery of
the Security in accordance with the terms of this Indenture); 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 Conversion Date such Security shall cease to be outstanding and
Original Issue Discount and interest, if any, shall cease to accrue on such
Security.
SECTION 2.09. 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 or
- 9 -
4.05, without charge to the Holder. Upon surrender for cancellation of any one
or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Principal Amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10. Cancellation. All Securities surrendered for payment,
redemption or purchase by the Company pursuant to Article 3, conversion pursuant
to Article 11, or registration of transfer or exchange shall, if surrendered to
any person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the Trustee
for cancellation any Securities previously authenticated and delivered hereunder
which the Company may have acquired in any manner whatsoever, and all Securities
so delivered shall be promptly cancelled by the Trustee. The Company may not
issue new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
destroyed by the Trustee in accordance with its standard procedures and evidence
of their destruction delivered to the Company unless the Company directs by
Company Order that the Trustee deliver cancelled Securities to the Company.
SECTION 2.11. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
Principal of the Security or the payment of the Issue Price plus accrued
Original Issue Discount or any Redemption Price or Purchase Price in respect
thereof, and interest thereon, for the purpose of conversion and for all other
purposes whatsoever, whether or not such Security is overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
SECTION 2.12. Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in person or by an agent duly appointed in writing; and, except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is hereby
expressly required, to the Company. Such instrument or instruments (and the
action embodied therein and evidenced thereby) are herein sometimes referred to
as the "Act" of Holders signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent shall
be sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section 2.12.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
- 10 -
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a Board resolution, fix in advance a record
date for the determination of Holders entitled to give such request, demand,
authorization, direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite percentage or amount of
Securities outstanding have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose, the Securities outstanding shall be computed as of such record
date; provided that no such authorization, agreement or consent by the Holders
on such record date shall be deemed effective unless it shall become effective
pursuant to the provisions of this Indenture not later than six months after the
record date.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. Right to Redeem; Notices to Trustee. The Company, at
its option, may redeem the Securities for cash in accordance with the provisions
of paragraphs 5 and 7 of the Securities. If the Company elects to redeem
Securities pursuant to paragraph 5 of the Securities, it shall notify the
Trustee in writing of the Redemption Date, the Principal Amount of Securities to
be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 3.01 at least 30 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee). If fewer than all the Securities
are to be redeemed, the record date relating to such redemption shall be
selected by the Company and given to the Trustee, which record date shall not be
less than 10 days after the date of notice to the Trustee.
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SECTION 3.02. Selection of Securities to Be Redeemed. If less than
all the Securities are to be redeemed, the Trustee shall select the Securities
to be redeemed pro rata or by lot or by a 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 not more than 60 days before the Redemption Date from outstanding
Securities not previously called for redemption. The Trustee may select for
redemption portions of the Principal Amount of Securities that have
denominations larger than $1,000. Securities and portions of Securities the
Trustee selects shall be in Principal Amounts of $1,000 or an integral multiple
of $1,000. Provisions of this Indenture that apply to Securities called for
redemption also apply to portions of Securities called for redemption. The
Trustee shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial redemption is thereafter
surrendered for conversion 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), solely for purposes of
determining the aggregate Principal Amount of Securities to be redeemed by the
Company, to be the portion selected for redemption. Securities which have been
converted during a selection of Securities to be redeemed may be treated by the
Trustee as outstanding for the purpose of such selection.
SECTION 3.03. Notice of Redemption. At least 15 days but not more
than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class mail, postage prepaid, to each Holder of Securities to
be redeemed in the manner provided in Section 12.02.
The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent and
of the office or agency referred to in Section 4.05;
(5) that Securities called for redemption may be converted at any
time before the close of business on the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in paragraph 9 of the Securities;
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(7) that Securities called for redemption must be surrendered to the
Paying Agent or at the office or agency referred to in Section 4.05 to collect
the Redemption Price;
(8) if fewer than all the outstanding Securities are to be redeemed,
the certificate number and Principal Amounts of the particular Securities to be
redeemed;
(9) that, unless the Company defaults in making such redemption
payment, Original Issue Discount on securities called for redemption, and
interest, if any, will cease to accrue on and after the Redemption Date; and
(10) the CUSIP number of such Security, if any.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense.
SECTION 3.04. Effect of Notice of Redemption. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date stated in the notice and at the Redemption Price stated in
the notice except for Securities which are converted in accordance with the
terms of this Indenture.
Upon the later of the Redemption Date or the date such Securities are
surrendered to the Paying Agent or at the office or agency referred to in
Section 4.05, such Securities called for redemption shall be paid at the
Redemption Price stated in the notice.
SECTION 3.05. Deposit of Redemption Price. Prior to or 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 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, with
interest, if any, thereon (subject to the provisions of Section 7.01(f)), not
required for that purpose because of conversion of Securities pursuant to
Article 11. If such money is then held by the Company or a Subsidiary or an
Affiliate of the Company in trust and is not required for such purpose, it shall
be discharged from such trust.
SECTION 3.06. 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 Principal Amount to the unredeemed portion of the Security
surrendered.
SECTION 3.07. 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 the Paying Agent in trust for the Securityholders whose
Securities are to be so purchased, on or before the close of business on the
- 13 -
Redemption Date, an amount that, together with any amounts deposited with the
Trustee by the Company for redemption of such Securities, is not less than the
Redemption Price, together with interest, if any, accrued to the Redemption
Date, of such Securities. Notwithstanding anything to the contrary contained in
this Article 3, the obligation of the Company to pay the Redemption Price of
such Securities, including all accrued interest, if any, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, any Securities not duly
surrendered for conversion by the Holders thereof may, at the option of the
Company, 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 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 in the same manner as it would moneys deposited with it by the Company for
the redemption of 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 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
arising out of or in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08. Purchase of Securities at Option of the Holder.
(a) General. Securities shall be purchased by the Company pursuant to
paragraph 6 of the Securities as of ______________ ____, ______,
________________ ____, ________, and _______________ _____, _________ (each, a
"Purchase Date"), at the purchase price specified therein (each, a "Purchase
Price"), at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent or to the office or agency referred
to in Section 4.05 by the Holder of a written notice of purchase (a
"Purchase Notice") at any time from the opening of business on the date that
is 20 Business Days prior to a Purchase Date until the close of business on
such Purchase Date, stating:
(A) the certificate number of the Security which the Holder will
deliver to be purchased,
(B) the portion of the Principal Amount of the Security which
the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof,
- 14 -
(C) that such Security shall be purchased as of the Purchase
Date pursuant to the terms and conditions specified in paragraph 6 of
the Securities and in this Indenture, and
(D) in the event the Company elects, pursuant to Section
3.08(b), to pay the Purchase Price to be paid as of such Purchase Date,
in whole or in part, in Class A Common Stock but the Purchase Price
shall ultimately be payable to such Holder entirely in cash because any
of the conditions to payment of the Purchase Price in Class A Common
Stock is not satisfied prior to or on the Purchase Date, as set forth
in Section 3.08(d), whether such Holder elects (x) to withdraw such
Purchase Notice as to some or all of the Securities to which such
Purchase Notice relates (stating the Principal Amount and certificate
numbers of the Securities as to which such withdrawal shall relate), or
(y) to receive cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which such Purchase Notice relates;
and
(2) delivery of such Security prior to, on or after the Purchase Date
(together with all necessary endorsements) at the offices of the Paying
Agent or to the office or agency referred to in Section 4.05, 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 Section 3.08 only if the Security so delivered shall conform in all
respects to the description thereof in the related Purchase Notice.
If a Holder, in such Xxxxxx's Purchase Notice and in any written notice
of withdrawal delivered by such Holder pursuant to the terms of Section 3.09,
fails to indicate such Xxxxxx's choice with respect to the election set forth in
clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have elected to
receive cash in respect of the entire Purchase Price for all Securities subject
to such Purchase Notice in the circumstances set forth in such clause (D).
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.08, a portion of a Security if the Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Security also apply to the purchase of such
portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.08 shall be consummated by the delivery of the consideration to
be received by the Holder promptly following the later of the Business Day
following the Purchase Date and the time of delivery of the Security to the
Paying Agent in the manner required by this Section 3.08.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent, or the office or agency referred to in Section 4.05, the
Purchase Notice contemplated by this Section 3.08(a) shall have the right at any
time prior to the close of business on the Purchase Date to withdraw such
Purchase Notice by delivery of a written notice of withdrawal to the Paying
Agent or such office or agency in accordance with Section 3.09.
- 15 -
The Paying Agent shall promptly notify the Company of its receipt of
any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price.
The Company may elect with respect to any Purchase Date to pay the Purchase
Price in respect of the Securities to be purchased pursuant to Section 3.08(a)
as of such Purchase Date, in U.S. legal tender ("cash") or Class A Common Stock,
or in any combination of cash and Class A Common Stock, subject to the
conditions set forth in Sections 3.08(c) and (d). The Company shall designate,
in the Company Notice delivered pursuant to Section 3.08(e), whether the Company
will purchase the Securities for cash or Class A Common Stock, or, if a
combination thereof, the percentages of the Purchase Price of Securities in
respect of which it will pay in cash or Class A Common Stock; provided that the
Company will pay cash for fractional interests in Class A Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities subject to purchase by the Company held by a Holder shall be
considered together (no matter how many separate certificates are to be
presented). Each Holder whose Securities are purchased pursuant to this Section
3.08 shall receive the same percentage of cash or Class A Common Stock in
payment of the Purchase Price for such Securities, except (i) as provided in
Section 3.08(d) with regard to the payment of cash in lieu of fractional
interests in Class A Common Stock and (ii) in the event that the Company is
unable to purchase the Securities of a Holder or Holders for Class A Common
Stock because any necessary qualifications or registrations of the Class A
Common Stock under applicable state securities laws cannot be obtained, the
Company may purchase the Securities of such Holder or Holders for cash. The
Company may not change its election with respect to the consideration (or
components or percentages of components thereof) to be paid once the Company has
given its Company Notice to Securityholders except pursuant to this Section
3.08(b) or Section 3.08(d) in the event of a failure to satisfy, prior to the
close of business on the Purchase Date, any condition to the payment of the
Purchase Price, in whole or in part, in Class A Common Stock.
At least two Business Days before the Company Notice Date, the Company
shall deliver an Officers' Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Class A Common Stock, that the conditions
to such manner of payment set forth in Section 3.08(d) have been or will be
complied with, and
(iv) whether the Company desires the Trustee to give the Company Notice
required by Section 3.08(e).
"Class A Common Stock" shall mean the shares of Class A Common Stock,
par value $1.50 per share, 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
Class A Common Stock shall be reclassified or changed.
- 16 -
(c) Purchase with Cash. At the option of the Company, the Purchase
Price of Securities in respect of which a Purchase Notice pursuant to Section
3.08(a) has been given, or a specified percentage thereof, may be paid by the
Company with cash equal to the aggregate Purchase Price, or such specified
percentage thereof, as the case may be, of such Securities. If the Company
elects to purchase Securities with cash, a Company Notice as provided in Section
3.08(e) shall be sent to Holders (and to beneficial owners as required by
applicable law) not less than 20 Business Days prior to the Purchase Date (the
''Company Notice Date").
