================================================================================
Federated Department Stores, Inc.
and
The First National Bank of Boston,
Trustee
Fourth Supplemental Trust Indenture
Dated as of September 27, 1995
Supplementing that certain
Indenture
Dated as of December 15, 1994
Authorizing the Issuance and Delivery of
Debt Securities
consisting of $350,000,000 aggregate principal amount of
5% Convertible Subordinated Notes due 2003
================================================================================
TABLE OF CONTENTS
-----------------
Page
----
Recitals . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
[Form of Face of Security] . . . . . . . . . . . . . . . . . . . . . . . . 2
[Form of Reverse of Security] . . . . . . . . . . . . . . . . . . . . . . . 3
ARTICLE I. ISSUANCE OF NOTES. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.1. Issuance of Notes; Principal Amount;
Maturity. . . . . . . . . . . . . . . . . . . . . . . . 9
Section 1.2. Interest on the Notes; Payment of Interest. . . . . . . 9
ARTICLE II. CERTAIN DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . 10
Section 2.1. Certain Definitions. . . . . . . . . . . . . . . . . . . 10
ARTICLE III. CERTAIN COVENANTS. . . . . . . . . . . . . . . . . . . . . . . 13
Section 3.1. Registration and Listing. . . . . . . . . . . . . . . . 13
ARTICLE IV. REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . 13
Section 4.1. Right of Redemption. . . . . . . . . . . . . . . . . . . 14
ARTICLE V. CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . 14
Section 5.1. Conversion Privilege and Conversion Rate. . . . . . . . 14
Section 5.2. Exercise of Conversion Privilege. . . . . . . . . . . . 14
Section 5.3. Fractions of Shares. . . . . . . . . . . . . . . . . . . 15
Section 5.4. Adjustment of Conversion Rate. . . . . . . . . . . . . . 16
Section 5.5. Notice of Adjustments of Conversion Rate. . . . . . . . 20
Section 5.6. Notice of Certain Corporate Action. . . . . . . . . . . 21
Section 5.7. Company to Reserve Common Stock. . . . . . . . . . . . . 22
Section 5.8. Taxes on Conversions. . . . . . . . . . . . . . . . . . 22
Section 5.9. Agreements as to Common Stock. . . . . . . . . . . . . . 22
Section 5.10. Cancellation of Converted Securities . . . . . . . . . . 22
Section 5.11. Provision in Case of Consolidation, Merger or
Conveyance of Assets . . . . . . . . . . . . . . . . . . 23
Section 5.12. Responsibility of Trustee for Conversion
Provisions . . . . . . . . . . . . . . . . . . . . . . . 24
ARTICLE VI. SUBORDINATION. . . . . . . . . . . . . . . . . . . . . . . . . 24
Section 6.1. Securities Subordinated to Senior Debt. . . . . . . . . 24
Section 6.2. Payment Over of Proceeds Upon Dissolution, Etc. . . . . 25
Section 6.3. No Payment When Senior Debt in Default. . . . . . . . . 26
Section 6.4. Payment Permitted If No Default. . . . . . . . . . . . . 27
Section 6.5. Subrogation to Rights of Holders of Senior
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 27
-i-
Page
----
Section 6.6. Provisions Solely to Define Relative Rights. . . . . . . 27
Section 6.7. Trustee to Effectuate Subordination. . . . . . . . . . . 28
Section 6.8. No Waiver of Subordination Provisions. . . . . . . . . . 28
Section 6.9. Notice to Trustee. . . . . . . . . . . . . . . . . . . . 28
Section 6.10. Reliance on Judicial Order or Certificate
of Liquidating Agent . . . . . . . . . . . . . . . . . . 29
Section 6.11. Trustee Not Fiduciary for Holders of Senior
Debt . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Section 6.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights . . . . . . . . . 30
Section 6.13. Article Applicable to Paying Agents . . . . . . . . . . 30
Section 6.14. Certain Conversions Deemed Payment. . . . . . . . . . . 30
ARTICLE VII. REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL. . . . . . . . 31
Section 7.1. Right to Require Repurchase. . . . . . . . . . . . . . . 31
Section 7.2. Notices; Method of Exercising Repurchase Right, Etc. . . 31
Section 7.3. Certain Definitions. . . . . . . . . . . . . . . . . . . 33
ARTICLE VIII. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . 34
Section 8.1. Reference to and Effect on the Indenture. . . . . . . . 34
Section 8.2. Waiver of Certain Covenants. . . . . . . . . . . . . . . 34
Section 8.3. Fourth Supplemental Indenture May be Executed In
Counterparts . . . . . . . . . . . . . . . . . . . . . . 35
Section 8.4. Effect of Headings. . . . . . . . . . . . . . . . . . . 36
-ii-
Fourth Supplemental Indenture, dated as of September 27, 1995 (the
"Fourth Supplemental Indenture"), between Federated Department Stores, Inc., a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company"), and The First National Bank of Boston, a national banking
association organized and existing under the laws of the United States of
America, as Trustee (the "Trustee"), supplementing that certain Indenture, dated
as of December 15, 1994, between the Company and the Trustee (the "Indenture").
