EXECUTION COPY
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INDENTURE
Dated as of March 6, 2002
Optionally Convertible Equity-linked Accreting Notes
(OCEANs(SM)) due March 6, 2032
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BETWEEN
AMERUS GROUP CO.
AND
BNY MIDWEST TRUST COMPANY,
the Trustee
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TABLE OF CONTENTS
Page
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ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions......................................................................1
Section 1.2 Other Definitions................................................................8
Section 1.3 Incorporation by Reference of Trust Indenture Act................................9
Section 1.4 Rules of Construction............................................................9
Section 1.5 Acts of Holders.................................................................10
ARTICLE 2
THE SECURITIES
Section 2.1 Form and Dating.................................................................11
Section 2.2 Execution and Authentication....................................................12
Section 2.3 Registrar, Paying Agent, Conversion Agent and Bid Solicitation Agent............13
Section 2.4 Paying Agent to Hold Money in Trust.............................................13
Section 2.5 Holder Lists....................................................................14
Section 2.6 Transfer and Exchange...........................................................14
Section 2.7 Replacement Securities..........................................................15
Section 2.8 Outstanding Securities; Determinations of Holders' Action.......................16
Section 2.9 Temporary Securities............................................................17
Section 2.10 Cancellation...................................................................17
Section 2.11 Persons Deemed Owners..........................................................18
Section 2.12 Global Securities..............................................................18
Section 2.13 CUSIP Numbers..................................................................20
Section 2.14 Deferral of Interest; Notice of Deferral.......................................20
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem.................................................................21
Section 3.2 Selection of Securities to Be Redeemed..........................................23
Section 3.3 Notice of Redemption............................................................23
Section 3.4 Effect of Notice of Redemption..................................................24
Section 3.5 Deposit of Redemption Price.....................................................24
Section 3.6 Securities Redeemed in Part.....................................................24
Section 3.7 Notice to Trustee...............................................................24
Section 3.8 Purchase of Securities at Option of the Holder upon Change of Control...........25
Section 3.9 Effect of Change of Control Purchase Notice; Withdrawal of Change of
Control Purchase Notice......................................................27
Section 3.10 Deposit of Change of Control Purchase Price....................................27
Section 3.11 Securities Purchased in Part...................................................28
Section 3.12 Covenant to Comply with Securities Laws upon Purchase of Securities............28
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Section 3.13 Repayment to the Company.......................................................28
ARTICLE 4
COVENANTS
Section 4.1 Payment of Securities...........................................................28
Section 4.2 Compliance Certificate..........................................................29
Section 4.3 Further Instruments and Acts....................................................29
Section 4.4 Maintenance of Office or Agency.................................................29
Section 4.5 Delivery of Certain Information.................................................29
Section 4.6 Tax Treatment of Securities.....................................................30
Section 4.7 Additional Interest.............................................................30
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets.......................................30
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1 Events of Default...............................................................31
Section 6.2 Acceleration....................................................................32
Section 6.3 Other Remedies..................................................................33
Section 6.4 Waiver of Past Defaults.........................................................33
Section 6.5 Control by Majority.............................................................33
Section 6.6 Limitation on Suits.............................................................34
Section 6.7 Rights of Holders to Receive Payment............................................34
Section 6.8 Collection Suit by Trustee......................................................34
Section 6.9 Trustee May File Proofs of Claim................................................34
Section 6.10 Priorities.....................................................................35
Section 6.11 Undertaking for Costs..........................................................36
Section 6.12 Waiver of Stay, Extension or Usury Laws........................................36
ARTICLE 7
TRUSTEE
Section 7.1 Duties of Trustee...............................................................36
Section 7.2 Rights of Trustee...............................................................37
Section 7.3 Individual Rights of Trustee....................................................39
Section 7.4 Trustee's Disclaimer............................................................39
Section 7.5 Notice of Defaults..............................................................39
Section 7.6 Reports by Trustee to Holders...................................................39
Section 7.7 Compensation and Indemnity......................................................39
Section 7.8 Replacement of Trustee..........................................................40
Section 7.9 Successor Trustee by Merger.....................................................41
Section 7.10 Eligibility; Disqualification..................................................41
Section 7.11 Preferential Collection of Claims Against Company..............................41
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ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities............................................42
Section 8.2 Repayment to the Company........................................................42
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders......................................................42
Section 9.2 With Consent of Holders.........................................................43
Section 9.3 Compliance with Trust Indenture Act.............................................43
Section 9.4 Revocation and Effect of Consents...............................................44
Section 9.5 Notation on or Exchange of Securities...........................................44
Section 9.6 Trustee to Sign Supplemental Indentures.........................................44
Section 9.7 Effect of Supplemental Indentures...............................................44
ARTICLE 10
CONVERSIONS
Section 10.1 Conversion Privilege...........................................................44
Section 10.2 Conversion Procedure; Conversion Price; Fractional Shares......................47
Section 10.3 Adjustments of Conversion Price for Common Stock...............................50
Section 10.4 Consolidation or Merger of the Company.........................................59
Section 10.5 Notice of Adjustment...........................................................60
Section 10.6 Notice in Certain Events.......................................................60
Section 10.7 Company to Reserve Stock; Registration; Listing................................61
Section 10.8 Taxes on Conversion............................................................61
Section 10.9 Securities Deemed Paid in Full on Conversion...................................62
Section 10.10 Company Determination Final...................................................62
Section 10.11 Responsibility of Trustee for Conversion Provisions...........................62
Section 10.12 Unconditional Right of Holders to Convert.....................................62
ARTICLE 11
SUBORDINATION OF SECURITIES
Section 11.1 Securities Subordinate to Senior Debt..........................................63
Section 11.2 Payment Over of Proceeds upon Dissolution, Etc.................................64
Section 11.3 Prior Payment to Senior Debt upon Acceleration of Securities...................65
Section 11.4 No Payment When Senior Debt in Default.........................................65
Section 11.5 Payment Permitted If No Default................................................66
Section 11.6 Subrogation to Rights of Holders of Senior Debt................................66
Section 11.7 Provisions Solely to Define Relative Rights....................................66
Section 11.8 Trustee to Effectuate Subordination............................................67
Section 11.9 No Waiver of Subordination Provisions..........................................67
Section 11.10 Notice to Trustee.............................................................67
Section 11.11 Reliance on Judicial Order or Certificate of Liquidating Agent................68
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Section 11.12 Trustee Not Fiduciary for Holders of Senior Debt..............................68
Section 11.13 Rights of Trustee as Holder of Senior Debt, Preservation of Trustee's Rights..68
Section 11.14 Article Applicable to Paying Agents...........................................68
Section 11.15 Certain Conversions or Exchanges Deemed Payment...............................69
ARTICLE 12
MISCELLANEOUS
Section 12.1 Trust Indenture Act Controls...................................................69
Section 12.2 Notices........................................................................69
Section 12.3 Communication by Holders with Other Holders....................................70
Section 12.4 Certificate and Opinion as to Conditions Precedent.............................70
Section 12.5 Statements Required in Certificate or Opinion..................................70
Section 12.6 Separability Clause............................................................71
Section 12.7 Rules by Trustee, Paying Agent, Conversion Agent, Registrar and Bid
Solicitation Agent ............................................................71
Section 12.8 Legal Holidays.................................................................71
Section 12.9 Governing Law..................................................................71
Section 12.10 No Recourse Against Others....................................................71
Section 12.11 Successors....................................................................71
Section 12.12 Multiple Originals............................................................71
Section 12.13 Waiver of Jury Trial..........................................................72
EXHIBITS
EXHIBIT A: Form of Security ...............................................................A-1
EXHIBIT B: Transfer Certificate ...........................................................B-1
EXHIBIT C: Projected Payment Schedule .....................................................C-1
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INDENTURE dated as of March 6, 2002 between AmerUs Group Co., an
Iowa corporation (the "Company") and BNY Midwest Trust Company, an Illinois
trust company (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's Optionally
Convertible Equity-linked Accreting Notes (OCEANs(SM)) due March 6, 2032 (the
"Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1 Definitions.
"Accreted Principal Amount" shall have the meaning set forth in
paragraph 1 of the Securities.
"Additional Interest" means any additional interest payable to
holders of Transfer Restricted Securities (as defined in the Registration Rights
Agreement) if a Registration Default (as defined in the Registration Rights
Agreement) occurs, as specified in the Registration Rights Agreement.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control" when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Limit" means (i) at any time prior to March 6, 2007,
$25,000,000, and (ii) at any time on or after March 6, 2007, $50,000,000.
"Associate" shall have the meaning ascribed to such term in Rule
12b-2 of the General Rules and Regulations under the Exchange Act, as in effect
on the date hereof.
"Board of Directors" means either the board of directors of the
Company or any duly authorized committee of such board.
"Board Resolution" means a copy of one or more resolutions,
certified by an Officer of the Company to have been duly adopted or consented to
by the Board of Directors and to be in full force and effect, and delivered to
the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday
and Friday which is not a day on which banking institutions in the City of New
York are authorized or obligated by law or regulation to close.
"Capital Stock" for any corporation means any and all shares,
interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) stock issued by that
corporation.
"Change of Control" shall mean the occurrence of any of the
following:
(a) there is a report filed on Schedule 13D or Schedule TO (or
any successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any Person, including its Affiliates or Associates (for
the purposes of Sections 3.1(b) and 3.8 and clause (c) of Section
10.1(b)(vii)(1) (and the defined terms used therein), including as the
term "person" is used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of the aggregate
voting power of the Common Stock then outstanding or other Capital Stock
into which the Common Stock is reclassified or changed; provided that a
Person shall not be deemed beneficial owner of, or to own beneficially,
(i) any securities tendered pursuant to a tender or exchange offer made
by or on behalf of such Person or any of such Person's Affiliates or
Associates until such tendered securities are accepted for purchase or
exchange thereunder, or (ii) any securities if such beneficial ownership
(x) arises solely as a result of a revocable proxy delivered in response
to a proxy or consent solicitation made pursuant to the applicable rules
and regulations under the Exchange Act, and (y) is not also then
reportable on Schedule 13D (or any successor schedule) under the
Exchange Act; or
(b) any share exchange, consolidation or merger is consummated
pursuant to which the Common Stock would be converted into cash,
securities or other property, in each case other than any share
exchange, consolidation or merger in which the holders of Common Stock
immediately prior to the share exchange, consolidation or merger have,
directly or indirectly, at least a majority of the total voting power in
the aggregate of all classes of capital stock of the continuing or
surviving corporation immediately after the share exchange,
consolidation or merger;
provided, however, that a Change of Control shall not be deemed to have occurred
if:
(i) at least 90% of the consideration in the transaction or
transactions (other than cash payments for fractional shares) which
would otherwise constitute a Change of Control consist of shares of
common stock traded or to be traded immediately following such Change of
Control on a national securities exchange or the NASDAQ National Market
and, as a result of the transaction or transactions, the Securities
become convertible into such common stock (and any rights attached
thereto);
(ii) solely for the purpose of determining whether the right of
Holders to require the Company to repurchase their Securities pursuant
to Section 3.8 has arisen (and not for determining whether the
Securities are convertible pursuant to Section 10.1(b)(vii)(1) or
subject to a redemption right of the Company pursuant to Section
3.1(b)), if the Sale Price per share of the Common Stock for any five
Trading Days, in the case of a Change of Control under (a) above, within
the period of ten consecutive Trading
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Days ending immediately after the later of the date of the occurrence of
the Change of Control and the date of the public announcement of the
Change of Control, or in the case of a Change of Control under (b)
above, within the period of ten consecutive Trading Days ending
immediately before the date of the occurrence of the Change of Control,
shall equal or exceed 105% of the amount obtained by dividing the
Accreted Principal Amount of $1,000 original principal amount of the
Securities on such Trading Day by the conversion rate in effect on such
Trading Day; or
(iii) by virtue of the Company, any Subsidiary, any employee
stock ownership plan or any other employee benefit plan of the Company
or any Subsidiary, or any Person holding Common Stock for or pursuant to
the terms of any such employee benefit plan, filing or becoming
obligated to file a report under or in response to Schedule 13D or
Schedule TO (or any successor schedule, form or report) under the
Exchange Act disclosing beneficial ownership by it of shares of Common
Stock, whether in excess of 50% or otherwise.
"Common Stock" shall mean shares of the Company's common stock,
no par value per share, or any other shares of Capital Stock of the Company into
which such common stock shall be reclassified or changed.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
successor or successors.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by any two Officers.
"Contingent Interest" shall have the meaning set forth in
paragraph 1 of the Securities.
"Conversion Date" means, with respect to any Securities, the
first Business Day on which the Holder of such Securities has satisfied all the
requirements to convert such Securities if all requirements for conversion shall
have been satisfied by 11:00 a.m. (New York City time) on such Business Day and,
if such requirements for conversion shall have been satisfied after 11:00 a.m.
(New York City time) on such Business Day, the next succeeding Business Day.
"Conversion Rate" means, on any date, the number of shares of
Common Stock issuable upon conversion of $1,000 original principal amount of
Securities on such date pursuant to paragraph 8 of the Securities.
"Corporate Trust Office" means the principal corporate trust
office of the Trustee in Chicago, Illinois, which office at the date hereof is
located at 0 Xxxxx Xx Xxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000,
Attention: Corporate Trust Department, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
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as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Debt" means, with respect to any Person, whether recourse is to
all or a portion of the assets of such Person and whether or not contingent, (i)
every obligation of such Person for money borrowed; (ii) every obligation of
such Person evidenced by bonds, debentures, notes or other similar instruments,
including obligations incurred in connection with the acquisition of property,
assets or businesses; (iii) every reimbursement obligation of such Person with
respect to letters of credit, bankers' acceptances or similar facilities issued
for the account of such Person; (iv) every obligation of such Person issued or
assumed as the deferred purchase price of property or services (but excluding
trade accounts payable or accrued liabilities arising in the ordinary course of
business); (v) every capital lease obligation of such Person; and (vi) every
obligation of the type referred to in clauses (i) through (v) of another Person
and all dividends of another Person the payment of which, in either case, such
Person has guaranteed or is responsible or liable for, directly or indirectly,
as obligor or otherwise.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A, and to the extent that such Securities
are required to bear the Legend required by Section 2.6, such Securities will be
in the form of a Rule 144A Global Security.
"Holder" means a Person in whose name a security is registered on
the Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
"Initial Stock Price" means $34.18; provided that, upon the
occurrence of any event which results in an adjustment of the Conversion Price
pursuant to Section 10.3, the Initial Stock Price shall be adjusted by
multiplying it by a fraction, the numerator of which shall be equal to the
adjusted Conversion Price and the denominator of which shall be the Conversion
Price in effect immediately prior to such adjustment.
"Interest Payment Date" means March 6 and September 6 of each
year, commencing September 6, 2002.
"Interest Record Date" means each February 20 and August 23
preceding an Interest Payment Date.
"Legend" means the legend labeled as such and that is set forth
in Exhibit A hereto.
4
"Make-Whole Premium," with respect to any Security on any date of
redemption, means the present value at such date of redemption of (a) all
remaining Stated Interest payments due on such Security through March 6, 2007
and (b) if such date of redemption occurs prior to March 6, 2004, all remaining
Contingent Interest due on such Security through March 6, 2004, in each case,
computed using a discount rate equal to the Treasury Rate and, in each case,
exclusive of interest accrued and unpaid up to but not including such date of
redemption (or, if such date of redemption occurs after any Interest Record Date
but prior to the corresponding Interest Payment Date, exclusive of interest
accrued and unpaid up to but not including that Interest Payment Date).
"Officer" means the Chairman of the Board of Directors, the Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Chief Financial Officer, the Treasurer or the
Secretary, or any Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing
the information specified in Sections 12.4 and 12.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.2 shall be signed by the principal
executive officer, principal financial officer or principal accounting officer
of the Company but need not contain the information specified in Sections 12.4
and 12.5.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.4 and 12.5, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof and, for the purposes of Sections 3.1(b) and 3.8 and clause
(c) of Section 10.1(b)(vii)(1) (and the defined terms used therein), shall
include any syndicate or group which would be deemed a "person" under Section
13(d)(3) or Section 14(d)(2) of the Exchange Act as in effect on the date of
this Indenture.
"Quarterly Contingent Interest Payment Date" means, March 6, June
6, September 6 and December 6 of each year, commencing June 6, 2004.
"Quarterly Contingent Interest Record Date" means each February
20, May 23, August 23 and November 22 preceding a Quarterly Contingent Interest
Payment Date.
"Redemption Price" shall mean the aggregate price paid by the
Company, as specified in this Indenture, to the Holders in connection with a
redemption of Securities on the applicable Redemption Date.
"Redemption Date" shall mean any date specified for redemption of
the Securities in accordance with the terms of the Securities and this
Indenture.
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"Registration Rights Agreement" means the Registration Rights
Agreement, dated as of March 6, 2002, between the Company and the purchaser
named therein, as such agreement may be amended, modified or supplemented from
time to time.
"Regular Cash Dividends" means any regular, fixed, annual,
quarterly or other periodic cash dividends as declared by the Board of Directors
as part of the Company's dividend payment practice or stated cash dividend
policy, whether publicly announced or not, and do not include any other
dividends or distributions (such as any dividends designated by the Board of
Directors as extraordinary, special or otherwise nonrecurring).
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust department of the Trustee,
including any vice president, assistant vice president, assistant secretary,
assistant treasurer, trust officer or any other officer of the Trustee who
customarily performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any corporate trust
matter is referred because of such Person's knowledge of and familiarity with
the particular subject and who shall have direct responsibility for the
administration of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
successor provision), as it may be amended from time to time.
"Rule 144A Global Security" means a permanent Global Security in
the form of the security attached hereto as Exhibit A that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A.
"Sale Price" of a security on any date of determination means:
(a) the closing sale price (or, if no closing sale price is
reported, the last reported sale price) of that security (regular way)
on the New York Stock Exchange on that date;
(b) if that security is not listed on the New York Stock Exchange
on that date, the closing sale price as reported in the composite
transactions for the principal U.S. securities exchange on which that
security is listed;
(c) if that security is not so listed on a U.S. national or
regional securities exchange, the closing sale price as reported by the
Nasdaq National Market;
(d) if that security is not so reported, the last price quoted by
Interactive Data Corporation for that security or, if Interactive Data
Corporation is not quoting such price, a similar quotation service
selected by the Company; or
(e) if that security is not so quoted, the average of the
mid-point of the last bid and ask prices for that security from at least
two dealers recognized as market-makers for that security.
"SEC" means the Securities and Exchange Commission.
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"Securities" means any of the Company's Optionally Convertible
Equity-linked Accreting Notes (OCEANs SM) due March 6, 2032 issued under this
Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations promulgated thereunder, as in effect from time to
time.
"Senior Debt" means the principal of and premium (if any) and
interest, including interest accruing on or after the filing of any petition in
bankruptcy or for reorganization relating to the Company (whether or not such
claim for post-petition interest is allowed in such proceeding), on Debt of the
Company, whether incurred on or prior to the date of this Indenture or
thereafter incurred, unless, in the instrument creating or evidencing the same
or pursuant to which the same is outstanding, it is provided that such
obligations are not superior in right of payment to the Securities or to other
Debt which is pari passu with, or subordinated to, the Securities; provided,
however, that Senior Debt shall not be deemed to include (a) any Debt of the
Company which, when incurred and without respect to any election under Section
1111(b) of the Bankruptcy Reform Act of 1978, as amended, was without recourse
to the Company, (b) any Debt of the Company to any of its Subsidiaries, (c) Debt
to any employee of the Company, (d) trade accounts payable of the Company, (e)
accrued liabilities arising in the ordinary course of business of the Company,
(f) the Junior Subordinated Debentures due February 1, 2027, and guarantee
issued by the Company in connection with the 8.85% Capital Securities, Series A
issued by AmerUs Capital I, and (g) the Junior Subordinated Debentures due July
27, 2003 and guarantee issued by the Company in connection with the 7.00%
Adjustable Conversion-Rate Equity Security Units issued by AmerUs Capital II.
"Stated Maturity" means March 6, 2032.
"Stated Interest" shall have the meaning set forth in paragraph 1
of the Securities.
"Subsidiary" means a corporation more than 50% of the outstanding
Voting Stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the
date of this Indenture, provided, however, that in the event the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
"Trading Day" means any day on which the securities exchange or
quotation system which is used to determine the Sale Price of the applicable
security is open for trading or quotation, or if the applicable security is not
so listed or quoted, any Business Day.
"Treasury Rate" means the yield to maturity at the time of
computation of United States Treasury securities with a constant maturity (as
compiled and published in the most recent Federal Reserve Statistical Release
H.15 (519) which has become publicly available at least two Business Days prior
to the date fixed for redemption (or, if such Statistical Release is no longer
published, any publicly available source for similar market data)) most nearly
equal to the then remaining term to March 6, 2007, provided, however, that if
the then remaining term to March 6, 2007 is not equal to the constant maturity
of a United States Treasury security for which a weekly average yield is given,
the Treasury Rate shall be obtained by linear interpolation (calculated to the
nearest one-twelfth of a year) from the weekly average yields of United States
7
Treasury securities for which such yields are given, except that if the then
remaining term to March 6, 2007 is less than one year, the weekly average yield
on actually traded United States Treasury securities adjusted to a constant
maturity of one year shall be used.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" of a Person means Capital Stock of such Person of
the class or classes pursuant to which the holders thereof have the general
voting power under ordinary circumstances to elect the board of directors,
managers or trustees of such Person (irrespective of whether or not at the time
Capital Stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency).
Section 1.2 Other Definitions.
Term: Defined in Section:
"Act".............................................. 1.5(a)
"Agent Members".................................... 2.12(e)
"Bid Solicitation Agent"........................... 2.3
"Change of Control Purchase Notice"................ 3.8(b)
"Change of Control Purchase Price"................. 3.8(a)
"Company Notice"................................... 3.8(b)
"Conversion Agent"................................. 2.3
"Conversion Price"................................. 10.3
"Current Market Price"............................. 10.3(g)
"Deferred Interest"................................ 2.14
"Depositary"....................................... 2.1(a)
"distributed assets"............................... 10.3(d)
"DTC".............................................. 2.1(a)
"Event of Default"................................. 6.1
"Exchange Party"................................... 10.2(f)
"Ex-Dividend Time"................................. 10.1(b)
"Expiration Time".................................. 10.3(f)
"Fair Market Value"................................ 10.3(g)
"Interest Deferral Period"......................... 2.14
"junior securities"................................ 11.15
"Legal Holiday".................................... 12.8
"Measurement Period"............................... 10.1(b)(iv)
"Minimum Amount"................................... 10.1(b)(iv)
"Non-Electing Share"............................... 10.4
"Notice of Default"................................ 6.1(c)
"Paying Agent"..................................... 2.3
"Post-Distribution Price".......................... 10.3(d)
"Purchased Shares"................................. 10.3(f)
8
"Proceeding"....................................... 11.2
"QIB".............................................. 2.1(a)
"Reference Period"................................. 10.3(d)
"Register"......................................... 2.3
"Registrar"........................................ 2.3
"Record Date"...................................... 10.3(g)
"Repurchase Date".................................. 3.8(a)
"Request".......................................... 10.1(b)(iv)
"Rights Plan"...................................... 10.3(d)
"Rule 144A Information"............................ 4.5
"Special Conversion Event"......................... 10.1(b)(iv)
"Surviving Person"................................. 5.1(a)
"Tax Event"........................................ 3.1(c)
"Tax Event Conversion Value"....................... 3.1(c)
"transfer"......................................... 2.12(d)
"Trigger Event".................................... 10.3(e)
Section 1.3 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.
