Exhibit 4
OHIO CASUALTY CORPORATION
5.00% Convertible Notes
due 2022
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INDENTURE
Dated as of March 19, 2002
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HSBC BANK USA
TRUSTEE
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CROSS REFERENCE TABLE*
TIA SECTION......................................... INDENTURE SECTION
310(a)(1)........................................... 7.09
(a)(2)........................................... 7.09
(a)(3)........................................... N.A.
(a)(4)........................................... N.A.
(b).............................................. 7.08; 7.10
(c).............................................. N.A.
311(a).............................................. 7.13
(b).............................................. 7.13
(c).............................................. N.A.
312(a).............................................. 2.05
(b).............................................. 11.03
(c).............................................. 11.03
313(a).............................................. 7.14
(b)(1)........................................... N.A.
(b)(2)........................................... 7.14
(c).............................................. 11.02
(d).............................................. 7.14
314(a).............................................. 4.02; 4.03; 11.02
(b).............................................. N.A.
(c)(1)........................................... 11.04
(c)(2)........................................... 11.04
(c)(3)........................................... N.A.
(d).............................................. N.A.
(e).............................................. 11.05
(f).............................................. N.A.
315(a).............................................. 7.01
(b).............................................. 7.15; 11.02
(c).............................................. 7.01
(d).............................................. 7.01
(e).............................................. 6.11
316(a) (last sentence).............................. 2.08
(a)(1)(A)........................................ 6.05
(a)(1)(B)........................................ 6.04
(a)(2)........................................... N.A.
(b).............................................. 6.07
317(a)(1)........................................... 6.08
(a)(2)........................................... 6.09
(b).............................................. 2.04
318(a).............................................. 11.01
N.A. means Not Applicable.
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* Note: This Cross Reference Table shall not, for any purpose, be deemed
to be part of the Indenture.
TABLE OF CONTENTS*
Page
ARTICLE 1 DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions . . . . . . . . . . . . . . . . . . . . . 1
SECTION 1.02 Other Definitions . . . . . . . . . . . . . . . . . . 8
SECTION 1.03 Incorporation by Reference of Trust Indenture Act . . 8
SECTION 1.04 Rules of Construction . . . . . . . . . . . . . . . . 9
SECTION 1.05 Acts of Holders . . . . . . . . . . . . . . . . . . . 9
ARTICLE 2 THE NOTES
SECTION 2.01 Form and Dating . . . . . . . . . . . . . . . . . . . 10
SECTION 2.02 Execution and Authentication . . . . . . . . . . . . 12
SECTION 2.03 Registrar, Paying Agent and Conversion Agent . . . . 12
SECTION 2.04 Paying Agent to Hold Money and Notes in Trust . . . . 13
SECTION 2.05 Noteholder Lists . . . . . . . . . . . . . . . . . . 13
SECTION 2.06 Transfer and Exchange . . . . . . . . . . . . . . . . 13
SECTION 2.07 Replacement Notes . . . . . . . . . . . . . . . . . . 15
SECTION 2.08 Outstanding Notes; Determination of Holders' Action . 15
SECTION 2.09 Temporary Notes . . . . . . . . . . . . . . . . . . . 16
SECTION 2.10 Cancellation . . . . . . . . . . . . . . . . . . . . 16
SECTION 2.11 Persons Deemed Owners . . . . . . . . . . . . . . . . 17
SECTION 2.12 Global Notes . . . . . . . . . . . . . . . . . . . . 17
SECTION 2.13 CUSIP Numbers . . . . . . . . . . . . . . . . . . . . 21
SECTION 2.14 Defaulted Interest . . . . . . . . . . . . . . . . . 21
ARTICLE 3 REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee . . . . . . . . . 21
SECTION 3.02 Selection of Notes to Be Redeemed . . . . . . . . . . 22
SECTION 3.03 Notice of Redemption . . . . . . . . . . . . . . . . 22
SECTION 3.04 Effect of Notice of Redemption . . . . . . . . . . . 23
SECTION 3.05 Deposit of Redemption Price . . . . . . . . . . . . . 23
SECTION 3.06 Notes Redeemed in Part . . . . . . . . . . . . . . . 23
SECTION 3.07 Conversion Arrangement on Call for Redemption . . . . 23
SECTION 3.08 Repurchase of Notes at the Option of the Holder . . . 24
SECTION 3.09 Repurchase of Notes at Option of the Holder upon
Change in Control . . . . . . . . . . . . . . . . . . 26
SECTION 3.10 Effect of Repurchase Notice or Change in Control
Repurchase Notice . . . . . . . . . . . . . . . . . . 29
SECTION 3.11 Deposit of Repurchase Price or Change in Control
Repurchase Price . . . . . . . . . . . . . . . . . . 30
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* Note: This Table of Contents shall not, for any purpose, be deemed
to be part of the Indenture.
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SECTION 3.12 Notes Purchased in Part . . . . . . . . . . . . . . . 30
SECTION 3.13 Covenant to Comply with Securities Laws upon Purchase
of Notes. . . . . . . . . . . . . . . . . . . . . . . 30
SECTION 3.14 Repayment to the Company . . . . . . . . . . . . . . 31
ARTICLE 4 COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the Notes. 31
SECTION 4.02 SEC and Other Reports . . . . . . . . . . . . . . . . 31
SECTION 4.03 Compliance Certificate . . . . . . . . . . . . . . . 32
SECTION 4.04 Further Instruments and Acts . . . . . . . . . . . . 32
SECTION 4.05 Maintenance of Office or Agency . . . . . . . . . . . 32
SECTION 4.06 Delivery of Certain Information . . . . . . . . . . . 32
ARTICLE 5 SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets . . . . . . 33
ARTICLE 6 DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default . . . . . . . . . . . . . . . . . . 34
SECTION 6.02 Acceleration . . . . . . . . . . . . . . . . . . . . 36
SECTION 6.03 Other Remedies . . . . . . . . . . . . . . . . . . . 36
SECTION 6.04 Waiver of Past Defaults . . . . . . . . . . . . . . . 36
SECTION 6.05 Control by Majority . . . . . . . . . . . . . . . . . 36
SECTION 6.06 Limitation on Suits . . . . . . . . . . . . . . . . . 37
SECTION 6.07 Rights of Holders to Receive Payment . . . . . . . . 37
SECTION 6.08 Collection Suit by Trustee . . . . . . . . . . . . . 37
SECTION 6.09 Trustee May File Proofs of Claim . . . . . . . . . . 37
SECTION 6.10 Priorities . . . . . . . . . . . . . . . . . . . . . 38
SECTION 6.11 Undertaking for Costs . . . . . . . . . . . . . . . . 38
SECTION 6.12 Waiver of Stay, Extension or Usury Laws . . . . . . . 39
ARTICLE 7 TRUSTEE
SECTION 7.01 Duties and Responsibilities of the Trustee; During
Default; Prior to Default . . . . . . . . . . . . . . 39
SECTION 7.02 Certain Rights of the Trustee . . . . . . . . . . . . 40
SECTION 7.03 Trustee Not Responsible for Recitals, Disposition of
Notes or Application of Proceeds Thereof . . . . . . 41
SECTION 7.04 Trustee and Agents May Hold Notes; Collections, etc. 41
SECTION 7.05 Moneys Held by Trustee . . . . . . . . . . . . . . . 42
SECTION 7.06 Compensation and Indemnification of Trustee and Its
Prior Claim . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.07 Right of Trustee to Rely on Officers' Certificate,
etc . . . . . . . . . . . . . . . . . . . . . . . . . 42
SECTION 7.08 Conflicting Interest . . . . . . . . . . . . . . . . 42
SECTION 7.09 Persons Eligible for Appointment as Trustee . . . . . 42
SECTION 7.10 Resignation and Removal; Appointment as trustee . . . 43
SECTION 7.11 Acceptance of Appointment by Successor Trustee . . . 44
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
Business of Trustee . . . . . . . . . . . . . . . . . 45
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SECTION 7.13 Preferential Collection of Claims Against the Company 45
SECTION 7.14 Reports by the Trustee . . . . . . . . . . . . . . . 45
SECTION 7.15 Trustee to Give Notice of Default, But May Withhold
in Certain Circumstances . . . . . . . . . . . . . . 45
SECTION 7.16 Enforcement of the Registration Rights Agreement . . 46
ARTICLE 8 DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Notes . . . . . . . . . . . 46
SECTION 8.02 Repayment of the Company . . . . . . . . . . . . . . 46
ARTICLE 9 AMENDMENTS
SECTION 9.01 Without Consent of Holders . . . . . . . . . . . . . 46
SECTION 9.02 With Consent of Holders . . . . . . . . . . . . . . . 47
SECTION 9.03 Compliance with Trust Indenture Act . . . . . . . . . 48
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions 48
SECTION 9.05 Notation on or exchange of Notes . . . . . . . . . . 48
SECTION 9.06 Trustee to Sign Supplemental Indentures . . . . . . . 49
SECTION 9.07 Effect of Supplemental Indentures . . . . . . . . . . 49
ARTICLE 10 CONVERSION
SECTION 10.01 Conversion Right and Conversion Price . . . . . . . . 49
SECTION 10.02 Exercise of Conversion Right . . . . . . . . . . . . 49
SECTION 10.03 Fractions of Shares . . . . . . . . . . . . . . . . . 51
SECTION 10.04 Adjustment of Conversion Price . . . . . . . . . . . 51
SECTION 10.05 Notice of Adjustments of Conversion Price . . . . . . 61
SECTION 10.06 Notice Prior to Certain Actions . . . . . . . . . . . 61
SECTION 10.07 Company to Reserve Common Shares . . . . . . . . . . 62
SECTION 10.08 Taxes on Conversions . . . . . . . . . . . . . . . . 62
SECTION 10.09 Covenant as to Common Shares . . . . . . . . . . . . 62
SECTION 10.10 Cancellation of Converted Notes . . . . . . . . . . . 62
SECTION 10.11 Effect of Reclassification, Consolidation, Merger of
Sale . . . . . . . . . . . . . . . . . . . . . . . . 63
SECTION 10.12 Responsibility of Trustee for Conversion Provisions . 64
ARTICLE 11 MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls . . . . . . . . . . . . 64
SECTION 11.02 Notices . . . . . . . . . . . . . . . . . . . . . . . 64
SECTION 11.03 Communication by Holders with Other Holders . . . . . 65
SECTION 11.04 Certificate and Opinion as to Conditions Precedent. . 65
SECTION 11.05 Statements Required in Certificate or Opinion . . . . 66
SECTION 11.06 Separability Clause . . . . . . . . . . . . . . . . . 66
SECTION 11.07 Rules by Trustee, Paying Agent, Conversion Agent and
Registrar . . . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.08 Legal Holidays . . . . . . . . . . . . . . . . . . . 66
SECTION 11.09 Governing Law . . . . . . . . . . . . . . . . . . . . 66
SECTION 11.10 No Recourse Against Others . . . . . . . . . . . . . 66
SECTION 11.11 Successors . . . . . . . . . . . . . . . . . . . . . 67
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SECTION 11.12 Multiple Originals . . . . . . . . . . . . . . . . . 67
EXHIBITS
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Exhibit A-1 Form of Global Note
Exhibit A-2 Form of Face of Certificated Note
Exhibit B Transfer Certificate
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INDENTURE dated as of March 19, 2002 between OHIO CASUALTY
CORPORATION, an Ohio corporation (the "Company"), and HSBC BANK USA, a
banking corporation and trust company duly organized and existing under the
laws of the State of New York, as Trustee hereunder (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5.00% Convertible Notes due 2022 (herein called the "Notes") of
substantially the tenor and amount hereinafter set forth, and to provide
therefor the Company has duly authorized the execution and delivery of this
Indenture.
All things necessary to make the Notes, when the Notes are
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid agreement of
the Company, in accordance with their and its terms, have been done.
Further, all things necessary to duly authorize the issuance of the Common
Shares of the Company issuable upon the conversion of the Notes, and to duly
reserve for issuance the number of Common Shares issuable upon such
conversion, have been done.
This Indenture is subject to, and shall be governed by, the
provisions of the Trust Indenture Act of 1939, as amended, that are required
to be a part of and to govern indentures qualified under the Trust Indenture
Act of 1939, as amended.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Notes by the Holders thereof, it is mutually covenanted and agreed, for
the equal and proportionate benefit of all Holders of the Notes, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions. For all purposes of this Indenture,
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except as otherwise expressly provided or unless the context otherwise
requires the terms defined in this Article have the meanings assigned to them
in this Article.
"Affiliate" of any specified person means any other person
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directly or indirectly controlling or controlled by or under direct or
indirect common control with such specified person. For purposes of this
definition, "control" when used with respect to any specified person means
the power to direct or cause the direction of the management and policies of
such person, directly or indirectly, whether through the ownership of voting
securities, by contract or otherwise; and the terms "controlling" and
"controlled" have meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer
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or transaction involving a Global Note or beneficial interest therein, the
rules and procedures of the Depositary
1
for such Note, in each case to the extent applicable to such transaction and
as in effect from time to time.
"Board of Directors" means either the board of directors of the
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Company or any duly authorized committee of such board, as applicable.
"Board Resolution" means a resolution duly adopted by the Board of
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Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to be in full force and effect on the date of such
certification, shall have been delivered to the Trustee.
"Business Day" means each day of the year other than a Saturday or
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a Sunday on which banking institutions are not required or authorized to
close in the City of New York.
"Capital Stock" of any corporation means any and all shares,
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interests, rights to purchase, warrants, options, participations or other
equivalents of or interests in (however designated) shares issued by that
corporation.
"Certificated Notes" means Notes that are in the form of the Notes
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attached hereto as Exhibit A-2.
"Common Shares" means the Common Shares, par value $0.125 per share,
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of the Company authorized at the date of this Indenture as originally executed.
Subject to the provisions of Section 10.11, shares issuable on conversion
shall include only Common Shares or shares of any class or classes of common
shares resulting from any reclassification or reclassifications thereof;
provided, however, that if at any time there shall be more than one such
resulting class, the shares so issuable on conversion of Notes shall include
shares of all such classes, and the shares of each such class then so
issuable shall be substantially in the proportion which the total number of
shares of such class resulting from all such reclassifications bears to the
total number of shares of all such classes resulting from all such
reclassifications.
"common shares" means any shares of any class of Capital Stock which
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has no preference in respect of dividends or of amounts payable in the event
of any voluntary or involuntary liquidation, dissolution or winding up of the
issuer.
"Company" means the party named as the "Company" in the first
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paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent
such successor or successors.
"Company Request" or "Company Order" means a written request or
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order signed in the name of the Company by any two Officers.
"Conversion Agent" means any person authorized by the Company to
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convert Notes in accordance with Article 10.
"Corporate Trust Office" means the principal office of the Trustee
----------------------
at which at any time its corporate trust business shall be administered, which
office at the date hereof is located at HSBC Bank USA, 452 Fifth Avenue, New
York, New York 10018, or such other address as
2
the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Default" means any event which is, or after notice or passage of
-------
time or both would be, an Event of Default.
"Distributed Security" means any Capital Stock or similar security
--------------------
that is distributed in a distribution to which Section 10.04(g) applies.
"Dollar" or "U.S. $" means a dollar or other equivalent unit in such
------ ------
coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"GAAP" means United States generally accepted accounting principles
----
as in effect from time to time.
"Global Notes" means Notes that are in the form of the Note attached
------------
hereto as Exhibit A-1, and to the extent that such Notes are required to bear
the Legend required by Section 2.06(f), such Notes will be in the form of a
144A Global Note.
"Guarantee" means a guarantee (other than by endorsement of
---------
negotiable instruments for collection in the ordinary course of business),
direct or indirect, in any manner (including, without limitation, letters of
credit and reimbursement agreements in respect thereof), of all or any part
of any Indebtedness.
"Holder" or "Noteholder" means a person in whose name a Note is
------ ----------
registered on the Registrar's books.
"Indebtedness" means, with respect to any person, without
------------
duplication:
(a) all liabilities of such person for borrowed money (including
overdrafts) or for the deferred purchase price of property or services,
excluding any trade payables and other accrued current liabilities
incurred in the ordinary course of business, but including, without
limitation, all obligations, contingent or otherwise, of such person in
connection with any letters of credit and acceptances issued under letter
of credit facilities, acceptance facilities or other similar facilities;
(b) all obligations of such person evidenced by bonds, notes,
debentures or other similar instruments;
(c) indebtedness of such person created or arising under any
conditional sale or other title retention agreement with respect to
property acquired by such person (even if the rights and remedies of
the seller or lender under such agreement in the event of default are
limited to repossession or sale of such property), but excluding trade
payables arising in the ordinary course of business;
(d) all capitalized lease obligations of such person;
3
(e) all obligations of such person under or in respect of interest
rate agreements or currency agreements;
(f) all indebtedness referred to in (but not excluded from) the
preceding clauses of other persons and all dividends of other persons,
the payment of which is secured by (or for which the holder of such
indebtedness has an existing right, contingent or otherwise, to be
secured by) any Lien or with respect to property (including, without
limitation, accounts and contract rights) owned by such person, even
though such person has not assumed or become liable for the payment of
such indebtedness (the amount of such obligation being deemed to be the
lesser of the value of such property or asset or the amount of the
obligation so secured);
(g) all Guarantees by such person of indebtedness referred to in
this definition or of any other person;
(h) all Redeemable Capital Stock of such person valued at the greater
of its voluntary or involuntary maximum fixed repurchase price plus
accrued and unpaid dividends; and
(i) the present value of the obligation of such person as lessee for
net rental payments (excluding all amounts required to be paid on
account of maintenance and repairs, insurance, taxes, assessments, water,
utilities and similar charges to the extent included in such rental
payments). Such present value shall be calculated using a discount rate
equal to the rate of interest implicit in such transaction, determined in
accordance with GAAP.
"Indenture" means this Indenture, as amended or supplemented from time
---------
to time in accordance with the terms hereof, including the provisions of the
TIA that are deemed to be a part hereof.
"Interest Payment Date" means the Stated Maturity of an installment
---------------------
of interest on the Notes.
"Issue Date" of any Note means the date on which the Note was
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originally issued or deemed issued as set forth on the face of the Note.
"Lien" means, with respect to any asset, any mortgage, lien, pledge,
----
charge, security interest or encumbrance of any kind in respect of such asset
given to secure Indebtedness, whether or not filed, recorded or otherwise
perfected under applicable law (including any conditional sale or other title
retention agreement, any lease in the nature thereof, any option or other
agreement to sell or give a security interest in and any filing of or
agreement to give any financing statement under the Uniform Commercial Code
(or equivalent statutes) of any jurisdiction with respect to any such lien,
pledge, charge or security interest).
"Notes" has the meaning ascribed to it in the first paragraph under
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the caption "Recitals of the Company".
4
"Officer" means the Chairman of the Board, the Vice Chairman, the
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Chief Executive Officer, the President, any Executive Vice President, any
Senior Vice President, any Vice President, the Treasurer or the Secretary or
any Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
---------------------
information specified in Sections 11.04 and 11.05, signed in the name of the
Company by any two Officers, at least one of whom shall be either the
principal executive or principal financial officer of the Company, and
delivered to the Trustee. An Officers' Certificate given pursuant to Section
4.03 shall be signed by an authorized financial or accounting Officer of the
Company but need not contain the information specified in Sections 11.04 and
11.05.
"144A Global Note" means a permanent Global Note in the form of the
----------------
Note attached hereto as Exhibit A-1, and that is deposited with and registered
in the name of the Depositary, representing Notes sold in reliance on Rule
144A under the Securities Act.
"Opinion of Counsel" means a written opinion containing the
------------------
information specified in Sections 11.04 and 11.05, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an employee of, or
counsel to, the Company or the Trustee.
"person" or "Person" means any individual, corporation, limited
------ ------
liability company, partnership, joint venture, association, joint-stock
company, trust, unincorporated organization, or government or any agency or
political subdivision thereof.
"principal" of a Note means the principal amount due on the Stated
---------
Maturity as set forth on the face of the Note.
"Qualifying Quarter" means a calendar quarter (beginning with the
------------------
quarter ending on June 30, 2002) if, as of the last day of such calendar
quarter, the Sale Price of the Common Shares for at least 20 Trading Days in
a period of 30 consecutive Trading Days ending on the last Trading Day of
such quarter is more than 110% of the Conversion Price on the last day of
such quarter.