Recitals
A. The Company has duly authorized the execution and delivery of the
Indenture to provide for the issuance from time to time of its unsecured
debentures, notes, or other evidences of indebtedness (the "Securities") to be
issued in one or more series as provided for in the Indenture.
B. The Indenture provides that the Securities of each series shall
be in substantially the form set forth in the Indenture, or in such other form
as may be established by or pursuant to a Board Resolution or in one or more
indentures supplemental thereto, in each case with such appropriate insertions,
omissions, substitutions, and other variations as are required or permitted by
the Indenture, and may have such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined to be required by the officers executing
such Securities, as evidenced by their execution thereof.
C. The Company and the Trustee have agreed that the Company shall
issue and deliver, and the Trustee shall authenticate, Securities denominated
"5% Convertible Subordinated Notes due 2003" (the "Notes") pursuant to the terms
of this Fourth Supplemental Indenture and substantially in the form set forth
below, in each case with such appropriate insertions, omissions, substitutions,
and other variations as are required or permitted by the Indenture and this
Fourth Supplemental Indenture, and with such letters, numbers, or other marks of
identification and such legends or endorsements placed thereon as may be
required to comply with the rules of any securities exchange or as may,
consistently herewith, be determined by the officers executing such Securities,
as evidenced by their execution of such Securities.
2
[Form of Face of Security]
This Security is a Global Security within the meaning of the Indenture
hereinafter referred to and is registered in the name of a Depositary or a
nominee thereof. This Security may not be transferred to, or registered or
exchanged for Securities registered in the name of, any Person other than the
Depositary or a nominee thereof, and no such transfer may be registered, except
in the limited circumstances described in the Indenture. Every Security
authenticated and delivered upon registration of transfer of, or in exchange for
or in lieu of, this Security shall be a Global Security subject to the
foregoing, except in such limited circumstances.
Federated Department Stores, Inc.
5% Convertible Subordinated Note due October 1, 2003
No. R- ________ $________
Federated Department Stores, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (hereinafter called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of $_______ on October 1, 20__,
and to pay interest thereon from September 27, 1995 or from the most recent
Interest Payment Date to which interest has been paid or duly provided for,
semiannually on October 1 and April 1 of each year, commencing on April 1, 1996
at the rate of 5% per annum, until the principal hereof is paid or made
available for payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in said Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the September 15 or March 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for shall forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series not less than 10
calendar days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully provided in said
Indenture.
Payment of the principal of and any such interest on this Security
shall be made at the office or agency of the Company maintained for the purpose
in New York, New York, in such coin or currency of the United States of America
as at the time
3
of payment is legal tender for payment of public and private debts; provided,
--------
however, that at the option of the Company payment of interest may be made by
- -------
check mailed to the address of the Person entitled thereto as such address
appears in the Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET FORTH ON THE
REVERSE HEREOF. SUCH PROVISIONS SHALL FOR ALL PURPOSES HAVE THE SAME EFFECT AS
THOUGH FULLY SET FORTH IN THIS PLACE.
This Security shall not be valid or become obligatory for any purpose
until the certificate of authentication herein has been signed manually by the
Trustee under said Indenture.
In Witness Whereof, this instrument has been duly executed in
accordance with the Indenture.
Federated Department Stores, Inc.
Date Issued:__________ By:______________________________
Attest:
By:___________________
[Form of Reverse of Security]
Federated Department Stores, Inc.