(d) Payment by Issuance of Class A Common Stock. At the option of the
Company, the Purchase Price of Securities in respect of which a Purchase Notice
pursuant to Section 3.08(a) has been given, or a specified percentage thereof,
may be paid by the Company by the issuance of a number of shares of Class A
Common Stock equal to the quotient obtained by dividing (i) the amount of cash
to which the Securityholders would have been entitled had the Company elected to
pay all or such specified percentage, as the case may be, of the Purchase Price
of such Securities in cash by (ii) the Market Price of a share of Class A Common
Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Class A Common Stock
in payment of the Purchase Price. Instead, the Company will pay cash for the
current market value of the fractional share. The current market value of a
fraction of a share shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
Each share of Class A Common Stock issued upon purchase of Securities
pursuant to Section 3.08(a) shall be entitled to receive the appropriate number
of preferred share purchase rights (the "Rights"), if any, and the certificates
representing the Class A Common Stock issued upon such purchase shall bear such
legends, if any, in each case as provided by and subject to the terms of the
Rights Agreement dated as of February 8, 1994, between the Company and Chemical
Trust Company of California, as Rights Agent (the "Rights Agreement"), as in
effect at the time of such purchase.
If the Company elects to purchase the Securities by the issuance of
shares of Class A Common Stock, a Company Notice as provided in Section 3.08(e)
shall be sent to the Holders (and to beneficial owners as required by applicable
law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the Securities
pursuant to this Section 3.08 through the issuance of shares of Class A Common
Stock shall be conditioned upon:
(i) the Company's not having given its Company Notice of an election
to pay entirely in cash and its giving of timely Company Notice of election
to purchase all or a specified percentage of the Securities with Class A
Common Stock as provided herein;
- 17 -
(ii) the registration of the shares of Class A Common Stock to be
issued in respect of the payment of the specified percentage of the Purchase
Price under the Securities Act of 1933, as amended (the "Securities Act"),
or the Securities Exchange Act of 1934, as amended (the "Exchange Act"), if
required, unless there exists an applicable exemption to registration;
(iii) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(iv) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
Class A Common Stock are in conformity with this Indenture and (B) the
shares of Class A Common Stock to be issued by the Company in payment of the
specified percentage of the Purchase Price in respect of Securities have
been duly authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the specified percentage of the Purchase Price
in respect of Securities, will be validly issued, fully paid and
nonassessable, and, in the case of such Officers' Certificate, stating that
conditions (i), (ii) and (iii) above have been satisfied and, in the case of
such Opinion of Counsel, stating that conditions (ii) and (iii) above have
been satisfied and that, to the best of such counsel's knowledge, such
shares of Class A Common Stock are free of preemptive rights.
Such Officers' Certificate shall also set forth the number of shares of Class A
Common Stock to be issued for each $1,000 Principal Amount of Securities and the
Sale Price of a share of Class A Common Stock on each trading day during the
period during which the Market Price is calculated and ending on the Purchase
Date. The Company may elect to pay in Class A Common Stock only if the
information necessary to calculate the Market Price is reported in a daily
newspaper of national circulation. If such conditions are not satisfied with
respect to a Holder or Holders prior to or on the Purchase Date and the Company
elected to purchase the Securities to be purchased as of such Purchase Date
pursuant to this Section 3.08 through the issuance of shares of Class A Common
Stock, the Company shall pay the entire Purchase Price in respect of such
Securities of such Holder or Holders in cash.
The "Market Price" means the average of the Sale Price of the Class A
Common Stock for the five trading day period ending on (if the third Business
Day prior to the applicable Purchase Date is a trading day or, if not, then on
the last trading day prior to) the third Business Day prior to the Purchase
Date, as appropriately adjusted by the Board (which adjustment shall be
conclusive and shall be evidenced by a Board Resolution) to take into account
the occurrence, during the period commencing on the first of such trading days
during such five trading day period and ending on such Purchase Date, of any
event described in Section 11.06, 11.07 or 11.08; subject, however, to the
conditions set forth in Sections 11.09 and 11.10. The "Sale Price" of the Class
A Common Stock on any date means the closing per share sale price (or if no
closing sale price is reported, the average of the bid and asked prices or, if
more than one, in either case, the average of the average bid and average asked
prices) on such date as reported in the composite transactions for the principal
United States securities exchange on which the Class A Common Stock is traded
or, if the Class A Common Stock is not listed on a United States national or
regional stock exchange, as reported by the National Association of Securities
Dealers Automated Quotation System.
- 18 -
(e) Notice of Election. Company Notices of election to purchase with
cash, or Class A Common Stock, or any combination thereof, shall be sent to the
Holders (and to beneficial owners as required by applicable law) in the manner
provided in Section 12.02 at the time specified in Section 3.08(c) or (d), as
applicable (a "Company Notice"). Such Company Notices shall state the manner of
payment elected and shall contain the following information:
In the event the Company has elected to pay a Purchase Price (or a
specified percentage thereof) with Class A Common Stock, the Company Notice
shall:
(1) state that each Holder will receive Class A Common Stock with a
Market Price determined as of a specified date prior to the Purchase Date
equal to such specified percentage of the Purchase Price of the Securities
held by such Holder (except any cash amount to be paid in lieu of fractional
shares); and
(2) set forth the method of calculating the Market Price and state
that because the Market Price of Class A Common Stock will be determined
prior to the Purchase Date, Holders will bear the market risk with respect
to the value of the Class A Common Stock to be received from the date such
Market Price is determined to the Purchase Date.
In any case, each Company Notice shall state:
(i) the Purchase Price and the Conversion Rate;
(ii) the name and address of the Paying Agent and the Conversion Agent
and of the office or agency referred to in Section 4.05;
(iii) that Securities as to which a Purchase Notice has been given may
be converted into Class A Common Stock only if the applicable Purchase
Notice has been withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent or to the
office or agency referred to in Section 4.05 to collect payment;
(v) that the Purchase Price for any Security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Security as
described in (iv);
(vi) the procedures the Holder must follow to exercise rights under
Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities; and
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(viii) the procedures for withdrawing a Purchase Notice (including,
without limitation, for a conditional withdrawal pursuant to the terms of
Section 3.08 (a)(1)(D) or Section 3.09).
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
Upon determination of the actual number of shares of Class A Common
Stock to be issued for each $1,000 Principal Amount of Securities, the Company
will publish such determination in a daily newspaper of national circulation.
(f) Covenants of the Company. All shares of Class A Common Stock
delivered upon purchase of the Securities shall be newly issued shares or
treasury shares, shall be duly authorized, validly issued, fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim.
The Company shall use its best efforts to list or cause to have quoted
any shares of Class A Common Stock to be issued on each national securities
exchange or over-the-counter or other domestic market on which the Class A
Common Stock is then listed or quoted.
(g) Procedure upon Purchase. On the Business Day following the
Purchase Date, the Company shall deposit with the Paying Agent cash (in respect
of a cash purchase under Section 3.08(c) or for fractional interests, as
applicable), or shares of Class A Common Stock, or a combination thereof, as
applicable, sufficient to pay the aggregate Purchase Price of the Securities to
be purchased pursuant to this Section 3.08. As soon as practicable after the
later of the Business Day following the Purchase Date and the date such
Securities are surrendered to the Paying Agent or the office or agency referred
to in Section 4.05, the Company shall deliver to each Holder entitled to receive
Class A Common Stock, through the Paying Agent, a certificate for the number of
full shares of Class A Common Stock, as applicable, issuable in payment of such
Purchase Price and cash in lieu of any fractional interests. The person in
whose name the certificate for Class A Common Stock is registered shall be
treated as a holder of record of such Class A Common Stock following the related
Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be
made for dividends on the Class A Common Stock the record date for which
occurred on or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Class A Common Stock,
the Company shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of shares of Class A Common Stock. However, the Holder shall
pay any such tax which is due because the Holder requests the shares of Class A
Common Stock to be issued in a name other than the Holder's name. The Paying
Agent may refuse to deliver the certificates representing the Class A Common
Stock being issued in a name other than the Holder's name until the Paying Agent
receives a sum sufficient to pay any tax which will be due because the shares of
Class A Common Stock are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any income tax withholding required by law or
regulations.
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SECTION 3.09. Effect of Purchase Notice. Upon receipt by the Paying
Agent of the Purchase Notice specified in Section 3.08(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 promptly following
the later of (x) the Business Day following the Purchase Date with respect to
such Security (provided the conditions in Section 3.08(a) have been satisfied)
and (y) the time of delivery of such Security to the Paying Agent or the office
or agency referred to in Section 4.05 by the Holder thereof in the manner
required by Section 3.08(a) and (g). Securities in respect of which a Purchase
Notice has been given by the Holder thereof may not be converted into shares of
Class A Common Stock 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 or the office or agency
referred to in Section 4.05 at any time prior to the close of business on the
Purchase Date to which it relates specifying:
(1) the certificate number of the Security in respect of which such
notice of withdrawal is being submitted,
(2) the Principal Amount of the Security with respect to which such
notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice and which has been or will be
delivered for purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the form
of (i) a conditional withdrawal contained in a Purchase Notice pursuant to the
terms of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing the
information set forth in Section 3.08(a)(1)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying Agent as set
forth in the preceding paragraph.
There shall be no purchase of any Securities pursuant to Section 3.08
(other than through the issuance of Class A Common Stock in payment of the
Purchase Price, including cash in lieu of any fractional shares) if there has
occurred (prior to, on or after 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 with respect to which (a) a Purchase Notice has been
withdrawn in compliance with this Indenture or (b) a purchase is prohibited
pursuant to the first sentence of this paragraph.
SECTION 3.10. Deposit of Purchase Price. On or before the Business
Day following a Purchase Date, the Company shall deposit with the Trustee or
with the Paying Agent (or, if the Company or a Subsidiary or an Affiliate of
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either of them is acting as the Paying Agent, shall segregate and hold in trust
as provided in Section 2.04) an amount of cash and/or Class A Common Stock, if
permitted hereunder, sufficient to pay the aggregate Purchase Price of all the
Securities or portions thereof which are to be purchased as of such Purchase
Date.
SECTION 3.11. Securities Purchased in Part. Any Security which is to
be purchased only in part shall be surrendered at the office of the Paying Agent
or the office or agency referred to in Section 4.05 (with, if the Company or the
Trustee so requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or such Xxxxxx's attorney duly authorized in writing) and the Company
shall execute and the Trustee shall authenticate and deliver to the Holder of
such Security, without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder in aggregate Principal
Amount equal to, and in exchange for, the portion of the Principal Amount of the
Security so surrendered which is not purchased.
SECTION 3.12. Covenant to Comply With Securities Laws Upon Purchase of
Securities. In connection with any offer to purchase or purchase of Securities
under Section 3.01 or 3.08 hereof, the Company shall (i) comply with Rule 13e-4
and Rule 14e-l (which term, as used herein, includes any successor provision
thereto) under the Exchange Act, if applicable, (ii) file the related Schedule
13E-4 (or any successor schedule, form or report) under the Exchange Act, if
applicable, and (iii) otherwise comply with all Federal and state securities
laws so as to permit the rights and obligations under Sections 3.01 and 3.08 to
be exercised in the time and in the manner specified in Sections 3.01 and 3.08.
SECTION 3.13. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Class A Common Stock,
together with interest on such cash, if any, or dividends on such shares of
Class A Common Stock, if any, (subject to the provisions of Section 7.01(f))
held by them for the payment of a Purchase Price that remain unclaimed as
provided in paragraph 13 of the Securities; provided, however, that to the
extent that the aggregate amount of cash or shares of Class A Common Stock
deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase
Price of the Securities or portions thereof to be purchased, then promptly after
the Business Day following the Purchase Date, the Trustee shall return any such
excess to the Company together with interest or dividends, if any, thereof
(subject to the provisions of Section 7.01(f)).