"Redeemable Capital Stock" means any class of the Company's Capital
------------------------
Stock that, either by its terms, by the terms of any securities into which it
is convertible or exchangeable or by contract or otherwise, is, or upon the
happening of an event or passage of time would be, required to be redeemed
(whether by sinking fund or otherwise) prior to the date that is 91 days
after the final scheduled maturity of the Notes or is redeemable at the
option of the Holder thereof at any time prior to such date, or is
convertible into or exchangeable for debt securities at any time prior to
such date (unless it is convertible or exchangeable solely at the Company's
option).
"Redemption Date" or "redemption date" means the date specified for
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redemption of the Notes in accordance with the terms of the Notes and this
Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
---------------- ----------------
forth in paragraph 5 of the Notes.
5
"Registration Rights Agreement" means the Registration Rights
-----------------------------
Agreement dated as of March 19, 2002 between the Company and Merrill Lynch &
Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated and Salomon Smith
Barney Inc.
"Regular Record Date" means, with respect to the interest payable on
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any Interest Payment Date, the close of business on March 4 and September 4
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Responsible Officer" means, when used with respect to the Trustee,
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any officer within the Issuer Services office of the Trustee (or any
successor group of the Trustee) 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.
"Restricted Note" means a Note required to bear the restrictive
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legend set forth in the form of Note set forth in Exhibits A-1 and A-2 of
this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any
---------
successor provision), as it may be amended from time to time.
"Sale Price" of Common Shares or shares of Capital Stock on any date
----------
means the closing sale price per share (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in
either case, the average of the average bid and average ask prices) on such
date on the Nasdaq National Market or such other principal United States
securities exchange on which the Common Shares or such shares of Capital
Stock, as the case may be, are traded or, if the Common Shares or such shares
of Capital Stock, as the case may be, are not listed on a United States
inter-dealer automated quotation system or national or regional securities
exchange, as reported by the National Quotation Bureau Incorporated.
"SEC" means the Securities and Exchange Commission.
---
"Securities Act" means the United States Securities Act of 1933 (or
--------------
any successor statute), as amended from time to time.
"Significant Subsidiary" means a Subsidiary of the Company, including
----------------------
its Subsidiaries, which meets any of the following conditions:
(a) the Company's and its other Subsidiaries' investments in and
advances to the Subsidiary exceed 10 percent of the total assets of the
Company and its Subsidiaries consolidated as of the end of any two of
the three most recently completed fiscal years; or
(b) the Company's and its other Subsidiaries' proportionate share of
the total assets of the Subsidiary exceeds 10 percent of the total assets
of the Company and its Subsidiaries consolidated as of the end of any two
of the three most recently completed fiscal years; or
6
(c) the Company's and its other Subsidiaries' equity in the income
from continuing operations before income taxes, extraordinary items and
cumulative effect of a change in accounting principles of the Subsidiary
exceeds 10 percent of such income of the Company and its Subsidiaries
consolidated as of the end of any two of the three most recently
completed fiscal years.
"Stated Maturity", when used with respect to any Note or any
---------------
installment of interest thereon, means the date specified in such Note as the
fixed date on which the principal of such Note or such installment of interest
is due and payable.
"Subsidiary" means (i) a corporation, a majority of whose Capital
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Stock with voting power, under ordinary circumstances, to elect directors is,
at the date of determination, directly or indirectly owned by the Company, by
one or more Subsidiaries of the Company or by the Company and one or more
Subsidiaries of the Company, (ii) a partnership in which the Company or a
Subsidiary of the Company holds a majority interest in the equity capital or
profits of such partnership, or (iii) any other person (other than a
corporation) in which the Company, a Subsidiary of the Company or the Company
and one or more Subsidiaries of the Company, directly or indirectly, at the
date of determination, has (x) at least a majority ownership interest or (y)
the power to elect or direct the election of a majority of the directors or
other governing body of such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date
---
of this Indenture; provided, however, that in the event the TIA is amended
after such date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
"Trading Day" means a day during which trading in securities
-----------
generally occurs on the Nasdaq National Market or, if the Common Shares are
not listed on the Nasdaq National Market, on the New York Stock Exchange or
principal other national or regional securities exchange on which the Common
Shares are then listed or, if the Common Shares are not listed on a national
or regional securities exchange, on the principal other market on which the
Common Shares are then traded.
"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.
"United States" means the United States of America (including the
-------------
States and the District of Columbia), its territories, its possessions and
other areas subject to its jurisdiction (its "possessions" including Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands).
"Value Distributed Per Share" means, with respect to the Distributed
---------------------------
Securities that are distributed with respect to one Common Share, the product
of (1) the average of the Sales Prices for such Distributed Securities during
the ten (10) Trading Days commencing on and including the fifth Trading Day
after the date on which trading in such securities commences multiplied by (2)
the number of such Distributed Securities that are distributed with respect to
7
one Common Share; provided, that if more than one kind of Distributed
Security is distributed in respect of one Common Share, the "Value Distributed
Per Share" shall be the sum of such products for each such kind of
Distributed Security.
SECTION 1.02 Other Definitions.
---------------------------------
Defined in
Term Section
- ---- -------
"Act"......................................................... 1.05(a)
"Agent Members" .............................................. 2.12(f)
"Bankruptcy Law" ............................................. 6.01
"Change in Control" .......................................... 3.09(a)
"Change in Control Repurchase Date" .......................... 3.09(a)
"Change in Control Repurchase Notice" ........................ 3.09(c)
"Change in Control Repurchase Price" ......................... 3.09(a)
"Conversion Agent" ........................................... 2.03
"Conversion Date" ............................................ 10.02
"Conversion Price" .......................................... 10.01
"Current Market Price" ...................................... 10.04(h)
"Custodian" ................................................. 6.01
"Depositary" ................................................ 2.01(a)
"DTC" ....................................................... 2.01(a)
"Event of Default" .......................................... 6.01
"Exchange Act" .............................................. 3.09(a)
"excluded securities" ....................................... 10.04(d)
"Expiration Time" ........................................... 10.04(f)
"fair market value" ......................................... 10.04(h)
"Legal Holiday" ............................................. 11.08
"Legend" ................................................... 2.06(f)
"Non-Electing Share" ........................................ 10.11
"Notice of Default" ......................................... 6.01
"Paying Agent" .............................................. 2.03
"Purchased Shares" .......................................... 10.04(f)
"QIB" ....................................................... 2.01(a)
"Record Date" ............................................... 10.04(g)
"Reference Period" .......................................... 10.04(d)
"Registrar" ................................................. 2.03
"Repurchase Date" ........................................... 3.08(a)
"Repurchase Notice" ......................................... 3.08(a)
"Repurchase Price" .......................................... 3.08(a)
"Rule 144A Information" ..................................... 4.06
"Trigger Event" ............................................. 10.04(d)
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
-----------------------------------------------------------------
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The
following TIA terms used in this Indenture have the following meanings:
8
"Commission" means the SEC.
"indenture Notes" means the Notes.
"indenture Note holder" means a Noteholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" means the Trustee.
"obligor" on the indenture Notes means the Company.
All other TIA terms used in this Indenture that are defined by the
TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise
-------------------------------------
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning
assigned to it in accordance with GAAP;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the
plural include the singular.
SECTION 1.05 Acts of Holders. Any request, demand,
-------------------------------
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be given or taken by Holders may be embodied in and
evidenced by one or more instruments of substantially similar tenor signed by
such Holders in person or by their 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
9
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.
The ownership of Notes shall be proved by the register for the
Notes or by a certificate of the Registrar.
Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Note shall bind every future Holder
of the same Note and the holder of every Note 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
Note.
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 resolution of the Board of Directors,
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 purposes of determining whether Holders of
the requisite proportion of outstanding Notes have authorized or agreed or
consented to such request, demand, authorization, direction, notice, consent,
waiver or other Act, and for that purpose the outstanding Notes shall be
computed as of such record date; provided that no such authorization,
agreement or consent by the Holders on such record date shall be deemed
effective unless it shall become effective pursuant to the provisions of this
Indenture not later than six months after the record date.
ARTICLE 2
THE NOTES
SECTION 2.01 Form and Dating. The Notes and the Trustee's
-------------------------------
certificate of authentication to be borne by such Notes shall be substantially
in the form annexed hereto as Exhibits A-1 and A-2, which are incorporated in
and made a part of this Indenture. The terms and provisions contained in the
form of Note shall constitute, and are hereby expressly made, a part of this
Indenture and to the extent applicable, the Company and the Trustee, by their
execution and delivery of this Indenture, expressly agree to such terms and
provisions and to be bound thereby. To the extent that any provision of any
Note conflicts with the express provisions of this Indenture, the provisions
of this Indenture shall govern and be controlling.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends and endorsements as the officers
executing the same may approve (execution thereof to be conclusive evidence
of such approval) and as are not inconsistent with the provisions of this
Indenture, or as may be required to comply with any law or with any rule or
regulation made pursuant thereto or with any rule or regulation of any
securities exchange or
10
automated quotation system on which the Notes may be listed or designated for
issuance, or to conform to usage.
(a) 144A Global Notes. Notes offered and sold within the United
-----------------
States to qualified institutional buyers as defined in Rule 144A ("QIBs") in
reliance on Rule 144A shall be issued, initially in the form of a 144A Global
Note, which shall be deposited with the Trustee at its Corporate Trust Office,
as custodian for the Depositary and registered in the name of The Depository
Trust Company ("DTC") or the nominee thereof (such depositary, or any
successor thereto, and any such nominee being hereinafter referred to as the
"Depositary"), duly executed by the Company and authenticated by the Trustee
as hereinafter provided. The aggregate principal amount of the 144A Global
Notes may from time to time be increased or decreased by adjustments made on
the records of the Trustee and the Depositary as hereinafter provided.
(b) Global Notes in General. Each Global Note shall represent
-----------------------
such of the outstanding Notes as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Notes
from time to time endorsed thereon and that the aggregate amount of
outstanding Notes represented thereby may from time to time be reduced or
increased, as appropriate, to reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate principal amount of a Global Note to
reflect the amount of any increase or decrease in the amount of outstanding
Notes represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 and
shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply only
---------------------
to Global Notes deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Notes that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS
REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY
(AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY
AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
11
TRANSFERS OF THIS GLOBAL NOTE SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS
OF THIS GLOBAL NOTE 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."
(d) Certificated Notes. Notes not issued as interests in the
------------------
Global Notes will be issued in certificated form substantially in the form of
Exhibit A-2 attached hereto.
SECTION 2.02 Execution and Authentication. The Notes shall be
--------------------------------------------
executed on behalf of the Company by any Officer. The signature of the
Officer on the Notes may be manual or facsimile.
Notes bearing the manual or facsimile signatures of individuals who
were at the time of the execution of the Notes the proper Officers of the
Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Notes or did not hold such offices at the date of
authentication of such Notes.
No Note shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Note a
certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer,
and such certificate upon any Note shall be conclusive evidence, and the only
evidence, that such Note has been duly authenticated and delivered hereunder.
The Trustee shall authenticate and deliver Notes for original issue
in an aggregate principal amount of up to $201,250,000 upon a Company Order
without any further action by the Company. The aggregate principal amount of
Notes outstanding at any time may not exceed the amount set forth in the
foregoing sentence, except as provided in Section 2.07.
The Notes shall be issued only in registered form without coupons and
only in denominations of $1,000 in principal amount and any integral multiple
thereof.
SECTION 2.03 Registrar, Paying Agent and Conversion Agent. The
------------------------------------------------------------
Company shall maintain an office or agency where Notes may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Notes may be presented for purchase or payment ("Paying Agent") and an
office or agency where Notes may be presented for conversion ("Conversion
Agent"). The Registrar shall keep a register of the Notes and of their
transfer and exchange. The Company, upon written notice to and approval of
the Trustee, may have one or more co-registrars, one or more additional
paying agents and one or more additional conversion agents. The term Paying
Agent includes any additional paying agent, including any named pursuant to
Section 4.05. The term Conversion Agent includes any additional conversion
agent, including any named pursuant to Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (other than the
Trustee). The
12
agreement shall implement the provisions of this Indenture that relate to
such agent. The Company shall notify the Trustee of the name and address of
any such agent. If the Company fails to maintain a Registrar, Paying Agent
or Conversion Agent, the Trustee shall act as such and shall be entitled to
appropriate compensation therefor pursuant to Section 7.06. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Notes and the Trustee hereby
accepts such appointment.
SECTION 2.04 Paying Agent to Hold Money and Notes in Trust.
-------------------------------------------------------------
Except as otherwise provided herein, on or prior to each due date of payments
in respect of any Note, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date)
sufficient to make such payments when so becoming due. The Company shall
require each Paying Agent (other than the Trustee) to agree in writing that
the Paying Agent shall hold in trust for the benefit of Noteholders or the
Trustee all money held by the Paying Agent for the making of payments in
respect of the Notes and shall notify the Trustee of any default by the
Company in making any such payment. At any time during the continuance of
any such default, the Paying Agent shall, upon the written request of the
Trustee, forthwith pay to the Trustee all money so held in trust. If the
Company, a Subsidiary or an Affiliate of either of them acts as Paying Agent,
it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to
pay all money held by it to the Trustee and to account for any funds
disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
SECTION 2.05 Noteholder 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 Noteholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually not later than 5 days after each Regular Record Date a listing of
Noteholders dated within 15 days of the date on which the list is furnished
and at such other times as the Trustee may request in writing a list in such
form and as of such date as the Trustee may reasonably require of the names
and addresses of Noteholders, and the Company shall otherwise comply with TIA
Section 312(a).
SECTION 2.06 Transfer and Exchange. (a) Subject to Section 2.12,
-------------------------------------
upon surrender for registration of transfer of any Note, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Noteholder or such Noteholder's attorney duly authorized in writing, at
the office or agency of the Company maintained pursuant to Section 2.03, the
Company shall execute, and the Trustee shall authenticate and deliver, in the
name of the designated transferee or transferees, one or more new Notes of
any authorized denomination or denominations, of a like aggregate principal
amount. The Registrar or any co-registrar may require a Holder to furnish
appropriate endorsements and transfer documents. 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 Notes from the Noteholder requesting
such transfer or exchange.
13
At the option of the Holder, Notes may be exchanged for other Notes
of any authorized denomination or denominations, of a like aggregate principal
amount, upon surrender of the Notes to be exchanged, together with a written
instrument of transfer satisfactory to the Registrar duly executed by the
Noteholder or such Noteholder's attorney duly authorized in writing, at such
office or agency. Whenever any Notes are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and deliver, the
Notes which the Holder making the exchange is entitled to receive.
The Company shall not be required to make, and the Registrar need
not register, transfers or exchanges of Notes selected for redemption (except,
in the case of Notes to be redeemed in part, the portion thereof not to be
redeemed) or any Notes in respect of which a Repurchase Notice (as defined in
Section 3.08(a)) or a Change in Control Repurchase Notice (as defined in
Section 3.09(c)) has been given and not withdrawn by the Holder thereof in
accordance with the terms of this Indenture (except, in the case of Notes to
be purchased in part, the portion thereof not to be purchased) or any Notes
for a period of 15 days before the mailing of a notice of redemption of Notes
to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long
as a Global Note remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Note, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of
a Global Note shall be limited to transfers of such Global Note in whole, or
in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Notes.
(d) Any Registrar or co-registrar appointed pursuant to Section
2.03 shall provide to the Trustee such information as the Trustee may
reasonably require in connection with the delivery by such Registrar of Notes
upon transfer or exchange of Notes.
(e) No Registrar or co-registrar shall be required to make
registrations of transfer or exchange of Notes during any periods designated
in the text of the Notes or in this Indenture as periods during which such
registration of transfers and exchanges need not be made.
(f) If Notes are issued upon the transfer, exchange or replacement
of Notes subject to restrictions on transfer and bearing the legends set
forth on the form of Note attached hereto as Exhibits A-1 and A-2 setting
forth such restrictions (collectively, the "Legend"), or if a request is made
to remove the Legend on a Note, the Notes so issued shall bear the Legend, or
the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof
comply with the provisions of Rule 144A or Rule 144 under the Securities Act
or that such Notes are not "restricted" within the meaning of Rule 144 under
the Securities Act. Upon (i) provision of such satisfactory evidence, or
(ii) notification by the Company to the Trustee and Registrar of the sale
14
of such Note 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 Note that does not bear the Legend. If the
Legend is removed from the face of a Note and the Note is subsequently held
by an Affiliate of the Company, the Legend shall be reinstated.
SECTION 2.07 Replacement Notes. If (a) any mutilated Note is
---------------------------------
surrendered to the Trustee, or (b) the Company and the Trustee receive
evidence to their satisfaction of the destruction, loss or theft of any Note,
and there is delivered to the Company and the Trustee such mutilated Note 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 Note has been
acquired by a bona fide purchaser, the Company shall execute and upon its
written request the Trustee shall authenticate and deliver, in exchange for
any such mutilated Note or in lieu of any such destroyed, lost or stolen Note,
a new Note of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note 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 may, instead
of issuing a new Note, so pay or purchase such Note, as the case may be.
Upon the issuance of any new Notes under this Section 2.07, 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 Note issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Note shall constitute an original
additional contractual obligation of the Company, whether or not the
destroyed, lost or stolen Note 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 Notes duly issued hereunder.
The provisions of this Section 2.07 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 Notes.
SECTION 2.08 Outstanding Notes; Determinations of Holders' Action.
--------------------------------------------------------------------
Notes outstanding at any time are all the Notes authenticated by the Trustee
except for those cancelled by it or delivered to it for cancellation, those
paid pursuant to Section 2.07 and those described in this Section 2.08 as not
outstanding. A Note does not cease to be outstanding because the Company or
an Affiliate thereof holds the Note; provided, however, that in determining
whether the Holders of the requisite principal amount of the outstanding
Notes have given or concurred in any request, demand, authorization,
direction, notice, consent or waiver hereunder, Notes owned by the Company or
any other obligor upon the Notes 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 Notes which a Responsible Officer of the Trustee knows to be so owned
shall be so disregarded. Subject to the
15
foregoing, only Notes outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 6 and 9).
If a Note is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Note is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, a Repurchase Date, a Change in Control Repurchase Date, or
on Stated Maturity, money or securities, if permitted hereunder, sufficient
to pay Notes payable on that date, then on and after such Redemption Date,
Repurchase Date, Change in Control Repurchase Date or Stated Maturity, as
the case may be, such Notes shall cease to be outstanding and interest on
such Notes shall cease to accrue; provided that, if such Notes 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 Note is converted in accordance with Article 10, then from and
after the time of conversion on the Conversion Date, such Note shall cease to
be outstanding and interest shall cease to accrue on such Note.
SECTION 2.09 Temporary Notes. Pending the preparation of
-------------------------------
definitive Notes, the Company may execute, and upon Company Order the Trustee
shall authenticate and deliver, temporary Notes which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive Notes
in lieu of which they are issued and with such appropriate insertions,
omissions, substitutions and other variations as the Officers executing such
Notes may determine, as conclusively evidenced by their execution of such
Notes.
If temporary Notes are issued, the Company will cause definitive
Notes to be prepared without unreasonable delay. After the preparation of
definitive Notes, the temporary Notes shall be exchangeable for definitive
Notes upon surrender of the temporary Notes at the office or agency of the
Company designated for such purpose pursuant to Section 2.03, without charge
to the Holder. Upon surrender for cancellation of any one or more temporary
Notes the Company shall execute and the Trustee shall authenticate and
deliver in exchange therefor a like principal amount of definitive Notes of
authorized denominations. Until so exchanged the temporary Notes shall in
all respects be entitled to the same benefits under this Indenture as
definitive Notes.
SECTION 2.10 Cancellation. All Notes surrendered for payment,
----------------------------
purchase by the Company pursuant to Article 3, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Notes previously authenticated and delivered hereunder which the Company may
have acquired in any manner whatsoever, and all Notes so delivered shall be
promptly cancelled by the Trustee. The Company may not issue new Notes to
replace Notes it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article 10. No Notes shall be
authenticated in lieu of or in exchange for any Notes cancelled as provided
in
16
this Section 2.10, except as expressly permitted by this Indenture. All
cancelled Notes held by the Trustee shall be destroyed by the Trustee and
the Trustee shall deliver a certificate of destruction to the Company.