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") issued and to be issued in one or more
series under an Indenture, dated as of December 15, 1994 (herein called the
"Indenture"), between the Company and The First National Bank of Boston, as
Trustee (herein called the "Trustee," which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights, limitations
of rights, duties, and immunities thereunder of the Company, the Trustee, and
the Holders of the Securities and of the terms upon which the Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof, limited in aggregate principal amount to
$350,000,000.
No sinking fund is provided for the Securities. The Securities are
subject to redemption at the option of the Company on or after October 1, 1998,
in whole but not in part, upon not
4
more than 60 nor less than 30 days' notice to the Holders prior to the
Redemption Date.
The Redemption Prices (expressed as a percentage of principal amount)
are as follows for the 12-month period beginning on October 1 of the following
years:
Year Redemption Price
---- ----------------
1998 . . . . . . . . . . . 103.125%
1999 . . . . . . . . . . . 102.500%
2000 . . . . . . . . . . . 101.875%
2001 . . . . . . . . . . . 101.250%
2002 . . . . . . . . . . . 100.625%
In each case together with accrued and unpaid interest to the date of
redemption.
In the event of the repurchase of this Security in part only, a new
Security or Securities of this series and of like tenor for the portion hereof
not so repurchased shall be issued in the name of the Holder hereof upon the
cancellation hereof.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time, and on or
before the close of business on September 30, 2003, or in case this Security is
called for redemption or the Holder hereof has exercised his right to require
the Company to repurchase this Security, then in respect of this Security until
and including, but (unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be) not after, the close of business
on the business day next preceding the Redemption Date or the Repurchase Date,
as the case may be, to convert this Security (or any portion of the principal
amount hereof that is U.S.$1,000 or any integral multiple of U.S.$1,000 in
excess thereof, provided the unconverted portion of such principal amount is
also U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof) into
newly issued, fully paid and nonassessable shares of Common Stock of the Company
at an initial Conversion Rate equal to 29.2547 shares of Common Stock per
U.S.$1,000 principal amount of Securities (or at the current adjusted Conversion
Rate if an adjustment has been made as provided in the Indenture) by surrender
of this Security, duly endorsed or assigned to the Company or in blank and, in
case such surrender shall be made during the period from the close of business
of any Regular Record Date next preceding any Interest Payment Date to the
opening of business on such Interest Payment Date (unless this Security or the
portion thereof being converted has been called for redemption on a Redemption
Date, or is to be repurchased on a Repurchase Date, that occurs within such
period), also accompanied by payment in New York Clearing House or other funds
5
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted, and also the conversion notice hereon duly executed, to the Company
at the Corporate Trust Office of the Trustee, or at such other office or agency
of the Company as may be designated by it for such purpose in The City of New
York, or at such other offices or agencies as the Company may designate (each a
"Conversion Agent"). Subject to the aforesaid requirement for payment and, in
the case of a conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment Date, to the right
of the Holder of this Security (or any Predecessor Security) of record at such
Regular Record Date to receive an installment of interest (with certain
exceptions provided in the Indenture), no cash payment or adjustment is to be
made on conversion if the date of conversion is not an Interest Payment Date,
for interest accrued hereon from the Interest Payment Date next preceding the
date of conversion, or for dividends on the Common Stock issued on conversion
hereof. The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and such delivery will be
deemed to satisfy the Company's obligation to pay the principal amount of this
Security. No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest (calculated to
the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture provides that in case of
certain consolidations or mergers to which the Company is a party or the
conveyance, transfer, sale or lease of all or substantially all of the property
and assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then Outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, transfer, sale
or lease by a holder of the number of shares of Common Stock of the Company into
which this Security could have been converted immediately prior to such
consolidation, merger, conveyance, transfer, sale or lease. No adjustment in
the Conversion Rate will be made until such adjustment would require an increase
or decrease of at least one percent of such rate, provided that any adjustment
that would otherwise be made will be carried forward and taken into account in
the computation of any subsequent adjustment.