SECTION 3.14. CUSIP Numbers
The Company in issuing the Securities may use "CUSIP" numbers (if then
generally in use), and, if so, the Trustee shall indicate the "CUSIP" numbers of
the Securities in notices of redemption as a convenience to Holders; provided
that neither the Company nor the Trustee shall have any responsibility for any
defect in the CUSIP number that appears on any Security, check, advice of
payment or notice, and any such document may contain of statement to the effect
that CUSIP numbers have been assigned by an independent service for convenience
of reference and that neither the Company nor the Trustee shall be liable for
any inaccuracy in such numbers; and provided further that any such document may
state that no representation is made as to the correctness or accuracy of such
numbers either as printed on the Securities or as contained in any notice of
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.
ARTICLE 4
COVENANTS
SECTION 4.01. Payment of Securities. The Company shall promptly make
all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price
and interest, if any, shall be considered paid on the applicable date due (which
in the case of a Purchase Price is the Business Day following the applicable
Purchase Date, as set forth in Section 3.08) if on such date the Trustee or the
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Paying Agent holds, in accordance with this Indenture, cash or securities, if
permitted hereunder, sufficient to pay all such amounts then due.
The Company shall pay interest on overdue amounts at the rate set forth
in paragraph 1 of the Securities and it shall pay interest on overdue interest
at the same rate compounded semiannually (to the extent that the payment of such
interest shall be legally enforceable), which interest on overdue interest shall
accrue from the date such amounts became overdue. The accrual of such interest
on overdue amounts shall be in lieu of, and not in addition to, the continued
accrual of Original Issue Discount.
SECTION 4.02. SEC Reports. The Company shall file with the Trustee
and the SEC, and transmit to Holders, such information, documents and other
reports, and such summaries thereof, as may be required pursuant to the TIA at
the times and in the manner provided pursuant to the TIA; provided that any such
information, documents or reports required to be filed with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is so required to be filed with the SEC.
The Company shall file with the Trustee, within 15 days after it files
such annual and quarterly reports, information, documents and other reports with
the SEC, copies of its annual report and of the information, documents and other
reports (or copies of such portions of any of the foregoing as the SEC may by
rules and regulations prescribe) which the Company is required to file with the
SEC pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a).
SECTION 4.03. Compliance Certificate. Each obligor (including the
Company) shall deliver to the Trustee within 120 days after the end of each
fiscal year of the Company (beginning with the fiscal year ending on September
30, ____) a certificate from such obligor's principal executive officer,
principal financial officer or principal accounting officer, stating that a
review of the activities of the Company during such year and of performance
under this Indenture and under the terms of the Securities has been made under
his supervision and whether or not the signer knows of any Default that occurred
during such period. If such certificate evidences knowledge of any Default,
such certificate shall describe the Default and its current status.
SECTION 4.04. Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. Maintenance of Office or Agency. The Company will
maintain in the City of San Francisco, California, an office or agency where
Securities may be presented or surrendered for payment, where Securities may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of the Trustee at
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxxxxxxx, Xxxxxxxxxx 00000, Attention:
Corporate Trust Administration, shall be such office or agency for all of the
aforesaid purposes unless the Company shall maintain some other office or agency
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for such purposes and shall give prompt written notice to the Trustee of the
location, and any change in the location, of such other 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
address of the Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in
San Francisco, California for such purposes.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with or merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company shall be the continuing corporation or (2)
the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance,
transfer or lease the properties and assets of the Company substantially as
an entirety (i) shall be a corporation, partnership or trust organized and
validly existing under the laws of the United States or any State thereof or
the District of Columbia and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) immediately after giving effect to such transaction and the
assumption contemplated by clause (a) above, no Default shall have occurred
and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such consolidation
merger, conveyance, transfer or lease and, if a supplemental indenture is
required in connection with such transaction, such supplemental indenture,
comply with this Article and that all conditions precedent herein provided
for relating to such transaction have been satisfied.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of (i) a lease of its properties and assets substantially as an
entirety and (ii) obligations the Company may have under a supplemental
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indenture pursuant to Section 11.14, the Company shall be discharged and
released from all obligations and covenants under this Indenture and the
Securities. Subject to Section 9.06, the Trustee shall enter into a
supplemental indenture to evidence the succession and substitution of such
successor person and discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. Events of Default. An Event of Default, occurs if:
(1) the Company defaults in the payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price or Purchase Price
(and, with respect to a default in the payment of a Purchase Price, such
default continues for a period of three Business Days) on any Security when
the same becomes due and payable at its Stated Maturity, upon redemption,
upon declaration, when due for purchase by the Company or otherwise, whether
or not such payment shall be prohibited by Article 10;
(2) the Company fails to comply with any of its agreements in the
Securities or this Indenture (other than those referred to in clause (1)
above) and such failure continues for 90 days after receipt by the Company
of a Notice of Default;
(3) a decree or order by a court having jurisdiction in the premises
shall have been entered adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization of the Company
under any Bankruptcy Law, and such decree or order shall have continued
undischarged and unstayed for a period of 90 consecutive days; or a decree
or order of a court having jurisdiction in the premises for the appointment
of a receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of the Company or of its property, or for the winding up or
liquidation of its affairs, shall have been entered, and such decree or
order shall have remained in force undischarged and unstayed by a period of
90 consecutive days; or
(4) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent seeking
reorganization under any Bankruptcy Law, or shall consent to the filing of
any such petition, or shall consent to the appointment of a receiver or
liquidator or trustee or assignee in bankruptcy or insolvency of it or of
its property or shall make an assignment for the benefit of creditors, or
shall admit in writing its inability to pay its debts generally as they
become due; or
(5)(i) a default occurs under any instrument or instruments (including
this Indenture) under which there is at the time outstanding, or by which
there may be secured or evidence, any indebtedness of the Company or any
Subsidiary for money borrowed by the Company or any Subsidiary or any
guarantee of payment by the Company or any Subsidiary of any obligation of
any Person which results in acceleration (whether by declaration or
automatically) of, or the nonpayment at maturity (after giving effect to any
applicable grace period) of, such indebtedness or guarantee in an aggregate
amount exceeding $15,000,000, in which case the Company shall immediately
give notice to the Trustee of such acceleration or nonpayment and (ii) there
shall have been a failure to cure such default or to discharge all such
defaulted indebtedness or guarantee or such default is not otherwise waived
and such acceleration has not been rescinded or annulled within fifteen (15)
days after receipt by the Company from the Trustee or by the Company and the
Trustee from the Holders of at least 25% in principal amount of the
Securities then Outstanding of a written notice thereof, by registered or
certified mail, and stating that such notice is a "Notice of Default"
hereunder.
"Bankruptcy Law" means Title 11, United States Code, or any similar
Federal or state law for the relief of debtors. "Custodian" means any receiver,
trustee, assignee, liquidator, custodian or similar official under any
Bankruptcy Law.
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A Default under clause (2) above is not an Event of Default until the
Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (2) above after
receipt of such notice. Any such notice must specify the Default, demand that
it be remedied and state that such notice is a Notice of Default.
SECTION 6.02. Acceleration. If an Event of Default occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least 25%
in aggregate Principal Amount of the Securities at the time outstanding by
notice to the Company and the Trustee, may declare the Issue Price and accrued
Original Issue Discount to the date of declaration on all the Securities to be
immediately due and payable. Upon such a declaration, such Issue Price and
accrued Original Issue Discount shall be due and payable immediately. The
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding, by notice to the Trustee (and without notice to any other
Securityholder), may rescind an acceleration and its consequences if the
rescission would not conflict with any judgment or decree and if all existing
Events of Default have been cured or waived except nonpayment of the Issue Price
and accrued original Issue Discount that have become due solely as a result of
acceleration and if all amounts due to the Trustee under Section 7.07 have been
paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
SECTION 6.03. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Issue Price and accrued Original Issue Discount on the Securities or to
enforce the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
SECTION 6.04. Waiver of Past Defaults. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (1) an Event of Default described
in Section 6.01(1), (2) a Default in respect of a provision that under Section
9.02 cannot be amended without the consent of each Securityholder affected or
(3) a Default under Article 11. When a Default is waived, it is deemed cured,
but no such waiver shall extend to any subsequent or other Default or impair any
consequent right. This Section 6.04 shall be in lieu of Section 316(a)(1)(B) of
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the TIA and such Section 316(a)(1)(B) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.05. Control by Majority. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.05 shall be in lieu of Section 316(a)(1)(A) of the TIA and
such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
SECTION 6.06. Limitation on Suits. A Securityholder may not pursue
any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security or
indemnity against any loss, liability or expense satisfactory to the
Trustee;
(4) the Trustee does not comply with the request within 60 days after
receipt of the notice, the request and the offer of security or indemnity;
and
(5) the Holders of a majority in aggregate Principal Amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
SECTION 6.07. Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, but subject to Article 10, the right of
any Holder to receive payment of the Principal Amount, Issue Price, accrued
original Issue Discount, Redemption Price, Purchase Price or interest, if any,
in respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article 11, or to bring suit for the enforcement
of any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of each such
Holder.
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SECTION 6.08. Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.07.
SECTION 6.09. 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 Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price or interest, 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,
(a) to file and prove a claim for the whole amount of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price,
Purchase Price or interest, if any, 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
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10. Priorities. If the Trustee collects any money pursuant
to this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.07;
SECOND: to holders of Senior Indebtedness to the extent required by
Article 10;
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THIRD: to Securityholders for amounts due and unpaid on the Securities
for the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be,
ratably, without preference or priority of any kind, according to such
amounts due and payable on the Securities; and
FOURTH: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10 and shall provide the Company at
least 20 days notice of such record date. At least 15 days before such record
date, the Company shall mail to each Securityholder and the Trustee a notice
that states the record date, the payment date and amount to be paid.
SECTION 6.11. Undertaking for Costs. In any suit for the enforcement
of any right or remedy under this Indenture or in any suit against the Trustee
for any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees, against any party
litigant in the suit, having due regard to the merits and good faith of the
claims or defenses made by the party litigant. This Section 6.11 does not apply
to a suit by the Trustee, a suit by a Holder pursuant to Section 6.07 or a suit
by Holders of more than 10% in aggregate Principal Amount of the Securities at
the time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of
the TIA and such Section 315(e) is hereby expressly excluded from this Indenture
as permitted by the TIA.
SECTION 6.12. Waiver of Stay, Extension or Usury laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price or Purchase Price
in respect of Securities, or any interest on any such amounts, as contemplated
herein, or which may affect the covenants or the performance of this Indenture
or the Securities; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such laws 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 7
TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
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vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of Default:
(1) 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
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
the Trustee shall examine the certificates and opinions to determine whether
or not they conform to the requirements of this Indenture.
This Section 7.01(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 may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment made in
good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction received
by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any right
or power or expend 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.
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SECTION 7.02. Rights of Trustee. Subject to its duties and
responsibilities under the TIA:
(a) The Trustee may rely on any document believed by it to be genuine
and to have been signed or presented by the proper person. The Trustee need not
investigate any fact or matter stated in any document, but may in its discretion
make such further inquiry or investigation into such facts or matters as it may
see fit, including examination of the books, records and premises of the
Company, personally or by agents reasonably acceptable to the Company.