SECTION 2.11 Persons Deemed Owners. Prior to due presentment
-------------------------------------
of a Note 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
Note is registered as the owner of such Note for the purpose of receiving
payment of principal of the Note or the payment of any Redemption Price,
Repurchase Price or Change in Control Repurchase Price in respect thereof,
and interest thereon, for the purpose of conversion and for all other purposes
whatsoever, whether or not such Note be overdue, and neither the Company, the
Trustee nor any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 2.12 Global Notes. Notwithstanding any other provisions
----------------------------
of this Indenture or the Notes, (A) transfers of a Global Note, in whole or in
part, shall be made only in accordance with Section 2.06 and Section
2.12(a)(i), (B) transfer of a beneficial interest in a Global Note for a
Certificated Note shall comply with Section 2.06 and Section 2.12(a)(ii) below,
and (C) transfers of a Certificated Note shall comply with Section 2.06 and
Section 2.12(a)(iii) and (iv) below.
(i) Transfer of Global Note. A Global Note may not be transferred,
in whole or in part, to any Person other than the Depositary or a
nominee or any successor thereof, and no such transfer to any such other
Person may be registered; provided that this clause (i) shall not
prohibit any transfer of a Note that is issued in exchange for a Global
Note but is not itself a Global Note. No transfer of a Note to any
Person shall be effective under this Indenture or the Notes unless and
until such Note has been registered in the name of such Person. Nothing
in this Section 2.12(a)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Note effected in accordance
with the other provisions of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a Global
Note for a Certificated Note. A beneficial interest in a Global Note
may not be exchanged upon transfer for a Certificated Note except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a request for transfer of a beneficial interest in a Global
Note in accordance with Applicable Procedures for a Certificated Note
in the form satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes, certification,
in the form set forth in Exhibit B;
(b) written instructions to the Trustee to make, or direct the
Registrar to make, an adjustment on its books and records with
respect to such Global Note to reflect a decrease in the aggregate
principal amount of the Notes represented by the Global Note, such
instructions to contain information regarding the Depositary
account to be credited with such decrease; and
17
(c) if the Company or Registrar so requests, an opinion of
counsel or other evidence reasonably satisfactory to them as to the
compliance with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of Notes represented by the
Global Note to be decreased by the aggregate principal amount of the
Certificated Note to be issued, shall issue such Certificated Note and shall
debit or cause to be debited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to the principal
amount of the Certificated Note so issued.
(iii) Transfer and Exchange of Certificated Notes. When
Certificated Notes are presented to the Registrar with a request:
(x) to register the transfer of such Certificated Notes; or
(y) to exchange such Certificated Notes for an equal
principal amount of Certificated Notes of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided,
however, that the Certificated Notes surrendered for transfer or exchange:
(a) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(b) so long as such Notes are Restricted Notes, such Notes are
being transferred or exchanged pursuant to an effective registration
statement under the Securities Act or pursuant to clause (A), (B) or
(C) below, and are accompanied by the following additional
information and documents, as applicable:
(A) if such Certificated Notes are being delivered to the
Registrar by a Holder for registration in the name of such
Holder, without transfer, a certification from such Holder to
that effect; or
(B) if such Certificated Notes are being transferred to
the Company, a certification to that effect; or
(C) if such Certificated Notes are being transferred
pursuant to an exemption from registration, (i) a
certification to that effect (in the form set forth in Exhibit
B and (ii) if the Company or Registrar so requests, an opinion
of counsel or other evidence reasonably satisfactory to them as
to the compliance with the restrictions set forth in the Legend.
18
(iv) Restrictions on Transfer of a Certificated Note for a
Beneficial Interest in a Global Note. A Certificated Note may not
be exchanged for a beneficial interest in a Global Note except upon
satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Note, duly endorsed or
accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(a) so long as the Notes are Restricted Notes,
certification, in the form set forth in Exhibit B, that such
Certificated Note is being transferred to a QIB; and
(b) written instructions directing the Trustee to make,
or to direct the Registrar to make, an adjustment on its books
and records with respect to such Global Note to reflect an
increase in the aggregate principal amount of the Notes
represented by the Global Note, such instructions to contain
information regarding the Depositary account to be credited
with such increase, then the Trustee shall cancel such
Certificated Note and cause, or direct the Registrar to cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the
aggregate principal amount of Notes represented by the Global
Note to be increased by the aggregate principal amount of the
Certificated Note to be exchanged, and shall credit or cause to
be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Note equal to
the principal amount of the Certificated Note so cancelled. If
no Global Notes are then outstanding, the Company shall issue
and the Trustee shall authenticate, upon written order of the
Company in the form of an Officers' Certificate, a new Global
Note in the appropriate principal amount.
(b) Subject to the succeeding paragraph, every Note shall be
subject to the restrictions on transfer provided in the Legend including the
delivery of an opinion of counsel, if so provided. Whenever any Restricted
Note is presented or surrendered for registration of transfer or for exchange
for a Note registered in a name other than that of the Holder, such Note 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
Note, as to compliance with such restrictions on transfer. The Registrar
shall not be required to accept for such registration of transfer or exchange
any Note not so accompanied by a properly completed certificate.
(c) The restrictions imposed by the Legend upon the
transferability of any Note shall cease and terminate when such Note 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 Note 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 Note for exchange to
the Registrar in accordance with the provisions of this Section 2.12
(accompanied, in the event that such restrictions on transfer have terminated
by reason of a transfer in compliance with Rule 144 or any successor
provision, by an opinion of counsel reasonably acceptable to the Company,
addressed to the Company and in form acceptable to the Company,
19
to the effect that the transfer of such Note has been made in compliance with
Rule 144 or such successor provision), be exchanged for a new Note, of like
tenor and 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 Notes 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 Note.
(e) The provisions of clauses (1), (2), (3) and (4) below
shall apply only to Global Notes:
(1) Notwithstanding any other provisions of this Indenture or
the Notes, except as provided in Section 2.12(a)(ii), a Global Note
shall not be exchanged in whole or in part for a Note registered in the
name of any Person other than the Depositary or one or more nominees
thereof, provided that a Global Note may be exchanged for Notes
registered in the name of any person designated by the Depositary in the
event that (i) the Depositary has notified the Company that it is
unwilling or unable to continue as Depositary for such Global Note 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 of either event or (ii) an Event of Default has occurred
and is continuing with respect to the Notes. Any Global Note exchanged
pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Note exchanged pursuant to clause (ii) above may be
exchanged in whole or from time to time in part as directed by the
Depositary. Any Note issued in exchange for a Global Note or any
portion thereof shall be a Global Note; provided that any such Note so
issued that is registered in the name of a Person other than the
Depositary or a nominee thereof shall not be a Global Note.
(2) Notes issued in exchange for a Global Note or any portion
thereof shall be issued in definitive, fully registered form, without
interest coupons, shall have an aggregate principal amount equal to that
of such Global Note 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 Legend provided for
herein. Any Global Note to be exchanged in whole shall be surrendered
by the Depositary to the Trustee, as Registrar. With regard to any
Global Note to be exchanged in part, either such Global Note 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 Note, 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 Note
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the Holder
may grant proxies and otherwise authorize any Person, including Agent
Members (as defined below) and
20
persons that may hold interests through Agent Members, to take any
action which a Holder is entitled to take under this Indenture or the
Notes.
(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 Notes 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 Note registered in the name of the Depositary
or any nominee thereof, or under any such Global Note, 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 Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (i) 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 (ii)
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 Note.
SECTION 2.13 CUSIP Numbers. The Company in issuing the
-----------------------------
Notes may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a
convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such numbers either as
printed on the Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on
the Notes, 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 Defaulted Interest. If the Company defaults
----------------------------------
in a payment of interest on the Notes, it shall pay, or shall deposit with
the Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with
respect to the payment of any defaulted interest, shall mean the 15th day
next preceding the date fixed by the Company for the payment of defaulted
interest, whether or not such day is a Business Day. At least 15 days before
the subsequent special record date, the Company shall mail to each Holder and
to the Trustee a notice that states the subsequent special record date, the
payment date and the amount of defaulted interest to be paid.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01 Right to Redeem; Notices to Trustee. The
---------------------------------------------------
Company, at its option, may redeem the Notes in accordance with the
provisions of paragraphs 5 and 7 of the
21
Notes. If the Company elects to redeem Notes pursuant to paragraph 5 of the
Notes, it shall notify the Trustee in writing of the Redemption Date, the
principal amount of Notes to be redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided
for in this Section 3.01 by a Company Order, at least 45 days before the
Redemption Date (unless a shorter notice shall be satisfactory to the
Trustee).
SECTION 3.02 Selection of Notes to Be Redeemed. If less than
-------------------------------------------------
all the Notes are to be redeemed, the Trustee shall select the Notes to be
redeemed pro rata or by lot or by any other method the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Notes are then listed). The Trustee shall make
the selection at least 15 days but not more than 60 days before the
Redemption Date from outstanding Notes not previously called for redemption.
The Trustee may select for redemption portions of the principal amount of
Notes that have denominations equal to or larger than $1,000.
Notes and portions of Notes the Trustee selects shall be in
principal amounts of $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to Notes called for redemption also apply to
portions of Notes called for redemption. The Trustee shall notify the
Company promptly of the Notes or portions of Notes to be redeemed.
If any Note selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of
the Note so selected, the converted portion of such Note shall be deemed
(so far as may be) to be the portion selected for redemption. Notes which
have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection.
SECTION 3.03 Notice of Redemption. At least 30 days but not
------------------------------------
more than 60 days before a Redemption Date, the Company shall mail a notice
of redemption by first-class mail, postage prepaid, to each Holder of Notes
to be redeemed at the Holder's registered address.
The notice shall identify the Notes to be redeemed and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Price;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Notes called for redemption may be surrendered for
conversion at any time before the close of business on the Business Day
immediately preceding the Redemption Date;
(6) that Holders who want to convert Notes must satisfy the
requirements set forth in paragraph 8 of the Notes;
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(7) that Notes called for redemption must be surrendered to the
Paying Agent to collect the Redemption Price;
(8) if fewer than all the outstanding Notes are to be redeemed, the
certificate number and principal amounts of the particular Notes to be
redeemed;
(9) that, unless the Company defaults in making payment of such
Redemption Price, any interest on Notes called for redemption will cease
to accrue on and after the Redemption Date; and
(10) the CUSIP number of the Notes.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that
the Company makes such request at least three Business Days prior to the date
of such notice of redemption.
SECTION 3.04 Effect of Notice of Redemption. Once notice of
----------------------------------------------
redemption is given, the Notes called for redemption become due and payable
on the Redemption Date and at the Redemption Price stated in the notice,
except for Notes which are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, the Notes called for
redemption shall be paid at the Redemption Price stated in the notice.
SECTION 3.05 Deposit of Redemption Price. Prior to 10:00 a.m.
-------------------------------------------
(New York City time) on the Redemption Date, the Company shall deposit with
the Paying Agent (or if the Company or a Subsidiary or an Affiliate of either
of them is the Paying Agent, shall segregate and hold in trust) money
sufficient to pay the Redemption Price of all Notes to be redeemed on that
date other than Notes or portions of Notes called for redemption which on or
prior thereto have been delivered by the Company to the Trustee for
cancellation or have been converted. The Paying Agent shall as promptly as
practicable return to the Company any money, with interest, if any, thereon,
not required for that purpose because of conversion of Notes pursuant to
Article 10. If such money is then held by the Company in trust and is not
required for such purpose, it shall be discharged from such trust.
SECTION 3.06 Notes Redeemed in Part. Upon surrender of a Note
--------------------------------------
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Note in an authorized
denomination equal in principal amount to the unredeemed portion of the Note
surrendered.
SECTION 3.07 Conversion Arrangement on Call for Redemption. In
-------------------------------------------------------------
connection with any redemption of Notes, the Company may arrange for the
purchase and conversion of any Notes called for redemption by an agreement
with one or more investment banks or other purchasers to purchase such Notes
by paying to the Trustee in trust for the Noteholders, on or prior to 10:00
a.m. New York City time on the Redemption Date, an amount that, together with
any amounts deposited with the Trustee by the Company for the redemption of
such Notes, is not less than the Redemption Price of such Notes.
Notwithstanding anything to the contrary contained in this Article 3, the
obligation of the Company to pay the Redemption Price of such Notes shall
be deemed to be satisfied and discharged to the extent such amount is so paid
by such purchasers. If such an agreement is entered into, any Notes not duly
surrendered
23
for conversion by the Holders thereof may, at the option of the Company, be
deemed, to the fullest extent permitted by law, to be acquired by such
purchasers from such Holders and (notwithstanding anything to the contrary
contained in Article 10) surrendered by such purchasers for conversion, all
as of immediately prior to the close of business on the Redemption Date,
subject to payment of the above amount as aforesaid. The Trustee shall hold
and pay to the Holders whose Notes are selected for redemption any such
amount paid to it for purchase and conversion in the same manner as it would
moneys deposited with it by the Company for the redemption of Notes. Without
the Trustee's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any Notes shall increase
or otherwise affect any of the powers, duties, responsibilities or
obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Notes between the Company and such
purchasers, including the costs and expenses incurred by the Trustee in the
defense of any claim or liability arising out of or in connection with the
exercise or performance of any of its powers, duties, responsibilities or
obligations under this Indenture.
SECTION 3.08 Repurchase of Notes at the Option of the Holder.
---------------------------------------------------------------
(a) If a Holder exercises its right to require the Company to repurchase the
Notes, the Notes shall be repurchased by the Company on March 19, 2007, March
19, 2012, and March 19, 2017 (each, a "Repurchase Date"), at the purchase
price of 100% of the principal amount of the Notes to be repurchased,
together with interest accrued and unpaid to, but excluding, the Repurchase
Date (the "Repurchase Price"), at the option of the Holder thereof, upon:
(1) (i) delivery to the Paying Agent, by the Holder, of a
written notice of repurchase (a "Repurchase Notice") at any time from
the opening of business on the date that is 20 Business Days prior to a
Repurchase Date until the close of business on the Business Day
immediately preceding such Repurchase Date stating:
(A) the certificate number of the Note which the Holder will
deliver to be repurchased,
(B) the portion of the principal amount of the Note which
the Holder will deliver to be repurchased, which portion must be a
principal amount of $1,000 or an integral multiple thereof,
(C) that such Note shall be purchased as of the Repurchase
Date pursuant to the terms and conditions specified in the Notes;
and
(2) delivery of such Note to the Paying Agent prior to, on or
after the Repurchase Date (together with all necessary endorsements) at the
offices of the Paying Agent, such delivery being a condition to receipt by
the Holder of the Repurchase Price therefor; provided, however, that such
Repurchase Price shall be so paid pursuant to this Section 3.08 only if the
Note so delivered to the Paying Agent shall conform in all respects to the
description thereof in the related Repurchase Notice.
Whenever in this Indenture (including Sections 2.01, 6.01(1)
and 6.07) or Exhibit A-1 annexed hereto there is a reference, in any context,
to the principal of any Note as of any time, such reference shall be deemed
to include reference to the Repurchase Price payable in respect to such Note
to the extent that such Repurchase Price is, was or would be so payable at
such time, and express mention of the Repurchase Price in any provision of
this Indenture shall not be construed as excluding the Repurchase Price in
those provisions of this Indenture when such express mention is not made.
The Company shall purchase from the Holder thereof, pursuant
to this Section 3.08, a portion of a Note if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the
purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.08 shall be consummated by the delivery of the
consideration to be received by the Holder as promptly as practicable
following the later of the Purchase Date and the time of delivery of the
Note.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Repurchase Notice contemplated by this
Section 3.08(a) shall have the right to withdraw such Repurchase Notice at
any time prior to the close of business on the Repurchase Date by delivery
of a written notice of withdrawal to the Paying Agent in accordance with
Section 3.10.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Repurchase Notice or written notice of withdrawal
thereof.
(b) Not less than 20 Business Days prior to the applicable
Repurchase Date (the "Company Notice Date"), the Company shall send a notice
(the "Company Notice") to Holders (and to beneficial owners as required by
applicable law). The Company Notice shall include a form of Purchase Notice
to be completed by a Noteholder that wishes to exercise its option to have
the Company repurchase the Notes and shall state:
(i) the Repurchase Price and the Conversion Price;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Notes as to which a Repurchase Notice has been given may
be converted pursuant to Article 10 only if any applicable Repurchase
Notice has been withdrawn in accordance with the terms of the Indenture;
(iv) that Notes must be surrendered to the Paying Agent to collect
payment of the Repurchase Price;
(v) that the Repurchase Price for any Note as to which a
Repurchase Notice has been given and not withdrawn will be paid as
promptly as practicable following the later of the Repurchase Date
and the time of surrender of such Note as described in (iv);
25
(vi) the procedures the Holder must follow to exercise rights under
this Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Notes and that Holders
who want to convert Notes must satisfy the requirements set forth in
paragraph 8 in the Notes;
(viii) the procedures for withdrawing a Repurchase Notice; and
(ix) the CUSIP number of the Notes.
At the Company's request and upon being provided with a copy
of such Company Notice, the Trustee shall give such Company Notice in the
Company's name and at the Company's expense, provided that the Company makes
such request at least 15 days (unless a shorter period shall be acceptable
to the Trustee) prior to the date such Company Notice must be mailed; and
provided, further, that, in all cases, the text of such Company Notice shall
be prepared by the Company.
SECTION 3.09 Repurchase of Notes at Option of the Holder upon
----------------------------------------------------------------
Change in Control. If there shall have occurred a Change in Control,
-----------------
all or any portion of the Notes of any Holder equal to $1,000 or a whole
multiple of $1,000, not previously called for redemption, shall be repurchased
by the Company, at the option of such Holder, at a repurchase price equal to
100% of the principal amount of the Notes to be repurchased, together with
interest accrued and unpaid to, but excluding, the repurchase date (the
"Change in Control Repurchase Price"), on the date (the "Change in Control
Repurchase Date") that is 45 days after the date of delivery by the Company
of the notice described in Section 3.09(b); provided, however, that
installments of interest on Notes whose Stated Maturity is prior to or on
the Change in Control Repurchase Date shall be payable to the Holders of
such Notes, or one or more predecessor Notes, registered as such on the
relevant Regular Record Date according to their terms.
Whenever in this Indenture (including Sections 2.01, 6.01(1) and
6.07) or Exhibit A-1 annexed hereto there is a reference, in any context, to
the principal of any Note as of any time, such reference shall be deemed to
include reference to the Change in Control Repurchase Price payable in
respect to such Note to the extent that such Change in Control Repurchase
Price is, was or would be so payable at such time, and express mention of
the Change in Control Repurchase Price in any provision of this Indenture
shall not be construed as excluding the Change in Control Repurchase Price
in those provisions of this Indenture when such express mention is not made.
A "Change in Control" of the Company shall be deemed to have
occurred at such time as any of the following events shall occur:
(i) the acquisition by any person, including any syndicate or group
deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of beneficial
ownership, directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions of shares of the
Capital Stock of the Company entitling that person to exercise 50% or
more of the total voting power of all shares of such Capital Stock
entitled to vote generally in elections of
26
directors, other than any acquisition by the Company, any of its
subsidiaries or any of the employee benefit plans;
(ii) the Company's Common Shares (1) cease to be listed, traded
or quoted on a national securities exchange, the Nasdaq National Market,
any other quotation system or over-the-counter market or (2) cease to be
registered under the Exchange Act; or
(iii) any consolidation or merger of the Company with or into any
other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than:
(A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Company's Capital Stock and (2) pursuant
to which holders of the Capital Stock immediately prior to the
transaction have the entitlement to exercise, directly or
indirectly, 50% or more of the total voting power of all shares of
the Capital Stock entitled to vote generally in the election of
directors of the continuing or surviving person immediately after
the transaction; and
(B) any merger solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding Common
Shares solely into common shares of the surviving entity.