If a Change of Control (as defined in the Indenture) occurs, the
Holder of this Security shall have the right, in accordance with the provisions
of the Indenture, to require the Company to repurchase this Security (or any
portion of the principal amount hereof equal to U.S.$1,000 or any integral
multiple of $1,000 in excess thereof, provided the unrepurchased portion of such
principal amount is U.S.$1,000 or any integral
6
multiple of $1,000 in excess thereof) for cash at a Repurchase Price equal to
100% of the principal amount plus accrued and unpaid interest to the Repurchase
Date. Whenever in this Security there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Repurchase Price payable in respect of such Security 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
Security shall not be construed as excluding the Repurchase Price in those
provisions of this Security when such express mention is not made.
In the event of redemption, repurchase or conversion of this Security
in part only, a new Security or Securities for the unredeemed, unrepurchased or
unconverted portion hereof will be issued in the name of the Holder hereof.
The indebtedness evidenced by this Security is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all amounts then due on all Senior Debt
of the Company. Each Holder of this Security, by accepting the same, (a) agrees
to and shall be bound by such provisions, (b) authorizes and directs the Trustee
on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
If an Event of Default with respect to Securities of this series shall
occur and be continuing, the principal of the Securities of this series may be
declared due and payable in the manner and with the effect provided in the
Indenture.
The Indenture permits, with certain exceptions as therein provided,
the amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the Securities at
the time Outstanding of each series to be affected. The Indenture also contains
provisions permitting the Holders of specified percentages in principal amount
of the Securities of each series at the time Outstanding, on behalf of the
Holders of all Securities of such series, to waive compliance by the Company
with certain provisions of the Indenture and certain past defaults under the
Indenture and their consequences. Any such consent or waiver by the Holder of
this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for
7
the appointment of a receiver or trustee or for any other remedy thereunder
unless such Holder shall have previously given the Trustee written notice of a
continuing Event of Default with respect to the Securities of this series, the
Holders of not less than 25% in principal amount of the Securities of this
series at the time Outstanding shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default as Trustee and offered
the Trustee reasonable indemnity, and the Trustee shall not have received from
the Holders of a majority in principal amount of Securities of this series at
the time Outstanding a direction inconsistent with such request and shall have
failed to institute such proceeding for 60 calendar days after receipt of such
notice, request, and offer of indemnity. The foregoing shall apply to any suit
instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after the respective
due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Company, which
is absolute and unconditional, to pay the principal of and any premium and
interest on this Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain limitations
therein set forth, the transfer of this Security is registerable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Company in any place where the principal of and any
premium and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder hereof or his
attorney duly authorized in writing, and thereupon one or more new Securities of
this series and of like tenor, of authorized denominations and for the same
aggregate principal amount, shall be issued to the designated transferee or
transferees.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and integral multiples thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series and of like tenor of a different authorized
denomination, as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to cover
any tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee, and any agent of the Company or the Trustee
may treat the Person in whose name
8
this Security is registered as the owner hereof for all purposes, whether or not
this Security shall be overdue, and neither the Company, the Trustee, nor any
such agent shall be affected by notice to the contrary.
Unless this Security is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
Company or its agent for registration of transfer, exchange, or payment, and any
Security issued upon registration of transfer of, or in exchange for or in lieu
of, this Security is registered in the name of Cede & Co. or such other name as
requested by an authorized representative of The Depository Trust Company and
payment hereon is made to Cede & Co., ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL because the registered
owner hereof, Cede & Co., has an interest herein.
All terms used in this Security that are defined in the Indenture
shall have the respective meanings assigned to them in the Indenture.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to the Indenture, the undersigned hereby elects to have
this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or Paying Agent to pay
it or __________________ an amount in cash equal to 100% of the principal amount
hereof plus accrued and unpaid interest to the Repurchase Date.
Dated: _______________________ ________________________
Signature
________________________
Signature Guaranteed
Principal amount to be repurchased: ________________
Remaining principal amount following such repurchase: __________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
D. The Trustee's certificate of authentication shall be in
substantially the following form:
Trustee's Certificate of Authentication
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
9
The First National Bank of
Boston, as Trustee
By:___________________________
Authorized Officer
E. All acts and things necessary to make the Notes, when the Notes
have been executed by the Company and authenticated by the Trustee and delivered
as provided in the Indenture and this Fourth Supplemental Indenture, the valid,
binding, and legal obligations of the Company and to constitute these presents a
valid indenture and agreement according to its terms, have been done and
performed, and the execution and delivery by the Company of the Indenture and
this Fourth Supplemental Indenture and the issue hereunder of the Notes have in
all respects been duly authorized; and the Company, in the exercise of legal
right and power in it vested, is executing and delivering the Indenture and this
Fourth Supplemental Indenture and proposes to make, execute, issue, and deliver
the Notes.