(b) Before the Trustee acts or refrains from acting, it may require a
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 Company Order, Officers' Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
(d) Subject to the provisions of Section 7.01(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) Before the Trustee acts or refrains from acting, the Trustee may
consult with counsel of its selection and the written advice of such consel or
any Opinion of Counsel shall be full and complete authorization and protection
in respect of any action taken, suffered or omitted by it hereunder in good
faith and in reliance thereon.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may became the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. 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 of the proceeds
from the Securities, it shall not be responsible for any statement in the
registration statement (other than the Statement of Eligibility under the Trust
Indenture Act of 1939 on Form T-1 attached as an exhibit thereto) for the
Securities under the Securities Act or in the Indenture or the Securities (other
than its certificate of authentication), the acts of any prior Trustee
hereunder, or the determination as to which beneficial owners are entitled to
receive any notices hereunder.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder, in the manner and to the extent provided in Section 12.02,
notice of the Default within 90 days after it occurs. Except in the case of a
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Default described in Section 6.01(1), the Trustee may withhold the notice if and
so long as a committee of its Trust Officers in good faith determines that
withholding the notice is in the interests of Securityholders. The Trustee
shall not give notice of a Default pursuant to Section 6.01(2) until at least
ninety days have passed since its occurrence. The second sentence of this
Section 7.05 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. The Trustee shall not be deemed to have knowledge of any Default or
Event of Default or of any event or condition which, with the giving of notice,
the passage or time of both, might constitute a Default or Event of Default
unless (i) the Trustee has received written notice thereof from the Company or
a Holder or (ii) a Trust Officer shall have actual knowledge thereof.
SECTION 7.06. Reports by Trustee to Holders. Within 60 days after
each ________ 15 beginning with the _______ 15 following the date of this
Indenture, the Trustee shall mail to each Securityholder a brief report dated as
of such _______ 15 that complies with TIA Section 313(a), if required by such
Section. The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be provided to the Company and shall be filed with the SEC and each stock
exchange on which the Securities are listed. The Company agrees to notify the
Trustee in writing whenever the Securities become listed on any stock exchange
and of any delisting thereof.
SECTION 7.07. 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 (to the
extent permitted by law) be limited 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 and, if required by the
Company, submission of reasonable documentation for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in accordance
with any provision of this Indenture (including the reasonable compensation
and the expenses, advances and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to
its negligence or bad faith; and
(c) to indemnify the Trustee and each of the Trustee's directors,
officers, employees, agents, successors and assigns (the "Indemnitees") for,
and to hold them harmless against, any loss, liability or expense including
taxes (other than taxes based upon, measured by, or determined by, the
income of the Trustee) incurred without negligence or bad faith on their
part, arising out of or in connection with the acceptance or administration
of this trust, including the costs and expenses of defending the Indemnitees
against any claim or liability in connection with the exercise or
performance of any of their powers or duties hereunder as Trustee,
Authenticating Agent, Security Registrar, Paying Agent or Conversion Agent.
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The Trustee shall give the Company notice of any claim or liability for
which the Trustee might be entitled to indemnification under subparagraph (c) of
this Section 7.07 within a reasonable amount of time after a Trust Officer of
the Trustee becomes aware of such claim or liability. To secure the Company's
payment obligations in this Section 7.07, 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 Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture. When the Trustee incurs expenses after
the occurrence of a Default specified in Section 6.01(3) or (4), the expenses
are intended to constitute expenses of administration under any Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. The Trustee may resign by so
notifying the Company; no such resignation shall be effective until a successor
Trustee has accepted its appointment pursuant to this Section 7.08. The Holders
of a majority in aggregate Principal Amount of the Securities at the time
outstanding may remove the Trustee by so notifying the Trustee and may appoint a
successor Trustee (subject to the consent of the Company, such consent not to be
unreasonably withheld). The Company shall remove the Trustee if:
(1) the Trustee fails to comply with, or ceases to be eligible under,
Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or its
property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Xxxxxxx does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
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If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
SECTION 7.09. Successor Trustee by Xxxxxx. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10. Eligibility; Disqualification. If the Trustee has or
shall acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such interest or resign, to the extent and in the manner
provided by, and subject to the provisions of, the TIA and this Indenture. To
the extent permitted by the TIA, the Trustee shall not be deemed to have a
conflicting interest by virtue of being a trustee under any indenture or
indentures in each case as and to the the extent that such indenture satisfies
the requirements set forth in Section 310(b)(i) of the TIA.
The Trustee shall at all times satisfy the requirements of TIA Sections
310(a)(1) and 310(b). The Trustee hereby represents and warrants that it is
currently in compliance and at all times will remain in compliance with the
requirements of this Section 7.10. The Trustee shall have a combined capital
and surplus of at least $10,000,000 as set forth in its most recent published
annual report of condition. Neither the Company nor any Affiliate of the
Company may serve as Trustee. 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). If at any time the Trustee shall
cease to be eligible in accordance with the provisions of this Section, it shall
resign immediately in the manner and with the effect hereinafter specified in
this Article.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancellation or (ii) all
outstanding Securities have became due and payable and the Company deposits with
the Trustee cash and/or Class A Common Stock, as permitted by the terms hereof,
sufficient to pay at Stated Maturity the Principal Amount of all outstanding
Securities (other than Securities replaced pursuant to Section 2.07), and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.07, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by the
Company acknowledging satisfaction and discharge of this Indenture on demand of
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the Company accompanied by an Officers' Certificate and Opinion of Counsel and
at the cost and expense of the Company.
SECTION 8.02. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, provided, however, that the Trustee or such
Paying Agent, before being required to make any such return, may at the expense
of the Company cause to be published once in a newspaper of general circulation
in the City of New York or mail to each such Holder notice that such money or
securities remains unclaimed and that, after a date specified therein, which
shall not be less than 30 days from the date of such publication or mailing, any
unclaimed money or securities then remaining will be returned to the Company.
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.
ARTICLE 9
AMENDMENTS
SECTION 9.01. Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to provide for uncertificated Securities in addition to
certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended;
(4) to make any change that does not adversely affect the rights of
any Holder of an outstanding Security;
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA or any amendment thereof;
(6) to add to the covenants or obligations of the Company hereunder or
to surrender any right, power or option herein conferred upon the Company;
(7) to provide for Securities which are exchangeable for any
securities of any person and the terms and conditions upon which such
Securities will be so exchangeable; provided, however, that no such
amendment shall be made subsequent to the issuance of Securities under this
Indenture, unless such amendment is approved in accordance with Section
9.02;
(8) to add any additional Events of Dafault; or
(9) to evidence and provide for the acceptance of appointment
hereunder by a successor Xxxxxxx, pursuant to the requirements of Section
7.08.
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SECTION 9.02. With Consent of Holders. With the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding, the Company and the Trustee may amend this Indenture or
the Securities. However, without the consent of each Securityholder affected,
an amendment or supplement to this Indenture or the Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the rate of accrual in connection with Original
Issue Discount, reduce the rate of interest referred to in paragraph 1 of
the Securities or extend the time for payment of Original Issue Discount or
interest, if any, on any Security;
(3) reduce the Principal Amount or the Issue Price of or extend the
Stated Maturity of any Security;
(4) reduce the Redemption Price or Purchase Price of any Security;
(5) make any Security payable in money or securities other than that
stated in the Security;
(6) make any change in Article 10 that adversely affects the rights of
any Securityholder;
(7) make any change in Section 6.04, Section 6.07 or this Section
9.02, except to increase any percentage referred to therein or herein;
(8) make any change that adversely affects the right to convert any
Security; or
(9) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and
this Indenture.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 or Section 9.01 may not make any
change that adversely affects the rights under Article 10 of any holder of
Senior Indebtedness then outstanding unless the requisite holders of such Senior
Indebtedness consent to such change pursuant to the terms of such Senior
Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
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SECTION 9.03. Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA as then in
effect.
SECTION 9.04. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action becomes effective, a consent to it or
any other action by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
SECTION 9.05. Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
SECTION 9.06. Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment does not adversely affect the rights, duties, liabilities or
immunities of the Trustee. If it does, the Trustee may, but need not, sign such
supplemental indenture. In signing such amendment the Trustee shall be entitled
to receive, and (subject to the provisions of Section 7.01) shall be fully
protected in relying upon, an Officer's Certificate and an opinion of Counsel
stating that such amendment is authorized or permitted by this Indenture.
SECTION 9.07. Effect of Supplemental Indentures. Upon the execution of
any supplemental indenture under this Article, this Indenture shall be modified
in accordance therewith, and such supplemental indenture shall form a part of
this Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01. Securities Subordinate to Senior Indebtedness. The
Company covenants and agrees, and each Holder of a Security by such Xxxxxx's
acceptance thereof likewise covenants and agrees, that, to the extent and in the
manner hereinafter set forth in this Article 10, the indebtedness represented by
the Securities and the payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price and interest, if any,
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in respect of each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
"Senior Indebtedness" means the principal of (and premium, if any) and
interest, if any, on (a) all indebtedness of the Company (including indebtedness
of others guaranteed by the Company) (other than (w) the Securities, (x)
indebtedness outstanding under the indenture between the Company and Chemical
Trust Company of California ("Chemical") dated as of July 15, 1986, (y) the
subordinated indentures between the Company and Chemical dated as of December 1,
1992 and January 1, 1996, respectively and (z) indebtedness as to which the
instruments creating or evidencing the same provide that such indebtedness is
not senior in right of payment to the Securities (collectively, the "Pari Passu
Debt")), whether outstanding on the date of this Indenture or hereafter created,
incurred or assumed, that is (i) for money borrowed or (ii) evidenced by a note
or similar instrument given in connection with the acquisition of any
businesses, properties or assets of any kind, except in the ordinary course of
business, (b) obligations of the Company as lessee under leases required to be
capitalized on the consolidated balance sheet of the Company under generally
accepted accounting principles or leases of property made as part of any sale
and leaseback transaction to which the Company is a party and (c) amendments,
renewals, extensions, modifications and refundings of any such indebtedness or
obligations; unless in any case referred to in clauses (a), (b) and (c), in the
instrument creating or evidencing any such indebtedness or obligation or
pursuant to which the same is outstanding it is provided that such indebtedness
or obligation is not superior in right of payment to the Securities or to any
Pari Passu Debt.
SECTION 10.02. Payment Over of Proceeds upon Dissolution, Etc. Upon
any distribution of assets of the Company in the event of
(a) any insolvency or bankruptcy case or proceeding, or any
receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or
(b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or
(c) any assignment for the benefit of creditors or any other
marshaling of assets and liabilities of the Company,
then and in such event
(1) the holders of Senior Indebtedness shall be entitled to receive
payment in full of all amounts due or to become due on or in respect of all
Senior Indebtedness, or provision shall be made for such payment in cash,
before the Holders of the Securities are entitled to receive any payment on
account of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price or interest, if any, in respect
of the Securities; and
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(2) any payment or distribution of assets of the Company of any kind
or character, whether in cash, property or securities, by set-off or
otherwise, to which the Holders or the Trustee would be entitled but for
the provisions of this Article 10, including any such payment or
distribution which may be payable or deliverable by reason of the payment
of any other Debt of the Company being subordinated to the payment of the
Securities, shall be paid by the liquidating trustee or agent or other
person making such payment or distribution, whether a trustee in
bankruptcy, a receiver or liquidating trustee or otherwise, directly to the
holders of Senior Indebtedness or their representative or representatives
or to the trustee or trustees under any indenture under which any
instruments evidencing any of such Senior Indebtedness may have been
issued, ratably according to the aggregate amounts remaining unpaid on
account of the principal of, and premium, if any, and interest, if any, on
the Senior Indebtedness held or represented by each, to the extent
necessary to make payment in full of all Senior Indebtedness remaining
unpaid, after giving effect to any concurrent payment or distribution to
the holders of such Senior Indebtedness.