(b) Unless the Company shall have theretofore called for redemption
all of the outstanding Notes, prior to or on the 30th day after the
occurrence of a Change in Control, the Company, or, at the written request
and expense of the Company prior to or on the 30th day after such occurrence,
the Trustee, shall give to all Noteholders, in the manner provided in Section
11.02, notice of the occurrence of the Change in Control and of the
repurchase right set forth herein arising as a result thereof. The Company
shall also deliver a copy of such notice of a repurchase right to the
Trustee. The notice shall include a form of Change in Control Repurchase
Notice to be completed by the Noteholder and shall state:
(1) briefly, the events causing a Change in Control and the date of
such Change in Control;
(2) the date by which the Change in Control Repurchase Notice
pursuant to this Section 3.09 must be given;
(3) the Change in Control Repurchase Date;
(4) the Change in Control Repurchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Price and any adjustments thereto;
27
(7) that Notes as to which a Change in Control Repurchase Notice
has been given may be converted pursuant to Article 10 only if the
Change in Control Repurchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(8) that Notes must be surrendered to the Paying Agent to collect
payment;
(9) that the Change in Control Repurchase Price for any Note as to
which a Change in Control Repurchase Notice has been duly given and not
withdrawn will be paid promptly following the later of the Change in
Control Repurchase Date and the time of surrender of such Note as
described in (8) above;
(10) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.09 and a brief description of those rights;
(11) briefly, the conversion rights of the Notes and that Holders
who want to convert Notes must satisfy the requirements set forth in
paragraph 8 in the Notes;
(12) the procedures for withdrawing a Change in Control Repurchase
Notice;
(13) that, unless the Company defaults in making payment of such
Redemption Price, interest on Notes called for redemption will cease to
accrue on and after the Redemption Date; and
(14) the CUSIP number of the Notes.
(c) A Holder may exercise its rights specified in Section 3.09(a)
upon delivery of a written notice of purchase (a "Change in Control
Repurchase Notice") to the Paying Agent at any time prior to the close of
business on the Business Day immediately preceding the Change in Control
Repurchase Date, stating:
(1) the certificate number of the Note which the Holder will deliver
to be purchased;
(2) the portion of the principal amount of the Note which the Holder
will deliver to be purchased, which portion must be $1,000 or an integral
multiple thereof; and
(3) that such Note shall be purchased pursuant to the terms and
conditions specified in paragraph 6 of the Notes.
The delivery of such Note to the Paying Agent prior to, on or
after the Change in Control Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent shall be a condition to the
receipt by the Holder of the Change in Control Repurchase Price therefor;
provided, however, that such Change in Control Repurchase Price shall be so
paid pursuant to this Section 3.09 only if the Note so delivered to the
Paying Agent shall conform in all respects to the description thereof set
forth in the related Change in Control Repurchase Notice.
28
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.09, a portion of a Note if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the
purchase of such portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.09 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of
the Change in Control Repurchase Date and the time of delivery of the Note
to the Paying Agent in accordance with this Section 3.09.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Repurchase Notice
contemplated by this Section 3.09(c) shall have the right to withdraw such
Change in Control Repurchase Notice at any time prior to the close of
business on the Change in Control Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt
by it of any Change in Control Repurchase Notice or written withdrawal
thereof.
SECTION 3.10 Effect of Repurchase Notice or Change in Control
----------------------------------------------------------------
Repurchase Notice. Upon receipt by the Paying Agent of the
-----------------
Repurchase Notice specified in Section 3.08 or the Change in Control Repurchase
Notice specified in Section 3.09(c), the Holder of the Note in respect of which
such Repurchase Notice or Change in Control Repurchase Notice was given shall
(unless such Repurchase Notice or Change in Control Repurchase Notice is
withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Repurchase Price or Change in Control
Repurchase Price with respect to such Note. Such Repurchase Price or Change
in Control Repurchase Price shall be paid to such Holder, subject to receipt
of funds and/or such Note by the Paying Agent, promptly following the later
of (x) the Repurchase Date or Change in Control Repurchase Date, as the case
may be, with respect to such Note (provided the conditions in Section 3.08
or 3.09(c), as applicable, have been satisfied) and (y) the time of delivery
of such Note to the Paying Agent by the Holder thereof in the manner
required by Section 3.08 or 3.09(c), as applicable. Notes in respect of
which a Repurchase Notice or Change in Control Repurchase Notice has been
given by the Holder thereof may not be converted pursuant to Article 10 on
or after the date of the delivery of such Repurchase Notice or Change in
Control Repurchase Notice unless such Repurchase Notice or Change in Control
Repurchase Notice has first been validly withdrawn as specified in the
following two paragraphs.
A Repurchase Notice or Change in Control Repurchase Notice may be
withdrawn by means of a written notice of withdrawal delivered to the office
of the Paying Agent in accordance with the Repurchase Notice or Change in
Control Repurchase Notice, as the case may be, at any time prior to the close
of business on the Repurchase Date or Change in Control Repurchase Date, as
the case may be, specifying:
(1) the certificate number of the Note in respect of which such
notice of withdrawal is being submitted,
29
(2) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted,
(3) the principal amount, if any, of such Note which remains
subject to the original Repurchase Notice or Change in Control
Repurchase Notice, as the case may be, and which has been or will be
delivered for purchase by the Company; and
(4) that such Repurchase Notice or Change in Control Repurchase
Notice is being withdrawn.
There shall be no repurchase of any Notes pursuant to Section 3.08
or Section 3.09 if there has occurred (prior to, on or after, as the case
may be, the giving, by the Holders of such Notes, of the required Repurchase
Notice or Change in Control Repurchase Notice) and is continuing an Event of
Default (other than a default in the payment of the Repurchase Price or
Change in Control Repurchase Price, as the case may be, with respect to such
Notes). The Paying Agent will promptly return to the respective Holders
thereof any Notes (x) with respect to which a Repurchase Notice or Change in
ontrol Repurchase Notice, as the case may be, has been withdrawn in
compliance with this Indenture, or (y) held by it during the continuance of
an Event of Default (other than a default in the payment of the Repurchase
Price or Change in Control Repurchase Price, as the case may be, with
respect to such Notes) in which case, upon such return, the Repurchase Notice
or Change in Control Repurchase Notice, as the case may be, with respect
thereto shall be deemed to have been withdrawn.
SECTION 3.11 Deposit of Repurchase Price or Change in Control
----------------------------------------------------------------
Repurchase Price. Prior to 10:00 a.m. (New York City time) on the
----------------
Repurchase Date or Change in Control Repurchase Date, as the case may be, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04)
an amount of money (in immediately available funds if deposited on such
Business Day) sufficient to pay the aggregate Repurchase Price or Change in
Control Repurchase Price of all the Notes or portions thereof which are to be
purchased as of the Repurchase Date or Change in Control Repurchase Date, as
the case may be.
SECTION 3.12 Notes Purchased in Part. Any Note which 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 Note, without service charge,
a new Note or Notes, of any authorized denomination as requested by such
Holder in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Note so surrendered which is not
purchased.
SECTION 3.13 Covenant to Comply with Securities Laws upon
------------------------------------------------------------
Purchase of Notes. In connection with any offer to purchase or
-----------------
repurchase of Notes under Section 3.08 or Section 3.09 (provided that such
offer or purchase constitutes an "issuer tender offer" for purposes of Rule
13e-4 (which term, as used herein, includes any successor provision thereto)
30
under the Exchange Act at the time of such offer or purchase), the Company
shall (i) comply with Rule 13e-4, Rule 14e-1 and any other tender offer rules
under the Exchange Act which may then be applicable, (ii) file the related
Schedule TO (or any successor schedule, form or report) or any other
schedule required under the Exchange Act, and (iii) otherwise comply with
all federal and state securities laws so as to permit the rights and
obligations under Section 3.08 or Section 3.09, as the case may be, to be
exercised in the time and in the manner specified in Section 3.08 or Section
3.09, as applicable.
SECTION 3.14 Repayment to the Company. The Trustee and the
----------------------------------------
Paying Agent shall return to the Company any cash that remains unclaimed as
provided in paragraph 12 of the Notes, together with interest, if any,
thereon, held by them for the payment of the Repurchase Price or Change in
Control Repurchase Price; provided, however, that to the extent that the
aggregate amount of cash deposited by the Company pursuant to Section 3.11
exceeds the aggregate Repurchase Price or Change in Control Repurchase Price
of the Notes or portions thereof which the Company is obligated to purchase
as of the Repurchase Date or Change in Control Repurchase Date (as the case
may be) then promptly after the Business Day following the Repurchase Date
or Change in Control Repurchase Date (as applicable) the Trustee shall
return any such excess to the Company together with interest, if any, thereon.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the Notes.
--------------------------------------------------------------------
The Company will duly and punctually pay the principal of and premium, if any,
and interest on the Notes in accordance with the terms of the Notes and this
Indenture. The Company will deposit or cause to be deposited with the
Trustee as directed by the Trustee, no later than one Business Day prior to
the Stated Maturity of any Note, all payments so due. Principal amount,
Redemption Price, Repurchase Price, Change in Control Repurchase Price, and
cash interest shall be considered paid on the applicable date due if on such
date the Trustee or the Paying Agent holds, in accordance with this Indenture,
money or Notes, if permitted hereunder, sufficient to pay all such amounts
then due.
The Company shall, to the extent permitted by law, pay cash interest
on overdue amounts at the rate per annum set forth in paragraph 1 of the
Notes, compounded semiannually, which interest shall accrue from the date such
overdue amount was originally due to the date payment of such amount,
including interest thereon, has been made or duly provided for. All such
interest shall be payable on demand.
SECTION 4.02 SEC and Other Reports. The Company shall file with
-------------------------------------
the Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
and quarterly reports and of the information, documents and other reports (or
copies of such portions of any of the foregoing as the SEC may by rules and
regulations prescribe) which the Company is required to file with the SEC
pursuant to Section 13 or 15(d) of the Exchange Act. The Company also shall
comply with the other provisions of TIA Section 314(a).
31
SECTION 4.03 Compliance Certificate. The Company shall deliver
--------------------------------------
to the Trustee within 120 days after the end of each fiscal year of the
Company (beginning with the fiscal year ending on December 31, 2002) an
Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance
of any of the terms, provisions and conditions of this Indenture (without
regard to any period of grace or requirement of notice provided hereunder)
and if the Company shall be in default, specifying all such defaults and the
nature and status thereof of which they may have knowledge.
SECTION 4.04 Further Instruments and Acts. Upon request of the
--------------------------------------------
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency. The Company will
-----------------------------------------------
maintain in the Borough of Manhattan, the City of New York, an office or
agency of the Trustee, Registrar, Paying Agent and Conversion Agent where
Notes may be presented or surrendered for payment, where Notes may be
surrendered for registration of transfer, exchange, purchase, redemption or
conversion and where notices and demands to or upon the Company in respect of
the Notes and this Indenture may be served. The office of HSBC Bank USA,
452 Fifth Avenue, New York, New York, 10018, Attention: Issuer Services,
shall initially be such office or agency for all of the aforesaid purposes.
The Company shall give prompt written notice to the Trustee of any change in
the location of any such office or agency (other than a change in the
location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish
the Trustee with the address thereof, such presentations, surrenders, notices
and demands may be made or served at the address of the Trustee set forth in
Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Notes 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 4.06 Delivery of Certain Information. At any time when
-----------------------------------------------
the Company is not subject to Section 13 or 15(d) of the Exchange Act, upon
the request of a holder or any beneficial holder of Notes or Common Shares
issued upon conversion thereof, the Company will promptly furnish or cause to
be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Notes or holder of Common Shares issued upon conversion
of Notes, or to a prospective purchaser of any such security designated by
any such holder, as the case may be, to the extent required to permit
compliance by such Holder or holder with Rule 144A under the Securities Act
in connection with the resale of any such security. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under
the Securities Act.
32
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets. The
---------------------------------------------------------
Company shall not consolidate with, merge with or into any other person or
convey, transfer or lease its properties and assets substantially as an
entirety to any person, unless:
(a) either (1) the Company shall be the continuing corporation or
(2) the person (if other than the Company) formed by such consolidation
or into which the Company is merged or the person which acquires by
conveyance, transfer or lease the properties and assets of the Company
substantially as an entirety (i) shall be organized and validly existing
under the laws of the United States or any State thereof or the District
of Columbia and (ii) shall expressly assume, by an indenture supplemental
hereto, executed and delivered to the Trustee, in form satisfactory to
the Trustee, all of the obligations of the Company under the Notes and
this Indenture;
(b) at the time of such transaction, no Event of Default and no
event which, after notice or lapse of time, would become an Event of
Default, shall have happened and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture, comply with this Article 5 and that all
conditions precedent herein provided for relating to such transaction
have been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of
all or substantially all of the properties and assets of the Company.
The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same
effect as if such successor had been named as the Company herein; and
thereafter, except in the case of a lease and obligations the Company may
have under a supplemental indenture pursuant to Section 10.11, the Company
shall be discharged from all obligations and covenants under this Indenture
and the Notes. Subject to Section 9.06, the Company, the Trustee and the
successor person shall enter into a supplemental indenture to evidence the
succession and substitution of such successor person and such discharge and
release of the Company.
33
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" occurs if:
---------------------------------
(1) the Company fails to pay when due the principal of or premium,
if any, on any of the Notes at maturity, upon redemption or exercise of a
repurchase right or otherwise;
(2) the Company fails to pay an installment of interest (including
liquidated damages, if any) on any of the Notes that continues for 30
days after the date when due;
(3) the Company fails to deliver Common Shares, together with cash
in lieu of fractional Common Shares, when such Common Shares or cash in
lieu of fractional Common Shares is required to be delivered upon
conversion of a Note and such failure continues for 10 days after the
required delivery date;
(4) the Company fails to perform or observe any other term,
covenant or agreement contained in the Notes or this Indenture for a
period of 60 days after receipt by the Company of a Notice of Default
(as defined in this Section 6.01);
(5) (A) one or more defaults in the payment of principal of or
premium, if any, on any of the Company's Indebtedness aggregating $10
million or more, when the same becomes due and payable at the scheduled
maturity thereof, and such default or defaults shall have continued
after any applicable grace period and shall not have been cured or
waived within a 30-day period after the date of such default or (B) any
of the Company's Indebtedness aggregating $10 million or more shall
have been accelerated or otherwise declared due and payable, or required
to be prepaid or repurchased (other than by regularly scheduled required
prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after
the date of such acceleration;
(6) a failure to provide timely notice of a Change in Control;
(7) the Company, or any Significant Subsidiary, or any Subsidiaries
of the Company which in the aggregate would constitute a Significant
Subsidiary, pursuant to or under or within the meaning of any Bankruptcy
Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief against it in
an involuntary case or proceeding or the commencement of any case
against it;
(C) consents to the appointment of a Custodian of it or for
any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
34
(E) files a petition in bankruptcy or answer or consent or
similar pleading or document seeking reorganization or relief; or
(F) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian; and
(8) a court of competent jurisdiction enters an order or decree
under any Bankruptcy Law that:
(A) is for relief in an involuntary case or proceeding against
the Company or any Significant Subsidiary or any Subsidiaries of the
Company which in aggregate would constitute a Significant Subsidiary
or adjudicates the Company or any Significant Subsidiary or any
Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary insolvent or bankrupt;
(B) appoints a Custodian of the Company or any Significant
Subsidiary or any Subsidiaries of the Company which in the aggregate
would constitute a Significant Subsidiary or for any substantial part
of its or their properties; or
(C) orders the winding up or liquidation of the Company or any
Significant Subsidiary or any Subsidiaries of the Company which in
the aggregate would constitute a Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors, including without limitation
state laws relating to insolvency, liquidation, rehabilitation or receivership
of insurance companies.
"Custodian" means any receiver, trustee, assignee, liquidator,
rehabilitator, custodian or similar official under any Bankruptcy Law.
A Default under clause (4) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding notify the Company and
the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (4) above
after actual receipt of such notice. Any such notice must specify the
Default, demand that it be remedied and state that such notice is a "Notice
of Default".
The Company will deliver to the Trustee, within five Business Days
of becoming aware of the occurrence of an Event of Default, written notice
thereof. In addition, 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 lapse of time would become an Event of Default under
clause (4) above, its status and what action the Company is taking or
proposes to take with respect thereto.
35
SECTION 6.02 Acceleration. If an Event of Default (other than
----------------------------
an Event of Default specified in Section 6.01(7) or (8)) occurs and is
continuing, the Trustee by notice to the Company, or the Holders of at least
25% in aggregate principal amount of the Notes at the time outstanding by
notice to the Company and the Trustee, may declare all of the outstanding
Notes immediately due and payable at their principal amount together with
accrued interest. Upon such declaration of acceleration, such principal
and accrued and unpaid interest to the date of payment shall be immediately
due and payable.
If an Event of Default specified in Section 6.01(7) or (8) above
occurs and is continuing, then the principal and the interest on all the
Notes shall become and be immediately due and payable without any declaration
or other act on the part of the Trustee or any Noteholders.
The Holders of a majority in aggregate principal amount of the Notes
at the time outstanding, by written notice to the Trustee (and without notice
to any other Noteholder) may rescind or annul an acceleration and its
consequences if the rescission would not conflict with any judgment or decree
and if all existing Events of Default have been cured or waived except
nonpayment of the principal and any accrued cash interest that have become
due solely as a result of acceleration and if all amounts due to the Trustee
under Section 7.06 have been paid. No such rescission shall affect any
subsequent Default or impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and
------------------------------
is continuing, the Trustee may pursue any available remedy to collect the
payment of the principal, the premium, if any, and any accrued cash interest
on the Notes or to enforce the performance of any provision of the Notes or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Notes or produce any of the Notes in the proceeding. A
delay or omission by the Trustee or any Noteholder in exercising any right or
remedy accruing upon an Event of Default shall not impair the right or remedy
or constitute a waiver of, or acquiescence in, the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are
cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority
---------------------------------------
in aggregate principal amount of the Notes at the time outstanding through
their written consent, by notice to the Trustee (and without notice to any
other Noteholder), may waive an existing Default and its consequences except
(1) an Event of Default described in Section 6.01(1) or (2), (2) a Default in
respect of a provision that under Section 9.02 cannot be amended without the
consent of each Noteholder affected or (3) a Default which constitutes a
failure to convert any Note 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
6.04 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 6.05 Control by Majority. The Holders of a majority in
----------------------------------
aggregate principal amount of the Notes 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
36
direction that conflicts with law or this Indenture or that the Trustee
determines in good faith is unduly prejudicial to the rights of other
Noteholders or would involve the Trustee in personal liability unless the
Trustee is offered indemnity satisfactory to it against loss, liability or
expense. This Section 6.05 shall be in lieu of Section 316(a)1(A) of the
TIA and such Section 316(a)1(A) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.06 Limitation on Suits. A Noteholder may not pursue
-----------------------------------
any remedy with respect to this Indenture or the Notes unless:
(1) the Holder gives to the Trustee written notice stating that
an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of
the Notes at the time outstanding make a written request to the Trustee
to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable security
or indemnity satisfactory to the Trustee against any loss, liability or
expense;
(4) the Trustee does not comply with the request within 60 days
after receipt of such notice, request and offer of security or indemnity;
and
(5) the Holders of a majority in aggregate principal amount of the
Notes at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Noteholder may not use this Indenture to prejudice the rights of any
other Noteholder or to obtain a preference or priority over any other
Noteholder, except in the manner provided in this Indenture.
SECTION 6.07 Rights of Holders to Receive Payment.
----------------------------------------------------
Notwithstanding any other provision of this Indenture, the right of any
Holder to receive payment of the principal amount, premium, if any, plus
Redemption Price, Repurchase Price, Change in Control Repurchase Price or any
accrued cash interest in respect of the Notes held by such Holder, on or
after the respective due dates expressed in the Notes or any Redemption Date,
and to convert the Notes 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 6.08 Collection Suit by Trustee. If an Event of
------------------------------------------
Default described in Section 6.01(1) or (2) occurs and is continuing, the
Trustee may recover judgment in its own name and as trustee of an express
trust against the Company for the whole amount owing with respect to the
Notes and the amounts provided for in Section 7.06.