"indenture securities" means the Securities.
"indenture security holder" means a Holder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the Securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by a TIA reference to another statute or defined by an SEC rule
have the meanings assigned to them by such definitions.
Section 1.4 Rules of Construction. Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting
principles in the United States as in effect from time to time;
(3) "or" is not exclusive;
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(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
Section 1.5 Acts of Holders. (a) Any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and evidenced
by one or more instruments of substantially similar tenor signed by such Holders
in Person or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such instrument or
instruments are delivered to the Trustee and, where it is hereby expressly
required, to the Company. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of Holders signing such instrument or instruments. Proof of execution of
any such instrument or of a writing appointing any such agent shall be
sufficient for any purpose of this Indenture and conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
(e) If the Company shall solicit from the Holders any request,
demand, authorization, direction, notice, consent, waiver or other Act, the
Company may, at its option, by or pursuant to a Board Resolution, fix in advance
a record date for the determination of Holders entitled to give such request,
demand, authorization, direction, notice, consent, waiver or other Act, but the
Company shall have no obligation to do so. If such a record date is fixed, such
request, demand, authorization, direction, notice, consent, waiver or other Act
may be given before or after such record date, but only the Holders of record at
the close of business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion of
outstanding Securities have authorized or agreed or consented to such request,
demand, authorization, direction, notice, consent, waiver or other Act, and for
that purpose the outstanding Securities shall be computed as of such record
date; provided that no
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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 2
THE SECURITIES
Section 2.1 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the forms set forth in
Exhibits A, which is incorporated and made part of this Indenture. The
Securities shall be issued only in registered form without coupons and only in
$1,000 original principal amount or integral multiples thereof with principal
amount at maturity of $1,270 per $1,000 original principal amount thereof. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage. The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of
its authentication.
(a) Rule 144A Global Security. All of the Securities are being
offered and sold to qualified institutional buyers as defined in Rule 144A
("QIBs") in reliance on Rule 144A and shall be issued initially in the form of a
Rule 144A Global Security, which shall be deposited on behalf of the purchasers
of the Securities represented thereby with the Trustee, at its Corporate Trust
Office, as custodian for the depositary, The Depository Trust Company ("DTC")
(such depositary, or any successor thereto, being hereinafter referred to as the
"Depositary"), and registered in the name of its nominee, Cede & Co., duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Rule 144A Global Security may
from time to time be increased or decreased by adjustments made on the records
of the Trustee and the Depositary as hereinafter provided subject in each case
to compliance with the applicable rules and procedures of the Depositary.
(b) Global Securities in General. Each Global Security shall
represent such of the outstanding Securities as shall be specified therein and
each shall provide that it shall represent the aggregate original principal
amount of outstanding Securities from time to time endorsed thereon and that the
aggregate original principal amount of outstanding Securities represented
thereby may from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions, purchases or conversions of such Securities.
Any adjustment of the aggregate original principal amount of a
Global Security to reflect the amount of any increase or decrease in the amount
of outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.6(a) and shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. The Company shall execute and the
Trustee shall, in accordance with this Section 2.1(c), authenticate and deliver
initially one or more Global Securities that (i) shall be registered in the name
of Cede & Co. or as otherwise instructed by the
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Depositary, (ii) shall be delivered by the Trustee to the Depositary or pursuant
to the Depositary's instructions and (iii) shall bear legends substantially to
the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO AMERUS GROUP CO. (THE
"COMPANY") OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE &
CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON
IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY
TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS
GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH
THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO
ON THE REVERSE HEREOF."
Section 2.2 Execution and Authentication. The Securities may be
executed on behalf of the Company by any Officer. The signature of such Officer
of the Company on the Securities may be manual or facsimile. Typographic and
other minor errors or defects in any such facsimile signature shall not affect
the validity or enforceability of any Security which has been authenticated and
delivered by the Trustee.
Securities bearing the manual or facsimile signatures of persons
who were, at the time of the execution of the Securities, proper Officers of the
Company shall bind the Company, notwithstanding that such persons or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of authentication of
such Securities by the Trustee.
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 a duly authorized signatory,
and such certificate of authentication upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
The Trustee shall authenticate and deliver Securities for
original issue in an aggregate original principal amount of up to $185,000,000
upon a Company Order without any further action by the Company. The Company
Order shall specify the amount of Securities to be authenticated, shall provide
that all such Securities will be represented by a 144A Global Security and the
date on which each original issue of Securities is to be authenticated. The
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aggregate original principal amount of Securities outstanding at any time may
not exceed the amount set forth in the foregoing sentence, except as provided in
Section 2.7.
Section 2.3 Registrar, Paying Agent, Conversion Agent and Bid
Solicitation 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") and one or more offices or
agencies where notices and demands to or upon the Company in respect of the
Securities and this Indenture may be served. The Company shall also appoint a
bid solicitation agent ("Bid Solicitation Agent") to act for the purposes of
Article 10. The Registrar shall keep a register ("Register") of the Securities
and of their transfer and exchange. The Company may appoint and maintain one or
more co-Registrars, one or more additional Paying Agents and one or more
additional Conversion Agents to act with respect to this Indenture and the
Securities; provided that (i) the term "Paying Agent" used herein shall include
any such additional Paying Agent, including any named pursuant to Section 4.4,
(ii) the term "Conversion Agent" used herein shall include any such additional
Conversion Agent, including any named pursuant to Section 4.4, and (iii) the
term "Registrar" used herein shall include all such co-Registrars.
The Company shall enter into an appropriate agency agreement with
any Person (other than the Trustee) appointed as Registrar, Paying Agent,
Conversion Agent or Bid Solicitation Agent in accordance with the foregoing
paragraph. The agreement shall implement the provisions of this Indenture that
relate to such agency. The Company shall notify the Trustee of the name and
address of all such agents, except where the Trustee is acting as such pursuant
to this Section 2.3. If the Company fails to maintain a Registrar, Paying Agent,
Conversion Agent or Bid Solicitation Agent, the Trustee shall act as such and
shall be entitled to appropriate compensation therefor pursuant to Section 7.7.
The Company or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or Bid Solicitation Agent.
The Company initially appoints the Trustee as Registrar,
Conversion Agent, Paying Agent and Bid Solicitation Agent in connection with the
Securities.
Section 2.4 Paying Agent to Hold Money in Trust. Prior to 11:00
a.m., New York City time, on each due date of payments on any Securities, the
Company shall deposit with the Paying Agent a sum of money (in immediately
available funds if deposited on such due date) sufficient to make such payments
when so becoming due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold in trust for
the benefit of Holders or the Trustee, as the case may be, all money held by the
Paying Agent for the making of payments with respect to the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
held by it in trust. If the Company, a Subsidiary or an Affiliate of either of
them acts as Paying Agent, it shall, before 11:00 a.m., New York City time, on
each due date of payments on any Securities, segregate the money held by it as
Paying Agent and hold it in a separate trust fund. The Company may at any time,
and the Trustee may at any time during the continuance of any Default, upon
written request to a Paying Agent, require a Paying Agent to
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pay all money held by it to the Trustee and to account for any funds disbursed
by such Paying Agent. Upon doing so, the Paying Agent shall have no further
liability for such money.
Section 2.5 Holder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Holders. If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee not later than one Business
Day prior to each Interest Payment Date and, if any Contingent Interest is
payable on a Quarterly Contingent Interest Payment Date that is not an Interest
Payment Date, not later than one Business Day prior to such Quarterly Contingent
Interest Payment Date and at such other times as the Trustee may reasonably
request in writing, the names and addresses of Holders as they appear in the
Register, and the aggregate original principal amount represented by Securities
held by each Holder, as of the preceding Interest Record Date or Quarterly
Contingent Interest Record Date, as the case may be, and such other dates as
reasonably requested by the Trustee.
Section 2.6 Transfer and Exchange. (a) Subject to Section 2.12,
upon surrender for registration of transfer of any Security at a Registrar,
together with an assignment form in the form included in Exhibit A, in form
satisfactory to the Registrar duly executed by the Holder thereof or its
attorney duly authorized in writing, 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, representing 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 Holder requesting such
transfer or exchange; provided that this sentence shall not apply to any
exchange pursuant to Sections 2.6(e), 2.9, 3.6, 3.11, 9.5 or 10.2(e).
Subject to Section 2.12, at the option of the Holder, Securities
may be exchanged for other Securities of any authorized denomination or
denominations, representing a like aggregate principal amount, upon surrender of
the Securities to be exchanged, together with a written instrument of transfer
in form satisfactory to the Registrar duly executed by the Holder or its
attorney duly authorized in writing, at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall execute and the
Trustee shall authenticate and deliver, the Securities that the Holder making
the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need
not register, transfers or exchanges of (i) any Securities or portions thereof
selected or called for redemption (except, in the case of Securities to be
redeemed in part, the portion thereof not to be redeemed), (ii) any Securities
or portions thereof in respect of which a Change of Control Purchase Notice has
been delivered and not withdrawn by the Holder thereof (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased), or
(iii) any Securities for a period of 15 days before any mailing of a notice of
Securities to be redeemed.
All Securities issued upon any transfer or exchange of Securities
shall be valid obligations of the Company, evidencing the same debt and entitled
to the same benefits under this Indenture, as the Securities surrendered upon
such transfer or exchange. Each Holder of a
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Security agrees to indemnify the Company and the Trustee against any liability
that may result from the transfer, exchange or assignment of such Holder's
Security in violation of any provision of this Indenture and/or applicable
United States federal or state securities law.
(b) Notwithstanding any provision to the contrary herein, so long
as a Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.6. Transfers of a Global
Security shall be limited to transfers of such Global Security in whole, or in
part, to nominees of the Depositary or to a successor of the Depositary or such
successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the Register.
(d) Any Registrar appointed pursuant to Section 2.3 shall provide
to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) If Securities are issued upon the transfer, exchange or
replacement of Securities subject to restrictions on transfer and bearing the
Legend, or if a request is made to remove the Legend on a Security, the
Securities so issued shall bear the Legend, or the Legend shall not be removed,
as the case may be, unless there is delivered to the Company and the Registrar
such satisfactory evidence, which shall include an Opinion of Counsel, as may be
reasonably required by the Company and the Registrar, that neither the Legend
nor the restrictions on transfer set forth therein are required to ensure that
transfers thereof comply with the provisions of the Securities Act or that such
Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act; provided that no such evidence need be supplied in connection
with the sale of such Security pursuant to a registration statement that is
effective at the time of such sale. Upon (i) provision of such satisfactory
evidence, or (ii) notification by the Company to the Trustee and Registrar of
the sale of such Security pursuant to a registration statement that is effective
at the time of such sale, the Trustee, at the written direction of the Company,
shall authenticate and deliver a Security that does not bear the Legend. If the
Legend is removed from the face of a Security and the Security is subsequently
held by an Affiliate of the Company, the Legend shall be reinstated.
(f) The Trustee shall have no obligation or duty to monitor,
determine or inquire as to compliance with any restrictions on transfer imposed
under this Indenture or under applicable law with respect to any transfer of any
interest in any Security (including any transfers between or among Depositary
participants or beneficial owners of interests in any Global Security) other
than to require delivery of such certificates and other documentation or
evidence as are expressly required by, and to do so if and when expressly
required by the terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements hereof.
Section 2.7 Replacement Securities. If (a) any mutilated Security
is surrendered to the Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the
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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 the Company's written request, the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased by
the Company pursuant to Article 3, the Company in its discretion (but subject to
any conversion rights) may, instead of issuing a new Security, pay or purchase
such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.7,
the Company may require the payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 2.8 Outstanding Securities; Determinations of Holders'
Action. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those cancelled by it, those paid pursuant to Section
2.7 and those described in this Section 2.8 as not outstanding. A Security does
not cease to be outstanding because the Company or an Affiliate thereof holds
the Security; provided, however, that in determining whether the Holders of the
requisite original principal amount of Securities have given or concurred in any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or such other obligor shall be disregarded and deemed
not to be outstanding, except that, in determining whether the Trustee shall be
protected in relying upon any such request, demand, authorization, direction,
notice, consent or waiver, only Securities which a Responsible Officer of the
Trustee actually knows to be so owned shall be so disregarded. Securities so
owned which have been pledged in good faith shall not be disregarded if the
pledgee establishes to the satisfaction of the Trustee the pledgee's right so to
act with respect to the Securities and that the pledgee is not the Company or
any other obligor on the Securities or any Affiliate of the Company or of such
other obligor. 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).
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If a Security is replaced pursuant to Section 2.7, it ceases to
be outstanding unless each of the Company and 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 Repurchase Date, or on
Stated Maturity, money sufficient to pay amounts owed with respect to Securities
payable on that date, then immediately after such Redemption Date, Repurchase
Date or Stated Maturity, as the case may be, such Securities shall cease to be
outstanding and interest, if any, on such Securities shall cease to accrue;
provided that, if such Securities are to be redeemed, notice of such redemption
has been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made.
If a Security is converted in accordance with Section 10.1, then
as of the Conversion Date, such Security shall cease to be outstanding and
interest, if any, shall cease to accrue on such Security as of such date.
Section 2.9 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute and, upon Company Order, the
Trustee shall authenticate and deliver, temporary Securities that are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.3, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities, the Company shall execute
and the Trustee shall authenticate and deliver in exchange therefor definitive
Securities of authorized denominations representing a like principal amount.
Until so exchanged, the temporary Securities shall in all respects be entitled
to the same benefits under this Indenture as definitive Securities.
Section 2.10 Cancellation. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3, conversion (except
Securities exchanged pursuant to Section 10.2(f)), redemption or registration of
transfer or exchange shall, if surrendered to any Person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder that the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Securities to
replace Securities it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article 10. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as provided
in this Section, except as expressly permitted by this Indenture. All cancelled
Securities held by the
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Trustee shall be disposed of by the Trustee in accordance with the Trustee's
customary procedure.
Section 2.11 Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
the principal amount of the Security, any Redemption Price or Change of Control
Purchase Price in respect thereof, any premium (including any Make-Whole
Premium) or any accrued interest (including Stated Interest, Contingent
Interest, Deferred Interest and Additional Interest) thereon, for the purpose of
conversion and for all other purposes whatsoever, whether or not such Security
is overdue, and none of the Company, the Trustee and any of their respective
agents shall be affected by notice to the contrary.
Section 2.12 Global Securities. iii) A Global Security may not be
transferred, in whole or in part, to any Person other than the Depositary or a
nominee or any successor thereof, and no such transfer to any such other Person
may be registered; provided that the foregoing shall not prohibit any transfer
of a Security that is issued in exchange for a Global Security but is not itself
a Global Security. No transfer of a Security to any Person shall be effective
under this Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Notwithstanding any other provisions of
this Indenture or the Securities, transfers of a Global Security, in whole or in
part, shall be made only in accordance with Section 2.6 and this Section 2.12.
(b) Subject to Section 2.12(c), every Security shall be subject
to the restrictions on transfer provided in the Legend, including (other than in
the case of a transfer of a Rule 144A Global Security) the delivery of an
Opinion of Counsel. Whenever any Security bearing the restrictive Legend is
presented or surrendered for registration of transfer or for exchange for a
Security registered in a name other than that of the Holder, such Security must
be accompanied by a certificate in substantially the form set forth in Exhibit
B, dated the date of such surrender and signed by the Holder of such Security,
as to compliance with such restrictions on transfer. The Registrar shall not be
required to accept for such registration of transfer or exchange any Security
not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or, if earlier, upon the expiration of the holding
period applicable to sales thereof under Rule 144(k) under the Securities Act
(or any successor provision). Any Security as to which such restrictions on
transfer shall have expired in accordance with their terms or shall have
terminated may, upon a surrender of such Security for exchange to the Registrar
in accordance with the provisions of this Section 2.12 (accompanied, in the
event that such restrictions on transfer have terminated by reason of a transfer
in compliance with Rule 144 (including Rule 144(k)) or any successor provision,
by an opinion of counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
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aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the Securities under the Securities Act. The Trustee shall
not be liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
(d) As used in the preceding two paragraphs of this Section 2.12,
the term "transfer" encompasses any sale, pledge, transfer, hypothecation or
other disposition of any Security.
(e) The provisions of this Section 2.12(e) shall apply only to
Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part
for a Security registered in the name of any Person other than the
Depositary or one or more nominees thereof, provided that a Global
Security may be exchanged for Securities registered in the names of any
Person designated by the Depositary in accordance with their interests
in such Securities in the event that (i) the Depositary has notified the
Company that it is unwilling or unable to continue as Depositary for
such Global Security or such Depositary has ceased to be a "clearing
agency" registered under the Exchange Act, and a successor Depositary is
not appointed by the Company within 90 days, (ii) the Company has
provided the Depositary with written notice that it has decided to
discontinue use of the system of book-entry transfer through the
Depositary or any successor Depositary or (iii) an Event of Default has
occurred and is continuing with respect to the Securities. Any Global
Security exchanged pursuant to clauses (i) or (ii) above shall be so
exchanged in whole and not in part, and any Global Security exchanged
pursuant to clause (iii) above may be exchanged in whole or from time to
time in part as directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof shall be a Global
Security; provided that any such Security so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof
shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully registered form,
without interest coupons, shall represent an aggregate principal amount
equal to that of such Global Security or portion thereof to be so
exchanged, shall be registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear the
applicable legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to the
Trustee, as Registrar. With regard to any Global Security to be
exchanged in part, either such Global Security shall be so surrendered
for exchange or, if the Trustee is acting as custodian for the
Depositary or its nominee with respect to such Global Security, the
principal amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
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(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any Person, including
Agent Members (as defined below) and Persons that may hold interests
through Agent Members, to take any action which a Holder is entitled to
take under this Indenture or the Securities.
(4) In the event of the occurrence of any of the events specified
in clause (1) above, the Company will promptly make available to the
Trustee a reasonable supply of certificated Securities in definitive,
fully registered form, without interest coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose
behalf Agent Members may act shall have any rights under this Indenture
with respect to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any such Global Security,
and the Depositary or such nominee, as the case may be, may be treated
by the Company, the Trustee and any agent of the Company or the Trustee
as the absolute owner and holder of such Global Security for all
purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company, the Trustee or any agent of the Company or the
Trustee from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the case
may be, or impair, as between the Depositary, its Agent Members and any
other Person on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of the rights
of a holder of any Security.
Section 2.13 CUSIP Numbers. The Company may issue the Securities
with one or more "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided that any such notice may state that no representation is made
as to the correctness of such numbers either as printed on the Securities or as
contained in any notice of a redemption and that reliance may be placed only on
the other identification numbers printed on the Securities, and any such
redemption shall not be affected by any defect in or omission of such numbers.
The Company will promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.14 Deferral of Interest; Notice of Deferral. iv) If no
Event of Default has occurred and is continuing, the Company shall have the
right, at any time during the term of the Securities, from time to time to defer
payments of Stated Interest for a period (an "Interest Deferral Period") not
exceeding 10 consecutive semiannual periods, commencing from the first Interest
Payment Date on which such payment of Stated Interest which would otherwise have
been payable is so deferred. An Interest Deferral Period may not, however,
extend beyond Stated Maturity. To the extent permitted by applicable law,
interest on any deferred payment of Stated Interest will accrue at the rate of
5.00% per annum, compounded semiannually on each Interest Payment Date and
calculated on the basis of a 360-day year of twelve 30-day months. Upon the
termination of any Interest Deferral Period, the Company shall repay, in whole
and not in part, the aggregate amount of all accrued and unpaid deferred
payments of Stated Interest outstanding at that time plus any accrued and unpaid
interest thereon ("Deferred Interest") then due. Before the termination of any
Interest Deferral Period, the Company may further extend such period; provided
that such period together with all such further extensions thereof does not
exceed 10 consecutive semiannual periods. If any Interest Deferral Period shall
terminate on a
20
day that is not an Interest Payment Date, the Company shall pay all Deferred
Interest due and payable upon such termination to Holders of record on a record
date selected by the Company, which shall be no more than 30 days and no less
than 15 days prior to such date of determination.
Notwithstanding the foregoing, all Deferred Interest outstanding
during an Interest Deferral Period shall become immediately due and payable (i)
upon the Interest Payment Date next following the date of commencement of such
Interest Deferral Period, unless such Interest Deferral Period is further
extended by the Company as permitted by the foregoing paragraph, (ii) upon the
fifth anniversary of the date of commencement of such Interest Deferral Period,
or (iii) with respect to any Security or any portion thereof converted,
repurchased or redeemed during an Interest Deferral Period, upon the conversion,
repurchase or redemption of such Security. Upon the termination of any Interest
Deferral Period and full payment of all accrued and unpaid Deferred Interest due
upon such termination, the Company may commence a new Interest Deferral Period,
subject to the foregoing requirements.
(b) If the Company elects to commence an Interest Deferral Period
with respect to the Securities, the Company shall give the Trustee notice of the
commencement of such Interest Deferral Period, and prepare and provide a press
release to DTC for dissemination through the DTC broadcast facility, at least
one Business Day before the Interest Record Date for the next following Interest
Payment Date, unless otherwise required by any applicable law or regulation.
(c) During an Interest Deferral Period, the Company shall not (i)
declare or pay dividends on, make distributions with respect to, or redeem,
purchase or acquire, or make a liquidation payment with respect to, any of its
Capital Stock (other than stock dividends paid by the Company which consist of
stock of the same class as that on which such dividend is being paid and
purchases of Common Stock related to the issuance of Common Stock under any
stock option or other benefit plan for the directors, officers, employees or
agents of the Company or its Subsidiaries), (ii) make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any Debt
securities of the Company that rank pari passu with or junior to the Securities
(other than any payment, repayment, repurchase or redemption made on Debt
relating to employee stock ownership plans), nor (iii) make any guarantee
payments with respect to the foregoing.
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.1 Right to Redeem. v) Optional Redemption upon
Satisfaction of Market Price Condition. Subject to the rights of Holders set
forth in Section 10.1 and the provisions of this Article, the Company may, upon
giving such notice to Holders as provided in Section 3.3, elect to redeem the
Securities outstanding at any time as a whole or, on or after March 6, 2007, in
part from time to time, provided that at least $75,000,000 original principal
amount of Securities remain outstanding immediately after any such partial
redemption, for cash at a Redemption Price equal to 100% of their Accreted
Principal Amount on the Redemption Date plus, accrued and unpaid interest
(including Stated Interest, Contingent Interest, Deferred
21
Interest and Additional Interest), if any, thereon up to but not including the
Redemption Date plus, with respect to any Security or any portion thereof
redeemed on a Redemption Date that occurs prior to March 6, 2007, a Make-Whole
Premium, if the Sale Price per share of the Common Stock for at least 20 Trading
Days in the 30 consecutive Trading-Day period ending on and including the
Trading Day before the date on which the notice of redemption is given pursuant
to Section 3.3 exceeds 140% of the Initial Stock Price.