In the event that, notwithstanding the foregoing provisions of this
Section 10.02, the Trustee or the Holder of any Security shall receive any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of any
other Debt of the Company being subordinated to the payment of the Securities,
before all Senior Indebtedness is paid in full or payment thereof provided for,
and if such fact shall then have been made known to the Trustee, or, as the case
may be, such Holder, then and in such event such payment or distribution shall
be paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, Custodian, assignee, agent or other person making payment
or distribution of assets of the Company for application to the payment of all
Senior Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article 10 only, the words "cash, property or
securities" shall not be deemed to include shares of Capital Stock of the
Company as reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the payment
of which is subordinated, at least to the extent provided in this Article 10
with respect to the Securities, to the payment of all Senior Indebtedness which
may at the time be outstanding; provided, however, that (i) Senior Indebtedness
is assumed by the new corporation, if any, resulting from any such
reorganization or readjustment, and (ii) the rights of the holders of the Senior
Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
into, another person or the liquidation or dissolution of that Company following
the conveyance or transfer of all or substantially all of its assets to another
person upon the terms and conditions set forth in Article 5 shall not be deemed
a dissolution, winding up, liquidation, reorganization, assignment for the
benefit of creditors or marshaling of assets and liabilities of the Company for
the purposes of this Section 10.02 if the person formed by such consolidation or
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into which the Company is merged or the person which acquires by conveyance or
transfer all or substantially all of the assets of the Company, as the case may
be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article 5.
SECTION 10.03. Acceleration of Securities. In the event that any
Securities are declared due and payable before their Stated Maturity pursuant to
Section 6.02, then and in such event the Company shall promptly notify holders
of Senior Indebtedness of such acceleration. The Company may not pay the
Securities until 120 days have passed after such acceleration occurs and may
thereafter pay the Securities if this Article 10 permits the payment at that
time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section 10.03, and if such facts then shall
have been known or thereafter shall have been made known to the Trustee as
provided in Section 10.10 or such Holder, as the case may be, pursuant to the
terms of this Indenture, then and in such event such payment shall be paid over
and delivered forthwith to the Company by or on behalf of the person holding
such payment for the benefit of the holders of Senior Indebtedness.
The provisions of this Section 10.03 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.04. Default on Senior Indebtedness. The Company may not
make any payment of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price or interest, if any, in respect of
the Securities and may not acquire any Securities for cash or property (except
as otherwise provided by Article 11 and other than for Capital Stock (including
cash in lieu of any fractional shares) of the Company) if:
(1) a default on Senior Indebtedness occurs and is continuing that
permits holders of such Senior Indebtedness to accelerate its maturity; and
(2) the default is the subject of judicial proceedings or the Company
receives a notice of default thereof from any person who may give such
notice pursuant to the instrument evidencing or document governing such
Senior Indebtedness. If the Company receives any such notice, then a
similar notice received within nine months thereafter relating to the same
default on the same issue of Senior Indebtedness shall not be effective for
purposes of this Section 10.04.
The Company may resume payments on the Securities and may acquire
Securities if and when:
(A) the default is cured or waived; or
(B) 120 or more days pass after the receipt by the Company of the
notice described in clause (2) above and the default is not then the subject
of judicial proceedings; and
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this Article 10 otherwise permits the payment or acquisition at that time.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section 10.04, and if such fact then shall have
been known or thereafter shall have been made known to the Trustee or such
Holder, as the case may be, pursuant to the terms of this Indenture, then and in
such event such payment shall (to the extent permitted by law) be paid over and
delivered forthwith to the Company by or on behalf of the person holding such
payment for the benefit of the holders of the Senior Indebtedness.
Nothing contained in this Article 10 or elsewhere in this Indenture or
in any of the Securities shall prevent the conversion by a Holder of any
Securities into Class A Common Stock in accordance with the provisions for
conversion of such securities set forth in this Indenture, including the payment
of cash in lieu of fractional shares of Class A Common Stock in accordance with
Article 11, or in any of such Securities in the event of an occurrence of the
events described in clauses (1) and (2) of this Section 10.04.
The provisions of this Section 10.04 shall not apply to any payment
with respect to which Section 10.02 would be applicable.
SECTION 10.05. Payment Permitted if no Default. Nothing contained in
this Article 10 or elsewhere in this Indenture or in any of the Securities shall
prevent (a) the Company, at any time except during the pendency of any case,
proceeding, dissolution, liquidation or other winding up, assignment for the
benefit of creditors or other marshaling of assets and liabilities of the
Company referred to in Section 10.02 or under the conditions described in
Section 10.03 or 10.04, from making payments at any time of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or interest, if any, as the case may be, in respect of the Securities, or
(b) the application by the Trustee or the retention by any Holder of any money
deposited with it hereunder to the payment of or on account of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or interest, if any, as the case may be, in respect of the Securities if
the Trustee did not have, at the time provided in the proviso to the first
paragraph of Section 10.10, notice that such payment would have been prohibited
by the provisions of this Article 10.
SECTION 10.06. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Indebtedness pursuant to the provisions of
this Article 10 (equally and ratably with the holders of all Debt of the Company
which by its express terms is subordinated to Debt of the Company to
substantially the same extent as the Securities are subordinated and is entitled
to like rights of subrogation) to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price
or interest, if any, as the case may be, in respect of the Securities shall be
- 41 -
paid in full. For purposes of such subrogation, no payments or distributions to
the holders of the Senior Indebtedness of any cash, property or securities to
which the Holders of the Securities or the Trustee would be entitled except for
the provisions of this Article 10, and no payments pursuant to the provisions of
this Article 10 to the Company or to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee, shall, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Indebtedness.
SECTION 10.07. Provisions Solely to Define Relative Rights. The
provisions of this Article 10 are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities, on one hand, and
the holders of Senior Indebtedness, on the other hand. Nothing contained in
this Article 10 or elsewhere in this Indenture or in the Securities is intended
to or shall
(a) impair, as between the Company and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay
to the Holders of the Securities the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price and interest, if
any, as the case may be, in respect of the Securities as and when the same
shall became due and payable in accordance with the terms of the Securities
and this Indenture and which, subject to the rights under this Article 10 of
the holders of Senior Indebtedness, is intended to rank equally with all
other general obligations of the Company; or
(b) affect the relative rights against the Company of the Holders of
the Securities and creditors of the Company other than holders of Senior
Indebtedness; or
(c) prevent the Trustee or the Holder of any Security from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article 10 of the
holders of Senior Indebtedness to receive cash, property or securities
otherwise payable or deliverable to the Trustee or such Holder.
Section 10.08. Trustee to Effectuate Subordination. Each Holder of a
Security by such Xxxxxx's acceptance thereof authorizes and directs the Trustee
on such Xxxxxx's behalf to take such action as may be necessary or appropriate
to effectuate the subordination provided in this Article 10 and appoints the
Trustee such Xxxxxx's attorney-in-fact for any and all such purposes.
Section 10.09. No Waiver of Subordination Provisions. No right of any
present or future holder of any Senior Indebtedness to enforce subordination as
herein provided shall at any time in any way be prejudiced or impaired by any
act or failure to act on the part of the Company or by any act or failure to
act, in good faith, by any such holder, or by any noncompliance by the Company
with the terms, provisions and covenants of this Indenture, regardless of any
knowledge thereof any such holder may have or be otherwise charged with.
- 42 -
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and, from time to time,
without the consent of, or notice to, the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article 10
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the manner,
place or terms of payment or extend the time of payment of, or renew or alter,
Senior Indebtedness, or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (ii) sell, exchange, release or otherwise
dispose of any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (iii) release any person liable in any manner for the collection
of Senior Indebtedness; and (iv) exercise or refrain from exercising any rights
against the Company or any other person.
SECTION 10.10. Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company which would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Failure to give such notice shall not affect the subordination of
the Securities to Senior Indebtedness. Notwithstanding the provisions of this
Article 10 or any other provision of this Indenture, the Trustee shall not be
charged with knowledge of the existence of any facts which would prohibit the
making of any payment to or by the Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof at the address
specified in Section 12.02 from the Company or a holder of Senior Indebtedness
or from any trustee or agent therefor; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section 7.01, shall be
entitled in all respects to assume that no such facts exist; provided, however,
that if a Trust Officer of the Trustee shall not have received, at least three
Business Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including, without limitation, the payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or interest, if any, as the case may be, in
respect of any Security), the notice with respect to such money provided for in
this Section 10.10, then, anything herein contained to the contrary
notwithstanding, the Trustee shall have full power and authority to receive such
money and to apply the same to the purpose for which such money was received and
shall not be affected by any notice to the contrary which may be received by it
within three Business Days prior to such date.
Subject to the provisions of Section 7.01, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a person
representing himself to be a holder of Senior Indebtedness (or a trustee or
agent on behalf of such holder) to establish that such notice has been given by
a holder of Senior Indebtedness (or a trustee or agent on behalf of any such
holder). In the event that the Trustee determines in good faith that further
evidence is required with respect to the right of any person as a holder of
Senior Indebtedness to participate in any payment or distribution pursuant to
this Article 10, the Trustee may request such person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such person, the extent to which such person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such person under this Article 10, and if such evidence is not furnished, the
Trustee may defer any payment which it may be required to make for the benefit
- 43 -
of such person pursuant to the terms of this Indenture pending judicial
determination as to the right of such person to receive such payment.
SECTION 10.11. Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Section 7.01, and the Holders of the Securities shall be entitled to rely upon
any order or decree entered by any court of competent jurisdiction in which such
insolvency, bankruptcy, receivership, liquidation, reorganization, dissolution,
winding up or similar case or proceeding is pending, or a certificate of the
trustee in bankruptcy, liquidating trustee, Custodian, receiver, assignee for
the benefit of creditors, agent or other person making such payment or
distribution, delivered to the Trustee or to the Holders of Securities, for the
purpose of ascertaining the persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article 10.
SECTION 10.12. Trustee Not Fiduciary for Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
the Trustee shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other person cash, property or securities
to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article 10 or otherwise. The Trustee shall not be charged with knowledge of the
existence of Senior Indebtedness or of any facts that would prohibit any payment
hereunder unless a Trust Officer of the Trustee shall have received notice to
that effect at the address of the Trustee set forth in Section 12.02. With
respect to the holders of Senior Indebtedness, the Trustee undertakes to perform
or to observe only such of its covenants or obligations as are specifically set
forth in this Article 10 and no implied covenants or obligations with respect to
holders of Senior Indebtedness shall be read into this Indenture against the
Trustee.
SECTION 10.13. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 10 with respect to any
Senior Indebtedness which may at any time be held by it, to the same extent as
any other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article 10 shall apply to claims of, or payments to,
the Trustee under or pursuant to Section 7.07.
SECTION 10.14. Article 10 Applicable to Paying Agents. In case at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
10 shall in such case (unless the context otherwise requires) be construed as
extending to and including such Paying Agent within its meaning as fully for all
intents and purposes as if such Paying Agent were named in this Article 10 in
addition to or in place of the Trustee; provided, however, that Sections 10.10
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and 10.12 shall not apply to the Company or any Affiliate of the Company if it
or such Affiliate acts as Paying Agent.