Now, Therefore, this Fourth Supplemental Indenture Witnesseth:
In order to declare the terms and conditions upon which the Notes are
authenticated, issued, and delivered, and in consideration of the premises and
of the purchase and acceptance of the Notes by the Holders thereof, it is
mutually agreed, for the equal and proportionate benefit of the respective
Holders from time to time of the Notes, as follows:
ARTICLE I. ISSUANCE OF NOTES.
Section 1.1. Issuance of Notes; Principal Amount;
Maturity.
(a) On September 27, 1995, the Company shall issue and deliver to the
Trustee, and the Trustee shall authenticate, Notes substantially in the form set
forth above, in each case with such appropriate insertions, omissions,
substitutions, and other variations as are required or permitted by the
Indenture and this Fourth Supplemental Indenture, and with such letters,
numbers, or other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any securities
exchange or as may, consistently herewith, be determined by the officers
executing such Notes, as evidenced by their execution of such Notes.
(b) The Notes shall be issued in the aggregate principal amount of
$350,000,000 and shall mature on October 1, 2003.
Section 1.2. Interest on the Notes; Payment of Interest.
10
(a) The Notes shall bear interest at the rate of 5% per annum from
September 27, 1995, except in the case of Notes delivered pursuant to Sections
2.05 or 2.07 of the Indenture, which shall bear interest from the last Interest
Payment Date through which interest has been paid.
(b) The interest so payable, and punctually paid or duly provided
for, on any Interest Payment Date shall, as provided in such Indenture, be paid
to the Person in whose name a Note is registered at the close of business on the
Regular Record Date for such interest, which shall be the September 15, or March
15 (whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date. Any such interest not so punctually paid or duly
provided for shall forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name the Note is
registered at the close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice whereof shall be
given to Holders of Securities of this series not less than 10 calendar days
prior to such Special Record Date, or be paid at any time in any other lawful
manner not inconsistent with the requirements of any securities exchange on
which the Securities of this series may be listed, and upon such notice as may
be required by such exchange, all as more fully provided in the Indenture.
(c) Payment of the principal of (and premium, if any) and any such
interest on the Notes shall be made at the office or agency of the Company
maintained for the purpose in New York, New York, in such coin or currency of
the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of
-------- -------
the Company payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address appears in the Security Register.
ARTICLE II. CERTAIN DEFINITIONS.
Section 2.1. Certain Definitions.
The terms defined in this Section 2.1 (except as herein otherwise
expressly provided or unless the context of this Fourth Supplemental Indenture
otherwise requires) for all purposes of this Fourth Supplemental Indenture and
of any indenture supplemental hereto have the respective meanings specified in
this Section 2.1. All accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP. All other terms used in this
Fourth Supplemental Indenture that are defined in the Indenture or the Trust
Indenture Act, either directly or by reference therein (except as herein
otherwise expressly provided or unless the context of this Fourth Supplemental
Indenture otherwise requires), have the respective meanings assigned to such
terms in the Indenture or the Trust Indenture Act, as the case may be, as in
force at the date of this Fourth Supplemental Indenture as originally executed.
11
"Change of Control" has the meaning specified in Section 7.3 of this
Fourth Supplemental Indenture.
"Closing Price Per Share" means, with respect to the Common Stock of
the Company, for any day, the reported last sales price regular way per share
or, in case no such reported sale takes place on such day, the average of the
reported closing bid and asked prices regular way, in either case (i) on the New
York Stock Exchange as reported in The Wall Street Journal (or other similar
newspaper) for New York Stock Exchange Composite Transactions or, if the Common
Stock is not listed or admitted to trading on such Exchange, on the principal
(as determined by the Company's Board of Directors) national securities exchange
on which the Common Stock is listed or admitted to trading or (ii) if not listed
or admitted to trading on any national securities exchange, on the Nasdaq
National Market, or, if the Common Stock is not listed or admitted to trading on
any national securities exchange or quoted on the Nasdaq National Market, the
average of the closing bid and asked prices in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose. If no such prices are available, the Closing
Price Per Share shall be the fair value of a share as determined by the Board of
Directors of the Company.