(b) Optional Redemption upon a Change of Control. Subject to the
rights of Holders set forth in Section 10.1 and the provisions of this Article,
the Company may, upon giving such notice to Holders as provided in Section 3.3,
elect to redeem the Securities outstanding at any time as a whole but not in
part for cash at a Redemption Price equal to 100% of their Accreted Principal
Amount on the Redemption Date plus, accrued and unpaid interest (including
Stated Interest, Contingent Interest, Deferred Interest and Additional
Interest), if any, thereon up to but not including the Redemption Date plus,
with respect to any Security or any portion thereof redeemed on a Redemption
Date that occurs prior to March 6, 2007, a Make-Whole Premium, if a Change of
Control has occurred, provided that the notice of such redemption to be given to
Holders in accordance with Section 3.3 is mailed within 30 days following the
occurrence of such Change of Control.
(c) Optional Redemption upon a Tax Event. Subject to the rights
of Holders set forth in Section 10.1 and the provisions of this Article, the
Company may, upon giving such notice to Holders as provided in Section 3.3,
elect to redeem the Securities outstanding at any time as a whole but not in
part for cash at a Redemption Price equal to 100% of their Accreted Principal
Amount on the Redemption Date plus, accrued and unpaid interest (including
Stated Interest, Contingent Interest, Deferred Interest and Additional
Interest), if any, thereon up to but not including the Redemption Date plus,
with respect to any Security or any portion thereof redeemed on a Redemption
Date that occurs prior to March 6, 2007, a Make-Whole Premium, if a Tax Event
has occurred and the Tax Event Conversion Value of the Securities on any Trading
Day within the five Trading Days immediately preceding the date on which the
notice of such redemption is given in accordance with Section 3.3 exceeds their
Accreted Principal Amount by at least 10%.
A "Tax Event" shall be deemed to have occurred if the Company
shall have received an opinion from independent tax counsel experienced in such
matters to the effect that, on or after February 28, 2002, as a result of (i)
any amendment to, or change (including any announced prospective change) in, the
laws (or rules or regulations thereunder) of the United States or any political
subdivision or taxing authority of, or in, the United States; or (ii) any
amendment to, or change in, an interpretation or application of those laws,
rules or regulations by any legislative body, court, governmental agency or
regulatory authority, in each case which amendment or change is enacted,
promulgated, issued or announced or which interpretation is issued or announced
or which action is taken, on or after February 28, 2002, there is more than an
insubstantial risk (x) that the amount of interest deductible by the Company for
United States federal income tax purposes with respect to the Securities either
(1) would not be based on the treatment of the Securities as contingent payment
debt instruments or (2) would not be calculated using a comparable yield equal
to or greater than 9.917% per annum, or (y) that the Company would not be
entitled to deduct interest on the Securities (in whole or in part) for any
reason.
22
"Tax Event Conversion Value" of any Security on any date of
determination is equal to the product of (i) the Sale Price per share for the
Common Stock on such date, multiplied by (ii) the number of shares of Common
Stock issuable upon conversion of such Security pursuant to paragraph 8 of the
Securities.
Section 3.2 Selection of Securities to Be Redeemed. If less than
all the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed on a
pro rata basis. The Trustee shall make the selection at least three days prior
to the date on which the Company proposes to mail notice to Holders in
accordance with Section 3.3.
The Trustee may select for redemption portions of the original
principal amount of any Securities that have denominations larger than $1,000.
Securities and portions thereof so selected by the Trustee shall be in $1,000
original principal amount or integral multiples thereof. 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 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 the purpose of
determining the aggregate original principal amount of the Securities to be
redeemed by the Company, to be the portion selected for redemption. Securities
that have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
Section 3.3 Notice of Redemption. vi) The Company shall mail a
notice of redemption by first-class mail, postage prepaid, to each Holder of
Securities to be redeemed at least 15 days but not more than 60 days prior to
the Redemption Date.
(b) The notice shall identify the Securities to be redeemed and
shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price and any adjustments thereto;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the date that is two Business Days
prior to the Redemption Date;
(6) that Holders who want to convert Securities must satisfy the
requirements set forth in Article 10;
(7) that Securities called for redemption must be surrendered to
the Paying Agent to collect the Redemption Price therefor;
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(8) if any Security is being redeemed in part, the portion of the
original principal amount of such Security to be redeemed and that,
after the Redemption Date, upon surrender of such Security being
redeemed in part, a new Security or Securities in aggregate principal
amount equal to the unredeemed portion thereof will be issued;
(9) that, unless the Company defaults in making payment of such
Redemption Price, interest on Securities called for redemption will
cease to accrue on and after the Redemption Date; and
(10) the CUSIP number of the Securities.
Section 3.4 Effect of Notice of Redemption. Once notice of
redemption is mailed, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the provisions of Article 10.
Upon surrender to the Paying Agent, Securities called for redemption shall be
paid at the Redemption Price stated in the notice.
Section 3.5 Deposit of Redemption Price. Prior to 11:00 a.m. (New
York City time) on the Redemption Date, the Company shall deposit with the
Paying Agent (or if the Company or a Subsidiary or an Affiliate of either of
them is the Paying Agent, shall segregate and hold in trust) an amount of money
(in immediately available funds if deposited on such Redemption Date) 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 that on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 10. If such money is then held by or on behalf of
the Company in trust and is not required for such purpose, it shall be
discharged from such trust.
Section 3.6 Securities Redeemed in Part. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and deliver to the Holder a new Security in an authorized
denomination representing a like principal amount to the unredeemed portion of
the Security surrendered.
Section 3.7 Notice to Trustee. If the Company elects to redeem
Securities pursuant to Section 3.1, it shall notify the Trustee in writing of
the Redemption Date, the original principal amount of Securities to be redeemed
and the Redemption Price (calculated to the nearest cent) by a Company Order at
least 20 days prior to the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee), but in any event no later than two days prior to
the date on which the Company proposes to mail notice of such redemption to the
Holders pursuant to Section 3.3 above. If any of the Securities to be redeemed
is in the form of a Global Security, then the Company shall modify such notice
to the extent necessary to accord with the procedures of the Depositary
applicable to redemptions. At the Company's written request, which request shall
(i) be irrevocable once given and (ii) set forth all relevant information
required by Section 3.3, the Trustee shall give the notice of redemption
required pursuant to Section 3.3 to each Holder in the Company's name and at the
Company's expense, provided that the Company makes
24
such request at least 10 days prior to the date by which such notice of
redemption must be given to Holders in accordance with Section 3.3.
Section 3.8 Purchase of Securities at Option of the Holder upon
Change of Control. vii) If a Change of Control occurs, Securities or any portion
thereof that is an integral multiple $1,000 original principal amount shall be
purchased by the Company, at the option of the Holder thereof, at a purchase
price equal to 100% of the Accreted Principal Amount of such Securities as of
the date that is 45 Business Days after the date of the notice given by the
Company in accordance with paragraph (b) below (the "Repurchase Date"), plus
accrued and unpaid interest (including Stated Interest, Contingent Interest,
Deferred Interest and Additional Interest), if any, thereon up to but not
including the Repurchase Date (the "Change of Control Purchase Price"), subject
to satisfaction by or on behalf of the Holder of the requirements set forth in
Section 3.8(c).
(b) Within 30 days after the occurrence of a Change of Control,
the Company shall mail a written notice of the Change of Control by first-class
mail to the Trustee and to each Holder (and to beneficial owners as required by
applicable law). The notice given by the Company ("Company Notice") shall
include a notice in the form attached hereto as part of Exhibit A to be
completed by the Holder (the "Change of Control Purchase Notice") and shall
state:
(1) briefly, the events causing a Change of Control and the date
such Change of Control is deemed to have occurred for purposes of this
Section 3.8;
(2) the date by which the Change of Control Purchase Notice must
be given by the Holder;
(3) the Repurchase Date;
(4) the Change of Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Price and any adjustments thereto;
(7) that Securities as to which a Change of Control Purchase
Notice has been given may be converted into shares of Common Stock
pursuant to Article 10 hereof only if the Change of Control Purchase
Notice has been withdrawn in accordance with the terms of this
Indenture;
(8) that Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change of Control Purchase Price for any Securities
as to which a Change of Control Purchase Notice has been duly given and
not withdrawn will be paid promptly following the later of the
Repurchase Date and the time of surrender of such Securities as
described in (8);
25
(10) the procedures the Holder must follow to exercise rights
under this Section 3.8 and a brief description of those rights;
(11) the procedures for withdrawing a Change of Control Purchase
Notice;
(12) that, unless the Company defaults in making payment of such
Change of Control Purchase Price, interest on Securities surrendered for
purchase by the Company will cease to accrue on and after the Repurchase
Date; and
(13) the CUSIP number of the Securities.
(c) A Holder may exercise its rights specified in Section 3.8(a)
upon delivery of a Change of Control Purchase Notice to the Paying Agent at any
time prior to the close of business on the fifth Business Day prior to the
Repurchase Date, stating:
(1) the certificate numbers of the Securities that the Holder
will deliver to be purchased;
(2) the portion of the original principal amount of the
Securities which the Holder will deliver to be purchased, which portion
must be in $1,000 original principal amount or an integral multiple
thereof; and
(3) that such Securities shall be purchased pursuant to the terms
and conditions specified in paragraph 6 of the Securities.
The delivery of such Securities to the Paying Agent (together
with all necessary endorsements) at the offices of the Paying Agent shall be a
condition to the receipt by the Holder of the Change of Control Purchase Price
therefor; provided, however, that such Change of Control Purchase Price shall be
so paid pursuant to this Section 3.8 only if the Securities so delivered to the
Paying Agent shall conform in all respects to the description thereof set forth
in the related Change of Control Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.8, a portion of a Security if the original principal amount of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.8 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Repurchase Date and the time of delivery of the Security to the Paying Agent in
accordance with this Section 3.8.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change of Control Purchase Notice
contemplated by this Section 3.8(c) shall have the right to withdraw such Change
of Control Purchase Notice at any time prior to the close of business on the
Business Day immediately preceding the Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.9.
26
The Paying Agent shall promptly notify the Company of the receipt
by it of any Change of Control Purchase Notice or written withdrawal thereof.
Section 3.9 Effect of Change of Control Purchase Notice;
Withdrawal of Change of Control Purchase Notice. Upon receipt by the Paying
Agent of the Change of Control Purchase Notice specified in Section 3.8(b), the
Holder of the Securities in respect of which such Change of Control Purchase
Notice was given shall (unless such Change of Control Purchase Notice is
withdrawn as specified below) thereafter be entitled to receive solely the
Change of Control Purchase Price with respect to such Securities. Such Change of
Control Purchase Price shall be paid to such Holder, subject to receipt of funds
by the Paying Agent, promptly following the later of (x) the Repurchase Date
with respect to such Securities (provided the conditions in Section 3.8(c) have
been satisfied) and (y) the time of delivery of such Securities to the Paying
Agent by the Holder thereof in the manner required by Section 3.8(c). Securities
in respect of which a Change of Control Purchase Notice has been given by the
Holder thereof may not be converted into shares of Common Stock pursuant to
Article 10 on or after the date of the delivery of such Change of Control
Purchase Notice, unless such Change of Control Purchase Notice has first been
validly withdrawn.
A Change of Control Purchase Notice may be withdrawn by means of
a written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Change of Control Purchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Repurchase Date
specifying:
(1) the certificate number, if any, of the Securities in respect
of which such notice of withdrawal is being submitted,
(2) the original principal amount of the Securities or portion
thereof (which must be an original principal amount of an integral
multiple of $1,000) with respect to which such notice of withdrawal is
being submitted, and
(3) the original principal amount, if any, of such Securities or
portion thereof (which must be an original principal amount of an
integral multiple of $1,000) which remains subject to the original
Change of Control Purchase Notice and which has been or will be
delivered for purchase by the Company.
The Paying Agent will promptly return to the respective Holders
thereof any Securities or portion thereof (x) with respect to which a Change of
Control Purchase Notice has been withdrawn in compliance with this Indenture, or
(y) held by it during the continuance of an Event of Default (other than a
default in the payment of the Change of Control Purchase Price with respect to
such Securities) in which case, upon such return, the Change of Control Purchase
Notice with respect thereto shall be deemed to have been withdrawn.
Section 3.10 Deposit of Change of Control Purchase Price. Prior
to 11:00 a.m. (New York City time) on the Business Day preceding the Repurchase
Date, the Company shall deposit with the Trustee or with the Paying Agent (or,
if the Company or a Subsidiary or an Affiliate of either of them is acting as
the Paying Agent, shall segregate and hold in trust as provided in Section 2.4)
an amount of money (in immediately available funds if deposited on
27
such Business Day) sufficient to pay the aggregate Change of Control Purchase
Price of the Securities or portion thereof to be purchased on the Repurchase
Date.
Section 3.11 Securities Purchased in Part. Any certificated
Security that is to be purchased only in part shall be surrendered at the office
of the Paying Agent (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or such Holder's
attorney duly authorized in writing) and the Company shall execute and the
Trustee shall authenticate and deliver to the Holder of such Security, without
service charge, a new Security or Securities, of any authorized denomination as
requested by such Holder representing an aggregate original principal amount
equal to, and in exchange for, the portion of the original principal amount of
the Security so surrendered which is not purchased.
Section 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 3.8, and if such offer to purchase or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or purchase, the Company shall (i) comply in all material
respects with Rule 13e-4 and Rule 14e-1 under the Exchange Act, (ii) file the
related Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply in all material respects with all
federal and state securities laws so as to permit the rights and obligations
under Section 3.8 to be exercised in the time and in the manner specified in
Section 3.8.
Section 3.13 Repayment to the Company. The Trustee and the Paying
Agent, as the case may be, shall return to the Company any cash that remains
unclaimed as provided in paragraph 13 of the Securities, together with interest,
if any, thereon (subject to the provisions of Section 7.1(f)), held by them for
the payment of the Change of Control Purchase Price; provided, however, that to
the extent that the aggregate amount of cash deposited by the Company pursuant
to Section 3.10 exceeds the aggregate Change of Control Purchase Price of the
Securities or portions thereof which the Company is obligated to purchase as of
the Repurchase Date, then, unless otherwise agreed in writing with the Company,
promptly after the Business Day following the Repurchase Date, the Trustee shall
return any such excess to the Company together with interest, if any, thereon
(subject to the provisions of Section 7.1(f)).
ARTICLE 4
COVENANTS
Section 4.1 Payment of Securities. The Company shall promptly
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Any amounts to be
given to the Trustee or Paying Agent shall be considered paid on the date it is
due if deposited with the Trustee or Paying Agent, as the case may be, by 11:00
a.m. (New York City time) by the Company or an Affiliate thereof. An installment
of principal or interest (including Stated Interest, Contingent Interest,
Deferred Interest and Additional Interest) thereon, if any, shall be considered
paid on the applicable due
28
date if on such date the Trustee or the Paying Agent holds, in accordance with
this Indenture, money sufficient to pay all such amounts then due.
The Company shall, to the extent permitted by law and unless
otherwise provided in this Indenture, pay interest on overdue amounts at the
rate per annum set forth in paragraph 1 of the Securities, compounded
semiannually, which interest shall accrue from the date such overdue amount was
originally due to the date of payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be payable
on demand. The accrual of such interest on overdue amounts shall be in addition
to the continued accrual of interest on the Securities.
Section 4.2 Compliance Certificate. The Company shall deliver to
the Trustee within 90 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2002) an Officers'
Certificate, stating whether or not to the knowledge of the signers thereof the
Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and, if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
Section 4.3 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 4.4 Maintenance of Office or Agency. The Company will
maintain in the Borough of Manhattan, the City of New York, an office or agency
where Securities may be presented and surrendered for payment, registration of
transfer, exchange, purchase, redemption or conversion and where payment of
interest on the Securities may be made. The office of the Trustee in the City of
New York located at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000 shall initially
be such office or agency for all of the aforesaid purposes. The Company shall
give prompt written notice to the Trustee of the location, and of any change in
the location, of any such office or agency, unless such office or agency is an
office or agency of the Trustee or any of its Affiliates. 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 in accordance with this
paragraph, such presentations, surrenders, notices and demands may be made or
served at the address of the Trustee set forth in Section 12.2.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, the City of New York, for such purposes.
Section 4.5 Delivery of Certain Information. Within the period
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision), the Company
shall, during any period in which it is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder or any beneficial owner of
Securities or holder or beneficial owner of Common Stock delivered upon
29
conversion thereof, promptly furnish or cause to be furnished Rule 144A
Information (as defined below) to such Holder or any beneficial owner of
Securities or holder or beneficial owner of Common Stock, as the case may be, to
the extent required to permit compliance by such Holder or holder with Rule 144A
under the Securities Act in connection with the resale of any such security.
"Rule 144A Information" shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act or any successor provisions. Whether a
Person is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.6 Tax Treatment of Securities. The Company and each
Holder by purchasing a Security agree that (i) the Securities are contingent
payment debt instruments within the meaning of Treasury Regulations Section
1.1275-4, (ii) each Holder shall be bound by the Company's application of the
Treasury regulations to the Securities, including the Company's determination of
the comparable yield within the meaning of Treasury Regulations Section
1.1275-4(b)(4), (iii) each Holder shall use the projected payment schedule
attached as Exhibit C to this Indenture with respect to the Securities, as
provided in Treasury Regulations Section 1.1275-4(b)(4), to determine its
interest accruals and adjustments as provided in Treasury Regulations Section
1.1275-4(b)(4)(iv), and (iv) the Company and each Holder will not take any
position on a tax return inconsistent with (i), (ii) or (iii) above, unless
required by applicable law.
Section 4.7 Additional Interest. If at any time Additional
Interest becomes payable by the Company pursuant to the Registration Rights
Agreement and the Securities, the Company shall promptly deliver to the Trustee
a certificate to that effect and stating (i) the amount of such Additional
Interest that is payable and (ii) the date on which such Additional Interest is
payable pursuant to the terms of the Registration Rights Agreement. Unless and
until a Responsible Officer of the Trustee receives such a certificate, the
Trustee may assume without inquiry that no Additional Interest is payable. If
the Company has paid Additional Interest directly to the Persons entitled to
such amounts, the Company shall deliver to the Trustee a certificate setting
forth the particulars of such payment.
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.1 When Company May Merge or Transfer Assets. The
Company shall not consolidate with or merge with or into any other Person or
sell, lease, convey or otherwise dispose of all or substantially all of its
properties and assets substantially to any Person, unless:
(a) (1) the Company shall be the surviving Person or the Person
formed by such consolidation or into which the Company is merged or the
Person to which the properties and assets of the Company are so sold,
leased, conveyed or otherwise disposed (the "Surviving Person") is a
corporation, limited liability company, partnership or trust organized
and validly existing under the laws of the United States or any State
thereof or the District of Columbia and (2) if the Company is not the
Surviving Person, the Surviving Person expressly assumes, 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;
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(b) immediately after giving effect to such transaction, no Event
of Default shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, sale, lease, conveyance or other disposal and, if
a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5,
that all conditions precedent herein provided for relating to such
transaction have been satisfied and such Opinion of Counsel shall also
state that such supplemental indenture is enforceable against the
Surviving Person in accordance with its terms, subject to bankruptcy,
insolvency, reorganization, moratorium or other laws relating to or
affecting creditors' rights and by general principles of equity.
For purposes of the foregoing, the transfer (by sale, lease,
conveyance or other disposal) of the properties and assets of one or more
Subsidiaries (other than to the Company or another Subsidiary), which if such
assets were owned by the Company would constitute all or substantially all of
the properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
Upon the execution and delivery of a supplemental indenture as
provided in (a)(2) above, the Surviving Person 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 Surviving Person had been named
as the Company herein; and thereafter, except in the case of a lease of all or
substantially all of the Company's assets and with respect to any obligations
the Company may have under a supplemental indenture pursuant to Section 10.4,
the Company shall be discharged from all obligations and covenants under this
Indenture and the Securities. Subject to Section 9.6, the Company, the Trustee
and the Surviving Person shall enter into a supplemental indenture to evidence
the succession and substitution of such Surviving Person and such discharge and
release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.1 Events of Default. An "Event of Default" occurs if:
(a) the Company defaults in the payment of any interest
(including Stated Interest, Contingent Interest and Additional
Interest), if any, payable on any Security and such default continues
for 30 days or more after such payment becomes due and payable, except
to the extent payment of Stated Interest is deferred pursuant to Section
2.14;
(b) the Company defaults in the payment of the Accreted Principal
Amount, Deferred Interest, premium (if any), Redemption Price or Change
of Control Purchase Price on any Security when the same becomes due and
payable, except to the extent payment of Deferred Interest is extended
pursuant to Section 2.14;
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(c) the Company fails to comply with any of its covenants or
agreements in the Securities or this Indenture (other than those
referred to in clauses (a) and (b) above) and such failure continues for
90 days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee by
the Holders of at least 25% in aggregate original principal amount of
the outstanding Securities a written notice (a "Notice of Default")
specifying such Default and requiring the Company to cause such Default
to be cured and stating that such notice is a Notice of Default
hereunder;
(d) the Company fails to make any payment when due, including any
applicable grace period, in respect of indebtedness for borrowed money
of the Company, which failure to pay results in acceleration of such
indebtedness which is in an amount in excess of the Applicable Limit,
and such indebtedness is not discharged, or such payment default and
acceleration is not cured or rescinded, within a period of 30 days;
(e) the Company defaults with respect to any indebtedness for
borrowed money of the Company (other than a Default described in (d)
above) that results in the acceleration of such indebtedness, which
default results in acceleration of any such indebtedness which is in an
amount in excess of the Applicable Limit and such indebtedness is not
discharged, or such acceleration is not rescinded, within a period of 30
days;
(f) a court having jurisdiction in the premises shall enter a
decree or order for relief in respect of the Company in an involuntary
case under any applicable bankruptcy, insolvency or other similar law
now or hereafter in effect, or appointing a receiver, liquidator,
assignee, custodian, trustee or sequestrator (or similar official) of
the Company or for any substantial part of its property or ordering the
winding-up or liquidation of its affairs and such decree or order shall
remain unstayed and in effect for a period of 60 consecutive days; or
(g) the Company shall commence a voluntary case under any
applicable bankruptcy, insolvency or other similar law now or hereafter
in effect, or consent to the entry of an order for relief in an
involuntary case under any such law, or consent to the appointment of or
taking possession by a receiver, liquidator, assignee, custodian,
trustee or sequestrator (or similar official) of the Company or for any
substantial part of its property or make any general assignment for the
benefit of creditors.
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any event which with
the giving of notice or the lapse of time, or both, would become an Event of
Default under (c), (d) or (e) above, its status and what action the Company is
taking or proposes to take with respect thereto.