ARTICLE 11
CONVERSION
SECTION 11.01. Conversion Privilege. A Holder of a Security may
convert such Security into Class A Common Stock at any time during the period
stated in paragraph 9 of the Securities. The number of shares of Class A Common
Stock issuable upon conversion of a Security per $1,000 of Principal Amount
thereof (the ''Conversion Rate") shall be that set forth in paragraph 9 in the
Securities, subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of a Security if
the portion is $l,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to conversion of all of a Security also apply to conversion
of a portion of a Security.
"Quoted Price", on a particular day, means the last reported per share
sales price (or, if no sales price is reported, the average of the bid and asked
prices or, if more than one in either case, the average of the average bid and
average asked prices) on such day of the Class A Common Stock on the New York
Stock Exchange or, in the event shares of Class A Common Stock are not listed on
the New York Stock Exchange, such other national or regional stock exchange upon
which the Class A Common Stock is listed, or, if the shares of Class A Common
Stock are not listed on a national or regional stock exchange, as quoted on the
National Association of Securities Dealers Automated Quotation System or by the
National Quotation Bureau, Incorporated. In the absence of one or more such
quotations, the Company shall be entitled to determine the Quoted Price on the
basis of such quotations as it considers appropriate.
"Average Quoted Price" means the average of the Quoted Prices of the
Class A Common Stock for the shortest of
(i) 30 consecutive trading days ending on the last full trading day
prior to the Time of Determination with respect to the rights, warrants or
options or distribution in respect of which the Average Quoted Price is
being calculated, or
(ii) the period (x) commencing on the date next succeeding the first
public announcement of (a) the issuance of rights, warrants or options or
(b) the distribution, in each case, in respect of which the Average Quoted
Price is being calculated and (y) proceeding through the last full trading
day prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Quoted Price is
being calculated, or
(iii) the period, if any, (x) commencing on the date next succeeding
the Ex-Dividend Time with respect to the next preceding (a) issuance of
rights, or warrants or options or (b) distribution, in each case, for which
- 45 -
an adjustment is required by the provisions of Section 11.06(4), 11.07 or
11.08 and (y) proceeding through the last full trading day prior to the
Time of Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Quoted Price is being
calculated.
In the event that the Ex-Dividend Time (or in the case of a
subdivision, combination or reclassification, the effective date with respect
thereto) with respect to a dividend, subdivision, combination or
reclassification to which "Section 11.06(1), (2), (3) or (5) applies occurs
during the period applicable for calculating "Average Quoted Price" pursuant to
the definition in the preceding sentence, "Average Quoted Price" shall be
calculated for such period in a manner determined by the Board of Directors to
reflect the impact of such dividend, subdivision, combination or
reclassification on the Quoted Price of the Class A Common Stock during such
period.
"Time of Determination" means the time and date of the earlier of (i)
the determination of stockholders entitled to receive rights, warrants or
options or a distribution, in each case, to which Sections 11.07 and 11.08 apply
and (ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the New York Stock Exchange or such other national or regional exchange or
market on which the Class A Common Stock is then listed or quoted.
SECTION 11.02. Conversion Procedure. To convert a Security a Holder
must satisfy the requirements in paragraph 9 of the Securities. The date on
which the Holder satisfies all those requirements is the conversion date (the
"Conversion Date"). As soon as practicable after the Conversion Date, the
Company shall deliver to the Holder, through the Conversion Agent, a certificate
for the number of full shares of Class A Common Stock issuable upon the
conversion and cash in lieu of any fractional share determined pursuant to
Section 11.03. The person in whose name the certificate is registered shall be
treated as a stockholder of record on and after the Conversion Date; provided,
however, that no surrender of a Security on any date when the stock transfer
books of the Company shall be closed shall be effective to constitute the person
or persons entitled to receive the shares of Class A Common Stock upon such
conversion as the record holder or holders of such shares of Class A Common
Stock on such date, but such surrender shall be effective to constitute the
person or persons entitled to receive such shares of Class A Common Stock as the
record holder or holders thereof for all purposes at the close of business on
the next succeeding day on which such stock transfer books are open; provided
further that such conversion shall be at the Conversion Rate in effect on the
date that such Security shall have been surrendered for conversion, as if the
stock transfer books of the Company had not been closed. Upon conversion of a
Security, such person shall no longer be a Holder of such Security.
No payment or adjustment will be made for dividends on or other
distribution with respect to any Class A Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date of the Security to the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
- 46 -
Holder thereof through delivery of the Class A Common Stock (together with the
cash payment, if any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time, the
number of shares of Class A Common Stock issuable upon the conversion shall be
based on the total Principal Amount of the 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 in an authorized denomination equal in Principal Amount to the
unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal Holiday
in a place where a Conversion Agent is located, the Security may be surrendered
to that Conversion Agent on the next succeeding day that is not a Legal Holiday.
SECTION 11.03. Fractional Shares. The Company will not issue a
fractional share of Class A 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 shall be
determined to the nearest 1/1000th of a share by multiplying the Quoted Price,
on the last trading day prior to the Conversion Date, of a full share by the
fractional amount and rounding the product to the nearest whole cent.
SECTION 11.04. 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 Class A Common Stock upon the conversion.
However, the Holder shall pay any such tax which is due because the Holder
requests the shares to be issued in a name other than the Holder's name. The
Conversion Agent may refuse to deliver the certificates representing the Class A
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
regulations.
SECTION 11.05. Company to Provide Stock. The Company shall, prior to
issuance of any Securities hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Class A Common Stock a sufficient
number of shares of Class A Common Stock to permit the conversion of the
Securities for shares of Class A Common Stock.
All shares of Class A Common Stock delivered upon conversion of the
Securities shall be newly issued shares or treasury shares, shall be duly and
validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim.
The Company will endeavor promptly to comply with all Federal and state
securities laws regulating the offer and delivery of shares of Class A Common
Stock upon conversion of Securities, if any, and will list or cause to have
- 47 -
quoted such shares of Class A Common Stock on each national securities exchange
or in the over-the-counter market or such other market on which the Class A
Common Stock is then listed or quoted.
SECTION 11.06. Adjustment for Change in Capital Stock. If, after the
Issue Date of the Securities, the Company:
(1) pays a dividend or makes a distribution on its Class A Common
Stock in shares of its Class A Common Stock;
(2) subdivides its outstanding shares of Class A Common Stock into a
greater number of shares;
(3) combines its outstanding shares of Class A Common Stock into a
smaller number of shares;
(4) pays a dividend or makes a distribution on its Class A Common
Stock in shares of its Capital Stock (other than Class A Common Stock or
rights, warrants, or options for its Capital Stock); or
(5) issues by reclassification of its Class A Common Stock any shares of
its Capital Stock (other than rights, warrants, or options for its Capital
Stock),
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to such action.
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes or series of Capital Stock of
the Company, the Conversion Rate shall thereafter be subject to adjustment upon
the occurrence of an action taken with respect to any such class or series of
Capital Stock as is contemplated by this Article 11 with respect to the Class A
Common Stock, on terms comparable to those applicable to Class A Common Stock in
this Article 11.
SECTION 11.07. Adjustment for Rights Issue. If after the Issue Date
of the Securities, the Company distributes any rights, warrants or options to
all holders of its Class A Common Stock entitling them, for a period expiring
within 60 days after the record date for such distribution, to purchase shares
of Class A Common Stock at a price per share less than the Quoted Price as of
the Time of Determination, the Conversion Rate shall be adjusted in accordance
with the formula:
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(O + N)
R' = R X ---------------------
(O + (N X P) / M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Class A Common Stock outstanding on
the record date for the distribution to which this Section
11.07 is being applied.
N = the number of additional shares of Class A Common Stock
offered pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Quoted Price, minus, in the case of (i) a
distribution to which Section 11.06(4) applies or (ii) a
distribution to which Section 11.08 applies, for which, in
each case, (x) the record date shall occur on or before the
record date for the distribution to which this Section 11.07
applies and (y) the Ex-Dividend Time shall occur on or after
the date of the Time of Determination for the distribution
to which this Section 11.07 applies, the fair market value
(on the record date for the distribution to which this
Section 11.07 applies) of the
(1) Capital Stock of the Company distributed in respect of
each share of Class A Common Stock in such Section
11.06(4) distribution and
(2) assets of the Company or debt securities or any rights,
warrants or options to purchase securities of the
Company distributed in respect of each share of Class A
Common Stock in such Section 11.08 distribution.
The Board of Directors shall determine fair market values for the
purposes of this Section 11.07.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 11.07 applies.
If all of the shares of Class A Common Stock issuable upon exercise or
conversion of such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Class A Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 11.07 if the application
of the formula stated above in this Section 11.07 would result in a value of R'
that is less than the value of R.
SECTION 11.08. Adjustment for Other Distributions. If, after the
Issue Date of the Securities, the Company distributes to all holders of its
- 49 -
Class A Common Stock any of its assets, or debt securities or any rights,
warrants or options to purchase securities of the Company (including securities
or cash, but excluding (x) distributions of Capital Stock referred to in Section
11.06 and distributions of rights, warrants or options referred to in Section
11.07 and (y) cash dividends or other cash distributions that are paid out of
consolidated current net earnings or earnings retained in the business as shown
on the books of the Company unless such cash dividends or other cash
distributions are "Extraordinary Cash Dividends"), the Conversion Rate shall be
adjusted, subject to the provisions of the last paragraph of this Section 11.08,
in accordance with the formula:
M
R' = R X ---------
M - F
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Quoted Price, minus, in the case of a
distribution to which Section 11.06(4) applies, for which
(i) the record date shall occur on or before the record date
for the distribution to which this Section 11.08 applies and
(ii) the Ex-Dividend Time shall occur on or after the date
of the Time of Determination for the distribution to which
this Section 11.08 applies, the fair market value (on the
record date for the distribution to which this Section 11.08
applies) of any Capital Stock of the Company distributed in
respect of each share of Class A Common Stock in such
Section 11.06(4) distribution.
F = the fair market value (on the record date for the
distribution to which this Section 11.08 applies) of the
assets, securities, rights, warrants or options to be
distributed in respect of each share of Class A Common Stock
in the distribution to which this Section 11.08 is being
applied (including, in the case of cash dividends or other
cash distributions giving rise to an adjustment, all such
cash distributed concurrently).
The Board of Directors shall determine fair market values for the
purposes of this Section 11.08.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 11.08 applies.
For purposes of this Section 11.08, the term "Extraordinary Cash
Dividend" shall mean any cash dividend with respect to the Class A Common Stock
the amount of which, together with the aggregate amount of cash dividends on the
- 50 -
Class A Common Stock to be aggregated with such cash dividend in accordance with
the provisions of this paragraph, equals or exceeds the threshold percentages
set forth in item (i) or (ii) below:
(i) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Class A Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Class A
Common Stock with Ex-Dividend Times occurring in the 85 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied equals or exceeds on
a per share basis 12.5% of the average of the Quoted Prices during the
period beginning on the date after the first such Ex-Dividend Time in such
period and ending on the date prior to the Ex-Dividend Time with respect to
the cash dividend to which this provision is being applied (except that if
no other cash dividend has had an Ex-Dividend Time occurring in such period,
the period for calculating the average of the Quoted Prices shall be the
period commencing 85 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being applied),
such cash dividend together with each other cash dividend with an
Ex-Dividend Time occurring in such 85 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 11.08, the value of "F" shall be equal to (w)
the aggregate amount of such cash dividend together with the amounts of the
other cash dividends with Ex-Dividend Times occurring in such period minus
(x) the aggregate amount of such other cash dividends with Ex-Dividend Times
occurring in such period for which a prior adjustment in the Conversion Rate
was previously made under this Section 11.08.