SECTION 6.09 Trustee May File Proofs of Claim. In case of the
------------------------------------------------
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Notes or the
property of the Company or of such other obligor or their creditors, the
Trustee (irrespective of whether the principal amount, Repurchase Price,
Redemption Price,
37
Change in Control Repurchase Price or any accrued cash interest in respect of
the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have
made any demand on the Company for the payment of any such amount) shall be
entitled and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
principal amount, Repurchase Price, Redemption Price, Change in Control
Repurchase Price or any accrued cash interest and to file such other
papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel or any other amounts due the Trustee under Section
7.06) and of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the
Holders, to pay the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under Section 7.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the Notes
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money
-------------------------
pursuant to this Article 6, it shall pay out the money in the following order:
(1) to the Trustee for amounts due under Section 7.06;
(2) to Noteholders for amounts due and unpaid on the Notes for the
principal amount, Redemption Price, Repurchase Price, Change in Control
Purchase Price or any accrued cash interest as the case may be, ratably,
without preference or priority of any kind, according to such amounts
due and payable on the Notes; and
(3) the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment
to Noteholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Noteholder and the Company a
notice that states the record date, the payment date and the amount to be
paid.
SECTION 6.11 Undertaking for Costs. In any suit for the
------------------------------------
enforcement of any right or remedy under this Indenture or in any suit
against the Trustee for any action taken or omitted by it as Trustee, a court
in its discretion may require the filing by any party litigant
38
(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 6.07 or a suit by
Holders of more than 10% in aggregate principal amount of the Notes at the
time outstanding. This Section 6.11 shall be in lieu of Section 315(e) of
the TIA and such Section 315(e) is hereby expressly excluded from this
Indenture, as permitted by the TIA.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The
-------------------------------------------------------
Company covenants (to the extent that it may lawfully do so) that it will not
at any time insist upon, or plead, or in any manner whatsoever claim or take
the benefit or advantage of, any stay or extension law or any usury or other
law wherever enacted, now or at any time hereafter in force, which would
prohibit or forgive the Company from paying all or any portion of the
principal amount, Redemption Price, Repurchase Price, Change in Control
Repurchase Price or any accrued cash interest in respect of Notes, or any
interest on such 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 7.01 Duties and Responsibilities of the Trustee; During
------------------------------------------------------------------
Default; Prior to Default. The Trustee, prior to the occurrence of
-------------------------
an Event of Default hereunder and after the curing or waiving of all such
Events of Default which may have occurred, undertakes to perform such duties
and only such duties as are specifically set forth in this Indenture. In case
an Event of Default hereunder has occurred (which has not been cured or
waived), the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in
the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent
failure to act or its own willful misconduct, except that
(a) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all such Events of Default which may have
occurred:
(i) the duties and obligations of the Trustee shall be
determined solely by the express provisions of this Indenture, and
the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be read
into this Indenture against the Trustee; and
39
(ii) in the absence of bad faith on the part of the Trustee,
the Trustee may conclusively rely, as to the truth of the statements
and the correctness of the opinions expressed therein, upon any
statements, certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture; but in the case of
any such statements, certificates or opinions which by any provision
hereof are specifically required to be furnished to the Trustee,
the Trustee shall be under a duty to examine the same to determine
whether or not they conform to the requirements of this Indenture;
(b) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer or Responsible Officers of the
Trustee, unless it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(c) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders pursuant to Section 6.05 relating to the time,
method and place of conducting any proceeding for any remedy available
to the Trustee, or exercising any trust or power conferred upon the
Trustee, under this Indenture.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any
of its rights or powers, if there shall be reasonable grounds for believing
that the repayment of such funds or adequate indemnity against such liability
is not reasonably assured to it. Whether or not therein expressly so
provided, every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section 7.01.
The provisions of this Section 7.01 are in furtherance of and subject
to Sections 315 and 316 of the TIA.
SECTION 7.02 Certain Rights of the Trustee. In furtherance of
---------------------------------------------
and subject to the TIA and subject to Section 7.01:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, Officers' Certificate or any
other certificate, statement, instrument, opinion, report, direction,
notice, request, consent, order, bond, debenture, note, coupon, Note 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) any request, direction, order or demand of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or an
Officers' Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors may
be evidenced to the Trustee by a copy thereof certified by the secretary
or an assistant secretary of the Company;
(c) the Trustee may consult with counsel of its selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of
40
any action taken, suffered or omitted to be taken by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the
rights, trusts or powers vested in it by this Indenture with the request,
order or direction of any of the Noteholders pursuant to the provisions of
this Indenture, unless such Noteholders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred therein or thereby;
(e) the Trustee shall not be liable for any action taken or
omitted by it in good faith and believed by it to be authorized or
within the discretion, rights or powers conferred upon it by this
Indenture;
(f) prior to the occurrence of an Event of Default hereunder and
after the curing or waiving of all such Events of Default, 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, consent, order, approval, appraisal, bond,
debenture, note, coupon, security, or other paper or document unless
requested in writing to do so by the Holders of not less than a
majority in aggregate principal amount of the Notes then outstanding;
provided that, if the payment within a reasonable time to the Trustee
of the costs, expenses or liabilities likely to be incurred by it in
the making of such investigation is, in the opinion of the Trustee, not
reasonably assured to the Trustee by the security afforded to it by the
terms of this Indenture, the Trustee may require reasonable indemnity
against such costs, expenses or liabilities as a condition to
proceeding; the reasonable costs, expenses and liabilities of every
such investigation shall be paid by the Company or, if paid by the
Trustee or any predecessor trustee, shall be repaid by the Company
upon demand; and
(g) 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 not regularly in its employ and the Trustee shall not be
responsible for any misconduct or negligence on the part of any such
agent or attorney appointed with due care by it hereunder.
SECTION 7.03 Trustee Not Responsible for Recitals, Disposition of
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Notes or Application of Proceeds Thereof. The recitals contained
----------------------------------------
herein and in the Notes, except the Trustee's certificates of authentication,
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representation as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by
the Company of any of the Notes or of the proceeds thereof.
SECTION 7.04 Trustee and Agents May Hold Notes; Collections, etc.
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The Trustee or any agent of the Company or the Trustee, in its individual or
any other capacity, may become the owner or pledgee of Notes with the same
rights it would have if it were not the Trustee or such agent and, subject to
Sections 7.08 and 7.13, if operative, may otherwise deal with the Company and
receive, collect, hold and retain collections from the Company with the same
rights it would have if it were not the Trustee or such agent.
41
SECTION 7.05 Moneys Held by Trustee. Suject to the provisions
--------------------------------------
of Section 8.02, all moneys received by the Trustee shall, until used or
applied as herein provided, be held in trust for the purposes for which they
were received, but need not be segregated from other funds except to the
extent specifically required by this Indenture or by mandatory provisions of
law. Neither the Trustee nor any agent of the Company or the Trustee shall
be under any liability for interest on any moneys received by it hereunder.
SECTION 7.06 Compensation and Indemnification of Trustee and Its
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Prior Claim. The Company covenants and agrees to pay to the
-----------
Trustee from time to time, and the Trustee shall be entitled to, such
compensation (which shall not be limited by any provision of law in regard
to the compensation of a trustee of an express trust) to be agreed to in
writing by the Trustee and the Company, and the Company covenants and agrees
to pay or reimburse the Trustee and each predecessor Trustee upon its request
for all reasonable expenses, disbursements and advances incurred or made by or
on behalf of it in accordance with any of the provisions of this Indenture
(including (i) the reasonable compensation and the expenses and
disbursements of its counsel and of all agents and other persons not
regularly in its employ and (ii) interest at the prime rate on any
disbursements and advances made by the Trustee and not paid by the Company
within 15 days after receipt of an invoice for such disbursement or advance)
except any such expense, disbursement or advance as may arise from its
negligence or bad faith. The Company also covenants to indemnify the
Trustee and each predecessor Trustee for, and to hold it harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this Indenture or the trusts hereunder and its duties
hereunder, including the costs and expenses of defending itself against or
investigating any claim of liability in the premises. As security for the
performance of the obligations of the Company under this Section, the
Trustee shall have a lien prior to the Notes upon all property and funds
held or collected by the Trustee as such, except funds held in trust for the
benefit of the Holders of particular Notes, and the Notes are hereby
effectively subordinated to such senior claim to such extent. The provisions
of this Section 7.06 shall survive the termination of this Indenture.
SECTION 7.07 Right of Trustee to Rely on Officers' Certificate,
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etc. Subject to Sections 7.01 and 7.02, whenever in the
---
administration of the trusts of this Indenture the Trustee shall deem it
necessary or desirable that a matter be proved or established prior to
taking or suffering or omitting any action hereunder, such matter (unless
other evidence in respect thereof be herein specifically prescribed) may, in
the absence of negligence or bad faith on the part of the Trustee, be deemed
to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee, and such certificate, in the absence of negligence
or bad faith on the part of the Trustee, shall be full warrant to the
Trustee for any action taken, suffered or omitted by it under the provisions
of this Indenture upon the faith thereof.
SECTION 7.08 Conflicting Interests. If the Trustee has or shall
-------------------------------------
acquire a conflicting interest within the meaning of the TIA, the Trustee
shall either eliminate such interest or resign, to the extent and in the
manner provided by, and subject to the provisions of, the TIA.
SECTION 7.09 Persons Eligible for Appointment as Trustee. The
-----------------------------------------------------------
Trustee shall at all times be a corporation or banking association having a
combined capital and surplus of at least $50,000,000 and otherwise meeting
the requirements for eligibility as a trustee in the
42
TIA. If such corporation or banking association publishes reports of
condition at least annually, pursuant to law or to the requirements of the
supervising or examining authority, then, for the purposes of this Section
7.09, the combined capital and surplus of such corporation shall be deemed to
be its combined capital and surplus as set forth in its most recent report of
condition so published. In case at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section 7.09, the Trustee
shall resign immediately in the manner and with the effect specified in
Section 7.10.
SECTION 7.10 Resignation and Removal; Appointment of Successor
-----------------------------------------------------------------
Trustee. (a) The Trustee, or any trustee or trustees hereafter
-------
appointed, may at any time resign with respect to the Notes by giving
written notice of resignation to the Company and by mailing notice thereof
by first class mail to the Holders of Notes at their last addresses as they
shall appear on the Note register. Upon receiving such notice of
resignation, the Company shall promptly appoint a successor trustee or
trustees by written instrument in duplicate, executed by authority of the
Board of Directors, one copy of which instrument shall be delivered to the
resigning Trustee and one copy to the successor trustee or trustees. If no
successor trustee shall have been so appointed and have accepted appointment
within 30 days after the mailing of such notice of resignation, the
resigning trustee may petition any court of competent jurisdiction for the
appointment of a successor trustee, or any Noteholder who has been a bona
fide Holder of a Note for at least six months may, subject to the provisions
of Section 7.11, on behalf of himself and all others similarly situated,
petition any such court for the appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with the provisions of
Section 7.08 with respect to any Notes after written request therefor by
the Company or by any Noteholder who has been a bona fide Holder of a
Note for at least six months; or
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written
request therefor by the Company or by any Noteholder; or
(iii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent, or a receiver or liquidator of the
Trustee or of its property shall be appointed, or any public officer
shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation;
or
(iv) the Company shall determine in good faith that the Trustee has
failed to perform its obligations under this Indenture in any material
respect;
then, in any such case, the Company by Board Resolution may remove the
Trustee and appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors of the Company, one copy of
which instrument shall be delivered to the Trustee so removed and one copy
to the successor trustee, or, subject to the provisions of Section 7.11, any
Noteholder who has been a bona fide Holder of a Note for at least six months
may on behalf of himself and
43
all others similarly situated, petition any court of competent jurisdiction
for the removal of the Trustee and the appointment of a successor trustee.
Such court may thereupon, after such notice, if any, as it may deem proper
and prescribe, remove the Trustee and appoint a successor trustee. If no
successor trustee shall have been appointed and have accepted appointment
within 30 days after a notice of removal has been given, the removed trustee
may petition a court of competent jurisdiction for the appointment of a
successor trustee.
(c) The Holders of a majority in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and appoint
a successor trustee by delivering to the Trustee so removed, to the successor
trustee so appointed and to the Company the evidence provided for in Section
1.05 of the action in that regard taken by the Noteholders.
(d) Any resignation or removal of the Trustee and any appointment
of a successor trustee pursuant to any of the provisions of this Section 7.10
shall become effective upon acceptance of appointment by the successor trustee
as provided in Section 7.11.
SECTION 7.11 Acceptance of Appointment by Successor Trustee. Any
--------------------------------------------------------------
successor trustee appointed as provided in Section 7.10 shall execute and
deliver to the Company and to its predecessor trustee an instrument accepting
such appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all rights,
powers, duties and obligations of its predecessor hereunder, with like effect
as if originally named as trustee hereunder; but, nevertheless, on the
written request of the Company or of the successor trustee, upon payment of
its charges then unpaid, the trustee ceasing to act shall duly assign,
transfer and deliver to the successor trustee all property and moneys at the
time held by it hereunder and shall execute and deliver an instrument
transferring to such successor trustee all such rights, powers, duties and
obligations held by such retiring Trustee hereunder, subject nevertheless to
its lien, if any, provided for in Section 7.06. Upon request of any such
successor trustee, the Company shall execute any and all instruments in
writing for more fully and certainly vesting in and confirming to such
successor trustee all such rights and powers. Any trustee ceasing to act
shall, nevertheless, retain a prior claim upon all property or funds held or
collected by such trustee to secure any amounts then due it pursuant to the
provisions of Section 7.06.
No successor trustee shall accept appointment as provided in this
Section 7.11 unless at the time of such acceptance such successor trustee
shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09.
Upon acceptance of appointment by any successor trustee as provided
in this Section 7.11, the Company shall mail notice thereof by first class
mail to the Holders of Notes at their last addresses as they shall appear in
the register. If the acceptance of appointment is substantially
contemporaneous with the resignation, then the notice called for by the
preceding sentence may be combined with the notice called for by Section 7.10.
If the Company fails to mail such notice within ten days after acceptance of
appointment by the successor trustee, the successor trustee shall cause such
notice to be mailed at the expense of the Company.
44
SECTION 7.12 Merger, Conversion, Consolidation or Succession to
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Business of Trustee. Any corporation or banking association into
-------------------
which the Trustee may be merged or converted or with which it may be
consolidated, or any corporation or banking association resulting from any
merger, conversion or consolidation to which the Trustee shall be a party, or
any corporation or banking association succeeding to all or substantially all
of the corporate trust business of the Trustee, shall be the successor of the
Trustee hereunder, provided that such corporation or banking association
shall be qualified under the provisions of Section 7.08 and eligible under
the provisions of Section 7.09, without the execution or filing of any paper
or any further act on the part of any of the parties hereto, anything herein
to the contrary notwithstanding. In case at the time such successor to the
Trustee shall succeed to the trusts created by this Indenture any of the
Notes shall have been authenticated but not delivered, any such successor to
the Trustee may adopt the certificate of authentication of any predecessor
Trustee and deliver such Notes so authenticated; and, in case at that time
any of the Notes shall not have been authenticated, any successor to the
Trustee may authenticate such Notes either in the name of any predecessor
hereunder or in the name of the successor Trustee; and in all such cases
such certificate shall have the full force and effect that this Indenture
provides for the certificate of authentication of the Trustee; provided,
that the right to adopt the certificate of authentication of any predecessor
Trustee or to authenticate Notes in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
SECTION 7.13 Preferential Collection of Claims Against the
-------------------------------------------------------------
Company. The Trustee shall comply with the provisions of Section
-------
311 of the TIA.
SECTION 7.14 Reports by the Trustee. The Trustee shall transmit
--------------------------------------
to Holders and other persons such reports concerning the Trustee and its
actions under this Indenture as may be required pursuant to the TIA at such
times as any such report may be required by the TIA on or before July 15 in
each year that such report is required, such reports to be dated as of the
immediately preceding May 15. The Trustee also shall comply with TIA Section
313, as applicable.
(b) A copy of each such report shall, at the time of such
transmission to Noteholders, be furnished to the Company and be filed by the
Trustee with each stock exchange upon which the Notes are listed and also
with the SEC. The Company agrees to notify the Trustee when and as the Notes
become admitted to trading on any national securities exchange or automated
inter-dealer quotation system.
SECTION 7.15 Trustee to Give Notice of Default, But May Withhold
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in Certain Circumstances. The Trustee shall transmit to the Noteholders, as
- ------------------------
the names and addresses of such Holders appear on the Note register, notice by
mail of all Defaults which have occurred, such notice to be transmitted
within 90 days after the occurrence thereof, unless such Defaults shall have
been cured before the giving of such notice; provided that, except in the
case of Default in the payment of the principal of, interest on, or other
similar obligation with respect to, any of the Notes, the Trustee shall be
protected in withholding such notice if and so long as the board of
directors, the executive committee, or a trust committee of directors or
trustees and/or Responsible Officers of the Trustee in good faith determines
that the withholding of such notice is in the best interests of the
Noteholders.
45
SECTION 7.16 Enforcement of the Registration Rights Agreement.
----------------------------------------------------------------
The Trustee shall be entitled, on behalf of Holders of Notes or of Common
Shares issued upon conversion of Notes, to seek any available remedy for the
enforcement of the Registration Rights Agreement, including for the payment
of any "Liquidated Damages Amount" (as defined therein), as if the provisions
of the Registration Rights Agreement formed a part of this Indenture. The
Trustee, in seeking remedies for enforcement of the Registration Rights
Agreement, shall be entitled to rely on the provisions of this Indenture,
including without limitation Section 1.05 and the other provisions of this
Article 7.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Notes. If (i) all
-----------------------------------------------
outstanding Notes will become due and payable at their Stated Maturity within
one year; or (ii) all outstanding Notes are scheduled for redemption within
one year; and, in either case, the Company deposits with the Trustee cash
sufficient to pay and discharge all amounts due and owing on all outstanding
Notes (other than Notes replaced pursuant to Section 2.07) on the date of
their Stated Maturity or on the date of their scheduled redemption, and if in
either case the Company pays all other sums payable hereunder by the Company,
then this Indenture shall, subject to Section 7.06 and provided that the
Company shall remain obligated to issue its Common Shares upon conversion of
the Notes as provided in Article 10 of this Indenture, cease to be of further
effect. The Trustee shall join in the execution of a document prepared by
the Company acknowledging satisfaction and discharge of this Indenture on
demand of the Company accompanied by an Officers' Certificate and Opinion of
Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment of 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
Notes 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 and the
Trustee and the Paying Agent shall have no further liability to the
Noteholders with respect to such money or securities for that period
commencing after the return thereof.
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Company and the
------------------------------------------
Trustee may amend this Indenture or the Notes without the consent of any
Noteholder for the purposes of, among other things:
(1) adding to the Company's covenants for the benefit of the
Holders;
(2) surrendering any right or power conferred upon the Company;
(3) providing for conversion rights of Holders if any
reclassification or change of Common Shares or any consolidation,
merger or sale of all or substantially all of the Company's assets
occurs;
(4) providing for the assumption of the Company's obligations to
the Holders in the case of a merger, consolidation, conveyance, transfer
or lease;
(5) reducing the Conversion Price, provided that the reduction
will not adversely affect the interests of Holders in any material
respect;
(6) complying with the requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(7) making any changes or modifications to this Indenture necessary
in connection with the registration of the Notes under the Securities Act
as contemplated by the Registration Rights Agreement, provided that this
action does not adversely affect the interests of the Holders in any
material respect;
(8) curing any ambiguity or correcting or supplementing any
defective provision contained in this Indenture; provided that such
modification or amendment does not adversely affect the interests of the
Holders in any material respect;
(9) adding or modifying any other provisions which the Company
deems necessary or desirable and which will not adversely affect the
interests of the Holders in any material respect;
(10) complying with Article 5;
(11) providing for uncertificated Notes in addition to the
Certificated Notes so long as such uncertificated Notes are in registered
form for purposes of the Internal Revenue Code of 1986, as amended; or
(12) adding to the Company's covenants or obligations under this
Indenture for the protection of the Holders or surrendering any right,
power or option conferred by this Indenture on the Company.