Section 6.2 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.1(f) or (g)) occurs and is continuing,
the Trustee by notice to the Company or the Holders of at least 25% in aggregate
original principal amount of the Securities at the time outstanding by notice to
the Company and the Trustee, may declare the then Accreted Principal Amount of
all the Securities plus all accrued and unpaid interest (including Stated
Interest,
32
Contingent Interest, Deferred Interest and Additional Interest) thereon, if any,
through the date of declaration to be immediately due and payable. Upon such a
declaration, such Accreted Principal Amount plus all accrued interest (including
Stated Interest, Contingent Interest, Deferred Interest and Additional Interest)
thereon, if any, shall become and be immediately due and payable. If an Event of
Default specified in Section 6.1(f) or (g) occurs, the Accreted Principal Amount
of all the Securities plus all accrued interest (including Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest) thereon, if any,
shall become and be immediately due and payable without any declaration or other
act on the part of the Trustee or any Holders. The Holders of a majority in
aggregate original principal amount of the Securities at the time outstanding,
by notice to the Trustee (and without notice to any other Holder), may rescind
an acceleration and its consequences if (i) the rescission would not conflict
with any judgment or decree, (ii) all existing Events of Default have been cured
or waived except nonpayment of the Accreted Principal Amount plus all accrued
interest thereon, if any, that have become due solely as a result of
acceleration, and (iii) all amounts due to the Trustee under Section 7.7 have
been paid. No such rescission shall affect any subsequent Default or impair any
right consequent thereto.
Section 6.3 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the Accreted Principal Amount of all the Securities plus all accrued interest
(including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest), if any, thereon or to enforce the performance of any
provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Holder in exercising
any right or remedy accruing upon an Event of Default shall not impair the right
or remedy or constitute a waiver of, or acquiescence in, the Event of Default.
No remedy is exclusive of any other remedy. All available remedies are
cumulative to the extent permitted by law.
Section 6.4 Waiver of Past Defaults. The Holders of a majority in
aggregate original principal amount of the Securities at the time outstanding,
by notice to the Trustee (and without notice to any other Holder), may waive an
existing Default and its consequences except (i) an Event of Default described
in Section 6.1(a) or 6.1(b) above, (ii) a Default in respect of a provision that
under Section 9.2 cannot be amended without the consent of each Holder affected
or (iii) a Default which constitutes a failure to convert any Security in
accordance with the terms of Article 10. When a Default is waived, it is deemed
cured, but no such waiver shall extend to any subsequent or other Default or
impair any consequent right. This Section 6.4 shall be in lieu of Section
316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.5 Control by Majority. The Holders of a majority in
aggregate original 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 (i) which
conflicts with applicable law or this Indenture or (iii) which the Trustee
determines in good faith is (x) unduly prejudicial to the rights of other
Holders or (y) would involve the
33
Trustee in personal liability unless the Trustee is offered indemnity
satisfactory to it. This Section 6.5 shall be in lieu of Section 316(a)1(A) of
the TIA and such Section 316(a)1(A) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
Section 6.6 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(a) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(b) the Holders of at least 25% in aggregate original principal
amount of the Securities at the time outstanding make a written request
to the Trustee to pursue the remedy;
(c) such Holder severally, or jointly with other Holders, offer
the Trustee security or indemnity satisfactory to the Trustee against
any loss, liability or expense;
(d) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or
indemnity; and
(e) the Holders of a majority in aggregate original 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 Holder may not use this Indenture to prejudice the rights of
any other Holder or to obtain a preference or priority over any other Holder.
Section 6.7 Rights of Holders to Receive Payment. Notwithstanding
any other provision of this Indenture, the right of any Holder to receive
payment of the Accreted Principal Amount of or premium, if any, or interest
(including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest), if any, on the Securities (including interest, if any, due
on overdue amounts) held by such Holder, on or after the respective due dates
expressed in the Securities, and to convert the Securities in accordance with
Article 10, or to bring suit for the enforcement of any such payment on or after
such respective dates or the right to convert, shall not be impaired or affected
adversely without the consent of such Holder.
Section 6.8 Collection Suit by Trustee. If an Event of Default
described in Section 6.1(a) or 6.1(b) 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 Security and the amounts
provided for in Section 7.7.
Section 6.9 Trustee May File Proofs of Claim. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company, or of such other obligor or their creditors, the
Trustee (irrespective of whether any Accreted Principal Amount of or premium, if
any, or interest (including Stated Interest, Contingent Interest, Deferred
Interest and Additional Interest), if any, on the Securities, including
interest, if any, due on overdue amounts, shall then be due and
34
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any such amount) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(a) to file and prove a claim for any accrued and unpaid Accreted
Principal Amount of or premium, if any, or interest (including Stated
Interest, Contingent Interest, Deferred Interest and Additional
Interest), if any, on the Securities or interest, if any, due on overdue
amounts in respect of the Securities, and to file such other papers or
documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and
counsel or any other amounts due to the Trustee under Section 7.7) and
of the Holders allowed in such judicial proceeding; and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due to it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due to the Trustee under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceedings.
Section 6.10 Priorities. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
First, to the Trustee for amounts due under Section 7.7;
Second, to the holders of Senior Debt to the extent required by
Article 11;
Third, to Holders for amounts due and unpaid on the Securities
for Accreted Principal Amount and interest (including Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest, if any),
ratably, without preference or priority of any kind, according to the
amounts due and payable on the Securities for Accreted Principal Amount
and interest (including Stated Interest, Contingent Interest, Deferred
Interest and Additional Interest, if any), respectively; and
Fourth, the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Holders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Holder a notice that states the
record date, the payment date and the amount to be paid.
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Section 6.11 Undertaking for Costs. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in the suit, having due regard to the
merits and good faith of the claims or defenses made by the party litigant. This
Section 6.11 does not apply to a suit by the Trustee, a suit by a Holder
pursuant to Section 6.6 or a suit by Holders of more than 10% in aggregate
original 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 any principal of or
premium, if any, or interest on the Securities (including interest, if any, due
on overdue amounts, as contemplated herein, or which may affect the covenants or
the performance of this Indenture; and the Company (to the extent that it may
lawfully do so) hereby expressly waives all benefit or advantage of any such law
and covenants that it will not hinder, delay or impede the execution of any
power herein granted to the Trustee, but will suffer and permit the execution of
every such power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
Section 7.1 Duties of Trustee. viii) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the requirements of this
Indenture, but in case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein. This Section
7.1(b) shall be in
36
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 7.1;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.5.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
Section 7.2 Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, security, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have been
signed or presented by the proper party or parties;
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, conclusively rely upon an Officers' Certificate;
37
(c) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents
or attorneys and the Trustee shall not be responsible for any misconduct
or negligence on the part of any agent or attorney appointed with due
care by it hereunder;
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes
to be authorized or within its rights or powers conferred under this
Indenture;
(e) the Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization
and protection in respect of any action taken or suffered or omitted by
it hereunder in good faith and in accordance with such advice or Opinion
of Counsel;
(f) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request,
order or direction of any of the Holders, pursuant to the provisions of
this Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses and
liabilities which may be incurred therein or thereby;
(g) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(h) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, security, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further
inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall be entitled to examine the books, records and
premises of the Company, personally or by agent or attorney at the sole
cost of the Company and shall incur no liability or additional liability
of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has
actual knowledge thereof or unless written notice of any event which is
in fact such a default is received by the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and
this Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its
capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of
officers authorized at such time to take specified actions pursuant to
this Indenture, which Officers' Certificate may be
38
signed by any Person authorized to sign an Officers' Certificate,
including any Person specified as so authorized in any such certificate
previously delivered and not superseded.
Section 7.3 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or Bid Solicitation Agent may do the same with like rights. However, the
Trustee must comply with Sections 7.10 and 7.11.
Section 7.4 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be accountable for the Company's use or application of
the proceeds from the Securities, it shall not be responsible for any statement
in the registration statement for the Securities under the Securities Act or in
any offering document for the Securities, the Indenture or the Securities (other
than its certificate of authentication), or the determination as to which
beneficial owners are entitled to receive any notices hereunder.
Section 7.5 Notice of Defaults. If a Default occurs and if it is
known to the Trustee, the Trustee shall give to each Holder notice of the
Default within 90 days after it occurs or, if later, within 15 days after it is
known to the Trustee, unless such Default shall have been cured or waived before
the giving of such notice. Notwithstanding the preceding sentence, except in the
case of a Default described in Sections 6.1(a) and 6.1(b), the Trustee may
withhold the notice if and so long as a committee of its Responsible Officers in
good faith determines that withholding the notice is in the interests of
Holders. The second sentence of this Section 7.5 shall be in lieu of the proviso
to Section 315(b) of the TIA and such proviso is hereby expressly excluded from
this Indenture, as permitted by the TIA. The Trustee shall not be deemed to have
knowledge of a Default unless a Responsible Officer of the Trustee has received
written notice of such Default.
Section 7.6 Reports by Trustee to Holders. Within 60 days after
each February 15 beginning with the February 15 following the date of this
Indenture, the Trustee shall mail to each Holder a brief report dated as of such
February 15 that complies with TIA Section 313(a), if required by such Section
313(a). The Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders shall
be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee promptly
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
Section 7.7 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited (to the extent permitted by law) by any provision of law in
regard to the compensation of a trustee of an express trust);
39
(b) to reimburse the Trustee upon its request for all reasonable
out-of-pocket expenses, disbursements and advances incurred or made by
the Trustee in accordance with any provision of this Indenture
(including the reasonable compensation and the expenses, advances and
disbursements of its agents and counsel), except any such expense,
disbursement or advance as may be attributable to its negligence, bad
faith or willful misconduct; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any and all loss, damage,
claim, liability, cost or expense (including reasonable attorney's fees
and taxes (other than taxes based upon, measured by or determined by the
income of the Trustee)) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of this trust, including the costs and expenses of
defending itself against any claim (whether asserted by the Company or
any Holder or any other Person) or liability in connection with the
exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay the principal
of or premium, if any, or interest on the Securities or interest, if any, due on
overdue amounts, as the case may be, in respect of any Securities.
The Company's payment obligations pursuant to this Section 7.7
shall survive the discharge of this Indenture and the resignation or removal of
the Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(f) or (g), the expenses, including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any bankruptcy law.
Section 7.8 Replacement of Trustee. A resignation or removal of
the Trustee and appointment of a successor Trustee shall become effective only
upon the successor Trustee's acceptance of appointment as provided in this
Section 7.8.
The Trustee may resign by so notifying the Company at least 30
days prior to the date of the proposed resignation. The Holders of a majority in
aggregate original principal amount of the Securities at the time outstanding
may remove the Trustee by so notifying the Trustee and the Company in writing.
The Company may at any time prior to the occurrence and continuation of an Event
of Default remove the Trustee by Company Order given at least 30 days prior to
the date of the proposed removal.
The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 7.10;
(b) the Trustee is adjudged bankrupt or insolvent;
(c) a receiver or public officer takes charge of the Trustee or
its property; or
(d) the Trustee otherwise becomes incapable of acting.
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If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.7.
If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate original principal amount of the
Securities at the time outstanding may petition any court of competent
jurisdiction at the expense of the Company for the appointment of a successor
Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
The Company shall give notice of any resignation and any removal
of the Trustee and each appointment of a successor Trustee to all Holders. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 7.9 Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets (including the administration of the
trust created by this Indenture) to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.10 Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The
Trustee (or its parent holding company) shall have a combined capital and
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the SEC the application referred to in the penultimate paragraph of
TIA Section 310(b).
Section 7.11 Preferential Collection of Claims Against Company.
The Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
41
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.1 Discharge of Liability on Securities. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.7) for cancellation or (ii) all
outstanding Securities have become due and payable and the Company deposits with
the Trustee cash sufficient to pay all amounts due and owing on all outstanding
Securities (other than Securities replaced pursuant to Section 2.7), and, in
either case, the Company pays all other sums payable hereunder by the Company,
then (x) this Indenture shall, subject to Section 7.7, cease to be of further
effect, and (y) the Trustee shall, on demand of and at the expense of the
Company, join in the execution of a document acknowledging satisfaction and
discharge of this Indenture, provided that the Company has delivered to the
Trustee an Officers' Certificate and Opinion of Counsel, each stating that all
conditions precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Section 8.2 Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company upon written request any money or securities
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years after a right to such money or securities has
matured, subject to applicable unclaimed property law. After such return to the
Company, Holders entitled to such money or securities must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another Person and the Trustee and the Paying Agent shall have no
further liability to the Holders with respect to such money or securities for
that period commencing after the return thereof.
ARTICLE 9
AMENDMENTS, SUPPLEMENTS AND WAIVERS
Section 9.1 Without Consent of Holders. The Company and the
Trustee may amend or supplement this Indenture or the Securities without the
consent of any Holder:
(a) to cure any ambiguity, defect or inconsistency herein or in
the Securities;
(b) to provide for the assumption of the Company's obligations to
Holders;
(c) to comply with Section 5.1 or Section 10.4;
(d) to make any change that does not materially adversely affect
the rights of any Holder; or
(e) to make any change necessary for the registration of the
Securities under the Securities Act or to comply with the TIA, or any
amendment thereto, or to comply with any requirement of the SEC in
connection with the qualification of the Indenture under the TIA.
42
Section 9.2 With Consent of Holders. The Company and the Trustee
may amend or supplement this Indenture or the Securities with the written
consent of the Holders of at least a majority in aggregate original principal
amount of the Securities then outstanding, and the Holders of a majority in
aggregate original principal amount of the Securities then outstanding may waive
compliance by the Company with any provision of this Indenture or the
Securities. However, without the consent of each Holder affected, an amendment,
supplement or waiver under this Section may not:
(a) change the Stated Maturity or due dates of the principal of,
or interest (including Stated Interest, Contingent Interest, Deferred
Interest and Additional Interest) on, any Security, or adversely affect
the right of a Holder to convert any Security, or change the amount of
Common Stock issuable upon any conversion;
(b) reduce the Accreted Principal Amount, the Redemption Price or
Change of Control Purchase Price of, or premium, if any, or interest
(including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest) on, any Security;
(c) change the currency for payment of principal or Accreted
Principal Amount, the Redemption Price or the Change of Control Purchase
Price of, or interest (including Stated Interest, Contingent Interest,
Deferred Interest and Additional Interest) on, any Security;
(d) impair the right to institute suit for the enforcement of any
payment on or with respect to any Security;
(e) reduce the above stated percentage of outstanding Securities
whose Holders must consent to an amendment or supplement of this
Indenture or a waiver of defaults or failure to comply hereunder;
(f) make any change in Article 11 or the ranking or priority of
any Securities in a manner materially adverse to the Holders; or
(g) make any change in Section 6.4 or 6.7 or this Section 9.2
(second sentence).
It shall not be necessary for the consent of the Holders under
this Article 9 to approve the particular form of any proposed amendment,
supplement or waiver, but it shall be sufficient if such consent approves the
substance thereof. The Company may establish, by delivery of an Officers'
Certificate to the Trustee, a record date for determining Holders of record
entitled to give any consent or waiver pursuant to this Article 9.
After an amendment or supplement under this Section becomes
effective, the Company shall mail to Holders a notice briefly describing such
amendment or supplement; provided that any failure of the Company to mail any
such notice, or any defect therein, shall not in any way impair or affect the
validity of any supplemental indenture.
Section 9.3 Compliance with Trust Indenture Act. Every amendment
to or supplement of this Indenture or the Securities shall comply with the TIA
as then in effect.
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Section 9.4 Revocation and Effect of Consents. Until an
amendment, supplement or waiver becomes effective, a consent to it by a Holder
of a Security is a continuing consent by the Holder and every subsequent Holder
of a Security or portion of a Security that evidences the same debt as the
consenting Holder's Security, even if notation of the consent is not made on any
Security. However, any such Holder or subsequent Holder may revoke the consent
as to such Security or portion of a Security if a Trust Officer of the Trustee
receives the notice of revocation before the date the amendment, supplement or
waiver becomes effective. An amendment, supplement or waiver becomes effective
in accordance with its terms and thereafter binds every Holder. Notwithstanding
the foregoing, if a record date has been established for the purpose of
determining Holders entitled to consent, such written notice of revocation must
be signed by the Holder of record as of the record date or his duly appointed
proxy.
Section 9.5 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article 9 may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of Directors
of the Company, to any such supplemental indenture may be prepared and executed
by the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 9.6 Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.1) shall
be entitled to conclusively rely upon, an Officers' Certificate and an Opinion
of Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section 9.7 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE 10
CONVERSIONS
Section 10.1 Conversion Privilege. ix) A Holder may convert any
Securities or any portion of the original principal amount thereof which is an
integral multiple of $1,000 into duly authorized, fully paid and nonassessable
shares of Common Stock at any time prior to Stated Maturity, at the Conversion
Price set forth in paragraph 8 of the Securities, subject to adjustment as
hereinafter provided, if at least one of the conditions for conversion provided
in clause (b) below is satisfied. Whenever the Securities shall become
convertible pursuant to this Section 10.1, the Company or, at the Company's
written request, the Trustee in the name and at the expense of the Company,
shall notify the Holders of the event triggering such convertibility
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in the manner provided in Section 12.2. Any notice so given shall be deemed duly
given, whether or not the Holder receives such notice.
(b) Conditions for Conversion. x) Conversion upon Satisfaction of
Market Price Condition. A Holder may convert Securities into shares of Common
Stock, if the Sale Price per share of the Common Stock for at least 20 Trading
Days in the 30 Trading-Day period ending on the Trading Day immediately
preceding the date on which Securities are surrendered for conversion exceeds
140% of the Initial Stock Price. The Conversion Agent shall determine on a daily
basis whether the Securities shall be convertible pursuant to this clause (b)(i)
and, if the Securities shall be so convertible, the Conversion Agent shall
promptly deliver written notice thereof to the Company and, if the Trustee is
not acting as Conversion Agent pursuant to Section 2.3 at the time of such
notification, to the Trustee.
(ii) Conversion upon an Event of Default. A Holder may convert
Securities into shares of Common Stock, during any period in which an Event of
Default has occurred and is continuing.
(iii) Conversion upon Notice of Redemption. A Holder may
surrender for conversion any Securities called for redemption pursuant to a
notice of redemption mailed by the Company in accordance with Section 3.3 at any
time prior to the close of business on the day that is two Business Days prior
to the Redemption Date, even if such Securities are not otherwise convertible at
such time.
(iv) Conversion upon a Special Conversion Event. At any time
after 90 days from the date of this Indenture, any Holder may request, by
delivery to the Bid Solicitation Agent at its office on any Business Day of a
notice in writing complying with the requirements of this paragraph (a
"Request"), that the Bid Solicitation Agent obtain, on such Holder's behalf,
firm bids to buy not less than $1,000,000 original principal amount of
Securities (or, if such Holder beneficially owns less than $1,000,000 original
principal amount of Securities, all of such Holder's Securities) nor more than
$10,000,000 original principal amount of Securities (such amount to be specified
in the Request) during the three consecutive Trading Days next following the
date on which the Request was delivered to the Bid Solicitation Agent (the
"Measurement Period") from any nationally recognized securities dealers;
provided that in such Request (x) such Holder certifies that it could not obtain
a firm bid to purchase such Securities from at least two independent nationally
recognized securities dealers for such Securities in an amount at least equal to
the Minimum Amount per $1,000 original principal amount of Securities, and
provides the names of the securities dealers from which such Holder has
attempted to obtain such bids, (y) such Holder agrees to use its best efforts to
sell such Securities on any day during the Measurement Period to any securities
dealer that provides the Bid Solicitation Agent with a firm bid to purchase such
Securities in an amount at least equal to the Minimum Amount per $1,000 original
principal amount of Securities and (z) such Holder agrees to convert such
Securities into shares of the Common Stock, if the Bid Solicitation Agent cannot
obtain a firm bid to purchase the Securities at least equal to the Minimum
Amount per $1,000 original principal amount of Security during the Measurement
Period.
If a Request is made by a Holder with respect to any Securities,
then on each day during the Measurement Period for such Request, the Bid
Solicitation Agent shall (a) seek to
45
obtain, on behalf of such Holder, a firm bid to buy such Securities for at least
the Minimum Amount per $1,000 original principal amount of the Securities on
such day from Credit Suisse First Boston Corporation (or another nationally
recognized securities dealer selected by the Company) by 1:00 p.m., New York
City time, on such day and (b) if Credit Suisse First Boston Corporation (or
such other securities dealer) does not provide a firm bid to buy such Securities
for at least the Minimum Amount per $1,000 original principal amount of the
Securities on such day, solicit on such Holder's behalf firm bids from at least
two other nationally recognized securities dealers, on such day. The Bid
Solicitation Agent shall solicit such bids from Xxxxxxx, Xxxxx & Co. and Xxxxxxx
Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, or such other securities dealers
selected by the Company.
If the Bid Solicitation Agent does not receive a firm bid to buy
the Securities for at least the Minimum Amount per Security on any day during
the Measurement Period, a "Special Conversion Event" shall be deemed to have
occurred for the purposes of this Section 10.1(b)(iv) and the Trustee shall
promptly notify all Holders that a Special Conversion Event has occurred. During
the five Business-Day period commencing on the first Trading Day following the
giving of such notice, the Holder that submitted the Request shall, and any
other Holder may, convert their Securities in integral multiples of $1,000
original principal amount into a number of shares of Common Stock equal to
$990.00 divided by the Conversion Price then in effect.
If the Bid Solicitation Agent receives a firm bid to buy the
Securities for at least the Minimum Amount per $1,000 original principal amount
of the Securities on any day during the Measurement Period, (x) a Special
Conversion Event shall be deemed not to have occurred, (y) the Bid Solicitation
Agent shall provide the Holder with the name of the securities dealer that
provided such quote and (z) the Holder shall use its best efforts to sell such
Securities to such securities dealer on such day for the price quoted by such
securities dealer.
The "Minimum Amount" for a Security on any day, means the product
of (a) 90% of the Sale Price for the Common Stock on such day multiplied by (b)
$1,100.00 divided by the Conversion Price in effect on such day.
(v) Conversion upon an Interest Deferral. A Holder may convert
its Securities into our Common Stock at any time during an Interest Deferral
Period.
(vi) Conversion upon Credit Rating Event. A Holder may convert
Securities into shares of Common Stock during any period in which (1) Standard &
Poor's Rating Services, a division of the XxXxxx-Xxxx Companies, Inc., has
downgraded the Company's senior long-term unsecured credit rating to BB+ or
lower and Xxxxx'x Investors Services, Inc. has downgraded the Company's senior
long-term unsecured credit rating to Ba2 or lower, (2) the senior long-term
unsecured credit rating of the Company is suspended or withdrawn by both such
rating agencies, or (3) neither of such rating agencies continues to provide
ratings services or coverage to the Company.