(ii) If, upon the date prior to the Ex-Dividend Time with respect to a
cash dividend on the Class A Common Stock, the aggregate amount of such cash
dividend together with the amounts of all cash dividends on the Class A
Common Stock with Ex-Dividend Times occurring in the 365 consecutive day
period ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied equals or exceeds on
a per share basis 25% of the average of the Quoted Prices during the period
beginning on the date after the first such Ex-Dividend Time in such period
and ending on the date prior to the Ex-Dividend Time with respect to the
cash dividend to which this provision is being applied (except that if no
other cash dividend has had an Ex-Dividend Time occurring in such period,
the period for calculating the average of the Quoted Prices shall be the
period commencing 365 days prior to the date prior to the Ex-Dividend Time
with respect to the cash dividend to which this provision is being applied),
such cash dividend together with each other cash dividend with an
Ex-Dividend Time occurring in such 365 day period shall be deemed to be an
Extraordinary Cash Dividend and for purposes of applying the formula set
forth above in this Section 11.08, the value of "F" shall be equal to (y)
the aggregate amount of such cash dividend together with the amounts of the
other cash dividends with Ex-Dividend Times occurring in such period minus
(z) the aggregate amount of such other cash dividends with Ex-Dividend Times
occurring in such period for which a prior adjustment in the Conversion Rate
was previously made under this Section 11.08.
- 51 -
In making the determinations required by items (i) and (ii) above, the
amount of cash dividends paid on a per share basis and the average of the Quoted
Prices, in each case during the period specified in item (i) or (ii) above, as
applicable, shall be appropriately adjusted to reflect the occurrence during
such period of any event described in Section 11.06.
In the event that, with respect to any distribution to which this
Section 11.08 would otherwise apply, the difference ''M-F", as defined in the
above formula is less than $1.00 or "F" is greater than "M", then the adjustment
provided by this Section 11.08 shall not be made and in lieu thereof the
provisions of Section 11.14 shall apply to such distribution.
SECTION 11.09. When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 11 shall be made to the nearest
cent or to the nearest 1/1,000th of a share, as the case may be, with one-half
of a cent and 5/10,000ths of a share being rounded upwards.
SECTION 11.10. When No Adjustment Required. No adjustment need be
made for a transaction referred to in Section 11.06, 11.07, 11.08 or 11.14 if
Securityholders are to participate in the transaction on a basis and with notice
that the Board of Directors determines to be fair and appropriate in light of
the basis and notice on which holders of Class A Common Stock participate in the
transaction.
No adjustment need be made for rights to purchase Class A Common Stock
pursuant to a Company plan for reinvestment of dividends or interest or for
rights to purchase Capital Stock pursuant to any future dividend or distribution
which the Company determines to be comparable in purpose and in effect to the
dividend and subsequent distribution of Rights contemplated by the Rights
Agreement.
No adjustment need be made for a change in the par value or no par
value of the Class A Common Stock.
To the extent the Securities become convertible into cash pursuant to
the terms of Section 11.08 or 11.14, no adjustment need be made thereafter as to
the cash. Interest will not accrue on the cash.
SECTION 11.11. Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice and a certificate from the Company's independent public accountants
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is
correct. Neither the Trustee nor any Conversion Agent shall be under any duty
or responsibility with respect to any such certificate except to exhibit the
same to any Holder desiring inspection thereof.
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SECTION 11.12. Voluntary Increase. The Company from time to time may
increase the Conversion Rate by any amount for any period of time. Whenever the
Conversion Rate is increased, the Company shall mail to Securityholders and file
with the Trustee and the Conversion Agent a notice of the increase. The Company
shall mail the notice at least 15 days before the date the increased Conversion
Rate takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect.
A voluntary increase of the Conversion Rate does not change or adjust
the Conversion Rate otherwise in effect for purposes of Section 11.06, 11.07 or
11.08.
SECTION 11.13. Notice of Certain Transactions. If:
(1) the Company takes any action that would require an adjustment in
the Conversion Rate pursuant to Section 11.06, 11.07 or 11.08 (unless no
adjustment is to occur pursuant to Section 11.10); or
(2) the Company takes any action that would require a supplemental
indenture pursuant to Section 11.14; or
(3) there is a liquidation or dissolution of the Company;
then the Company shall mail to Securityholders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend or
distribution or the proposed effective date of a subdivision, combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in
it shall not affect the validity of the transaction.
Section 11.14. Reorganization of Company; Special Distribution. If
the Company is a party to a transaction subject to Section 5.01 or a merger or
binding share exchange which reclassifies or changes its outstanding Class A
Common Stock, the person obligated to deliver securities, cash or other assets
upon conversion of Securities shall enter into a supplemental indenture. If the
issuer of securities deliverable upon conversion of Securities is an Affiliate
of the successor Company, that issuer shall join in the supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, binding share exchange or transfer if such Holder had converted the
Security immediately before the effective date of the transaction, assuming (to
the extent applicable) that such Holder (i) was not a constituent person or an
Affiliate of a constituent person to such transaction; (ii) made no election
with respect thereto; and (iii) was treated alike with the plurality of
- 53 -
non-electing Holders. The supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practical to the adjustments
provided for in this Article 11. The successor Company shall mail to
Securityholders a notice briefly describing the supplemental indenture.
If this Section applies, neither Section 11.06 nor 11.07 applies.
If the Company makes a distribution to all holders of its Class A
Common Stock of any of its assets, or debt securities or any rights, warrants or
options to purchase securities of the Company that, but for the provisions of
the last paragraph of Section 11.08, would otherwise result in an adjustment in
the Conversion Rate pursuant to the provisions of Section 11.08, then, from and
after the record date for determining the holders of Class A Common Stock
entitled to receive the distribution, a Holder of a Security that converts such
Security in accordance with the provisions of this Indenture would upon such
conversion be entitled to receive, in addition to the shares of Class A Common
Stock into which the Security is convertible, the kind and amount of securities,
cash or other assets comprising the distribution that such Holder would have
received if such Holder had converted the Security immediately prior to the
record date for determining the holders of Class A Common Stock entitled to
receive the distribution.
SECTION 11.15. Company Determination Final. Any determination that
the Company or the Board of Directors must make pursuant to Section 11.03,
11.06, 11.07, 11.08, 11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16. Trustee's Adjustment Disclaimer. The Trustee has no
duty to determine when an adjustment under this Article 11 should be made, how
it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent shall have the same protection under this
Section 11.16 as the Trustee.
SECTION 11.17. Simultaneous Adjustments. In the event that this
Article 11 requires adjustments to the Conversion Rate under more than one of
Sections 11.06(4), 11.07 or 11.08, and the record dates for the distributions
giving rise to such adjustments shall occur on the same date, then such
adjustments shall be made by applying, first, the provisions of Section 11.06,
second, the provisions of Section 11.08 and, third, the provisions of Section
11.07.
SECTION 11.18. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19. Rights Issued in Respect of Class A Common Stock Issued
Upon Conversion. Each share of Class A Common Stock issued upon conversion of
Securities pursuant to this Article 11 shall be entitled to receive the
appropriate number of Rights, if any, and the certificates representing the
- 54 -
Class A Common Stock issued upon such conversion shall bear such legends, if
any, in each case as provided by and subject to the terms of the Rights
Agreement as in effect at the time of such conversion. Notwithstanding anything
else to the contrary in this Article 11, there shall not be any adjustment to
the conversion privilege or Conversion Rate as a result of (i) the distribution
of separate certificates representing the Rights, (ii) the occurrence of certain
events entitling holders of Rights to receive, upon exercise thereof, preferred
stock of the Company or Capital Stock of another corporation or (iii) the
exercise of such Rights in accordance with the Rights Agreement.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
SECTION 12.02. Notices. Any notice or communication shall be in
writing and delivered in person or mailed by first-class mail, postage prepaid,
addressed as follows:
if to the Company:
Bergen Xxxxxxxx Corporation
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Telecopier:
Telephone:
Attention: Chief Financial Officer, with a copy to Secretary
if to the Trustee:
Chemical Trust Company of California
00 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Telecopier: 000-000-0000
Telephone: 000-000-0000
Attention: Corporate Trust Administration
The Company or the Trustee by notice to the other may designate
additional or different addresses for subsequent notices or communications.
Any notice or communication given to a Securityholder shall be mailed
to the Securityholder, by first class mail, postage prepaid, at the
- 55 -
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
The Trustee shall transmit to Securityholders such reports concerning
the Trustee and its actions under the Indenture as may be required pursuant to
Section 313 of the Trust Indenture Act at the times and in the manner provided
pursuant thereto, if so required.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders,
it shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
SECTION 12.03. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this Indenture
relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture (other than certificates
provided pursuant to Section 4.03 hereof) shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
- 56 -
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition
has been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
SECTION 12.06. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.07. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 12.08. Legal Holidays. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and to the extent applicable no Original Issue Discount or
interest, if any, shall accrue for the intervening period.
SECTION 12.09. Governing Law. The laws of the State of New York and
the applicable federal laws of the United States shall govern this Indenture and
the Securities without regard to principles of conflict of laws.
SECTION 12.10. No Recourse Against Others. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 12.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of
them together represent the same agreement. One signed copy is enough to prove
this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first written above.
- 57 -
BERGEN XXXXXXXX CORPORATION
By:________________________
Title:
Attest:
_____________________
Title:
[SEAL] CHEMICAL TRUST COMPANY OF
CALIFORNIA
-------------------------,
as Trustee
By:________________________
Title:_____________________
Attest:
_________________________
Title: _____________________
[SEAL]
- 58 -
EXHIBIT A
[FORM OF FACE OF LYON]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT TO EACH $1,000 OF
PRINCIPAL AMOUNT OF THIS SECURITY IS $_____, THE ISSUE DATE IS _____________,
199___ AND THE YIELD TO MATURITY IS ___%.
BERGEN XXXXXXXX CORPORATION
Liquid Yield Option(TM) Note due _____
(Zero Coupon-Subordinated)
No.
Issue
Date: __________ 199__ Original Issue Discount: $________________
Issue Price: $_____________ (for each $1,000 Principal Amount)
(for each $1,000 Principal Amount)
Bergen Xxxxxxxx Corporation, a corporation duly organized and existing
under the laws of the State of New Jersey (hereinafter called the "Company"),
for value received, hereby promises to pay to __________________________ or
registered assigns, the Principal Amount of _________ Dollars ($_________) on
____________ __, 20__.
This Security shall not bear interest except as specified on the other
side of this Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as specified on the
other side of this Security. All capitalized terms used herein without
definition shall have the respective meanings assigned thereto in the Indenture
referred to on the other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, Bergen Xxxxxxxx Corporation has caused this
instrument to be signed by its Chairman of the Board, or its President, or one
of its Vice Presidents, manually or by facsimile, and a facsimile of its
---------------------------
(TM) Trademark of Xxxxxxx Xxxxx & Co., Inc.
corporate seal to be imprinted hereon and attested by a manual or facsimile
signature of its Secretary or one of its Assistant Secretaries.
Dated: BERGEN XXXXXXXX CORPORATION
By:______________________________
Title:_____________________
By:______________________________
Title:_____________________
(SEAL)
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
____________________________,
as Trustee, certifies that this is
one of the Securities referred to
in the within mentioned Indenture.