SECTION 9.02 With Consent of Holders. With the written consent
---------------------------------------
of the Holders of at least a majority in aggregate principal amount of the
Notes at the time outstanding, the Company and the Trustee may amend this
Indenture or the Notes. However, without the consent of each Noteholder
affected, an amendment to this Indenture or the Notes may not:
(1) change the maturity of the principal of or any installment of
interest on any Note (including any payment of liquidated damages);
47
(2) reduce the principal amount of, or any premium or interest on
(including any payment of liquidated damages), or the Redemption Price,
Repurchase Price or Change in Control Repurchase Price with respect to any
Note;
(3) change the currency of payment of such Note or interest thereon;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to any Note;
(5) modify the Company's obligations to maintain an office or
agency in New York City;
(6) except as otherwise permitted or contemplated by provisions
concerning corporate reorganizations, adversely affect the repurchase
options of Holders or the conversion rights of Holders; or
(7) reduce the percentage in aggregate principal amount of Notes
outstanding necessary to modify or amend this Indenture or to waive any
past default.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 Compliance with Trust Indenture Act. Every
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supplemental indenture executed pursuant to this Article shall comply with
the TIA.
SECTION 9.04 Revocation and Effect of Consents, Waivers and
--------------------------------------------------------------
Actions. Until an amendment, waiver or other action by Holders
-------
becomes effective, a consent thereto by a Holder of a Note hereunder is a
continuing consent by the Holder and every subsequent Holder of that Note or
portion of the Note that evidences the same obligation as the consenting
Holder's Note, even if notation of the consent, waiver or action is not made
on the Note. However, any such Holder or subsequent Holder may revoke the
consent, waiver or action as to such Holder's Note or portion of the Note if
the Trustee receives the notice of revocation before the date the amendment,
waiver or action becomes effective. After an amendment, waiver or action
becomes effective, it shall bind every Noteholder.
SECTION 9.05 Notation on or Exchange of Notes. Notes authenticated
-----------------------------------------------
and delivered after the execution of any supplemental indenture pursuant to
this Article may, and shall if required by the Trustee, bear a notation in
form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Notes so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Notes.
48
SECTION 9.06 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 be entitled to receive, and (subject to the
provisions of Section 7.01) shall be fully protected in relying upon, an
Officers' Certificate and an Opinion of Counsel stating that such amendment
s authorized or permitted by this Indenture.
SECTION 9.07 Effect of Supplemental Indentures. Upon the
------------------------------------------------
execution of any supplemental indenture under this Article, this Indenture
shall be modified in accordance therewith, and such supplemental indenture
shall form a part of this Indenture for all purposes; and every Holder of
Notes theretofore or thereafter authenticated and delivered hereunder shall
be bound thereby.
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion Price. Subject to
-----------------------------------------------------
and upon compliance with the provisions of this Article 10, at the option of
the Holder thereof, any Note or any portion of the principal amount thereof
which is $1,000 or an integral multiple of $1,000 may be converted at any
time during the periods and subject to the conditions stated in paragraph 8
of the Notes at the principal amount thereof, or of such portion thereof,
into duly authorized, fully paid and nonassessable Common Shares, at the
Conversion Price, determined as hereinafter provided, in effect at the time
of conversion.
In case a Note or portion thereof is called for redemption, such
conversion right in respect of the Note or the portion so called, shall
expire at the close of business on the Business Day preceding the Redemption
Date, unless the Company defaults in making the payment due upon redemption.
In the case of a Change in Control for which the Holder exercises its
repurchase right with respect to a Note or portion thereof, such conversion
right in respect of the Note or portion thereof shall expire at the close of
business on the Business Day immediately preceding the Change in Control
Repurchase Date.
The price at which Common Shares shall be delivered upon conversion
(the "Conversion Price") shall be initially equal to $22.62 per Common Share.
The Conversion Price shall be adjusted in certain instances as provided in
paragraphs (a), (b), (c), (d), (e), (f), (g) and (i) of Section 10.04.
Upon a determination that Holders are or will be entitled to convert
their Notes into Common Shares in accordance with the provisions of this
Article 10, the Company shall issue a press release and publish such
information on its website.
SECTION 10.02 Exercise of Conversion Right. To exercise the
---------------------------------------------
conversion right, the Holder of any Note to be converted shall comply with
the procedures required by paragraph 8 of the Notes.
49
Notes surrendered for conversion (other than Notes called for
redemption) during the period from the close of business on any Regular
Record Date to the opening of business on the next succeeding Interest
Payment Date shall be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Company of an amount equal to the
interest to be received on such Interest Payment Date on the principal
amount of Notes being surrendered for conversion. No payment will be
required from a Holder if the Company elects to redeem the Notes.
Notes shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Notes for
conversion in accordance with the foregoing provisions (the "Conversion
Date"), and at such time the rights of the Holders of such Notes as Holders
shall cease, and the Person or Persons entitled to receive the Common Shares
issuable upon conversion shall be treated for all purposes as the record
holder or holders of such Common Shares at such time. As promptly as
practicable on or after the Conversion Date, the Company shall cause to be
issued and delivered to such Conversion Agent a certificate or certificates
for the number of full Common Shares issuable upon conversion, together with
payment in lieu of any fraction of a Common Share as provided in Section
10.03.
The delivery by the Company to the Holder of the full number of
Common Shares into which such Holder's Notes are convertible, together
with any cash payment for the Holder's fractional Common Shares, will be
deemed to satisfy the Company's obligation to pay the principal amount at
the Stated Maturity of such Holder's Notes.
In the case of any Note which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Note or
Notes of authorized denominations in aggregate principal amount equal to
the unconverted portion of the principal amount of the Notes submitted for
conversion.
If Common Shares to be issued upon conversion of a Restricted Note,
or securities to be issued upon conversion of a Restricted Note in part only,
are to be registered in a name other than that of the Holder of such
Restricted Note, such Holder must deliver to the Conversion Agent a
certificate in substantially the form set forth in Exhibit B, dated the date
of surrender of such Restricted Note and signed by such Holder, as to
compliance with the restrictions on transfer applicable to such Restricted
Note. Neither the Trustee nor any Conversion Agent, Registrar or Transfer
Agent shall be required to register in a name other than that of the Holder,
Common Shares or Notes issued upon conversion of any such Restricted Note
not so accompanied by a properly completed certificate.
If the Holder converts more than one Note at the same time, the
number of Common Shares issuable upon the conversion shall be based on the
total principal amount of the Notes converted.
A Note surrendered for conversion based on (a) the Common Share
price, may be surrendered for conversion until the close of business on the
final Business Day of any calendar quarter immediately following a Qualifying
Quarter (but in no event later than the close of business on the Business Day
immediately preceding the Stated Maturity of the principal of the
51
Note), (b) a credit downgrade or the absence, suspension or withdrawal of a
credit rating, may be surrendered for conversion until the close of business
on any Business Day during the period of the credit downgrade or the absence,
suspension or withdrawal of the credit rating as more fully described in
paragraph 8 in the Note, (c) the Note being called for redemption, may be
surrendered for conversion at any time prior to the close of business on the
Business Day immediately preceding the Redemption Date, even if it is not
otherwise convertible at such time, and (d) upon the occurrence of certain
corporate transactions more fully described in paragraph 8 in the Note, may
be surrendered for conversion at any time from and after the date which is 15
days prior to the anticipated effective date of such transaction until 15
days after the actual date of such transaction, and if such day is not a
Business Day, the next occurring Business Day following such day.
SECTION 10.03 Fractions of Shares. No fractional Common Shares
-----------------------------------
shall be issued upon conversion of any Note or Notes. If more than one Note
shall be surrendered for conversion at one time by the same Holder, the
number of full Common Shares which shall be issued upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the Notes
(or specified portions thereof) so surrendered. Instead of any fractional
Common Shares which would otherwise be issued upon conversion of any Note or
Notes (or specified portions thereof), the Company shall pay a cash adjustment
in respect of such fraction (calculated to the nearest one-100th of a Common
Share) in an amount equal to the same fraction of the Sale Price of the
Common Shares as of the Trading Day preceding the date of conversion.
SECTION 10.04 Adjustment of Conversion Price. The Conversion
-----------------------------------------------
Price shall be subject to adjustments, calculated by the Company, from time
to time as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution in Common Shares to all holders of the outstanding Common
Shares, the Conversion Price in effect at the opening of business on the
date following the date fixed for the determination of shareholders
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 Common
Shares outstanding at the close of business on the Record Date (as
defined in Section 10.04(h)) fixed for such determination, and
(2) the denominator of which shall be the sum of such number
of Common Shares and the total number of Common 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. If any dividend or
distribution of the type described in this Section 10.04(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) In case the outstanding Common Shares shall be subdivided into
a greater number of Common Shares, the Conversion Price in effect at the
opening of business on
51
the day following the day upon which such subdivision becomes effective
shall be proportionately reduced, and conversely, in case outstanding
Common Shares shall be combined into a smaller number of Common Shares,
the Conversion Price in effect at the opening of business on the day
following the day upon which such combination becomes effective shall
be proportionately increased, such reduction or increase, as the case
may be, to become effective immediately after the opening of business
on the day following the day upon which such subdivision or combination
becomes effective.
(c) In case the Company shall issue rights or warrants (other
than any rights or warrants referred to in Section 10.04(d)) to all
holders of its outstanding Common Shares entitling them to subscribe for
or purchase Common Shares (or securities convertible into Common Shares)
at a price per Common Share (or having a conversion price per share) less
than the Current Market Price (as defined in Section 10.04(h)) on the
Record Date fixed for the determination of shareholders entitled to
receive such rights or warrants, 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 date after
such Record Date by a fraction:
(1) the numerator of which shall be the number of Common
Shares outstanding at the close of business on the Record Date plus
the number of Common Shares which the aggregate offering price of
the total number of Common Shares so offered for subscription or
purchase (or the aggregate conversion price of the convertible
securities so offered) would purchase at such Current Market Price,
and
(2) the denominator of which shall be the number of Common
Shares outstanding on the close of business on the Record Date plus
the total number of additional Common Shares 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 fixed for determination of
shareholders entitled to receive such rights or warrants. To the extent
that Common Shares (or securities convertible into Common Shares) 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 issuance of such rights or warrants been made
on the basis of the delivery of only the number of Common Shares (or
securities convertible into Common Shares) 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 such date fixed for the determination
of shareholders 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 Common Shares at less than such
Current Market Price, and in determining the aggregate offering price of
such Common Shares, 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.
52
(d) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Shares shares of any class
of Capital Stock of the Company (other than any dividends or
distributions to which Section 10.04(a) applies) or evidences of its
indebtedness or other assets, including securities (other than any
dividends or distributions to which Section 10.04(g) applies), but
excluding (1) any rights or warrants referred to in Section
10.04(c), (2) any distributions in connection with a
reclassification, change, consolidation, merger, combination, sale
or conveyance to which Section 10.11 applies and (3) dividends and
distributions paid exclusively in cash (the securities described in
foregoing clauses (1), (2) and (3) hereinafter in this Section
10.04(d) called the "excluded securities"), then, in each such case,
subject to the second succeeding paragraph of this Section 10.04(d),
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 close of business on the Record Date
(as defined in Section 10.04(h)) with respect to such distribution
by a fraction:
(1) the numerator of which shall be the Current Market
Price (determined as provided in Section 10.04(h)) on such date
less the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and set forth
in a Board Resolution) on such date of the portion of the
securities so distributed (other than excluded securities)
applicable to one Common Share (determined on the basis of the
number of Common Shares outstanding on the 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. However, in the event
that the then fair market value (as so determined) of the portion of the
securities so distributed (other than excluded securities) applicable to
one Common Share is equal to or greater than the Current Market Price on
the Record Date, in lieu of the foregoing adjustment, adequate provision
shall be made so that each Holder shall have the right to receive upon
conversion of a Note (or any portion thereof) the amount of securities
so distributed (other than excluded securities) such Holder would have
received had such Holder converted such Note (or portion thereof)
immediately prior to such Record Date. In the event that such 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.
If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 10.04(d) by reference to the
actual or when issued trading market for any securities comprising all
or part of such distribution (other than excluded securities), 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 10.04(h) to the extent possible, unless the Board
of Directors in a Board Resolution determines in good faith that
determining the fair market value during the Reference Period would not
be in the best interest of the Holder.
53
Rights or warrants distributed by the Company to all holders of
Common Shares entitling the holders thereof to subscribe for or purchase
shares of the Company's Capital Stock (either initially or under certain
circumstances), which rights or warrants, until the occurrence of a
specified event or events ("Trigger Event"):
(i) are deemed to be transferred with such Common Shares;
(ii) are not exercisable; and
(iii) are also issued in respect of future issuances of Common
Shares,
shall be deemed not to have been distributed for purposes of this Section
10.04(d) (and no adjustment to the Conversion Price under this Section
10.04(d) will be required) until the occurrence of the earliest Trigger
Event. If such right or warrant is subject to subsequent events, upon
the occurrence of which such right or warrant shall become exercisable to
purchase different securities, evidences of indebtedness or other assets
or entitle the holder to purchase a different number or amount of the
foregoing or to purchase any of the foregoing 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
(and a termination or expiration of the existing right or warrant 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 this Section 10.04(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 Common Shares with respect to such rights or
warrant (assuming such holder had retained such rights or warrants),
made to all holders of Common Shares as of the date of such
redemption or repurchase, and
(2) in the case of such rights or warrants all of 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 this Section 10.04(d) and Sections 10.04(a), 10.04(b)
and 10.04(c), any dividend or distribution to which this Section 10.04(d)
is applicable that also includes Common Shares, a subdivision or
combination of Common Shares to which Section 10.04(b) applies, or rights
or warrants to subscribe for or purchase Common Shares to which Section
10.04(c) applies (or any combination thereof), shall be deemed instead to
be:
(1) a dividend or distribution of the evidences of
indebtedness, assets, shares of Capital Stock, rights or warrants
other than Common Shares, such subdivision or combination or such
rights or warrants to which Sections 10.04(a),
54
10.04(b) and 10.04(c) apply, respectively (and any Conversion Price
reduction required by this Section 10.04(d) with respect to
such dividend or distribution shall then be made), immediately
followed by
(2) a dividend or distribution of such Common Shares, such
subdivision or combination or such rights or warrants (and any
further Conversion Price reduction required by Sections 10.04(a),
10.04(b) and 10.04(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 (x) "the date fixed for the
determination of shareholders entitled to receive such
dividend or other distribution", "Record Date fixed for such
determinations" and "Record Date" within the meaning of
Section 10.04(a), (y) "the day upon which such subdivision
becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 10.04(b),
and (z) as "the date fixed for the determination of
shareholders entitled to receive such rights or warrants",
"the Record Date fixed for the determination of the
shareholders entitled to receive such rights or warrants" and
such "Record Date" within the meaning of Section 10.04(c),
and
(B) any Common Shares included in such dividend or
distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the
meaning of Section 10.04(a) and any reduction or increase in
the number of Common Shares resulting from such subdivision or
combination shall be disregarded in connection with such
dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Shares cash, in an aggregate
amount that, combined together with: (1) the aggregate amount of any
other such distributions to all holders of Common Shares made exclusively
in cash within the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant to this
Section 10.04(e) has been made, and (2) the aggregate of any cash plus
the fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and set forth in a Board Resolution)
of consideration payable in respect of any tender offer by the Company
or any of its subsidiaries for all or any portion of the Common Shares
concluded within the 12 months preceding the date of such distribution,
and in respect of which no adjustment pursuant to Section 10.04(f) has
been made, exceeds 10% of the product of the Current Market Price
(determined as provided in Section 10.04(h)) on the Record Date with
respect to such distribution times the number of Common Shares
outstanding on such date, then and in each such case, immediately after
the close of business on such date, the Conversion Price shall be
reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
close of business on such Record Date by a fraction:
55
(i) the numerator of which shall be equal to the Current
Market Price on the Record Date less an amount equal to the
quotient of (x) the excess of such combined amount over such 10%
and (y) the number of Common Shares outstanding on the Record Date,
and
(ii) the denominator of which shall be equal to the Current
Market Price on such date.
However, in the event that the then fair market value (as so determined)
of the portion of the securities so distributed (other than excluded
securities) applicable to one Common Share is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall
have the right to receive upon conversion of a Note (or any portion
thereof) the amount of cash such Holder would have received had such
Holder converted such Note (or portion thereof) immediately prior to
such Record Date. In the event that such 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.
(f) In case a tender offer made by the Company or any of its
Subsidiaries for all or any portion of the Common Shares shall expire
and such tender offer (as amended upon the expiration thereof) shall
require the payment to shareholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased Shares
(as defined below)) of an aggregate consideration having a fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution) that combined
together with:
(1) the aggregate of the cash plus the fair market value (as
determined by the Board of Directors, whose determination shall be
conclusive and set forth in a Board Resolution), as of the
expiration of such tender offer, of consideration payable in
respect of any other tender offers, by the Company or any of its
Subsidiaries for all or any portion of the Common Shares expiring
within the 12 months preceding the expiration of such tender offer
and in respect of which no adjustment pursuant to this Section
10.04(f) has been made, and
(2) the aggregate amount of any distributions to all holders
of the Company's Common Shares made exclusively in cash within 12
months preceding the expiration of such tender offer and in respect
of which no adjustment pursuant to Section 10.04(e) has been made,
exceeds 10% of the product of the Current Market Price (determined
as provided in Section 10.04(h)) as of the last time (the
"Expiration Time") tenders could have been made pursuant to such
tender offer (as it may be amended) multiplied by the number of
Common Shares outstanding (including any Common Shares tendered) as
of the Expiration Time, then, and in each such case, immediately
prior to the opening of business on the day after the date of the
Expiration Time, the Conversion Price shall be adjusted so that the
same shall equal the price determined by multiplying the
56
Conversion Price in effect immediately prior to close of business on
the date of the Expiration Time by a fraction:
(i) the numerator of which shall be the number of Common
Shares outstanding (including any Common Shares tendered) at the
Expiration Time multiplied by the Current Market Price of the
Common Shares on the Trading Day next succeeding the Expiration
Time, and
(ii) the denominator shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate
consideration payable to shareholders based on the acceptance
(up to any maximum specified in the terms of the tender offer)
of all Common Shares validly tendered and not withdrawn as of
the Expiration Time (the Common Shares deemed so accepted, up
to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of Common Shares
outstanding (less any Purchased Shares) at the Expiration Time
and the Current Market Price of the Common Shares on the Trading
Day next succeeding 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 is obligated to purchase Common Shares pursuant to
any such tender offer, but the Company is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Price shall again be adjusted to be the
Conversion Price which would then be in effect if such tender offer had
not been made. If the application of this Section 10.04(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
10.04(f).
(g) If, after the Issue Date, the Company pays a dividend or makes
a distribution to all holders of its Common Shares consisting of Capital
Stock of, or similar equity interests in, a Subsidiary or other business
unit of the Company, then and in each such case, 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 date
on which Common Shares first trade regular way without the right to
receive such dividend or distribution by an amount equal to one (1) minus
a fraction:
(1) the numerator of which shall be the Value Distributed
Per Share, and
(2) the denominator of which shall be the sum of (x) the
average of the Sale Prices of the Common Shares during the ten
(10) Trading Days commencing on and including the fifth Trading
Day after the date on which Common Shares trade regular way on
the relevant exchange or in the relevant market from which the
Sale Price was obtained without the right to receive such dividend
or distribution plus (y) the Value Distributed Per Share.
57
Such reduction (if any) shall become effective as of the opening of
business on the day on which Common Shares first trade regular way
without the right to receive such dividend or distribution. If any
dividend or distribution of the type described in this Section 10.04(g)
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.