(vii) Conversion upon Specified Corporate Transactions. If:
46
(1) (A) the Company elects to distribute to all holders of Common
Stock rights or warrants entitling them to purchase shares of Common
Stock at a price per share that is less than the Current Market Price of
the Common Stock on the Trading Day immediately preceding the date of
declaration of such distribution, (B) the Company elects to distribute
to all holders of Common Stock cash or other assets, debt securities or
other evidence of indebtedness or other rights to purchase the Company's
securities, where the Fair Market Value of such distribution
attributable to one share of Common Stock, when aggregated with all
other such distributions made within the 180 days preceding the date of
declaration of such distribution, exceeds 15% of the Current Market
Price of the Common Stock on the Trading Day immediately preceding the
date of declaration of such distribution, or (C) a transaction or
transactions, other than a transaction or transactions specified in
Section 10.1(b)(vii)(2) below, constituting a Change of Control occurs;
then, in each case, the Securities may be surrendered for conversion at
any time on or after the date that the Company gives notice to the
Holders of such conversion right, which notice shall be given not less
than 20 days prior to the Ex-Dividend Time for such distribution, in the
case of (A) or (B) above, or within 30 days following the date of
occurrence of the Change of Control, in the case of (C) above, until
either (x) the earlier of the close of business on the Business Day
immediately preceding the Ex-Dividend Time and the date the Company
announces that such distribution will not take place, in the case of (A)
or (B), or (y) 30 days after notice of the Change of Control is given by
the Company, in the case of (C) , provided that Securities shall not
become convertible pursuant to any distribution described above in (A)
or (B) of this Section 10.1(b)(vii)(1) if all Holders may participate in
such distribution without conversion of their Securities or if such
distribution consists solely of a distribution of rights pursuant to a
Rights Plan, provided that (to the extent that the Rights Plan has been
implemented and is still in effect upon such conversion) Holders will
receive, in addition to the shares of Common Stock issuable upon
conversion of their Securities, the rights described in such Rights Plan
(whether or not the rights have separated from the Common Stock at the
time of conversion), subject to the limitations set forth in the Rights
Plan; or
(2) the Company is party to a consolidation, merger, binding
share exchange or transfer or lease of all or substantially all of its
assets pursuant to which the shares of Common Stock would be converted
into, or into the right to receive, cash, securities or other property
as set forth in Section 10.4, then the Securities may be surrendered for
conversion at any time from and after the date which is 15 days prior to
the date announced by the Company as the anticipated effective time of
such transaction until 15 days after the actual effective date of such
transaction.
"Ex-Dividend Time" means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the shares of
Common Stock trade regular way on the principal securities market on which the
shares of Common Stock are then traded without the right to receive such
issuances or distribution.
Section 10.2 Conversion Procedure; Conversion Price; Fractional
Shares. xi) The Securities shall be convertible at the office of the Conversion
Agent into fully paid and nonassessable shares (calculated to the nearest
1/100th of a share) of Common Stock. No
47
payment or adjustment shall be made in respect of dividends or distributions on
the Common Stock or accrued and unpaid interest on converted Securities, except
as provided in this Article 10. The Company shall not issue any fraction of a
share of Common Stock in connection with any conversion of Securities, but
instead shall, subject to Section 10.3(j) hereof, make a cash payment
(calculated to the nearest cent) equal to such fraction multiplied by the Sale
Price per share of the Common Stock on the last Trading Day prior to the
Conversion Date. The number of full shares of Common Stock deliverable to a
Holder pursuant to paragraph 8 of the Securities upon conversion shall be
computed by aggregating all Securities (or portions thereof to the extent
permitted) surrendered by such Holder for conversion. Notwithstanding the
foregoing, a Security in respect of which a Holder has delivered a Change of
Control Purchase Notice exercising such Holder's option to require the Company
to repurchase such Security may be converted only if such notice of exercise is
withdrawn in accordance with Section 3.9.
(b) Before any Holder of a Security shall be entitled to convert
the same into Common Stock, such Holder shall, in the case of Securities issued
in the form of Global Securities, effect book-entry transfer of the Securities
to be converted to the Conversion Agent through the facilities of, and in
compliance with the procedures of the Depositary in effect at that time, and in
the case of certificated Securities, complete the conversion notice on the back
of the Securities (or a facsimile thereof) and surrender such Securities (duly
endorsed to the Company or in blank), the conversion notice and any transfer
documents required by the Conversion Agent at the office of the Conversion Agent
and, in each case, shall give written notice to the Company at the office of the
Conversion Agent that such Holder elects to convert the same and shall state in
writing therein the original principal amount represented by the Securities to
be converted and the name or names (with addresses) in which such Holder wishes
the certificate or certificates for Common Stock to be issued.
At the time of surrender of Securities for conversion, a Holder
also shall make the cash payment, if any, required pursuant to paragraph 8 of
the Securities and pay all taxes or duties, if any, required pursuant to Section
10.8.
Subject to the next succeeding sentence, the Company will, as
soon as practicable thereafter, issue and deliver (or cause to be issued and
delivered) at the office of the Conversion Agent (or such other place within the
Borough of Manhattan, New York as shall be notified to such Holder at the time
of surrender of such Securities) to such Holder of a Security, or to such
Holder's nominee or nominees, certificates for the number of full shares of
Common Stock to which such Holder shall be entitled as aforesaid, together with
cash payment for any amounts to which such Holder shall be entitled pursuant to
Section 10.9. The Company shall not be required to deliver certificates for
shares of Common Stock while the stock transfer books for such stock or the
security register are duly closed for any purpose, but certificates for shares
of Common Stock shall be issued and delivered as soon as practicable after the
opening of such books or security register.
(c) If the Company exercises its option to redeem the Securities
pursuant to Article 3, a Holder may nevertheless exercise its right to convert
such Securities in accordance with this Article 10 at any time before the close
of business on the date that is two Business Days prior to the Redemption Date.
48
(d) A Security shall be deemed to have been converted as of the
close of business on the Conversion Date, and the Person or Persons entitled to
receive the Common Stock issuable upon such conversion shall be treated for all
purposes as the record Holder or Holders of such Common Stock as of the close of
business on such date.
(e) In case any Securities shall be surrendered for partial
conversion, the Company shall execute and the Trustee shall authenticate and
deliver to or upon the written order of the Holder of the Securities so
surrendered, without charge to such Holder (subject to the provisions of Section
10.8), new Securities in authorized denominations representing a like principal
amount to the unconverted portion of the surrendered Securities.
(f) The Company shall have the option, exercisable at any time or
from time to time, to designate or change the designation, by an instrument in
writing signed by the Company and provided to the Conversion Agent, a financial
institution to which Securities surrendered by a Holder for conversion will be
initially offered by the Conversion Agent on behalf of a Holder for exchange in
lieu of such conversion (an "Exchange Party"); provided that Securities
surrendered for conversion (i) prior to March 6, 2007, pursuant to satisfaction
of the condition for conversion provided in Section 10.1(b)(iii) or 10.1(b)(vii)
above, or (ii) during the period after a Record Date and prior to the
corresponding Interest Payment Date, shall not be so offered by the Conversion
Agent for exchange. By 11:00 a.m. (New York City time) on each Business Day, the
Conversion Agent shall inform the Exchange Party as to the aggregate original
principal amount of Securities surrendered for conversion prior to such time on
such Business Day or after such time on the prior Business Day. In order to
accept Securities surrendered for conversion, the Exchange Party must, by the
close of business on such Business Day, agree to deliver to the Conversion Agent
in exchange therefor such number of freely tradeable shares of Common Stock as
the Holder of such Securities surrendered for conversion would have received
upon conversion, plus a cash payment for any amounts the Company would have been
required to pay to the Holder upon conversion of such Securities in accordance
with the terms thereof and of this Indenture. Settlement for any such exchange
shall take place no later than the third Trading Day following the Conversion
Date (or, if earlier, the day before any record date for any distribution on the
Common Stock or any effective date for any consolidation, merger, binding share
exchange or transfer or lease of all or substantially all of the Company's
assets). In the event that the Exchange Party fails to deliver the Common Shares
by such third Business Day, instead of being exchanged, the Securities will be
converted in accordance with their terms and this Indenture. A Holder whose
Securities are exchanged in whole or in part shall be given a written
confirmation from the Conversion Agent informing such Holder as to the aggregate
original principal amount represented by the Securities so exchanged. Any
Securities which have been exchanged in lieu of conversion as described in this
Section 10.2(f) shall remain outstanding.
As soon as practicable after the Conversion Date, the Company, in
the case of a conversion pursuant to this Article 10, or the Exchange Party, in
the case of an exchange contemplated by this Section 10.2(f), shall deliver to
the Holder, through the Conversion Agent, a certificate for the number of full
number of shares of Common Stock issuable upon such conversion or exchange of
the Securities held by the Holder, plus a cash payment for any amounts the
Company is, or if Securities are exchanged pursuant to this Section 10.2(f),
would have been, required to pay to the Holder upon conversion of such
Securities.
49
Section 10.3 Adjustments of Conversion Price for Common Stock.
The Conversion Price (the "Conversion Price") as set forth in paragraph 8 of the
Securities shall be adjusted from time to time as follows:
(a) Adjustment for Distribution of Common Stock. In case the
Company shall, at any time or from time to time while any of the
Securities are outstanding, pay a dividend or make a distribution in
shares of Common Stock to all holders of its outstanding shares of
Common Stock, then the Conversion Price in effect at the opening of
business on the day following the record date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution shall be reduced by multiplying such Conversion Price by a
fraction:
(1) the numerator of which shall be the number of shares
of Common Stock outstanding at the close of business on the
record date fixed for such determination; and
(2) the denominator of which shall be the sum of such
number of shares and the total number of shares constituting such
dividend or other distribution.
Such reduction shall become effective immediately after the
opening of business on the day following the record date fixed for such
determination. If any dividend or distribution of the type described in
this Section 10.3(a) is declared but not so paid or made, the Conversion
Price shall again be adjusted to the Conversion Price which would then
be in effect if such dividend or distribution had not been declared.
(b) Adjustment for Change in Capital Stock. In case the Company
shall, at any time or from time to time while any of the Securities are
outstanding, subdivide its outstanding shares of Common Stock into a
greater number of shares of Common Stock, then the Conversion Price in
effect at the opening of business on the day following the date upon
which such subdivision becomes effective shall be proportionately
reduced, and conversely, in case the Company shall, at any time or from
time to time while any of the Securities are outstanding, combine its
outstanding shares of Common Stock into a smaller number of shares of
Common Stock, then the Conversion Price in effect at the opening of
business on the day following the date upon which such combination
becomes effective shall be proportionately increased.
Any reduction or increase, as the case may be, of the Conversion
Price as provided in this clause (b), shall become effective immediately
after the opening of business on the day following the day upon which
such subdivision or combination becomes effective.
(c) Adjustment for Rights Issue. In case the Company shall, at
any time or from time to time while any of the Securities are
outstanding, distribute rights or warrants to all holders of its shares
of Common Stock entitling them to purchase shares of Common Stock (or
securities convertible into shares of Common Stock) at a price per share
(or having a conversion price per share) less than the Current Market
Price of the
50
Common Stock on the Trading Day immediately preceding the date of the
declaration of such distribution (treating the conversion price per
share of such securities convertible into Common Stock as equal to (x)
the sum of (i) the price for a unit of the security convertible into
Common Stock and (ii) any additional consideration initially payable
upon the conversion of such security into Common Stock divided by (y)
the number of shares of Common Stock initially underlying such
convertible security), then the Conversion Price shall be adjusted so
that the same shall equal the price determined by multiplying the
Conversion Price in effect at the opening of business on the day after
the record date for such distribution by a fraction:
(1) the numerator of which shall be the number of shares
of Common Stock outstanding on the close of business on the
record date for such distribution, plus the number of shares
which the aggregate offering price of the total number of shares
so offered for subscription or purchase (or the aggregate
conversion price of the convertible securities so offered) would
purchase at the Current Market Price of the Common Stock as of
the Business Day immediately preceding the date of the
declaration of such distribution; and
(2) the denominator of which shall be the number of
shares of Common Stock outstanding at the close of business on
the record date for such distribution, plus the total number of
additional shares of Common Stock so offered for subscription or
purchase (or into which the convertible securities so offered are
convertible).
Such adjustment shall become effective immediately after the
opening of business on the day following the record date for the
determination of the stockholders entitled to receive such rights or
warrants. To the extent that shares of Common Stock (or securities
convertible into shares of Common Stock) are not delivered pursuant to
such rights or warrants, upon the expiration or termination of such
rights or warrants, the Conversion Price shall be readjusted to the
Conversion Price which would then be in effect had the adjustments made
upon the distribution of such rights or warrants been made on the basis
of the delivery of only the number of shares of Common Stock (or
securities convertible into shares of Common Stock) actually delivered.
In the event that such rights or warrants are not so issued, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if the date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been
fixed. In determining whether any rights or warrants entitle the holders
to subscribe for or purchase shares of Common Stock at less than such
Current Market Price, and in determining the aggregate offering price of
such shares of Common Stock, there shall be taken into account any
consideration received for such rights or warrants, the value of such
consideration if other than cash, to be determined by the Board of
Directors.
No adjustment shall be made under this Section 10.3(c) if (i) the
application of the formula stated above in this Section 10.3(c) would
result in the Conversion Price effective subsequent to such adjustment
to be equal to or more than the Conversion Price in effect immediately
prior to such adjustment or (ii) such distribution of rights or warrants
as described in the first paragraph of this Section 10.3(c) is made
pursuant to the
51
implementation of a Rights Plan and the provisions set forth in the last
paragraph of Section 10.3(d)(i) below are complied with.
(d) Adjustment for Other Distributions. xii) Adjustment for
Extraordinary Distributions. In case the Company shall, at any time or
from time to time while any of the Securities are outstanding, by
dividend or otherwise, distribute to all holders of its shares of Common
Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing
corporation and the Common Stock is not changed or exchanged), cash,
debt securities (or other evidence of its indebtedness) or other assets,
excluding:
- any dividends or distributions to which Section 10.3(a),
10.3(c) or 10.3(d)(ii) applies,
- any distribution of rights pursuant to the adoption of a
stockholder rights plan,
- on or prior to March 6, 2004, Regular Cash Dividends,
except where the per share amount thereof, when
aggregated with the per share amounts of other cash
distributions made within the preceding 12 months for
which no adjustment has been made, exceeds 5% of the
Current Market Price of the Common Stock on the Trading
Day immediately preceding the date of declaration of
such distribution, and
- after March 6, 2004, dividends that result in Contingent
Interest becoming payable in accordance with paragraph 1
of the Securities (such cash, debt securities or other
evidence of indebtedness) or other assets being
distributed hereinafter in this Section 10.3(d) called
the "distributed assets")
then, in each such case, subject to Section 10.3(l), the Conversion
Price shall be adjusted so that the same shall be equal to the price
determined by multiplying the Conversion Price in effect immediately
prior to the opening of business on the day after the record date for
the determination of stockholders entitled to receive such distributed
assets by a fraction:
(1) the numerator of which shall be the Current Market
Price of the Common Stock on such record date for the
distribution, less the Fair Market Value on such record date of
the portion of the distributed assets so distributed attributable
to one share of Common Stock (determined on the basis of the
number of shares of Common Stock outstanding on such record date
as provided in Section 10.3(g)) on such record date; and
(2) the denominator of which shall be such Current Market
Price.
Such reduction shall become effective immediately prior to the
opening of business on the day following the record date for such
distribution. In the event that such
52
dividend or distribution is not so paid or made, the Conversion Price
shall again be adjusted to be the Conversion Price which would then be
in effect if such dividend or distribution had not been declared.
In the event that (x) the difference between the Current Market
Price of the Common Stock and the Fair Market Value of the portion of
the distributed assets attributable to one share of Common Stock
referred to in (1) above is less than $1.00, or (y) the Fair Market
Value of the portion of the distributed assets attributable to one share
of Common Stock is equal to or greater than the Current Market Price of
the Common Stock on the record date for the determination of
stockholders entitled to receive such distributed assets, in lieu of the
foregoing adjustment, adequate provision may be made so that each Holder
shall have the right to receive upon conversion of a Security the amount
of distributed assets such Holder would have received had such Holder
converted such Security on such record date.
If the Board of Directors determines the Fair Market Value of any
distribution for purposes of this Section 10.3(d) by reference to the
actual or when issued trading market for any distributed assets
comprising all or part of such distribution, it must in doing so
consider the prices in such market over the same period (the "Reference
Period") used in computing the Current Market Price pursuant to Section
10.3(g) to the extent possible, unless the Board of Directors determines
in good faith that determining the Fair Market Value during the
Reference Period would not be in the best interest of the Holders.
In the event that the Company implements a preferred shares
rights plan ("Rights Plan"), upon conversion of the Securities into
Common Stock, to the extent that the Rights Plan has been implemented
and is still in effect upon such conversion, Holders of Securities will
receive, in addition to the Common Stock, the rights described therein
(whether or not the rights have separated from the Common Stock at the
time of conversion), subject to the limitations set forth in the Rights
Plan. Provided that such Rights Plan requires that each share of Common
Stock issued upon conversion of Securities at any time prior to the
distribution of separate certificates representing the rights provided
under such Rights Plan be entitled to receive such rights, then,
notwithstanding anything else to the contrary in this Section 10.3,
there shall not be any adjustment to the conversion privilege or
Conversion Price as a result of the issuance of rights, the distribution
of separate certificates representing the rights, the exercise or
redemption of such rights in accordance with any such Rights Agreement,
or the termination or invalidation of such rights.
(ii) Adjustment for Distribution of Subsidiary Stock. If, after
the date of this Indenture, the Company pays a dividend or makes a
distribution to all holders of its Common Stock consisting of Capital
Stock of any class or series, or similar equity interests, of or
relating to a Subsidiary or other business unit of the Company, the
Conversion Price shall be adjusted by multiplying the Conversion Price
in effect immediately prior to the opening of business on the day after
the conclusion of the 10 Trading-Day period referred to in the following
paragraph by a fraction:
(1) the numerator of which shall be one; and
53
(2) the denominator of which shall be one, plus a
fraction the numerator of which shall be the Fair Market Value of
the securities distributed in respect of each share of Common
Stock and the denominator of which shall be the average of the
Post Distribution Prices of the Common Stock for the 10 Trading
Days commencing on and including the fifth Trading Day after the
date of the Ex-Dividend Time for such dividend or distribution.
For the purposes of this Section 10.3(d)(ii), the Fair Market
Value of the securities distributed in respect of each share of Common
Stock shall mean the number of securities distributed in respect of each
share of Common Stock multiplied by the average of the Post-Distribution
Prices of those securities distributed for the 10 Trading Days
commencing on and including the fifth trading day after the Ex-Dividend
Time.
"Post-Distribution Price" of the Capital Stock or any similar
equity interest on any date means the closing per unit sale price (or,
if no closing sale price is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the average
bid and the average ask prices) on such date for trading of such units
on a "when issued" basis without due bills (or similar concept) as
reported in the composite transactions for the principal United States
securities exchange on which such Capital Stock or equity interest is
traded or, if the Capital Stock or equity interest, as the case may be,
is not listed on a United States national or regional securities
exchange, as reported by the National Association of Securities Dealers
Automated Quotation System or by the National Quotation Bureau
Incorporated; provided that if on any date such units have not traded on
a "when issued" basis, the Post-Distribution Price shall be the closing
per unit sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case,
the average of the average bid and the average ask prices) on such date
for trading of such units on a "regular way" basis without due bills (or
similar concept) as reported in the composite transactions for the
principal United States securities exchange on which such Capital Stock
or equity interest is traded or, if the Capital Stock or equity
interest, as the case may be, is not listed on a United States national
or regional securities exchange, as reported by the National Association
of Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated. In the absence of such quotation, the
Company shall be entitled to determine the Post-Distribution Price on
the basis of such quotations which reflect the post-distribution value
of the Capital Stock or equity interests as it considers appropriate.
(e) Provisions Applicable to Certain Conversion Price
Adjustments. Rights or warrants distributed by the Company to all
holders of its shares of Common Stock entitling them to subscribe for or
purchase shares of Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"), (i) are deemed to be
transferred with such shares of Common Stock, (ii) are not exercisable
and (iii) are also issued in respect of future issuances of shares of
Common Stock shall be deemed not to have been distributed for purposes
of Section 10.3(d) (and no adjustment to the Conversion Price under
Section 10.3(d) will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed
distributed and an appropriate adjustment (if required) to the
Conversion Price shall be made pursuant to Section 10.3(d). If such
right
54
or warrant is subject to subsequent events, upon the occurrence of which
such right or warrant shall become exercisable to purchase different
distributed assets, or entitle the holder to purchase a different number
or amount of distributed assets or to purchase any distributed assets at
a different purchase price, then the occurrence of each such event shall
be deemed to be the date of issuance and record date with respect to a
new right or warrant with such rights (and a termination or expiration
of the existing rights or warrants without exercise by the holder
thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event
(of the type described in the preceding sentence) with respect thereto,
that resulted in an adjustment to the Conversion Price under Section
10.3(d):
(1) in the case of any such rights or warrants which
shall all have been redeemed or repurchased without exercise by
any holders thereof, the Conversion Price shall be readjusted
upon such final redemption or repurchase to give effect to such
distribution or Trigger Event, as the case may be, as though it
were a cash distribution, equal to the per share redemption or
repurchase price received by a holder of shares of Common Stock
with respect to such rights or warrants (assuming such holder had
retained such rights or warrants), made to all holders of shares
of Common Stock as of the date of such redemption or repurchase;
and
(2) in the case of such rights or warrants which shall
have expired or been terminated without exercise, the Conversion
Price shall be readjusted as if such rights and warrants had
never been issued.
For purposes of Sections 10.3(a), 10.3(c) and 10.3(d), any
dividend or distribution to which Section 10.3(d) is applicable that
also includes (i) shares of Common Stock (or securities convertible into
Common Stock) to which Section 10.3(a) applies or (ii) rights or
warrants to subscribe for or purchase shares of Common Stock (or
securities convertible into Common Stock) to which Section 10.3(c)
applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of cash, debt securities
(or other evidences of indebtedness), assets, shares of capital
stock, rights or warrants, other than such shares of Common
Stock, or such rights or warrants to which Sections 10.3(a) and
10.3(c) apply, respectively (and any Conversion Price reduction
required by Section 10.3(d) with respect to such dividend or
distribution shall then be made), immediately followed by
(2) a dividend or distribution of such shares of Common
Stock or such rights or warrants (and any further Conversion
Price reduction required by Sections 10.3(a) and 10.3(c) with
respect to such dividend or distribution shall then be made),
except:
(A) the record date of such dividend or
distribution shall be substituted as (i) "record date
fixed for the determination of stockholders entitled to
receive such dividend or other distribution," "record
date fixed for such determination" and "record date"
within the meaning of Section
55
10.3(a), and (ii) as "the date fixed for the
determination of stockholders entitled to receive such
rights or warrants," "the record date fixed for the
determination of the stockholders entitled to receive
such rights or warrants" and such "record date" within
the meaning of Section 10.3(c); and
(B) any shares of Common Stock included in such
dividend or distribution shall not be deemed "outstanding
at the close of business on the record date fixed for
such determination" within the meaning of Section
10.3(a).
In the event of any distribution referred to in Section 10.3(c)
or 10.3(d), where, in the case of a distribution described in Section
10.3(d), the Fair Market Value of such distribution per share of Common
Stock (as determined by the Board of Directors) exceeds 15% of the
Current Market Price of a share of Common Stock on the Trading Day
immediately preceding the declaration date for such distribution, then,
if such distribution would also trigger a conversion right under Section
10.1(b)(vii) or the Securities are otherwise convertible pursuant to
this Article 10, the Company will be required to give notice to the
Holders of Securities at least 20 days prior to the Ex-Dividend Time for
the distribution and, upon the giving of notice, the Securities may be
surrendered for conversion at any time on and after the date that the
Company gives notice to the Holders of such conversion right, until the
close of business on the Business Day prior to the Ex-Dividend Time or
the Company announces that such distribution will not take place.