By:__________________________
Authorized Officer
Dated:________________________
- 60 -
[FORM OF REVERSE SIDE OF LYON]
Liquid Yield Option Note(TM) due ____
(Zero Coupon-Subordinated)
1. Interest
--------
This Security shall not bear interest, except that if the Principal
hereof or any portion of such Principal is not paid when due (whether upon
acceleration pursuant to Section 6.02 of the Indenture, upon the date set for
payment of the Redemption Price pursuant to paragraph 5 hereof, upon the date
set for payment of a Purchase Price pursuant to paragraph 6 hereof or upon the
Stated Maturity of this Security), then in each such case the overdue amount
shall bear interest at the rate of _____% per annum, compounded semiannually (to
the extent that the payment of such interest shall be legally enforceable),
which interest shall accrue from the date such overdue amount was due to the
date payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand. The accrual of
such interest on overdue amounts shall be in lieu of, and not in addition to,
the continued accrual of Original Issue Discount.
Original Issue Discount (the difference between the Issue Price and the
Principal Amount of the Security), in the period during which a Security remains
outstanding, shall accrue at _____% per annum, on a semi-annual bond equivalent
basis using a 360-day year composed of twelve 30-day months, commencing on the
Issue Date of this Security.
2. Method of Payment
-----------------
Subject to the terms and conditions of the Indenture, the Company will
make payments in respect of the Securities to the persons who are registered
Holders of Securities at the close of business on the Business Day preceding the
Redemption Date or Stated Maturity, as the case may be, or at the close of
business on a Purchase Date or Conversion Date, as the case may be. Holders
must surrender Securities to a Paying Agent to collect such payments in respect
of the Securities. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may make such cash payments by check
payable in such money.
3. Paying Agent, Conversion Agent and Registrar
--------------------------------------------
Initially, Chemical Trust Company of California, as Trustee (the
"Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
-----------------------
(TM) Trademark of Xxxxxxx Xxxxx & Co., Inc.
co-registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar.
4. Indenture
---------
The Company issued the securities under an Indenture dated as of
________ __199__ (the "Indenture"), between the Company and the Trustee. The
terms of the Securities include those stated in the Indenture and those made
part of the Indenture by reference to the Trust Indenture Act of 1939, as
amended and as in effect from time to time (the "TIA"). Capitalized terms used
herein and not defined herein have the meanings ascribed thereto in the
Indenture. The Securities are subject to all such terms, and Securityholders
are referred to the Indenture and the TIA for a statement of those terms.
The Securities are general unsecured obligations of the Company limited
to $___,000,000 aggregate Principal Amount (subject to Sections 2.02 and 2.07 of
the Indenture). The Indenture does not limit other Debt of the Company, secured
or unsecured, including Senior Indebtedness.
5. Redemption at the Option of the Company
---------------------------------------
No sinking fund is provided for the Securities. The Securities are
redeemable as a whole, or from time to time in part, at any time at the option
of the Company at the Redemption Prices set forth below, provided that the
Securities are not redeemable prior to _________ ___, _____.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount on the dates shown below and at Stated Maturity, which prices
reflect accrued Original Issue Discount calculated to each such date. The
Redemption Price of a Security redeemed between such dates would include an
additional amount reflecting the additional Original Issue Discount accrued
since the next preceding date in the table to the actual Redemption Date.
(1) (2) (3)
Accrued Original Redemption
LYON Issue Discount Price
Redemption Date Issue Price at % (1) + (2)
-------------------- ----------- ------------------ ------------
$ $
At Maturity $ $1,000.00
6. Purchase by the Company at the Option of the Holder
---------------------------------------------------
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase, at the option of the Holder, the Securities held
by such Holder on the following Purchase Dates and at the following Purchase
- 62 -
Prices per $1,000 Principal Amount at Stated Maturity of such Securities, upon
delivery of a Purchase Notice containing the information set forth in the
Indenture, from the opening of business on the date that is 20 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. Such Purchase Prices may be paid, at the option of the
Company, in cash or by the issuance and delivery of shares of Class A Common
Stock of the Company, or in any combination thereof.
Purchase Date Purchase Price
------------- --------------
.......................... $_____________
.......................... $_____________
.......................... $_____________
Holders have the right to withdraw any Purchase Notice by delivering to
the Paying Agent a written notice of withdrawal in accordance with the
provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture) sufficient
to pay a Purchase Price of all Securities or portions thereof to be purchased as
of the Purchase Date is deposited with the Paying Agent on the Business Day
following the Purchase Date, Original Issue Discount ceases to accrue on such
Securities (or portions thereof) on and after such date, and the Holder thereof
shall have no other rights as such other than the right to receive the Purchase
Price upon surrender of such Security.
7. Notice of Redemption
--------------------
Notice of redemption will be mailed at least 15 days but not more than
60 days before the Redemption Date to each Holder of Securities to be redeemed
at the Holder's registered address. If money sufficient to pay the Redemption
Price of all Securities (or portions thereof) to be redeemed on the Redemption
Date is deposited with the Paying Agent prior to or on the Redemption Date, on
and after such date Original Issue Discount ceases to accrue on such Securities
or portions thereof. Securities in denominations larger than $1,000 of
Principal Amount may be redeemed in part but only in integral multiples of
$1,000 of Principal Amount.
8. Subordination
-------------
The Securities are subordinated to all existing and future Senior
Indebtedness. To the extent provided in the Indenture, Senior Indebtedness must
be paid before the Securities may be paid. The Indenture does not limit the
present or future amount of Senior Indebtedness the Company may have. The
Company agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
- 63 -
9. Conversion
----------
Subject to the next two succeeding sentences, a Holder of a Security
may convert it into Class A Common Stock of the Company at any time before the
close of business on ________, 20__. If the Security is called for redemption,
the Holder may convert it at any time before the close of business on the
Redemption Date. The number of shares of Class A Common Stock to be delivered
upon conversion of a Security into Class A Common Stock per $1,000 of Principal
Amount shall be equal to the Conversion Rate then in effect. A Security in
respect of which a Holder has delivered a Purchase Notice exercising the option
of such Holder to require the Company to purchase such Security may be converted
only if the notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Rate is ______ shares of Class A Common Stock
per $1,000 Principal Amount, subject to adjustment in certain events described
in the Indenture. The Company will deliver cash or a check in lieu of any
fractional share of Class A Common Stock.
To convert, a Security a Holder must (1) complete and manually sign the
conversion notice on the back of the Security (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion Agent (or
the office or agency referred to in Section 4.05 of the Indenture), (2)
surrender the Security to the Conversion Agent, (3) furnish appropriate
endorsements and transfer documents if required by the Conversion Agent, the
Company or the Trustee and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of a Security if the Principal Amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the Class A Common Stock except as
provided in the Indenture. On conversion of a Security, that portion of accrued
Original Issue Discount attributable to the period from the Issue Date to the
Conversion Date with respect to the converted Security shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through the delivery of the Class A Common Stock (together with
any cash payment in lieu of fractional shares) in exchange for the Security
being converted pursuant to the terms hereof.
The Conversion Rate will be adjusted for dividends or distributions on
Class A Common Stock payable in Class A Common Stock or other Capital Stock;
subdivisions, combinations or certain reclassifications of Class A Common Stock;
distributions to all holders of Class A Common Stock of certain rights to
purchase Class A Common Stock for a period of 60 days at less than the Quoted
Price at the Time of Determination; and distributions to such holders of assets
or debt securities of the Company or certain rights to purchase securities of
the Company (excluding certain cash dividends or distributions). However, no
adjustment need be made if Securityholders may participate in the transaction or
in certain other cases. The Company from time to time may voluntarily increase
the Conversion Rate.
If the Company is a party to a consolidation, merger or binding share
exchange or a transfer of all or substantially all of its assets, or upon
- 64 -
certain distributions described in the Indenture, the right to convert a
Security into Class A Common Stock may be changed into a right to convert it
into securities, cash or other assets of the Company or another person.
10. Conversion Arrangement on Call for Redemption
---------------------------------------------
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Securities at an amount not less than the
Redemption Price, together with accrued interest, if any, to the Redemption
Date, by one or more investment bankers or other purchasers who may agree with
the Company to purchase such Securities from the Holders and to make payment for
such Securities to the Trustee in trust for such Holders.
11. Denominations; Transfer; Exchange
---------------------------------
The Securities are in registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or exchange Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a 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 a selection of Securities to be redeemed.
12. Persons Deemed Owners
---------------------
The registered Holder of this Security may be treated as the owner of
this Security for all purposes.
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,
provided, however, that the Trustee or such Paying Agent, before being required
to make any such return, may at the expense of the Company cause to be published
once in a newspaper of general circulation in the City of New York or mail to
each such Holder notice that such money or securities remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication or mailing, any unclaimed money or securities then
remaining will be returned to the Company. 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.
- 65 -
14. Amendment; Waiver
-----------------
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding.
Subject to certain exceptions set forth in the Indenture, without the consent of
any Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 or Section 11.14 of the Indenture, to provide for uncertificated
Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Securityholder, or to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA.
15. Defaults and Remedies
---------------------
Under the Indenture, Events of Default include (i) default in payment
of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price or Purchase Price (continuing for three Business Days), as the
case may be, in respect of the Securities when the same becomes due and payable;
(ii) failure by the Company to comply with other agreements in the Indenture or
the Securities, subject to notice and lapse of time; and (iii) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities 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 being declared due and payable
immediately upon the occurrence of such Events of Default.
Securityholders may not enforce the Indenture or the Securities except
as provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Securities unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may direct the Trustee in its exercise of
any trust or power. The Trustee may withhold from Securityholders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) above) if it determines that withholding notice is in their interests.
16. 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 became 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.
- 66 -
17. 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
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
18. Authentication
--------------
This Security shall not be valid until an authorized officer of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
19. Abbreviations
-------------
Customary abbreviations may be used in the name of a Securityholder or
an assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
20. GOVERNING LAW
-------------
THE LAWS OF THE STATE OF NEW YORK AND THE APPLICABLE FEDERAL LAWS OF
THE UNITED STATES SHALL GOVERN THE INDENTURE AND THIS SECURITY WITHOUT REGARD TO
PRINCIPLES OF CONFLICT OF LAWS.
--------------------
The Company will furnish to any Securityholder upon written request and
without charge a copy of the Indenture which has in it the text of this Security
in larger type. Requests may be made to:
Bergen Xxxxxxxx Corporation
0000 Xxxxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
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ASSIGNMENT FORM CONVERSION NOTICE
To assign this Security, fill in the form below: To convert this Security into Class A
Common Stock of the Company, check the
I or we assign and transfer this Security to box:
----
_______________________________________________ | |
| |
_______________________________________________ ----
(Insert assignee's soc. To convert only part of this Security, state the
sec. or tax ID no.) Principal Amount to be converted (which must
be $1,000 or an integral multiple of $1,000):
_______________________________________________
_______________________________________________ _______________________
_______________________________________________
_______________________________________________ _______________________
(Print or type assignee's name, address and zip
code) (Insert other person's Soc. Sec. or Tax ID
No.)
and irrevocably appoint _________________
agent to transfer this Security on the books on ______________________________________________
the Company. The agent may substitute ______________________________________________
another to act for him. ______________________________________________
______________________________________________
(Print or type assignee's name, address and zip
code)
______________________________________________________________________________
Date:__________________Your Signature:______________________________________*
______________________________________________________________________________
(Sign exactly as your name appears on the other side of this Security)
* Your signature must be guaranteed by an eligible guarantor institution
(banks, stock brokers, savings and loan associations and credit unions with
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membership in an approved signature guarantee medallion program) pursuant to
Securities and Exchange Commission Rule 17Ad-15.
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