(h) For purposes of this Section 10.04, the following terms shall
have the meanings indicated:
(1) "Current Market Price" shall mean the average of the
daily Sale Prices per Common Share for the ten consecutive Trading
Days immediately prior to the date in question; provided, however,
that if:
(i) the "ex" date (as hereinafter defined) for any event
(other than the issuance or distribution requiring such
computation) that requires an adjustment to the Conversion
Price pursuant to Section 10.04(a), (b), (c), (d), (e) or (f)
occurs during such ten consecutive Trading Days, the Sale
Price for each Trading Day prior to the "ex" date for such
other event shall be adjusted by multiplying such Sale Price
by the same fraction by which the Conversion Price is so
required to be adjusted as a result of such other event;
(ii) the "ex" date for any event (other than the
issuance or distribution requiring such computation) that
requires an adjustment to the Conversion Price pursuant to
Section 10.04(a), (b), (c), (d), (e) or (f) occurs on or after
the "ex" date for the issuance or distribution requiring such
computation and prior to the day in question, the Sale Price
for each Trading Day on and after the "ex" date for such
other event shall be adjusted by multiplying such Sale Price
by the reciprocal of the fraction by which the Conversion
Price is so required to be adjusted as a result of such other
event; and
(iii) the "ex" date for the issuance or distribution
requiring such computation is prior to the day in question,
after taking into account any adjustment required pursuant to
clause (i) or (ii) of this proviso, the Sale Price for each
Trading Day on or after such "ex" date shall be adjusted by
adding thereto the amount of any cash and the fair market
value (as determined by the Board of Directors in a manner
consistent with any determination of such value for purposes
of Section 10.04(d) or (f), whose determination shall be
conclusive and set forth in a Board Resolution) of the
evidences of indebtedness, shares of Capital Stock or assets
being distributed applicable to one Common Share as of the
close of business on the day before such "ex" date.
58
For purposes of any computation under Section 10.04(f), the Current
Market Price of the Common Shares on any date shall be deemed to be the
average of the daily Sale Prices per Common Share for such day and the
next two succeeding Trading Days; provided, however, that if the "ex"
date for any event (other than the tender offer requiring such
computation) that requires an adjustment to the Conversion Price
pursuant to Section 10.04(a), (b), (c), (d), (e) or (f) occurs on or
after the Expiration Time for the tender or exchange offer requiring
such computation and prior to the day in question, the Sale Price for
each Trading Day on and after the "ex" date for such other event shall
be adjusted by multiplying such Sale Price by the reciprocal of the
fraction by which the Conversion Price is so required to be adjusted
as a result of such other event. For purposes of this paragraph, the
term "ex" date, when used:
(A) with respect to any issuance or distribution, means
the first date on which the Common Shares trade regular way on
the relevant exchange or in the relevant market from which the
Sale Price was obtained without the right to receive such issuance
or distribution;
(B) with respect to any subdivision or combination of Common
Shares, means the first date on which the Common Shares trade
regular way on such exchange or in such market after the time at
which such subdivision or combination becomes effective, and
(C) with respect to any tender or exchange offer, means the
first date on which the Common Shares trade regular way on such
exchange or in such market after the Expiration Time of such
offer.
Notwithstanding the foregoing, whenever successive adjustments to the
Conversion Price are called for pursuant to this Section 10.04, such
adjustments shall be made to the Current Market Price as may be
necessary or appropriate to effectuate the intent of this Section 10.04
and to avoid unjust or inequitable results as determined in good faith
by the Board of Directors.
(2) "fair market value" shall mean the amount which a
willing buyer would pay a willing seller in an arm's length
transaction.
(3) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of
Common Shares have the right to receive any cash, securities or
other property or in which the Common Shares (or other applicable
security) is exchanged for or converted into any combination of
cash, securities or other property, the date fixed for
determination of shareholders 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).
(i) The Company may make such reductions in the Conversion
Price, in addition to those required by Section 10.04(a), (b), (c),
(d), (e), (f) or (g), as the Board of Directors considers to be
advisable to avoid or diminish any income tax to holders of
59
Common Shares or rights to purchase Common Shares resulting from
any dividend or distribution of stock (or rights to acquire stock)
or from any event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from
time to time may reduce the Conversion Price by any amount for any
period of time if the period is at least 20 days and the reduction
is irrevocable during the period and the Board of Directors
determines in good faith that such reduction would be in the best
interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. 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 a notice of the reduction at least 15
days prior to the date the reduced Conversion Price takes effect,
and such notice shall state the reduced Conversion Price and the
period during which it will be in effect.
(j) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at
least 1% in such price; provided, however, that any adjustments which
by reason of this Section 10.04(j) are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. All calculations under this Article 10 shall be made by
the Company and shall be made to the nearest cent or to the nearest
one hundredth of a share, as the case may be. No adjustment need be
made for a change in the par value or no par value of the Common
Shares.
(k) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for
an event, the Company may defer until the occurrence of such event (i)
issuing to the Holder of any Note converted after such Record Date and
before the occurrence of such event the additional Common Shares
issuable upon such conversion by reason of the adjustment required by
such event over and above the Common Shares issuable upon such
conversion before giving effect to such adjustment and (ii) paying to
such holder any amount in cash in lieu of any fraction pursuant to
Section 10.03.
(l) For purposes of this Section 10.04, the number of Common
Shares at any time outstanding shall not include Common Shares held in
the treasury of the Company but shall include Common Shares issuable
in respect of scrip certificates issued in lieu of fractions of Common
Shares. The Company will not pay any dividend or make any distribution
on Common Shares held in the treasury of the Company.
(m) If the distribution date for the rights provided in the
Company's rights agreement, if any, occurs prior to the date a Note is
converted, the Holder of the Note who converts such Note after the
distribution date is not entitled to receive the rights that would
otherwise be attached (but for the date of conversion) to the Common
Shares received upon such conversion; provided, however, that an
adjustment shall be made to the Conversion Price pursuant to Section
10.04(b) as if the rights were being distributed to the common
shareholders of the Company immediately prior to such conversion. If
such an adjustment is made and the rights are later redeemed,
invalidated or terminated,
60
then a corresponding reversing adjustment shall be made to the
Conversion Price, on an equitable basis, to take account of such
event.
SECTION 10.05 Notice of Adjustments of Conversion Price.
----------------------------------------------------------
Whenever the Conversion Price is adjusted as herein provided (other than in
the case of an adjustment pursuant to the second paragraph of Section 10.04(i)
for which the notice required by such paragraph has been provided), the
Company shall promptly file with the Trustee and any Conversion Agent other
than the Trustee an Officers' Certificate setting forth the adjusted
Conversion Price and showing in reasonable detail the facts upon which such
adjustment is based. Promptly after delivery of such Officers' Certificate,
the Company shall prepare a notice stating that the Conversion Price has been
adjusted and setting forth the adjusted Conversion Price and the date on
which each adjustment becomes effective, and shall mail such notice to each
Holder at the address of such Holder as it appears in the Register within 20
days of the effective date of such adjustment. Failure to deliver such
notice shall not effect the legality or validity of any such adjustment.
SECTION 10.06 Notice Prior to Certain Actions. In case at any
------------------------------------------------
time after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than in cash out of
its capital surplus or its consolidated retained earnings;
(2) the Company shall authorize the granting to the holders of its
Common Shares of rights or warrants to subscribe for or purchase any
shares of Capital Stock of any class (or of securities convertible into
shares of capital stock of any class) or of any other rights;
(3) there shall occur any reclassification of the Common Shares of
the Company (other than a subdivision or combination of its outstanding
Common Shares, a change in par value, a change from par value to no par
value or a change from no par value to par value), or any merger or
combination to which the Company is a party and for which approval of
any shareholders of the Company is required, or the sale, transfer or
conveyance of all or substantially all of the assets of the Company; or
(4) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Notes pursuant to Section 4.05, and shall cause
to be provided to the Trustee and all Holders in accordance with Section
11.02, at least 20 days (or 10 days in any case specified in clause (1) or
(2) above) prior to the applicable record or effective date hereinafter
specified, a notice stating:
(A) the date on which a record is to be taken
for the purpose of such dividend, distribution, rights or
warrants, or, if a record is not to be taken, the date as
of which the holders of Common Shares of record to be
61
entitled to such dividend, distribution, rights or
warrants are to be determined, or
(B) the date on which such reclassification,
merger, combination, sale, transfer, conveyance,
dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is
expected that holders of Common Shares of record shall
be entitled to exchange their Common Shares for
securities, cash or other property deliverable upon
such reclassification, merger, sale, transfer,
dissolution, liquidation or winding up.
Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 10.06.
SECTION 10.07 Company to Reserve Common Shares. The Company
-------------------------------------------------
shall at all times use its best efforts to reserve and keep available, free
from preemptive rights, out of its authorized but unissued Common Shares, for
the purpose of effecting the conversion of Notes, the full number of shares
of fully paid and nonassessable Common Shares then issuable upon the
conversion of all Notes outstanding.
The Company will endeavor promptly to comply with all federal and
state securities laws regulating the offer and delivery of Common Shares upon
conversion of Notes, if any, and will list or cause to have quoted such
Common Shares on each national securities exchange or in the over-the-counter
market or such other market on which the Common Shares are then listed or
quoted.
SECTION 10.08 Taxes on Conversions. Except as provided in the
-------------------------------------
next sentence, the Company will pay any and all taxes (other than taxes on
income) and duties that may be payable in respect of the issue or delivery of
Common Shares on conversion of Notes pursuant hereto. A Holder delivering a
Note for conversion shall be liable for and will be required to pay any tax
or duty which may be payable in respect of any transfer involved in the issue
and delivery of Common Shares in a name other than that of the Holder of the
Note or Notes to be converted, and no such issue or delivery shall be made
unless the Person requesting such issue has paid to the Company the amount of
ny such tax or duty, or has established to the satisfaction of the Company
that such tax or duty has been paid.
SECTION 10.09 Covenant as to Common Shares. The Company
---------------------------------------------
covenants that all Common Shares which may be issued upon conversion of Notes
shall be newly issued shares or treasury shares and will upon issue be duly
and validly issued and fully paid and nonassessable, free from preemptive
rights and free of any Lien or adverse claim, except as provided in Section
10.08, the Company will pay all taxes, liens and charges with respect to the
issue thereof.
SECTION 10.10 Cancellation of Converted Notes. All Notes
------------------------------------------------
delivered for conversion shall be delivered to the Trustee to be canceled by
or at the direction of the Trustee, which shall dispose of the same as
provided in Section 2.10.
62
SECTION 10.11 Effect of Reclassification, Consolidation, Merger
------------------------------------------------------------------
or Sale. If any of following events occur, namely:
- -------
(1) any reclassification or change of the outstanding Common Shares
(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),
(2) any merger, consolidation or combination of the Company with
another corporation as a result of which holders of Common Shares shall be
entitled to receive stock, securities or other property or assets
(including cash or any combination thereof) with respect to or in exchange
for such Common Shares, or
(3) 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 Shares shall be entitled to receive
stock, securities or other property or assets (including cash or any
combination thereof) with respect to or in exchange for such Common
Shares,
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 TIA 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 Note shall be convertible into the kind and amount of
shares of stock and other securities or property or assets (including cash
or any combination thereof) which such Holder would have been entitled to
receive upon such reclassification, change, merger, combination, sale or
conveyance had such Notes been converted into Common Shares immediately
prior to such reclassification, change, merger, combination, sale or
conveyance assuming such holder of Common Shares did not exercise its rights
of election, if any, as to the kind or amount of securities, cash or other
property receivable upon such reclassification, change, merger, combination,
sale or conveyance (provided that, if the kind or amount of securities, cash
or other property receivable upon such reclassification, change, merger,
combination, sale or conveyance is not the same for each Common Share in
respect of which such rights of election shall not have been exercised
("Non-Electing Share"), then for the purposes of this Section 10.11 the kind
and amount of securities, cash or other property receivable upon such
reclassification, change, merger, combination, sale or conveyance for each
Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which shall be as nearly equivalent
as may be practicable to the adjustments provided for in this Article 10.
If, in the case of any such reclassification, change, merger, combination,
sale or conveyance, the stock or other securities and assets receivable
thereupon by a holder of Common Shares includes shares of stock or other
securities and assets of a corporation other than the successor or
purchasing corporation, as the case may be, in such reclassification,
change, merger, 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
Notes 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 Section 3.09.
63
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, 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 10.11 shall similarly apply to
successive reclassifications, mergers, combinations, sales and conveyances.
The Company shall not become a party to any of the transactions
described in clauses (1), (2) and (3) of this Section 10.11, unless the terms
of the transaction are consistent with the provisions of this Section 10.11.
If this Section 10.11 applies to any event or occurrence, Section
10.04 shall not apply.
SECTION 10.12 Responsibility of Trustee for Conversion Provisions.
--------------------------------------------------------------------
The Trustee, subject to the provisions of Section 7.01, and any Conversion
Agent shall not at any time be under any duty or responsibility to any Holder
of Notes to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or intent
of any such adjustments when made, or with respect to the method employed, or
herein or in any supplemental indenture provided to be employed, in making
the same. Neither the Trustee, subject to the provisions of Section 7.01,
nor any Conversion Agent shall be accountable with respect to the validity or
value (of the kind or amount) of any Common Shares, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Note; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section
7.01, nor any Conversion Agent shall be responsible for any failure of the
Company to make any cash payment or to issue, transfer or deliver any shares
of stock or share certificates or other securities or property upon the
surrender of any Note for the purpose of conversion; and the Trustee, subject
to the provisions of Section 7.01, and any Conversion Agent shall not be
responsible or liable for any failure of the Company to comply with any of
the covenants of the Company contained in this Article.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls. If any provision of
---------------------------------------------
this Indenture limits, qualifies, or conflicts with another provision which
is required to be included in this Indenture by the TIA, the required
provision shall control.
SECTION 11.02 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:
64
Ohio Casualty Corporation
9450 Seward Road
Fairfield, Ohio 45014
Attention: General Counsel
Telephone No. (513) 603-2213
Facsimile No. (513) 603-2208
if to the Trustee:
HSBC Bank USA
10 East 40th Street
14th Floor
New York, New York 10016-0200
Attention: Issuer Services
Telephone No. (212) 525-1316
Facsimile No. (212) 525-1300
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 Noteholder shall be
mailed to the Noteholder, by first-class mail, postage prepaid, at the
Noteholder'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 Noteholder or
any defect in it shall not affect its sufficiency with respect to other
Noteholders. 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
Noteholders, it shall mail a copy to the Trustee and each Registrar or co-
registrar, Paying Agent or Conversion Agent.
SECTION 11.03 Communication by Holders with Other Holders.
-----------------------------------------------------------
Noteholders may communicate pursuant to TIA Section 312(b) with other
Noteholders with respect to their rights under this Indenture or the Notes.
The Company, the Trustee, the Registrar, any co-registrar, the Paying Agent,
the Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent.
-------------------------------------------------------------------
Upon any request or application by the Company to the Trustee to take any
action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of the signers,
all conditions precedent, if any,
65
provided for in this Indenture relating to the proposed action have been
complied with; and
(2) an Opinion of Counsel in form and substance reasonably
satisfactory to the Trustee stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
SECTION 11.05 Statements Required in Certificate or Opinion. Each
-------------------------------------------------------------
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate
or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such person, he has
made such examination or investigation as is necessary to enable such
person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement that, in the opinion of such person, such covenant
or condition has been complied with.
SECTION 11.06 Separability Clause. In case any provision in this
-----------------------------------
Indenture or in the Notes 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 11.07 Rules by Trustee, Paying Agent, Conversion Agent and
--------------------------------------------------------------------
Registrar. The Trustee may make reasonable rules for action by, or at a
- ---------
meeting of, Noteholders. The Registrar, Conversion Agent and the Paying Agent
may make reasonable rules for their functions.
SECTION 11.08 Legal Holidays. A "Legal Holiday" is any day other
-------------------------------
than a Business Day. If any specified date (including a date for giving
notice) is a Legal Holiday, the action shall be taken on the next succeeding
day that is not a Legal Holiday, and, if the action to be taken on such date
is a payment in respect of the Notes, no interest, if any, shall accrue for
the intervening period.
SECTION 11.09 Governing Law. THIS INDENTURE AND THE NOTES WILL
------------------------------
BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.10 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 Notes or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Note, each Noteholder shall waive and
67
release all such liability. The waiver and release shall be part of the
consideration for the issue of the Notes.
SECTION 11.11 Successors. All agreements of the Company in
---------------------------
this Indenture and the Notes shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.12 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.
SECTION 11.13 Stated Capital. The stated capital of each Common
-------------------------------
Share issued upon conversion (or of each share of any class or classes
resulting from any reclassification or reclassifications of the Common Shares
issued upon conversion ) shall be identical to the stated capital as of the
Conversion Date of such Common Shares (or such other class of shares) issued
upon conversion.
67
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.
OHIO CASUALTY CORPORATION
By:
------------------------------------
Name: Dan R. Carmichael
Title: President and
Chief Executive Officer
HSBC BANK USA,
as Trustee
By:
------------------------------------
Name:
Title:
68
EXHIBIT A-1
[FORM OF GLOBAL NOTE]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION
OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED
IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT
HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED 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 NOTE SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF
THIS GLOBAL NOTE 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 SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THE SECURITY EVIDENCED HEREBY OR THE COMMON SHARES ISSUABLE UPON CONVERSION
OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT
THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER
THAN A
A-1-1
TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR
TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
2(C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR
THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY
EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.]
A-1-2
OHIO CASUALTY CORPORATION
5.00% Convertible Notes due 2022
No. CUSIP: 677240AB9
Issue Date:
OHIO CASUALTY CORPORATION, an Ohio corporation (herein called the
"Company"), promises to pay to Cede & Co. or registered assigns, the
principal sum of [ ] DOLLARS ($[ ]) on March 19,
--------------- -------------
2022.
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed.
Dated: OHIO CASUALTY CORPORATION
-------------
By
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
HSBC BANK USA,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture (as
defined on the other side of this Note).
By
-----------------------------
Authorized Signatory
Dated:
-----------------------
A-1-3
<PAGE
[FORM OF REVERSE SIDE OF NOTE]
5.00% Convertible Note due 2022
1. Cash Interest.
The Company promises to pay interest in cash on the principal amount
of this Note at the rate per annum of 5.00%. The Company will pay cash
interest semiannually in arrears on March 19 and September 19 of each year
(each an "Interest Payment Date") to Holders of record at the close of
business on March 4 and September 4 (whether or not a Business Day) (each a
"Regular Record Date"), as the case may be, immediately preceding such
Interest Payment Date. Cash interest on the Notes will accrue from the most
recent date to which interest has been paid or duly provided or, if no
interest has been paid, from the Issue Date. Cash interest will be computed
on the basis of a 360-day year of twelve 30-day months. The Company shall
pay cash interest on overdue principal, or if Common Shares (or cash in lieu
of fractional Common Shares) in respect of a conversion of this Note in
accordance with the terms of Article 10 of the Indenture are not delivered
when due, at the rate borne by the Notes plus 1% per annum, and it shall pay
interest in cash on overdue installments of cash interest at the same rate
to the extent lawful. All such overdue cash interest shall be payable on
demand.
2. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company
will make payments in respect of the principal of, premium, if any, and cash
interest on this Note and in respect of Redemption Prices, Repurchase Prices
and Change in Control Repurchase Prices to Holders who surrender Notes to a
Paying Agent to collect such payments in respect of the Notes. The Company
will pay cash amounts in money of the United States that at the time of
payment is legal tender for payment of public and private debts. However,
the Company may make such cash payments by check payable in such money. A
holder of Notes with an aggregate principal amount in excess of $5,000,000
will be paid by wire transfer in immediately available funds at the election
of such holder. Any payment required to be made on any day that is not a
Business Day will be made on the next succeeding Business Day.
3. Paying Agent, Conversion Agent and Registrar.
Initially, HSBC Bank USA (the "Trustee"), will act as Paying Agent,
Conversion Agent and Registrar. The Company may appoint and change any
Paying Agent, Conversion Agent, Registrar or co-registrar without notice,
other than notice to the Trustee except 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 co-registrar.
A-1-4
4. Indenture.
The Company issued the Notes under an Indenture dated as of March
19, 2002 (the Indenture"), between the Company and the Trustee. The terms
of the Notes 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
Notes are subject to all such terms, and Noteholders are referred to the
Indenture and the TIA for a statement of those terms.
The Notes are general unsecured obligations of the Company limited
to $201,250,000 aggregate principal amount (subject to Section 2.07 of the
Indenture). The Indenture does not limit other indebtedness of the Company,
secured or unsecured.
5. Redemption at the Option of the Company.
At any time on or after March 23, 2005, the Company may redeem as a
whole, or from time to time in part, the Notes on at least 30 but not more
than 60 days' notice, at the following prices (expressed in percentages of
the principal amount), together with accrued and unpaid interest to, but
excluding, the date fixed for redemption.