(f) Adjustment for Tender Offer. In the event that a tender offer
(other than an odd-lot offer) made by the Company or any of its
Subsidiaries for all or any portion of the shares of Common Stock shall
expire and such tender offer (including any amendment in effect
immediately prior to the expiration thereof) shall require the payment
to stockholders (based on the acceptance of shares tendered up to any
maximum specified in the terms of the tender offer) of an aggregate
consideration having a Fair Market Value in excess of 110% of the
Current Market Price of the Common Stock as of close of business on the
last date that tenders may be made pursuant to such offer (the
"Expiration Time"), the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the close of business on the date
of the Expiration Time by a fraction:
(1) the numerator of which shall be the number of shares
of Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multiplied by the Current Market
Price of the Common Stock as of the Expiration Time, and
(2) the denominator of which shall be the sum of (x) the
Fair Market Value of the aggregate consideration payable to
holders of Common Stock based on the acceptance of all shares
validly tendered and not withdrawn as of the Expiration Time, up
to the maximum specified in the tender (the shares of Common
Stock so accepted being the "Purchased Shares") and (y) the
product of
56
the number of shares of Common Stock outstanding as of the date
of the Expiration Time (less any Purchased Shares) and the
Current Market Price of the Common Stock as of the Expiration
Time.
Such reduction (if any) shall become effective immediately prior
to the opening of business on the day following the Expiration Time. In
the event that the Company, or its Subsidiaries, as the case may be, is
obligated to purchase shares of Common Stock pursuant to any such tender
offer, but the Company, or its Subsidiaries, as the case may be, is
permanently prevented by applicable law from effecting any such
purchases or all or a portion of such purchases are rescinded, the
Conversion Price shall again be adjusted to be the Conversion Price
which would then be in effect if such (or such portion of the) tender
offer had not been made. If the application of this Section 10.3(f) to
any tender offer would result in an increase in the Conversion Price, no
adjustment shall be made for such tender offer under this Section
10.3(f).
(g) For purposes of this Article 10, the following terms shall
have the meanings indicated:
"Current Market Price" on any date means the average of
the daily Sale Prices per share of Common Stock for the 10
consecutive Trading Days immediately prior to such date (referred
to below as the "price determination date"); provided, however,
that whenever successive adjustments to the Conversion Price are
called for pursuant to this Section 10.3, such adjustments shall
be made to the Current Market Price as may be necessary or
appropriate to effectuate the intent of this Section 10.3 and to
avoid unjust or inequitable results as determined in good faith
by the Board of Directors;
"Fair Market Value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction
(as determined in good faith by the Board of Directors, whose
determination shall be conclusive); and
"record date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders
of shares of Common Stock have the right to receive any cash,
securities or other property or in which the shares of Common
Stock (or other applicable securities) are exchanged for or
converted into any combination of cash, securities or other
property, the date fixed for determination of stockholders
entitled to receive such cash, securities or other property
(whether such date is fixed by the Board of Directors or by
statute, contract or otherwise).
(h) To the extent permitted by applicable law, the Company may,
from time to time, reduce the Conversion Price by any amount for any
period of time, if such period is at least 20 days and the reduction is
irrevocable during the period. Whenever the Conversion Price is reduced
pursuant to the preceding sentence, the Company shall mail to the
Trustee and each Holder at the address of such Holder as it appears in
the register of the Securities maintained by the Registrar, at least 15
days prior to the date the reduced
57
Conversion Price takes effect, a notice of the reduction stating the
reduced Conversion Price and the period during which it will be in
effect.
(i) In any case in which this Section 10.3 shall require that any
adjustment be made effective as of or retroactively immediately
following a record date, the Company may elect to defer (but only for
five Trading Days following the filing of the statement referred to in
Section 10.5) issuing to the Holder of any Securities converted after
such record date the shares of Common Stock issuable upon such
conversion over and above the shares of Common Stock issuable upon such
conversion on the basis of the Conversion Price prior to adjustment;
provided, however, that the Company shall deliver to such Holder a due
xxxx or other appropriate instrument evidencing such Holder's right to
receive such additional shares upon the occurrence of the event
requiring such adjustment.
(j) All calculations under this Section 10.3 shall be made to the
nearest cent or one-hundredth of a share, with one-half cent and 0.005
of a share, respectively, being rounded upward. Notwithstanding any
other provision of this Section 10.3, the Company shall not be required
to make any adjustment of the Conversion Price unless such adjustment
would require an increase or decrease of at least 1% of such price. Any
lesser adjustment shall be carried forward and shall be made at the time
of and together with the next subsequent adjustment which, together with
any adjustment or adjustments so carried forward, shall amount to an
increase or decrease of at least 1% in such price. Any adjustments under
this Section 10.3 shall be made successively whenever an event requiring
such an adjustment occurs.
(k) In the event that at any time, as a result of an adjustment
made pursuant to this Section 10.3, the Holder of any Securities
thereafter surrendered for conversion shall become entitled to receive
any shares of stock of the Company other than shares of Common Stock
into which the Securities originally were convertible, the Conversion
Price of such other shares so receivable upon conversion of any such
Securities shall be subject to adjustment from time to time in a manner
and on terms as nearly equivalent as practicable to the provisions with
respect to Common Stock contained in subparagraphs (a) through (j) of
this Section 10.3, and the provisions of Sections 10.1, 10.2 and 10.4
through 10.9 with respect to the Common Stock shall apply on like or
similar terms to any such other shares and the determination of the
Board of Directors as to any such adjustment shall be conclusive.
(l) No adjustment shall be made pursuant to this Section 10.3 (i)
if the effect thereof would be to reduce the Conversion Price below the
par value (if any) of the Common Stock or (ii) if the Holders of the
Securities may participate in the transaction that would otherwise give
rise to an adjustment pursuant to this Section 10.3. No adjustment need
be made for a transaction referred to in clauses (a), (b), (c), (d), (e)
or (f) of this Section 10.3 if Holders 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 Common Stock participate in the transaction. Such
participation by Holders may include participation upon conversion,
provided that an adjustment shall be made at such time as the Holders
are no longer entitled to participate.
58
No adjustment need be made for a change in the par value or no par value
of the Common Stock. To the extent the Securities become convertible
pursuant to this Article 10 into cash, no adjustment need be made
thereafter as to the cash. Interest will not accrue on the cash.
Section 10.4 Consolidation or Merger of the Company. If any of
the following events occurs, namely:
(a) any reclassification or change of the outstanding Common
Stock (other than a change in par value, or from par value to no par
value, or from no par value to par value, or as a result of a
subdivision or combination);
(b) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation as a result of which
holders of Common Stock shall be entitled to receive stock, securities
or other property or assets (including cash) with respect to or in
exchange for such Common Stock; or
(c) any sale or conveyance of the properties and assets of the
Company as, or substantially as, an entirety to any other corporation as
a result of which holders of Common Stock shall be entitled to receive
stock, securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock;
the Company or the successor or purchasing corporation, as the case may be,
shall execute with the Trustee a supplemental indenture (which shall comply with
the Trust Indenture Act as in force at the date of execution of such
supplemental indenture, if such supplemental indenture is then required to so
comply) providing that such Securities shall be convertible into the kind and
amount of shares of stock and other securities or property or assets (including
cash) which such Holder would have been entitled to receive upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance had such Securities been converted into Common
Stock immediately prior to such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance assuming such holder
of Common Stock did not exercise its rights of election, if any, as to the kind
or amount of securities, cash or other property receivable upon such merger,
consolidation, statutory share exchange, sale or conveyance (provided that, if
the kind or amount of securities, cash or other property receivable upon such
merger, consolidation, statutory share exchange, sale or conveyance is not the
same for each share of Common Stock in respect of which such rights of election
shall not have been exercised ("Non-Electing Share"), then for the purposes of
this Section 10.4, the kind and amount of securities, cash or other property
receivable upon such merger, consolidation, statutory share exchange, sale or
conveyance for each Non-Electing Share shall be deemed to be the kind and amount
so receivable per share by a plurality of the Non-Electing Shares).
Such supplemental indenture shall provide for adjustments which
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article 10. If, in the case of any such reclassification, change,
merger, consolidation, statutory share exchange, combination, sale or
conveyance, the stock or other securities and assets receivable thereupon by a
holder of Common Stock includes shares of stock or other securities and assets
of a corporation
59
other than the successor or purchasing corporation, as the case may be, in such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance, then such supplemental indenture shall also be
executed by such other corporation and shall contain such additional provisions
to protect the interests of the Holders of the Securities as the Board of
Directors shall reasonably consider necessary by reason of the foregoing,
including to the extent practicable the provisions providing for the repurchase
rights set forth in Article 10 hereof.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at the address of such
Holder as it appears on the register of the Securities maintained by the
Registrar, within 20 days after execution thereof. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section 10.4 shall similarly apply
to successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.4 applies to any event or occurrence, Section
10.3 shall not apply.
Section 10.5 Notice of Adjustment. Whenever an adjustment in the
Conversion Price with respect to the Securities is required:
(a) the Company shall forthwith place on file with the Trustee
and any Conversion Agent for such securities a certificate of the
Treasurer of the Company, stating the adjusted Conversion Price
determined as provided herein and setting forth in reasonable detail
such facts as shall be necessary to show the reason for and the manner
of computing such adjustment; and
(b) a notice stating that the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall forthwith be given
by the Company or, at the Company's written request, by the Trustee in
the name and at the expense of the Company, to each Holder in the manner
provided in Section 12.2. Any notice so given shall be conclusively
presumed to have been duly given, whether or not the Holder receives
such notice.
Section 10.6 Notice in Certain Events. In case:
(a) of a consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is required,
or of the sale or conveyance to another Person or entity or group of
Persons or entities acting in concert as a partnership, limited
partnership, syndicate or other group (within the meaning of Rule 13d-3
under the Exchange Act) of all or substantially all of the property and
assets of the Company;
(b) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company; or
60
(c) of any action triggering an adjustment of the Conversion
Price referred to in clause (x) or (y) below;
then, in each case, the Company shall cause to be filed with the Trustee and the
Conversion Agent, and shall cause to be given, to the Holders of the Securities
in the manner provided in Section 12.2, at least 15 days prior to the applicable
date hereinafter specified, a notice stating (x) the date on which a record is
to be taken for the purpose of any distribution or grant of rights or warrants
triggering an adjustment to the Conversion Price pursuant to this Article 10,
or, if a record is not to be taken, the date as of which the holders of record
of Common Stock entitled to such distribution, rights or warrants are to be
determined, or (y) the date on which any reclassification, consolidation,
merger, sale, conveyance, dissolution, liquidation or winding-up triggering an
adjustment to the Conversion Price pursuant to this Article 10 is expected to
become effective, and the date as of which it is expected that holders of Common
Stock of record shall be entitled to exchange their Common Stock for securities
or other property deliverable upon such reclassification, consolidation, merger,
sale, conveyance, dissolution, liquidation or winding-up.
Failure to give such notice or any defect therein shall not
affect the legality or validity of the proceedings described in clause (a), (b)
or (c) of this Section 10.6.
Section 10.7 Company to Reserve Stock; Registration; Listing.
xiii) The Company shall, in accordance with the laws of the State of Iowa, at
all times reserve and keep available, free from preemptive rights, out of a
combination of its authorized but unissued shares of Common Stock or its
purchased shares of Common Stock which are then held in the treasury of the
Company, for the purpose of effecting the conversion of the Securities, such
number of its duly authorized shares of Common Stock as shall from time to time
be sufficient to effect the conversion of all Securities then outstanding into
such Common Stock at any time (assuming that, at the time of the computation of
such number of shares or securities, all such Securities would be held by a
single Holder). The Company covenants that all shares of Common Stock which may
be issued upon conversion of Securities will upon issue be fully paid and
nonassessable and free from all liens and charges and, except as provided in
Section 10.8, taxes with respect to the issue thereof.
(b) If any shares of Common Stock which would be issuable upon
conversion of Securities hereunder require registration with or approval of any
governmental authority before such shares or securities may be issued upon such
conversion, the Company will in good faith and as expeditiously as possible
endeavor to cause such shares or securities to be duly registered or approved,
as the case may be. The Company further covenants that so long as the Common
Stock shall be listed on the New York Stock Exchange, the Company will, if
permitted by the rules of such exchange, list and keep listed all Common Stock
issuable upon conversion of the Securities, and the Company will endeavor to
list the shares of Common Stock required to be delivered upon conversion of the
Securities prior to such delivery upon any other national securities exchange
upon which the outstanding Common Stock is listed at the time of such delivery.
Section 10.8 Taxes on Conversion. The issue of stock certificates
on conversion of Securities shall be made without charge to the converting
Holder for any documentary, stamp
61
or similar issue or transfer taxes in respect of the issue thereof, and the
Company shall pay any and all documentary, stamp or similar issue or transfer
taxes that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. The Company shall not,
however, be required to pay any such tax which may be payable in respect of any
transfer involved in the issue or delivery of shares of Common Stock or the
portion, if any, of the Securities which are not so converted in a name other
than that in which the Securities so converted were registered, and no such
issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of such tax or has established to the
satisfaction of the Company that such tax has been paid.
Section 10.9 Securities Deemed Paid in Full on Conversion. If at
least one of the conditions for conversion specified in Section 10.1(b) is
satisfied, Holders may convert their Securities or any portion thereof in $1,000
original principal amount or an integral multiple thereof into shares of Common
Stock in accordance with, and shall receive upon such conversion such cash
amounts as specified in, paragraph 8 of the Securities. Upon delivery to the
Holder of a certificate or certificates representing (or, as the case may be,
book entry transfer to the Holder of) the number of shares of Common Stock
issuable, and any other consideration (if any) payable or otherwise required to
be delivered, upon conversion in accordance with this Article 10 and paragraph 8
of the Securities, the Accreted Principal Amount of the Securities and all
accrued and unpaid interest on such Securities will be deemed to have been paid
in full, rather than cancelled, extinguished or forfeited.
Except as provided in Sections 10.3 and 10.4 and paragraph 8 of
the Securities, no adjustments in respect of payments of interest on Securities
surrendered for conversion or any dividends or distributions or interest on the
Common Stock issued upon conversion shall be made upon the conversion of any
Securities.
Section 10.10 Company Determination Final. Any determination that
the Company or the Board of Directors must make pursuant to this Article 10
shall be conclusive if made in good faith and in accordance with the provisions
of this Article 10, absent manifest error, and set forth in a Board Resolution.
Section 10.11 Responsibility of Trustee for Conversion
Provisions. The Trustee has no duty to determine when an adjustment under this
Article 10 should be made, how it should be made or what it should be. The
Trustee 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 any failure of the Company to comply with this Article 10. Each
Conversion Agent other than the Company shall have the same protection under
this Section 10.11 as the Trustee.
The rights, privileges, protections, immunities and benefits
given to the Trustee under this Indenture including, without limitation, its
rights to be indemnified, are extended to, and shall be enforceable by, the
Trustee in each of its capacities hereunder, and each Paying Agent or Conversion
Agent acting hereunder.
Section 10.12 Unconditional Right of Holders to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is
62
absolute and unconditional, to convert its Security in accordance with this
Article 10 and to bring an action for the enforcement of any such right to
convert, and such rights shall not be impaired or affected without the consent
of such Holder.
ARTICLE 11
SUBORDINATION OF SECURITIES
Section 11.1 Securities Subordinate to Senior Debt. xiv) The
Company covenants and agrees, and each Holder of a Security, by its acceptance
thereof, likewise covenants and agrees, that, to the extent and in the manner
hereinafter set forth in this Article 11, the payment of the principal of and
premium (if any) and interest (including Stated Interest, Contingent Interest,
Deferred Interest and Additional Interest) on 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 amounts then due and payable in respect of all Senior
Debt.
The Trustee and the Holders shall take such action (including,
without limitation, the delivery of this Indenture to an agent for the holders
of Senior Debt or consent to the filing of a financing statement with respect
hereto) as may, in the opinion of counsel designated by the holders of a
majority in principal amount of the Senior Debt at the time outstanding, be
necessary or appropriate to assure the effectiveness of the subordination
effected by these provisions.
(b) The provisions of Sections 11.2, 11.3 and 11.4 shall not
impair any rights, interests, remedies or powers of any secured creditor of the
Company in respect of any security interest the creation of which is not
prohibited by the provisions of this Indenture.
The securing of any obligations of the Company, otherwise ranking
on a parity with the Securities or ranking junior to the Securities, shall not
be deemed to prevent such obligations from constituting, respectively,
obligations ranking on a parity with the Securities or ranking junior to the
Securities.
(c) Securities Senior to Junior Subordinated Debt. The Company
covenants and agrees that the payment of the principal of and premium (if any)
and interest on (i) the 8.85% Junior Subordinated Debentures, Series A, issued
pursuant to the indenture dated February 3, 1997 between AmerUs Life Holdings,
Inc. and Wilmington Trust Company and the guarantee issued by AmerUs Life
Holdings, Inc. in connection with the 8.85% Capital Securities, Series A issued
by AmerUs Capital I, and (ii) the 7.00% Junior Subordinated Debentures due July
27, 2003 and the guarantee issued by AmerUs Life Holdings, Inc. in connection
with the 7.00% Adjustable Conversion-rate Equity Security Units issued by AmerUs
Capital II are hereby expressly made subordinate and subject in right of payment
to the prior payment in full of all amounts then due and payable in respect of
the Securities.
(d) Limitation on Senior Subordinated Debt. The Company shall not
incur any Debt that is expressly made subordinate in right of payment to any of
its Senior Debt unless such Debt, by its terms or by the terms of any agreement
or instrument pursuant to which such
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Debt is outstanding, is expressly made pari passu with, or subordinate in right
of payment to the Securities. This Section 11.1(d) shall not apply to
distinctions between categories of Senior Debt of the Company that exist by
reason of any liens or guarantees arising or created in respect of some but not
all of such Senior Debt.
Section 11.2 Payment Over of Proceeds upon Dissolution, Etc. In
the case of the pendency of (a) any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company, its creditors or its property, (b)
any proceeding for the liquidation, dissolution or other winding-up of the
Company, voluntary or involuntary, whether or not involving insolvency or
bankruptcy proceedings, (c) any assignment by the Company for the benefit of
creditors or (d) any other marshalling of the assets of the Company (each such
event, if any, herein sometimes referred to as a "Proceeding"), then the holders
of Senior Debt shall be entitled to receive payment in full of principal of and
premium (if any) and interest on such Senior Debt (including any interest
thereon accruing after the commencement of any such Proceeding), or provision
shall be made for such payment in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, before the Holders of the
Securities are entitled to receive or retain any payment or distribution of any
kind or character, whether in cash, property or securities, on account of
principal of or premium (if any) or interest (including Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any Subsidiary and to that end the holders of Senior Debt shall
be entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event of any Proceeding, after payment in full of all sums
owing with respect to Senior Debt, the Holders of the Securities, together with
the holders of any obligations of the Company ranking on a parity with the
Securities, shall be entitled to be paid from the remaining assets of the
Company the amounts at the time due and owing on account of unpaid principal of
and premium (if any) and interest on (including Stated Interest, Contingent
Interest, Deferred Interest and Additional Interest) the Securities and such
other obligations before any payment or other distribution, whether in cash,
property or otherwise, shall be made on account of any capital stock or any
obligations of the Company ranking junior to the Securities and such other
obligations.
In the event that, notwithstanding the foregoing provisions of
this Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities before all Senior Debt is paid in full
or payment thereof is provided for in cash or cash equivalents or otherwise in a
manner satisfactory to the holders of Senior Debt, 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 Debt remaining unpaid, to the extent
necessary to pay all Senior Debt in full, after giving effect to any concurrent
payment or distribution to or for the holders of Senior Debt.
64
For purposes of this Article 11 only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include shares of 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 which securities are subordinated in
right of payment to all then outstanding Senior Debt at least to the same extent
as the Securities are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the sale of
all or substantially all of its properties and assets as an entirety to another
Person upon the terms and conditions set forth in Article 5 shall not be deemed
a Proceeding for the purposes of this Section if the Person formed by such
consolidation or into which the Company is merged or the Person which acquires
by sale such properties and assets as an entirety, as the case may be, shall, as
a part of such consolidation, merger, or sale comply with the conditions set
forth in Article 5.
Section 11.3 Prior Payment to Senior Debt upon Acceleration of
Securities. In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of the Senior Debt
outstanding at the time such Securities so become due and payable shall be
entitled to receive payment in full of all amounts due on or in respect of such
Senior Debt (including any amounts due upon acceleration), or provision shall be
made for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, before the Holders of the Securities
are entitled to receive any payment or distribution of any kind or character,
whether in cash, properties or securities by the Company on account of the
principal of (or premium, if any) or interest (including Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any Subsidiary.
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, then and in such event such payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 11.2 would be applicable.
Section 11.4 No Payment When Senior Debt in Default. In the event
and during the continuation of any default in the payment of principal of or
premium (if any) or interest on any Senior Debt, when the same becomes due and
payable, whether at maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, then, upon written notice of such default to the
Company by the holders of Senior Debt or any trustee therefor, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist, then no payment or distribution of any kind or character, whether in
cash, properties or securities shall be made by the Company on account of
principal of or premium (if any) or interest (including any Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest) on the
Securities or on account of the purchase or other acquisition of Securities by
the Company or any Subsidiary.
65
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, and if such fact shall, at or prior
to the time of such payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 11.2 would be applicable.
Section 11.5 Payment Permitted If No Default. Nothing contained
in this Article 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
Proceeding referred to in Section 11.2 or under the conditions described in
Sections 11.3 and 11.4, from making payments at any time of principal of and
premium (if any) or interest (including Stated Interest, Contingent Interest,
Deferred Interest and Additional Interest) on the Securities, or (b) the
application by the Trustee of any money deposited with it hereunder to the
payment of or on account of the principal of and premium (if any) or interest
(including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest) on the Securities or the retention of such payment by the
Holders, if, at the time of such application by the Trustee, it did not have
knowledge that such payment would have been prohibited by the provisions of this
Article 11.
Section 11.6 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on all Senior
Debt, or the provision for such payment in cash or cash equivalents or otherwise
in a manner satisfactory to the holders of the Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this
Article 11 (equally and ratably with the holders of all indebtedness of the
Company which by its express terms is subordinated to Senior Debt of the Company
to substantially the same extent as the Securities are subordinated to the
Senior Debt and is entitled to like rights of subrogation by reason of any
payments or distributions made to holders of such Senior Debt) to the rights of
the holders of such Senior Debt to receive payments and distributions of cash,
property and securities applicable to the Senior Debt until the principal of
(and premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation or assignment, no payments or distributions to the
holders of the Senior Debt 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 11, and no payments over pursuant to the provisions
of this Article 11 to the holders of Senior Debt by Holders of the Securities or
the Trustee, shall, as among the Company, its creditors other than holders of
Senior Debt, and the Holders of the Securities, be deemed to be a payment or
distribution by the Company to or on account of the Senior Debt.
Section 11.7 Provisions Solely to Define Relative Rights. The
provisions of this Article 11 are and are intended solely for the purpose of
defining the relative rights of the Holders of the Securities on the one hand
and the holders of Senior Debt on the other hand. Nothing contained in this
Article 11 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
obligations of the Company, which are absolute and unconditional, to pay to the
Holders of the Securities the principal of, and premium (if any) and interest
(including Stated Interest, Contingent Interest,
66
Deferred Interest and Additional Interest) on the Securities as and when the
same shall become due and payable in accordance with their terms; or (b) affect
the relative rights against the Company of the Holders of the Securities and
creditors of the Company other than their rights in relation to the holders of
Senior Debt; or (c) prevent the Trustee or the Holder of any Security (or to the
extent expressly provided herein, the holder of any Security) from exercising
all remedies otherwise permitted by applicable law upon default under this
Indenture, including, without limitation, filing and voting claims in any
Proceeding, subject to the rights, if any, under this Article 11 of the holders
of Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 11.8 Trustee to Effectuate Subordination. Each Holder of
a Security by his or her acceptance thereof authorizes and directs the Trustee
on his or her behalf to take such action as may be necessary or appropriate to
acknowledge or effectuate the subordination provided in this Article 11 and
appoints the Trustee his or her attorney-in-fact for any and all such purpose.
Section 11.9 No Waiver of Subordination Provisions. No right of
any present or future holder of any Senior Debt 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 that any such holder may have or otherwise be charged with.
Without in any way limiting the generality of the immediately
preceding paragraph, the holders of Senior Debt 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 such Holders of the Securities
and without impairing or releasing the subordination provided in this Article 11
or the obligations hereunder of such Holders of the Securities to the holders of
Senior Debt, 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
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
Section 11.10 Notice to Trustee. The Company shall give prompt
written notice to the Trustee of any fact known to the Company that would
prohibit the making of any payment to or by the Trustee in respect of the
Securities. Notwithstanding the provisions of this Article 11 or any other
provision of this Indenture, the Trustee shall not be charged with knowledge of
the existence of any facts that 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 from the Company or a holder of Senior Debt
or from any trustee, agent or representative therefor (whether or not the facts
contained in such notice are true); provided, however, that if the Trustee shall
not have received the notice provided for in this Section at least two Business
Days prior to the date upon which by the terms hereof any monies may become
payable for any purpose (including, without limitation, the payment of the
principal of and premium (if any) or
67
interest (including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest) on any Security), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such monies and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary which may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 7.1, the Trustee shall be
entitled to conclusively rely on the delivery to it of a written notice by a
Person representing such Person to be a holder of Senior Debt (or a trustee or
attorney-in-fact therefor) to establish that such notice has been given by a
holder of Senior Debt (or a trustee or attorney-in-fact therefor). 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 Debt to participate in
any payment or distribution pursuant to this Article 11, the Trustee may request
such Person to furnish evidence to the reasonable satisfaction of the Trustee as
to the amount of Senior Debt 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 11, and if such
evidence is not furnished, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such
payment.
Section 11.11 Reliance on Judicial Order or Certificate of
Liquidating Agent. Upon any payment or distribution of assets of the Company
referred to in this Article 11, the Trustee, subject to the provisions of
Article 7, and the Holders of the Securities shall be entitled to conclusively
rely upon any order or decree entered by any court of competent jurisdiction in
which such Proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, 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
the Senior Debt 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 11.
Section 11.12 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee, in its capacity as trustee under this Indenture, shall not be
deemed to owe any fiduciary duty to the holders of Senior Debt and shall not be
liable to any such holders if it 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 Debt shall be
entitled by virtue of this Article 11 or otherwise.
Section 11.13 Rights of Trustee as Holder of Senior Debt,
Preservation of Trustee's Rights. The Trustee in its individual capacity shall
be entitled to all the rights set forth in this Article 11 in respect of any
Senior Debt which may at any time be held by it, to the same extent as any other
holder of Senior Debt, and nothing in this Indenture shall deprive the Trustee
of any of its rights as such holder. Nothing in this Article 11 shall apply to
claims of, or payments to, the Trustee under or pursuant to Section 7.7.
Section 11.14 Article 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
68
acting hereunder, the term "Trustee" as used in this Article 11 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 11 in addition to or
in place of the Trustee.
Section 11.15 Certain Conversions or Exchanges Deemed Payment.
For the purposes of this Article 11 only, (a) the issuance and delivery of
junior securities upon exchange of Securities shall not be deemed to constitute
a payment or distribution on account of the principal of, or premium (if any) or
interest (including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest) on Securities or on account of the purchase or other
acquisition of Securities, and (b) the payment, issuance or delivery of cash,
property or securities (other than junior securities) upon exchange of a
Security shall be deemed to constitute payment on account of the principal of
such security. For the purposes of this Section, the term "junior securities"
means (i) shares of any stock of any class of the Company and (ii) securities of
the Company which are subordinated in right of payment to all Senior Debt which
may be outstanding at the time of issuance or delivery of such securities to
substantially the same extent as, or to a greater extent than, the Securities
are so subordinated as provided in this Article 11.
ARTICLE 12
MISCELLANEOUS
Section 12.1 Trust Indenture Act Controls. If any provision of
this Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 12.2 Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in Person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company, to:
AmerUs Group Co.
000 Xxxxxx Xxxxxx,
Xxx Xxxxxx, Xxxx 00000-0000
Attention: General Counsel
Facsimile No.: (000) 000-0000
69
if to the Trustee, to:
BNY Midwest Trust Company
0 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Trust Department
Facsimile No.: (000) 000-0000
The Company or the Trustee by notice given to the other in the
manner provided above may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication given to a Holder shall be mailed to
the Holder, by first-class mail, postage prepaid, at the Holder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any
defect in it shall not affect its sufficiency with respect to other Holders. 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 Holders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or Bid Solicitation Agent.
Section 12.3 Communication by Holders with Other Holders. Holders
may communicate pursuant to TIA Section 312(b) with other Holders with respect
to their rights under this Indenture or the Securities. The Company, the
Trustee, the Registrar, the Paying Agent, the Conversion Agent, the Bid
Solicitation Agent and any other applicable Person shall have the protection of
TIA Section 312(c).
Section 12.4 Certificate and Opinion as to Conditions Precedent.
Upon any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(a) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(b) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with;
provided, however, that such Officers' Certificate and Opinion of Counsel shall
not be required in connection with the original issuance of the Securities under
this Indenture.
Section 12.5 Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
70
(a) a statement that each Person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(b) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are based;
(c) 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
(d) a statement that, in the opinion of such Person, such
covenant or condition has been complied with.
Section 12.6 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 12.7 Rules by Trustee, Paying Agent, Conversion Agent,
Registrar and Bid Solicitation Agent. The Trustee may make reasonable rules for
action by, or a meeting of, Holders. The Registrar, the Conversion Agent, the
Paying Agent and the Bid Solicitation Agent may make reasonable rules for their
functions.
Section 12.8 Legal Holidays. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
Section 12.9 Governing Law. THE LAWS OF THE STATE OF NEW YORK
SHALL GOVERN THIS INDENTURE AND THE SECURITIES.
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 for any claim based
on, in respect of or by reason of such obligations or their creation. By
accepting a Security, each Holder 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 their respective successors. 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.
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Section 12.13 Waiver of Jury Trial. Each of the Company and the
Trustee hereby irrevocably waives, to the fullest extent permitted by applicable
law, any and all right to trial by jury in any legal proceeding arising out of
or relating to this Indenture, the Securities or the transactions contemplated
hereby.
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IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first above written.
AMERUS GROUP CO.
By: /s/ Xxxxxx X. Xxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxx
Title: Executive Vice President &
Chief Investment Officer
BNY MIDWEST TRUST COMPANY
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Assistant Vice President
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EXHIBIT A
[FORM OF FACE OF GLOBAL SECURITY]
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE
CODE, THE ISSUE PRICE OF EACH SECURITY IS $1,000 PER $1,000 OF ORIGINAL
PRINCIPAL AMOUNT (OR $1,000 PER $1,270 OF PRINCIPAL AMOUNT AT MATURITY), THE
ISSUE DATE IS MARCH 6, 2002 AND THE YIELD TO MATURITY (WITHOUT TAKING INTO
ACCOUNT ANY CONTINGENT INTEREST OR ADDITIONAL INTEREST) IS APPROXIMATELY 3.8335%
PER ANNUM COMPOUNDED SEMIANNUALLY FROM MARCH 6, 2002 THROUGH MARCH 6, 2007 AND
APPROXIMATELY 2.2802% PER ANNUM COMPOUNDED SEMIANNUALLY FROM MARCH 6, 2007
THROUGH MATURITY AND THE COMPARABLE YIELD FOR PURPOSES OF ACCRUING ORIGINAL
ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES IS 9.917% PER
ANNUM. THIS SECURITY IS ISSUED WITH AN INDETERMINATE AMOUNT OF ORIGINAL ISSUE
DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. U.S. HOLDERS OF THIS
SECURITY MAY OBTAIN THE PROJECTED PAYMENT SCHEDULE FOR THIS SECURITY BY
SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO: AMERUS GROUP CO., 000
XXXXXX XXXXXX, XXX XXXXXX, XXXX 00000-0000, ATTENTION: TREASURER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO AMERUS GROUP CO. (THE
"COMPANY") OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND
ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER
NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY),
ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN. TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THE FOLLOWING LEGEND MAY BE REMOVED FROM THIS SECURITY ON
SATISFACTION OF THE CONDITIONS SPECIFIED IN THE INDENTURE.
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A
TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF
1933, AS AMENDED (THE "SECURITIES ACT"), AND THIS SECURITY, AND THE COMMON STOCK
DELIVERABLE UPON CONVERSION OF THIS SECURITY MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF
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THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5
OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY
THAT (A) THIS SECURITY MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE TRANSFERRED,
ONLY (I) TO A PERSON WHOM THE SELLER REASONABLY BELIEVES IS A QUALIFIED
INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A
TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (II) PURSUANT TO AN EXEMPTION
FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE) OR (III) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT IN EACH OF CASES (I) THROUGH (III) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A) ABOVE.
AMERUS GROUP CO.
Optionally Convertible Equity-linked Accreting Notes (OCEANs(SM))
due March 6, 2032
No.: _________________ CUSIP: _________________
Issue Date: March 6, 2002 Principal Amount at Maturity: $____________
Issue Price: $1,000.00 ($1,270 principal amount at maturity for each
(for each $1,000 original principal amount) $1,000 original principal amount)
AMERUS GROUP CO., an Iowa corporation, promises to pay to
___________ or registered assigns, the principal amount at maturity of
______________________ dollars ($_____________) on March 6, 2032, subject to the
further provisions of this Security set forth on the reverse hereof, which
further provisions shall for all purposes have the same effect as if set forth
at this place. This Security is convertible as specified on the other side of
this Security.
Interest Payment Dates: March 6 and September 6, commencing
September 6, 2002
Interest Record Dates: February 20 and August 23
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IN WITNESS WHEREOF, the Company has caused this Security to be
signed by its duly authorized officer.
Dated: AMERUS GROUP CO.
By:
--------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
BNY Midwest Trust Company, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By:
--------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE SIDE OF SECURITY]
AMERUS GROUP CO.
Optionally Convertible Equity-linked Accreting Notes (OCEANs(SM)) due
March 6, 2032
1. Interest; Accreted Principal Amount; Principal Amount at Maturity.
The yield on the Securities (without taking into account any Contingent
Interest or Additional Interest as defined below) will be approximately 3.8335%
per annum compounded semiannually from the date of issuance through March 6
2007, and approximately 2.2802% per annum compounded semiannually from March 6,
2007 through stated maturity. The Company will pay a portion of the yield (the
"Stated Interest") as cash interest semiannually on each March 6 and September
6, commencing on September 6, 2002 (each an "Interest Payment Date") at a rate
of 2.00% per annum of the original principal amount of the Securities (or $20.00
per annum per $1,000 original principal amount of the Securities) to the
registered holders of record of the Securities (the "Holders") on the preceding
February 20 and August 23 (each an "Interest Record Date"). Payment of Stated
Interest may be deferred in the circumstances specified in Section 2.14 of the
Indenture.
In addition, the Company shall pay additional interest on the Securities
that is not included in the calculation of the yield on the Securities
("Contingent Interest"). On and prior to March 6, 2004, the Company will pay
Contingent Interest on each Interest Payment Date equal to $11.70 per annum per
$1,000 original principal amount of the Securities. After March 6, 2004, for
each $1,000 original principal amount of the Securities, Contingent Interest
will accrue from the record date for any Regular Cash Dividends (as defined
below) on the shares of common stock, no par value, of the Company (the "Common
Stock") and will be payable in cash on the next following March 6, June 6,
September 6 or December 6 (each a "Quarterly Contingent Interest Payment Date")
to the registered Holder of record of this Security on the February 20, May 23,
August 23, or November 22 preceding each such Quarterly Contingent Interest
Payment Date (each a "Quarterly Contingent Interest Record Date") in an amount
per $1,000 original principal amount of Securities equal to the Regular Cash
Dividends, if any, paid by the Company on one share of Common Stock since the
immediately preceding Quarterly Contingent Interest Payment Date, multiplied by
the amount obtained by dividing $1,100.00 by the Conversion Price in effect on
the record date for such Regular Cash Dividends. "Regular Cash Dividends" are
regular, fixed, annual, quarterly or other periodic cash dividends as declared
by the board of directors of the Company as part of the Company's dividend
payment practice or stated cash dividend policy, whether publicly announced or
not, and do not include any other dividends or distributions (such as any
dividends designated by the board of directors as extraordinary, special or
otherwise nonrecurring).
Interest will be calculated on the basis of a 360-day year of twelve
30-day months.
The Securities shall be issued in $1,000 original principal amount or
integral multiples thereof and each $1,000 original principal amount of
Securities shall have a principal amount at maturity of $1,270. The "Accreted
Principal Amount" of the Securities means, for any date, for each $1,000
original principal amount of Securities:
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(a) if such date occurs on an Interest Payment Date, the Accreted
Principal Amount will equal the amount set forth below for such date:
Interest Accreted Principal Interest Payment Accreted Principal
Payment Date Amount Date Amount
----------------- ------------------ ----------------- ------------------
September 6, 2002 $1,009.17 September 6, 2017 $1,159.91
March 6, 2003 $1,018.51 March 6, 2018 $1,163.14
September 6, 2003 $1,028.03 September 6, 2018 $1,166.40
March 6, 2004 $1,037.74 March 6, 2019 $1,169.70
September 6, 2004 $1,047.63 September 6, 2019 $1,173.03
March 6, 2005 $1,057.71 March 6, 2020 $1,176.41
September 6, 2005 $1,067.98 September 6, 2020 $1,179.82
March 6, 2006 $1,078.45 March 6, 2021 $1,183.27
September 6, 2006 $1,089.12 September 6, 2021 $1,186.76
March 6, 2007 $1,100.00 March 6, 2022 $1,190.29
September 6, 2007 $1,102.54 September 6, 2022 $1,193.86
March 6, 2008 $1,105.11 March 6, 2023 $1,197.48
September 6, 2008 $1,107.71 September 6, 2023 $1,201.13
March 6, 2009 $1,110.34 March 6, 2024 $1,204.82
September 6, 2009 $1,113.00 September 6, 2024 $1,208.56
March 6, 2010 $1,115.69 March 6, 2025 $1,212.34
September 6, 2010 $1,118.41 September 6, 2025 $1,216.16
March 6, 2011 $1,121.16 March 6, 2026 $1,220.03
September 6, 2011 $1,123.94 September 6, 2026 $1,223.94
March 6, 2012 $1,126.76 March 6, 2027 $1,227.89
September 6, 2012 $1,129.60 September 6, 2027 $1,231.89
March 6, 2013 $1,132.48 March 6, 2028 $1,235.93
September 6, 2013 $1,135.39 September 6, 2028 $1,240.03
March 6, 2014 $1,138.34 March 6, 2029 $1,244.16
September 6, 2014 $1,141.32 September 6, 2029 $1,248.35
March 6, 2015 $1,144.33 March 6, 2030 $1,252.58
September 6, 2015 $1,147.38 September 6, 2030 $1,256.86
March 6, 2016 $1,150.46 March 6, 2031 $1,261.19
September 6, 2016 $1,153.57 September 6, 2031 $1,265.57
March 6, 2017 $1,156.73 March 6, 2032 $1,270.00
(b) if such date occurs prior to September 6, 2002, the Accreted
Principal Amount will equal the sum of (a) $1,000.00 and (b) an amount
equal to the product of (x) the Accreted Principal Amount on September
6, 2002 less $1,000.00 multiplied by (y) a fraction, the numerator of
which is the number of days from March 6, 2002 to such date, using a
360-day year of twelve 30-day months, and the denominator of which is
180; and
(c) if such date occurs between any two Interest Payment Dates,
the Accreted Principal Amount will equal the sum of (a) the Accreted
Principal Amount for the Interest Payment Date immediately preceding
such date and (b) an amount equal to the product of (x) the Accreted
Principal Amount for the immediately following Interest Payment Date
less the Accreted Principal Amount for the immediately preceding
Interest Payment Date multiplied by (y) a fraction, the numerator of
which is the number of days from the immediately preceding Interest
Payment Date to such date, using a 360-day year of twelve 30-day months,
and the denominator of which is 180.
The Company shall repay the Securities at their stated maturity on March
6, 2032, at a price equal to their Accreted Principal Amount on such date
($1,270.00 per Security) plus any accrued and unpaid interest (including Stated
Interest, Contingent Interest, Deferred Interest and
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Additional Interest) thereon up to but not including the stated maturity, unless
earlier redeemed by the Company, purchased by the Company at the option of
Holders or converted. The Company will pay interest on any overdue Accreted
Principal Amount, at the rate of 2.00% per annum, compounded semiannually, and
it shall pay interest on overdue installments of interest (without regard to any
applicable grace period), at 2.00% per annum compounded semiannually; provided
that any interest payment deferred by the Company in accordance with the terms
of the Indenture shall not be considered overdue.
2. Method of Payment.
The Company will pay interest on this Security (except defaulted
interest) to the Person who is the registered Holder of this Security at the
close of business on the record date preceding the interest payment date
relating to that payment of interest. If an interest payment date falls on a
date that is not a Business Day, payment will be made on the next Business Day
(and without any interest or other payment in respect of this delay). Subject to
the terms and conditions of the Indenture, the Company will make payments in
respect of the Redemption Price, Change of Control Purchase Price and the
principal amount at maturity, as the case may be, to the Holder who surrenders a
Security to the Paying Agent to collect such payments in respect of the
Security. The Company will pay cash amounts in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
However, the Company may pay principal of or premium, if any, or interest
(including Stated Interest, Contingent Interest, Deferred Interest and
Additional Interest), if any, on the Securities by check or wire payable in such
money. The Company may mail an interest check to the Holder's registered
address. Notwithstanding the foregoing, so long as this Security is registered
in the name of a Depositary or its nominee, all payments hereon shall be made by
wire transfer of immediately available funds to the account of the Depositary or
its nominee.
3. Paying Agent, Conversion Agent, Bid Solicitation Agent and Registrar.
Initially, BNY Midwest Trust Company (the "Trustee") will act as Paying
Agent, Conversion Agent, Registrar and Bid Solicitation Agent. The Company may
appoint and change any Paying Agent, Conversion Agent, Registrar or Bid
Solicitation Agent without notice, other than notice to the Trustee; provided
that the Company will maintain at least one Paying Agent in the State of New
York, City of New York, Borough of Manhattan, which shall initially be an office
or agency of the Trustee. The Company or any of its Subsidiaries or any of their
Affiliates may act as Paying Agent, Conversion Agent, Registrar or Bid
Solicitation Agent.
4. Indenture.
The Company issued the Securities under an Indenture dated as of March
6, 2002 (the "Indenture"), between the Company and the Trustee. The terms of the
Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Holders 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 $185,000,000 aggregate original principal amount or $234,950,000 aggregate
principal amount at maturity
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(subject to Section 2.2 of the Indenture). The Indenture does not limit other
indebtedness of the Company, secured or unsecured.
5. Redemption at the Option of the Company.
The Company may elect to redeem the Securities in accordance with the
terms of the Indenture if (a) the Sale Price per share of the Common Stock for
at least 20 Trading Days in the 30 Trading-Day period ending on the Trading Day
prior to the date on which the Company gives notice to redeem the Securities
exceeds 140% of the Initial Stock Price; (b) a Change of Control has occurred;
or (c) a Tax Event has occurred and the Tax Event Conversion Value of the
Securities exceeds their Accreted Principal Amount by at least 10%.
The Redemption Price will equal 100% of the Accreted Principal Amount of
the Securities to be redeemed on the redemption date, plus, subject to the terms
of the Indenture, accrued and unpaid interest (including Stated Interest,
Contingent Interest, Deferred Interest and Additional Interest), if any, thereon
up to but not including the redemption date, plus with respect to Securities
redeemed prior to March 6, 2007, a Make-Whole Premium.
Holders may convert Securities or portions thereof called for redemption
until the close of business on the day that is two Business Days prior to the
redemption date. If the Company elects to redeem less than all of the
outstanding Securities as permitted by the Indenture, the Trustee shall select
the Securities to be redeemed on a pro rata basis in $1,000 original principal
amount or integral multiples thereof.
6. Purchase by the Company at the Option of the Holder.
Subject to and in compliance with the terms and conditions of the
Indenture, if a Change of Control occurs, each Holder shall have the right, at
its option, to require the Company to repurchase all Securities or any portion
thereof, in $1,000 original principal amount or integral multiples thereof, held
by such Holder on a Repurchase Date at the Change of Control Purchase Price. To
exercise such repurchase right, a Holder must deliver a Change of Control
Purchase Notice in the form attached hereto to the Company on or before the date
which, subject to any contrary requirements of applicable law, is the fifth
Business Day prior to the Repurchase Date and must surrender the Securities with
respect to which the right is being exercised. Holders have the right to
withdraw any Change of Control Purchase Notice by delivering to the Paying Agent
a written notice of withdrawal in accordance with the provisions of the
Indenture.
If cash sufficient to pay the Change of Control Purchase Price on all
Securities or portions thereof to be purchased as of the Repurchase Date is
deposited with the Paying Agent on the Business Day preceding the Repurchase
Date, interest ceases to accrue on such Securities (or portions thereof) on such
Repurchase Date, and the Holder thereof shall have no other rights as such other
than the right to receive the Change of Control Purchase Price upon surrender of
such Securities.
7. Notice of Redemption.
Notice of redemption pursuant to paragraph 5 of this Security will be
mailed to each Holder of Securities to be redeemed at least 15 days but not more
than 60 days before the Redemption Date at the Holder's registered address as it
appears in the Register. 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,
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immediately from such Redemption Date, interest ceases to accrue on such
Securities or portions thereof. Securities in denominations larger than $1,000
of original principal amount may be redeemed in part but only in integral
multiples of $1,000 original principal amount.