Redemption
During the Twelve Months Commencing Price
----------------------------------- ----------
March 23, 2005.................................. 102%
March 19, 2006.................................. 101%
March 19, 2007 and thereafter................... 100%
If the Company does not redeem all the Notes, the Trustee will
select the Notes to be redeemed in principal amounts of $1,000 or whole
multiples of $1,000 by lot or on a pro rata basis or by any other method the
Trustee considers fair and appropriate (so long as such method is not
prohibited by the rules of any stock exchange on which the Notes are then
listed). If any Notes are to be redeemed in part only, a new Note or Notes
in principal amount equal to the unredeemed principal portion thereof will
be issued. If a portion of a Holder's Notes is selected for partial
redemption and the Holder converts a portion of its Notes, the converted
portion will be deemed to be taken from the portion selected for redemption.
No sinking fund is provided for the Notes.
A-1-5
6. Repurchase by the Company at the Option of the Holder.
Subject to the terms and conditions of the Indenture, the Company
shall become obligated to repurchase, at the option of the Holder, the Notes
held by such Holder on March 19, 2007, March 19, 2012 and March 19, 2017
(each a "Repurchase Date") at a Repurchase Price of 100% of the principal
amount of the Notes to be repurchased, together with interest accrued and
unpaid to, but excluding, the Repurchase Date, upon delivery of a Repurchase
Notice containing the information set forth in the Indenture, at any time
from the opening of business on the date that is 20 Business Days prior to
such Repurchase Date until the close of business on the Business Day
immediately preceding such Repurchase Date and upon delivery of the Notes to
the Paying Agent by the Holder as set forth in the Indenture.
If a Change in Control occurs, the Holder, at the Holder's option,
shall have the right, in accordance with the provisions of the Indenture, to
require the Company to repurchase the Notes, not previously called for
redemption (or any portion of the principal amount hereof that is at least
$1,000 or an integral multiple thereof, provided that the portion of the
principal amount of this Note to be outstanding after such repurchase is at
least equal to $1,000) at the Change in Control Repurchase Price of 100% of
the principal amount of the Notes to be repurchased, together with interest
accrued and unpaid to, but excluding, the Change in Control Repurchase Date.
No fractional Common Shares will be issued upon repurchase of any
Notes. Instead of any fractional Common Share which would otherwise be
issued upon conversion of such Notes, the Company shall pay a cash
adjustment as provided in the Indenture.
A Change in Control Repurchase Notice will be given by the Company
to the Holders as provided in the Indenture. To exercise a repurchase
right, a Holder must deliver to the Trustee a written notice as provided in
the Indenture.
Holders have the right to withdraw any Change in Control Repurchase
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 Repurchase Price or Change in Control
Repurchase Price, as the case may be, of all Notes or portions thereof to be
purchased as of the Repurchase Date or the Change in Control Repurchase
Date, as the case may be, is deposited with the Paying Agent on the
Repurchase Date or the Change in Control Repurchase Date, as the case may
be, then, on and after the Repurchase Date or Change in Control Repurchase
Date, as the case may be, the Holder thereof shall have no other rights as a
Holder (other than the right to receive the Repurchase Price or Change in
Control Repurchase Price, as the case may be, if any, upon surrender of such
Note).
7. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more
than 60 days before the Redemption Date to each Holder of Notes to be
redeemed at the Holder's registered address. If money sufficient to pay the
Redemption Price of all Notes (or portions thereof) to be redeemed
A-1-6
on the Redemption Date is deposited with the Paying Agent prior to or on the
Redemption Date, immediately after such Redemption Date interest ceases to
accrue on such Notes or portions thereof. Notes in denominations larger
than $1,000 of principal amount may be redeemed in part but only in integral
multiples of $1,000 of principal amount.
8. Conversion.
Subject to the provisions of this paragraph 8 and the terms of the
Indenture and notwithstanding the fact that any other condition to
conversion has not been satisfied, a Holder may convert Notes into Common
Shares at any time during a calendar quarter that immediately follows a
Qualifying Quarter (but in no event later than the close of business on the
Business Day immediately preceding the Stated Maturity of the principal of
the Notes). A "Qualifying Quarter" means a calendar quarter (beginning with
the quarter ending on June 30, 2002) if, as of the last day of such calendar
quarter, the Sale Price of the Common Shares for at least 20 Trading Days in
a period of 30 consecutive Trading Days ending on the last Trading Day of
such quarter is more than 110% of the Conversion Price on the last day of
such quarter.
Subject to the provisions of this paragraph 8 and the Indenture and
notwithstanding the fact any other condition to conversion has not been
satisfied, a Holder may convert the Notes into Common Shares during any
period in which (i) the credit rating assigned to the Notes by a Rating
Agency is reduced to or below the Applicable Rating, (ii) the Notes are no
longer rated by a Rating Agency or (iii) the credit ratings assigned to the
Notes have been suspended or withdrawn by a Rating Agency. "Rating Agency"
means (1) Moody's Investors Service, Inc. and its successors ("Moody's") and
(2) Standard & Poor's Credit Market Services, a division of The McGraw-Hill
Companies Inc., and its successors ("Standard & Poor's"). "Applicable
Rating" means (1) Ba2, in the case of Moody's (or its equivalent under any
successor ratings categories of Moody's) and (2) B+, in the case of Standard
& Poor's (or its equivalent under any successor ratings categories of
Standard & Poor's).
Subject to the provisions of this paragraph 8 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, a Holder may convert into Common Shares a Note or portion of a
Note which has been called for redemption pursuant to paragraph 5, even if
the Note, or any portion thereof, is not subject to conversion by the
Holder, provided such Notes are surrendered for conversion prior to the
close of business on the Business Day immediately preceding the Redemption
Date.
Subject to the provisions of this paragraph 8 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, in the event the Company is a party to a consolidation, merger or
binding share exchange pursuant to which the Common Shares would be
converted into cash, securities or other property as set forth in Section
5.01 of the Indenture, a Holder may convert the Notes at any time from and
after the date which is 15 days prior to the date of the anticipated
effective date of such transaction announced by the Company until 15 days
after the actual effective date of such transaction, and at the effective
time of such transaction the right to convert a Note into Common Shares will
be deemed to have changed into a right to convert it into the kind and
amount of cash, securities or other property which the holder would have
received if the Holder had converted its Notes immediately prior to the
transaction. If the consolidation, merger or binding share exchange to
which the Company is a party also constitutes a Change in Control, the
Holder will be able to require the Company to
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repurchase all or a portion of the Holder's Notes in accordance with Section
3.09 of the Indenture.
Subject to the provisions of this paragraph 8 and the Indenture and
notwithstanding the fact that any other condition to conversion has not been
satisfied, in the event that the Company declares a dividend or distribution
described in Section 10.04(c) of the Indenture, or a dividend or a
distribution described in Section 10.04(d) of the Indenture where the fair
market value of such dividend or distribution per Common Share, as
determined in the Indenture, exceeds 15% of the Sale Price of the Common
Shares on the Trading Day immediately preceding the date of declaration for
such dividend or distribution, a Holder may convert the Notes beginning on
the date the Company gives notice to the Holders of such right, which shall
not be less than 20 days prior to the "ex" date (as defined in Section
10.04(h) of the Indenture) for such dividend or distribution, and Notes may
be surrendered for conversion at any time thereafter until the close of
business on the Business Day prior to the "ex" date or until the Company
announces that the dividend or distribution will not take place. No
adjustment to the Conversion Price or the ability of a Holder of Notes to
convert will be made if the Company provides that Holders will participate
in the transactions without conversion.
A Note in respect of which a Holder has delivered a Repurchase
Notice or Change in Control Repurchase Notice exercising the option of such
Holder to require the Company to purchase such Note may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the
Indenture.
The initial Conversion Price shall be initially equal to $22.62 per
Common Share, subject to adjustment in certain events described in the
Indenture. The Company shall pay a cash adjustment as provided in the
Indenture in lieu of any fractional Common Share.
To convert a Note, a Holder must (1) complete and manually sign the
conversion notice below (or complete and manually sign a facsimile of such
notice) and deliver such notice to the Conversion Agent, (2) surrender the
Note to the Conversion Agent, (3) furnish appropriate endorsements and
transfer documents if required by the Conversion Agent, the Company or the
Trustee and (4) pay any transfer or similar tax, if required.
A Holder may only convert a portion of a Note pursuant to the terms
of this paragraph 8 and in accordance with the Indenture if the principal
amount of such portion is $1,000 or an integral multiple of $1,000. No
payment or adjustment will be made for dividends on the Common Shares except
as provided herein and in the Indenture.
If the Company is a party to a consolidation, merger or binding
share exchange or a transfer of all or substantially all of its assets, or
upon certain distributions described in the Indenture, the right to convert
a Note into Common Shares may be changed into a right to convert it into
securities, cash or other assets of the Company or another person.
9. Conversion Arrangement on Call for Redemption.
Any Notes called for redemption, unless surrendered for conversion
before the close of business on the Redemption Date, may be deemed to be
purchased from the Holders of such Notes at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who
may agree with the Company to purchase such Notes from the Holders, to
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convert them into Common Shares of the Company and to make payment for such
Notes to the Trustee in trust for such Holders.
10. Denominations; Transfer; Exchange.
The Notes are in fully registered form, without coupons, in
denominations of $1,000 of principal amount and integral multiples of
$1,000. A Holder may transfer or exchange Notes in accordance with the
Indenture. The Registrar may require a Holder, among other things, to
furnish appropriate endorsements and transfer documents and the Company may
require a Holder to pay any taxes and fees required by law or permitted by
the Indenture. The Registrar need not transfer or exchange any Notes
selected for redemption (except, in the case of a Note to be redeemed in
part, the portion of the Note not to be redeemed) or any Notes in respect of
which a Repurchase Notice or Change in Control Repurchase Notice has been
given and not withdrawn (except, in the case of a Note to be purchased in
part, the portion of the Note not to be purchased) or any Notes for a period
of 15 days before the mailing of a notice of redemption of Notes to be
redeemed.
11. Persons Deemed Owners.
The registered Holder of this Note may be treated as the owner of
this Note for all purposes.
12. Unclaimed Money or Notes.
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 Notes 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.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Notes may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Notes at
the time outstanding and (ii) certain Defaults may be waived with the
written consent of the Holders of a majority in aggregate principal amount
of the Notes at the time outstanding. Subject to certain exceptions set
forth in the Indenture, without the consent of any Noteholder, the Company
and the Trustee may amend the Indenture or the Notes for the purposes of,
among other things, (1) adding to the Company's covenants for the benefit of
the Holders; (2) surrendering any right or power conferred upon the Company;
(3) providing for conversion rights of Holders if any reclassification or
change of Common Shares or any consolidation, merger or sale of all or
substantially all of the Company's assets occurs; (4) providing for the
assumption of the Company's obligations to the Holders in the case of a
merger, consolidation, conveyance, transfer or lease; (5) reducing the
Conversion Price, provided that the reduction will not adversely affect the
interests of Holders in any material respect; (6) complying with the
requirements of the SEC in order to effect or maintain the qualification of
the Indenture under the TIA; (7) making any changes or modifications to the
Indenture necessary in connection with the registration of the Notes under
the Securities Act as contemplated by the
A-1-9
Registration Rights Agreement, provided that this action does not adversely
affect the interests of the Holders in any material respect; (8) curing any
ambiguity or correcting or supplementing any defective provision contained in
the Indenture; provided that such modification or amendment does not
adversely affect the interests of the Holders in any material respect; (9)
adding or modifying any other provisions which the Company deems necessary or
desirable and which will not adversely affect the interests of the Holders in
any material respect; (10) complying with the provisions of the Indenture
relating to when the Company may consolidate, merge or dispose of assets;
(11) providing for uncertificated Notes in addition to Certificated Notes so
long as such uncertificated Notes are in registered form for purposes of the
Internal Revenue Code of 1986, as amended; or (12) adding to the Company's
covenants or obligations under the Indenture for the protection of Holders or
surrendering any right, power or option conferred by the Indenture on the
Company.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (1) the Company fails
to pay when due the principal of or premium, if any, on any of the Notes at
maturity, upon redemption or exercise of a repurchase right or otherwise;
(2) the Company fails to pay an installment of interest (including
liquidated damages, if any) on any of the Notes that continues for 30 days
after the date when due; (3) the Company fails to deliver Common Shares,
together with cash in lieu of fractional Common Shares, when such Common
Shares or cash in lieu of fractional Common Shares is required to be
delivered upon conversion of a Note and such failure continues for 10 days
after such delivery date; (4) the Company fails to perform or observe any
other term, covenant or agreement contained in the Notes or the Indenture
for a period of 60 days after written notice of such failure, requiring the
Company to remedy the same, shall have been given to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Notes then outstanding; (5) (A) one or
more defaults in the payment of principal of or premium, if any, on any of
the Company's Indebtedness aggregating $10 million or more, when the same
becomes due and payable at the scheduled maturity thereof, and such default
or defaults shall have continued after any applicable grace period and shall
not have been cured or waived within a 30-day period after the date of such
default or (B) any of the Company's Indebtedness aggregating $10 million or
more shall have been accelerated or otherwise declared due and payable, or
required to be prepaid or repurchased (other than by regularly scheduled
required prepayment) prior to the scheduled maturity thereof and such
acceleration is not rescinded or annulled within a 30-day period after the
date of such acceleration; (6) a failure to provide timely notice of a
Change in Control; (7) certain events of bankruptcy, insolvency or
reorganization with respect to the Company or any Significant Subsidiary or
any Subsidiaries of the Company which in the aggregate would constitute a
Significant Subsidiary; and (8) the filing by the Company of a voluntary
petition seeking liquidation, reorganization arrangement, readjustment of
debts or for any other relief under the Bankruptcy Laws. If an Event of
Default (other than an Event of Default specified in clause (7) or (8) of
Section 6.01 of the Indenture) occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate principal amount of the Notes at the
time outstanding, may declare all the Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Notes becoming due and payable immediately
upon the occurrence of such Events of Default.
A-1-10
Noteholders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture
or the Notes unless it receives reasonable indemnity or security. Subject
to certain limitations, Holders of a majority in aggregate principal amount
of the Notes at the time outstanding may direct the Trustee in its exercise
of any trust or power. The Trustee may withhold from Noteholders notice of
any continuing Default (except a Default in payment of amounts specified in
clause (1) or (2) above) if it determines that withholding notice is in
their interests.
15. 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 Notes and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the
Company or its Affiliates with the same rights it would have if it were not
Trustee.
16. 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 Notes or the Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Noteholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Notes.
17. Authentication.
This Note 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 Note.
18. Abbreviations.
Customary abbreviations may be used in the name of a Noteholder 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).
A-1-11
19. GOVERNING LAW.
THE INDENTURE AND THIS NOTE WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
20. CUSIP Numbers.
Pursuant to a recommendation promulgated by the Committee on Uniform
Security Identification Procedures, the Company has caused CUSIP numbers to
be printed on the Notes and the Trustee may use CUSIP numbers in notices of
redemption as a convenience to Holders. No representation is made as to the
accuracy of such numbers either as printed on the Notes or as contained in
any notice of redemption and reliance may be placed only on the other
identification numbers placed thereon.
----------------------
The Company will furnish to any Noteholder upon written request and
without charge a copy of the Indenture which has in it the text of this Note
in larger type. Requests may be made to:
Ohio Casualty Corporation
9450 Seward Road
Fairfield, Ohio 45014
Attention: General Counsel
A-1-12
ASSIGNMENT FORM CONVERSION NOTICE
To assign this Note, fill in the To convert this Note into Common
form below: Shares of the Company, check the
I or we assign and transfer this box:
Note to
- --------------------------------- ---
- --------------------------------- To convert only part of this Note,
state the principal amount to be
(Insert assignee's soc. sec. or converted (which must be $1,000 or
tax ID no.) an integral multiple of $1,000):
- --------------------------------- $
-------------------------------
- ---------------------------------
If you want the stock certificate
- --------------------------------- made out in another person's name,
(Print or type assignee's name, fill in the form below:
address and zip code)
---------------------------------
and irrevocably appoint ---------------------------------
(Insert othr person's soc. sec. or
agent to transfer tax ID no.)
- ----------------
this Not on the books of the Company. ----------------------------------
The agent may substitute another to
act for him. ----------------------------------
----------------------------------
----------------------------------
(Print or type other person's name,
address and zip code)
- ------------------------------------------------------------------------------
Date: Your Signature:
--------------------- ---------------------------
- -------------------------------------------------------------------------
(Sign exactly as your name appears on the other side of this Note)
A-1-13
EXHIBIT A-2
[Form of Face of Certificated Note]
THE SECURITY EVIDENCED BY THIS CERTIFICATE HAS NOT BEEN REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS, AND MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO YEARS
AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR OTHERWISE TRANSFER
THE SECURITY EVIDENCED HEREBY OR THE COMMON SHARES ISSUABLE UPON CONVERSION
OF SUCH SECURITY EXCEPT (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) TO
A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE
SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE), (D) IN AN OFFSHORE
TRANSACTION IN ACCORDANCE WITH RULE 904 OF REGULATION S UNDER THE SECURITIES
ACT, OR (E) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT AND WHICH CONTINUES TO BE EFFECTIVE AT
THE TIME OF SUCH TRANSFER; AND (3) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE) A NOTICE SUBSTANTIALLY TO THE EFFECT
OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED
HEREBY WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF SUCH SECURITY (OTHER
THAN A TRANSFER PURSUANT TO CLAUSE 2(E) ABOVE), THE HOLDER MUST CHECK THE
APPROPRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF
SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE TRUSTEE (OR ANY SUCCESSOR
TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFER IS PURSUANT TO CLAUSE
2(C) OR (D) ABOVE, THE HOLDER MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE
TRUSTEE (OR ANY SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS,
LEGAL OPINIONS OR OTHER INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR
IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(E) ABOVE OR
THE EXPIRATION OF TWO YEARS FROM THE ORIGINAL ISSUANCE OF THE SECURITY
EVIDENCED HEREBY. AS USED HEREIN, THE TERMS "UNITED STATES" AND "U.S.
PERSON" HAVE THE MEANINGS GIVEN TO THEM BY REGULATION S UNDER THE SECURITIES
ACT.
[THE FOREGOING LEGEND MAY BE REMOVED FROM THIS NOTE ON SATISFACTION
OF THE CONDITIONS SPECIFIED IN THE INDENTURE.]
A-2-1
OHIO CASUALTY CORPORATION
5.00% Convertible Notes due 2022
No. CUSIP: 677240AB9
Issue Date:
OHIO CASUALTY CORPORATION, an Ohio corporation, promises to pay to
[ ] or registered assigns, the principal sum of [ ]
------------- -----------
DOLLARS ($[ ]) on March 19, 2022.
----------
This Note shall bear interest as specified on the other side of this
Note. This Note is convertible as specified on the other side of this Note.
Additional provisions of this Note are set forth on the other side
of this Note.
Dated: OHIO CASUALTY CORPORATION
By
----------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
HSBC BANK USA,
as Trustee, certifies that this
is one of the Notes referred
to in the within-mentioned Indenture (as
defined on the other side of this Note).
By
-----------------------------
Authorized Signatory
Dated:
------------------------
A-2-2
EXHIBIT B
Transfer Certificate
In connection with any transfer of any of the Notes 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 Note hereby certifies with respect to $ principal
------------
amount of the above-captioned Notes presented or surrendered on the date
hereof (the "Surrendered Notes") for registration of transfer, or for
exchange or conversion where the Notes issuable 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 Notes for the reason checked below:
- A transfer of the Surrendered Notes is made to the Company
or any subsidiaries; or
- The transfer of the Surrendered Notes complies with Rule 144A
under the U.S. Securities Act of 1933, as amended (the
"Securities Act"); or
- The transfer of the Surrendered Notes is pursuant to an effective
registration statement under the Securities Act; or
- The transfer of the Surrendered Notes is pursuant to an offshore
transaction in accordance with Rule 904 of Regulation S under the
Securities Act; or
- The transfer of the Surrendered Notes is pursuant to another
available exemption from the registration requirement of the
Securities Act.
and unless the box below is checked, the undersigned confirms that, to the
undersigned's knowledge, such Notes 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.)
B-1