8. Conversion.
In accordance with the Indenture, each Holder shall have the right, at
its option, to convert Securities or any portion thereof, in $1,000 original
principal amount or integral multiples thereof, into fully paid and
nonassessable shares of Common Stock at the Conversion Price in effect at the
time of conversion during specified periods if one or more of the conditions for
the conversion of Securities specified in Article 10 of the Indenture is
satisfied. The Company will notify Holders of any event triggering the right to
convert the Securities as specified above as required by the Indenture.
Securities in respect of which a Holder has delivered a Change of
Control Purchase Notice exercising the option of such Holder to require the
Company to repurchase such Securities may be converted only if such notice is
withdrawn in accordance with the terms of the Indenture.
The Conversion Price will initially be $37.598 per share of Common
Stock, subject to adjustment upon the occurrence of certain events described in
the Indenture. The Company from time to time may voluntarily reduce the
Conversion Price by any amount for a period of at least 20 days. No fractional
shares of Common Stock shall be issued upon conversion of any Securities.
Instead of any fractional share of Common Stock that would otherwise be issued
upon conversion of such Securities, the Company shall pay a cash adjustment as
provided in the Indenture.
Subject to the terms of the Indenture, upon conversion of any Securities
or portion thereof, Holders shall be entitled to receive:
(a) an amount of shares of Common Stock per $1,000 original
principal amount thereof equal to
(i) if the Securities are converted prior to March 6, 2007,
the Accreted Principal Amount of the Securities on the
date of conversion divided by the Conversion Price then
in effect;
(ii) if the Securities are converted on or after March 6,
2007, $1,100.00 divided by the Conversion Price then in
effect; or
(iii) notwithstanding the foregoing, if the Securities are
convertible solely as a result of a Special Conversion
Event, $990.00 divided by the Conversion Price then in
effect;
(b) cash in lieu of fractional shares;
(c) any accrued and unpaid Contingent Interest which accrued
after March 6, 2004, other than for Securities surrendered after a
Quarterly Contingent Interest Record Date and prior to the related
Quarterly Contingent Interest Payment Date, for which Contingent
Interest will be payable on such payment date;
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(d) if such Securities were converted upon the exercise of
conversion rights arising pursuant to a notice of redemption of such
Securities given by the Company or a Change of Control or a distribution
specified in Section 10.1(b)(vii) of the Indenture, the sum of (i) any
accrued and unpaid Stated Interest on such Securities up to but not
including the conversion date, (ii) on or prior to March 6, 2004,
accrued and unpaid Contingent Interest up to but not including the
conversion date, and (iii) if such redemption or Change of Control or
distribution occurs prior to March 6, 2007, an amount equal to the
Make-Whole Premium that would have been payable if such Securities had
been redeemed on the conversion date; plus
(e) if such conversion is during an Interest Deferral Period, all
Deferred Interest on such Securities.
If a Holder surrenders Securities for conversion during the period after
any interest record date but prior to the corresponding interest payment date,
the Holder must pay the Company at the time of surrender (1) the Stated Interest
payable on such Securities on such interest payment date, and (2) if the
Securities are surrendered for conversion prior to March 6, 2004, the Contingent
Interest payable on such Securities.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the conversion notice attached hereto (or complete and manually
sign a facsimile of such notice) and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay any transfer or
similar tax, if required.
If the Company (i) is a party to a consolidation, merger or binding
share exchange (ii) reclassifies the Common Stock or (iii) conveys, transfers or
leases its properties and assets substantially as an entirety to any Person, the
right to convert a Securities into shares of Common Stock may be changed into a
right to convert it into securities, cash or other assets of the Company or such
other Person.
The Company has the option, on the terms set forth in Section 10.2 of
the Indenture, to designate a financial institution to which Securities
surrendered for conversion will be initially offered by the Conversion Agent for
exchange in lieu of the Company converting the Securities. In order to accept
Securities surrendered for conversion, the designated institution must (a) on
the conversion date, agree to deliver in exchange for such Securities a number
of freely tradeable shares of Common Stock equal to the number of such shares
the Holder would receive upon conversion, plus cash for any amounts the Company
would have been required to pay to the Holder, upon conversion of such
Securities; and (b) deliver such shares of Common Stock and cash payment to the
Conversion Agent for delivery to the Holder. Any Securities accepted for
exchange by the designated institution will remain outstanding. If the
designated institution declines to accept any Securities in whole or in part, or
agrees to accept any Securities for exchange but does not timely deliver the
related shares of Common Stock, the Securities or portions thereof will be
converted by the Conversion Agent and the shares of Common Stock will be
delivered to the Holder. Securities surrendered for conversion during the period
after any interest record date but prior to the corresponding interest payment
date or at any time prior to March 6, 2007 pursuant to a notice of redemption of
such Securities given by the Company, or a Change of Control or distribution
specified in Section 10.1(b)(vii) of the Indenture, will not be offered for
exchange in lieu of conversion.
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9. Subordination
The indebtedness evidenced by the Securities is, to the extent and in
the manner provided in the Indenture, subordinate and junior in right of payment
to the prior payment in full of all Senior Debt of the Company, pari passu with
all of the Company's senior subordinated indebtedness, if any, and senior to all
of the Company's junior subordinated indebtedness. Any Holder by accepting this
Security agrees to and shall be bound by such subordination provisions and
authorizes the Trustee to give them effect. The Company shall not incur any Debt
that is expressly made subordinate in right of payment to any of the Company's
Senior Debt unless such Debt, by its terms or by the terms of any agreement or
instrument pursuant to which such Debt is outstanding, is expressly made pari
passu with or subordinate in right of payment to the Securities; provided that
the foregoing limitation shall not apply to distinctions between categories of
the Senior Debt that exist by reason of any liens or guarantees arising or
created in respect of some but not all of such Senior Debt.
10. Registration Rights.
The Holder of this Security is entitled to the benefits of the
Registration Rights Agreement, which shall include a right to additional
interest ("Additional Interest") payable to holders of Transfer Restricted
Securities (as defined in the Registration Rights Agreement and in accordance
with the terms herein) if a Registration Default (as defined in the Registration
Rights Agreement) occurs and is continuing.
11. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of integral multiples of $1,000 original principal amount. 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 Change of Control Purchase Notice has been
given and not withdrawn, in accordance with the terms and conditions of the
Indenture (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased), or any Securities selected for
redemption for a period of 15 days before the mailing of the notice of
redemption relating thereto.
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,
subject to applicable unclaimed property law. After return to the Company,
Holders entitled to the money or securities must look to the Company, for
payment as general creditors unless an applicable abandoned property law
designates another Person.
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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 original principal amount of the
Securities at the time outstanding and (ii) certain Defaults may be waived with
the written consent of the Holders of a majority in aggregate original principal
amount of the Securities at the time outstanding. Subject to certain exceptions
set forth in the Indenture, without the consent of any Holder, the Company and
the Trustee may amend the Indenture or the Securities (i) to cure any ambiguity,
defect or inconsistency in the Indenture or in the Securities; (ii) to provide
for the assumption of the Company's obligations to Holders; (iii) to comply with
Section 5.1 or Section 10.4 of the Indenture, (iv) to make any change that does
not materially adversely affect the rights of any Holder, or (v) to make any
change necessary for the registration of the Securities under the Securities Act
or to comply with the TIA, or any amendment thereto, or 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, an Event of Default is (a) a default in the payment
of interest (including Stated Interest, Contingent Interest and Additional
Interest) on any Security that continues for 30 days or more after such payment
is due, except to the extent any payment of Stated Interest is deferred pursuant
to the Indenture; (b) a default in the payment of Accreted Principal Amount,
Deferred Interest, premium (if any), Redemption Price or, Change of Control
Purchase Price in respect of any Security when due, except to the extent any
payment of Deferred Interest is extended pursuant to the Indenture; (c) a
default in the performance of any other of the Company's covenants or agreements
in the Indenture that continues for 90 days after written notice ("Notice of
Default") to the Company by the Trustee or to the Company and the Trustee by the
Holders of at least 25% in original principal amount of outstanding Securities;
(d) failure by the Company to make any payment when due, including any
applicable grace period, in respect of the Company's indebtedness for borrowed
money, which failure results in acceleration of such indebtedness which is in an
amount in excess of the Applicable Limit and such indebtedness is not
discharged, or such payment default and acceleration is not cured or rescinded,
within 30 days; (e) any other default by the Company under any of its
indebtedness for borrowed money, which default results in acceleration of such
indebtedness which is in an amount in excess of the Applicable Limit and such
indebtedness is not discharged, or such acceleration is not rescinded, within 30
days; and (f) certain events of bankruptcy, insolvency or reorganization with
respect to the Company.
"Applicable Limit" means (i) at any time prior to March 6, 2007,
$25,000,000, and (ii) at any time on or after March 6, 2007, $50,000,000.
Holders may not enforce the Indenture or the Securities except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Securities unless it receives indemnity or security reasonably satisfactory
to it. Subject to certain limitations, Holders of a majority in aggregate
original principal amount of the Securities at the time outstanding may direct
the Trustee in its exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing Default (except a Default in payment of amounts
specified in clause (i) or (ii) above) if it determines that withholding notice
is in their interests.
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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 become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or their respective Affiliates with the same rights it would have if it were not
Trustee.
17. No Recourse Against Others.
A director, officer, employee or shareholder, as such, of the Company
shall not have any liability for any obligations of the Company under the
Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Holder 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 signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
19. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM ("tenants in common"), TEN ENT ("tenants by the
entireties"), JT TEN ("joint tenants with right of survivorship and not as
tenants in common"), CUST ("custodian") and U/G/M/A ("Uniform Gift to Minors
Act").
20. Governing Law.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture. Requests may be made to:
AmerUs Group Co.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Investor Relations
Facsimile No.: (000) 000-0000
A-12
ASSIGNMENT FORM CONVERSION NOTICE
----------------------------------------- ----------------------------------------------
To assign this Security, fill in the form To convert this Security into Common Stock
below: of the Company, check the box [ ]
I or we assign and transfer this Security To convert only part of this Security, state
to the original principal amount to be
converted (which must be $1,000 or an
----------------------------------------- integral multiple of $1,000):
-----------------------------------------
(Insert assignee's soc. sec. or tax ID no.) If you want the stock certificate made out
in another person's name fill in the form
---------------------------------------- below:
---------------------------------------- ---------------------------------------------
(Print or type assignee's name, address
and zip code) ---------------------------------------------
(Insert the other person's soc. sec. or tax
ID no.)
and irrevocably appoint
---------------------------------------------
____________________ agent to transfer
this Security on the books of the ---------------------------------------------
Company. The agent may substitute
another to act for him. ---------------------------------------------
---------------------------------------------
---------------------------------------------
(Print or type other person's name, address
and zip code)
Date: Your Signature:
----------- -----------------------------------
--------------------------------------------------------------------------------
(Sign exactly as your name appears on the face of this Security)
Signature Guaranteed
----------------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:
--------------------------------
Authorized Signatory
A-13
CHANGE OF CONTROL PURCHASE NOTICE
To: AmerUs Group Co.
000 Xxxxxx Xxxxxx
Xxx Xxxxxx, Xxxx 00000-0000
Attention: Company Secretary
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from AmerUs Group Co. (the "Company") as to the
occurrence of a Change of Control with respect to the Company and requests and
instructs the Company to purchase the entire original principal amount of this
Security, or the portion thereof (which is in $1,000.00 original principal
amount or an integral multiple thereof) below designated, in accordance with the
terms of the Indenture referred to in this Security at the Change of Control
Purchase Price, together with accrued interest to, but excluding, such date, to
the registered Holder hereof.
Dated:
------------ ------------------------------------------------
------------------------------------------------
Signature(s) must be guaranteed by a qualified
guarantor institution with membership in an
approved signature guarantee program pursuant to
Rule 17Ad-15 under the Securities Exchange Act
of 1934.
------------------------------------------------
Signature Guaranty (NOTICE: The signature to the
foregoing Election must correspond to the Name
as written upon the face of this Security in
every particular, without alteration or any
change whatsoever.)
Original principal amount to
be repurchased
(in an integral multiple
of $1,000, if less than all):
------------------------------------------------
A-14
REQUEST FOR BID QUOTATION FOR SECURITIES
To: BNY Midwest Trust Company
0 X. XxXxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attention: Corporate Trust Department
(the "Bid Solicitation Agent")
RE: OPTIONALLY CONVERTIBLE EQUITY-LINKED ACCRETING NOTES (OCEANs (SM)) DUE
MARCH 6, 2032 (THE "SECURITIES") OF AMERUS GROUP CO. (THE "COMPANY")
Reference is made to Section 10.1(b)(iv) of the Indenture dated as of
March 6, 2002 between the Company and BNY Midwest Trust Company (the
"Indenture"). This Request relates to $_____________ original principal
amount(1) of Securities (the "Relevant Securities") issued by the Company and
held by the undersigned in (check applicable box):
[ ] book-entry or [ ] certificated form.
The undersigned hereby certifies it has sought to obtain a firm bid from
the two securities dealers named below for the Relevant Securities on
______________ (2) (the "Relevant Date") and was unable to obtain a bid for such
Securities in an amount at least equal to the product of (a) 90% of the Sale
Price (as defined in the Indenture) of the Company's common stock on the
Relevant Date, and (b) $1,100.00 divided by the Conversion Price in effect on
the Relevant Date (the "Minimum Amount"):
Securities Dealer:
-------------------------------------------
Securities Dealer:
-------------------------------------------
The undersigned hereby requests the Bid Solicitation Agent to obtain, on
behalf of the undersigned, firm bids for the Relevant Securities from any
nationally recognized securities dealer subject to and in compliance with the
terms of the Indenture. The undersigned hereby agrees for the benefit of the
Company and the Bid Solicitation Agent that (a) the undersigned shall use its
best efforts to sell the Relevant Securities on any day during the three
consecutive trading-day period following the delivery of this Request to the Bid
Solicitation Agent (the "Measurement Period") to any securities dealer that
provides the Bid Solicitation Agent with a firm bid to purchase the Relevant
Securities in an amount at least equal to the Minimum Amount per $1,000 original
principal amount of the Securities and (b) the undersigned shall convert the
Relevant Securities into shares of the Company's Common Stock in accordance with
the terms of the Indenture if the Bid Solicitation Agent cannot obtain a firm
bid to purchase the Relevant
------------
(1) This amount shall be an integral multiple of $1,000 original principal
amount and shall be not less than $1,000,000 (or, if the undersigned
beneficially owns less than $1,000,000 original principal amount of Securities,
all of the undersigned's Securities) and not more than $10,000,000 original
principal amount of the Securities.
(2) Specify date on which such firm bids were sought which date shall be within
three days of the date of delivery of this Request.
A-15
Securities at least equal to the Minimum Amount per $1,000 original principal
amount of Securities during the Measurement Period.
Date:
----------------------------------
Name:
Title:
Signature Guaranteed:
-------------------------------------------------
(Participant in a Recognized Signature Guarantee Medallion Program)
By:
------------------------------
Authorized Signatory
Address:
--------------------------------
--------------------------------
--------------------------------
Telephone:
--------------------------------
Fax:
--------------------------------
A-16
SCHEDULE OF EXCHANGES OF SECURITIES
The following exchanges, redemptions, repurchases or conversions of a
part of this Global Security have been made:
ORIGINAL PRINCIPAL AMOUNT AMOUNT OF
REPRESENTED BY THIS GLOBAL AMOUNT OF DECREASE IN INCREASE IN
SECURITY FOLLOWING SUCH AUTHORIZED ORIGINAL PRINCIPAL ORIGINAL PRINCIPAL
REDEMPTION, REPURCHASE, SIGNATORY OF AMOUNT REPRESENTED BY AMOUNT REPRESENTED BY
CONVERSION OR EXCHANGE THE TRUSTEE(3) THIS GLOBAL SECURITY THIS GLOBAL SECURITY
--------------------------- -------------- --------------------- ---------------------
----------------
(3) In its capacity as custodian with respect to the Global Securities.
A-17
EXHIBIT B
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF TRANSFER OF
RESTRICTED SECURITIES(1)
Re: Optionally Convertible Equity-linked Accreting Notes (Oceans)(SM) Due
March 6, 2032 (the "Securities") of AmerUs Group Co.
This certificate relates to $_______ original principal amount of
Securities owned by ____________ (the "Transferor") in (check applicable box):
[ ] book-entry or [ ] certificated form
The Transferor has requested a Registrar or the Trustee to
exchange or register the transfer of such Securities.
In connection with any transfer of any of the Securities within
the period prior to the expiration of the holding period applicable to the sales
thereof under Rule 144(k) under the Securities Act of 1933, as amended (the
"Securities Act") (or any successor provision), the undersigned registered owner
of this Security hereby certifies the Transferor is familiar with transfer
restrictions relating to the Securities as provided in Article 2 of the
Indenture dated as of March 6, 2002 between AmerUs Group Co. and BNY Midwest
Trust Company, the trustee (the "Indenture"), and with respect to $_____________
original principal amount of the above-captioned Securities presented or
surrendered on the date hereof (the "Surrendered Securities") for registration
of transfer, or for exchange or conversion where the securities deliverable upon
such exchange or conversion are to be registered in a name other than that of
the undersigned registered owner (each such transaction being a "transfer"),
that such transfer complies with the restrictive legend set forth on the face of
the Surrendered Securities for the reason checked below:
[ ] A transfer of the Surrendered Securities is made to the Company
or any of its Subsidiaries (as defined in the Indenture); or
[ ] The transfer of the Surrendered Securities complies with Rule
144A under the Securities Act and is to a person whom the
Transferor reasonably believes is a Qualified Institutional
Buyer (as defined in Rule 144A); or
[ ] The transfer of the Surrendered Securities is pursuant to an
effective registration statement under the Securities Act; or
[ ] The transfer of the Surrendered Securities is pursuant to an
exemption from the registration under the Securities Act
provided by Rule 144 thereunder.
----------------------
(1) This certificate should only be included if this Security is a Restricted
Security.
B-1
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Securities are not being transferred to an
"affiliate" of the Company as defined in Rule 144 under the Securities Act (an
"Affiliate").
[ ] The transferee is an Affiliate of the Company.
DATE:
--------------------------------
Signature(s)
(If the registered owner is a corporation, partnership or
fiduciary, the title of the Person signing on behalf of such registered owner
must be stated.)
Signature Guaranteed
--------------------------------
Participant in a Recognized Signature
Guarantee Medallion Program
By:
--------------------------------
Authorized Signatory
B-2
EXHIBIT C
PROJECTED PAYMENT SCHEDULE*
QUARTERLY PERIOD ENDING PROJECTED PAYMENT PER OCEAN
----------------------- ---------------------------
June 6, 2002 --
September 6, 2002 $ 15.85
December 6, 2002 --
March 6, 2003 $ 15.85
June 6, 2003 --
September 6, 2003 $ 15.85
December 6, 2003 --
March 6, 2004 $ 15.85
June 6, 2004 --
September 6, 2004 $ 10.00
December 6, 2004 $ 11.70
March 6, 2005 $ 10.00
June 6, 2005 --
September 6, 2005 $ 10.00
December 6, 2005 $ 11.70
March 6, 2006 $ 10.00
June 6, 2006 --
September 6, 2006 $ 10.00
December 6, 2006 $ 11.70
March 6, 2007 $ 10.00
June 6, 2007 --
September 6, 2007 $ 10.00
December 6, 2007 $ 11.70
March 6, 2008 $ 10.00
June 6, 2008 --
September 6, 2008 $ 10.00
December 6, 2008 $ 11.70
March 6, 2009 $ 10.00
June 6, 2009 --
September 6, 2009 $ 10.00
December 6, 2009 $ 11.70
March 6, 2010 $ 10.00
June 6, 2010 --
September 6, 2010 $ 10.00
December 6, 2010 $ 11.70
March 6, 2011 $ 10.00
--------
* The comparable yield and the schedule of projected payments are not determined
for any purpose other than for the determination of interest accruals and
adjustments thereof in respect of the Securities for United States federal
income tax purposes. The comparable yield and the schedule of projected payments
do not constitute a projection or representation regarding the amounts payable
on Securities.
C-1
QUARTERLY PERIOD ENDING PROJECTED PAYMENT PER OCEAN
----------------------- ---------------------------
June 6, 2011 --
September 6, 2011 $ 10.00
December 6, 2011 $ 11.70
March 6, 2012 $ 10.00
June 6, 2012 --
September 6, 2012 $ 10.00
December 6, 2012 $ 11.70
March 6, 2013 $ 10.00
June 6, 2013 --
September 6, 2013 $ 10.00
December 6, 2013 $ 11.70
March 6, 2014 $ 10.00
June 6, 2014 --
September 6, 2014 $ 10.00
December 6, 2014 $ 11.70
March 6, 2015 $ 10.00
June 6, 2015 --
September 6, 2015 $ 10.00
December 6, 2015 $ 11.70
March 6, 2016 $ 10.00
June 6, 2016 --
September 6, 2016 $ 10.00
December 6, 2016 $ 11.70
March 6, 2017 $ 10.00
June 6, 2017 --
September 6, 2017 $ 10.00
December 6, 2017 $ 11.70
March 6, 2018 $ 10.00
June 6, 2018 --
September 6, 2018 $ 10.00
December 6, 2018 $ 11.70
March 6, 2019 $ 10.00
June 6, 2019 --
September 6, 2019 $ 10.00
December 6, 2019 $ 11.70
March 6, 2020 $ 10.00
June 6, 2020 --
September 6, 2020 $ 10.00
December 6, 2020 $ 11.70
March 6, 2021 $ 10.00
June 6, 2021 --
September 6, 2021 $ 10.00
December 6, 2021 $ 11.70
March 6, 2022 $ 10.00
June 6, 2022 --
September 6, 2022 $ 10.00
December 6, 2022 $ 11.70
March 6, 2023 $ 10.00
C-2
QUARTERLY PERIOD ENDING PROJECTED PAYMENT PER OCEAN
----------------------- ---------------------------
June 6, 2023 --
September 6, 2023 $ 10.00
December 6, 2023 $ 11.70
March 6, 2024 $ 10.00
June 6, 2024 --
September 6, 2024 $ 10.00
December 6, 2024 $ 11.70
March 6, 2025 $ 10.00
June 6, 2025 --
September 6, 2025 $ 10.00
December 6, 2025 $ 11.70
March 6, 2026 $ 10.00
June 6, 2026 --
September 6, 2026 $ 10.00
December 6, 2026 $ 11.70
March 6, 2027 $ 10.00
June 6, 2027 --
September 6, 2027 $ 10.00
December 6, 2027 $ 11.70
March 6, 2028 $ 10.00
June 6, 2028 --
September 6, 2028 $ 10.00
December 6, 2028 $ 11.70
March 6, 2029 $ 10.00
June 6, 2029 --
September 6, 2029 $ 10.00
December 6, 2029 $ 11.70
March 6, 2030 $ 10.00
June 6, 2030 --
September 6, 2030 $ 10.00
December 6, 2030 $ 11.70
March 6, 2031 $ 10.00
June 6, 2031 --
September 6, 2031 $ 10.00
December 6, 2031 $ 11.70
March 6, 2032 $12,740.58
C-3