"Common Stock" means the Common Stock, par value $.01 per share, of
the Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 5.11, shares issuable on conversion of
Securities shall include only shares of Common Stock or shares of any class or
classes of common stock 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 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.
"Constituent Person" has the meaning specified in Section 5.11 of this
Fourth Supplemental Indenture.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article VI of this Fourth Supplemental
Indenture.
"Conversion Price" has the meaning specified in Section 7.3 of this
Fourth Supplemental Indenture.
"Conversion Rate" has the meaning specified in Section 5.1 of this
Fourth Supplemental Indenture.
"Non-electing Share" has the meaning specified in Section 5.11 of this
Fourth Supplemental Indenture.
12
"Permitted Holder of Senior Debt" means any duly authorized
representative of a holder of Senior Debt.
"Proceeding" has the meaning specified in Section 6.2 of this Fourth
Supplemental Indenture.
"Quoted Price" has the meaning specified in Section 7.3 of this Fourth
Supplemental Indenture.
"Redemption Date", when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this Fourth
Supplemental Indenture.
"Redemption Price", when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this Fourth
Supplemental Indenture.
"Repurchase Date" has the meaning specified in Section 7.1 of this
Fourth Supplemental Indenture.
"Repurchase Price" has the meaning specified in Section 7.1 of this
Fourth Supplemental Indenture.
"Senior Debt" means the principal of (and premium, if any) and
interest (including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, the following, whether absolute or
contingent, secured or unsecured, due or to become due, outstanding on the date
of this Fourth Supplemental Indenture or thereafter created, incurred or
assumed: (a) indebtedness of the Company to banks, insurance companies and
other financial institutions evidenced by credit agreements, notes or other
written obligations, (b) all other indebtedness of the Company which is (i) for
money borrowed (including obligations of the Company in respect of overdrafts,
foreign exchange contracts and currency exchange agreements, letters of credit,
bankers' acceptances, interest rate protection agreements, and any loans or
advances from banks, whether or not evidenced by notes or similar instruments)
or (ii) evidenced by a note or similar instrument given in connection with an
acquisition of any businesses, properties or assets of any kind (other than any
account payable or other accrued current liability or obligation incurred in the
ordinary course of business in connection with the obtaining of materials or
services ("Trade Accounts")), (c) obligations of the Company as lessee under
leases required to be capitalized on the balance sheet of the lessee under
generally accepted accounting principles, (d) all obligations of the Company
issued or assumed as the deferred purchase price of property (except Trade
Accounts), all conditional sale obligations of the Company and all obligations
of the Company under any title retention agreements, (e) all indebtedness and
obligations of other Persons of the types described in clauses (a) through (d)
for the payment of which the Company is responsible or liable as obligor or
guarantor, including, without
13
limitation, obligations (contingent or otherwise) to purchase or otherwise
acquire, or to assure a creditor against loss in respect of, any such
indebtedness or obligation, and any such indebtedness or obligation secured by a
lien on any asset of the Company, whether or not such indebtedness or obligation
is assumed by the Company and (f) amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligation described in
clauses (a) through (e), unless in any case in the instrument creating or
evidencing any such indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation is not superior
in right of payment to the Securities.
"Senior Nonmonetary Default" has the meaning specified in Section 6.3
of this Fourth Supplemental Indenture.
"Senior Payment Default" has the meaning specified in Section 6.3 of
this Fourth Supplemental Indenture.
"Trading Days" means (i) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business or (ii) if the Common Stock is quoted
on the Nasdaq National Market or any similar system of automated dissemination
of quotations of securities prices, days on which trades may be made on such
system or (iii) if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq National Market or similar
system, days on which the Common Stock is traded regular way in the over-the-
counter market and for which a closing bid and a closing asked price for the
Common Stock are available.
ARTICLE III. CERTAIN COVENANTS.
The following covenant shall be applicable to the Company for so long
as any of the Notes are Outstanding. Nothing in this paragraph will, however,
affect the Company's obligations under any provision of the Indenture or, except
for Article III hereof, this Fourth Supplemental Indenture.
Section 3.1. Registration and Listing.
The Company (i) will effect all registrations with, and obtain all
approvals by, all governmental authorities that may be necessary under any
United States Federal or state law (including the Securities Act, the Exchange
Act and state securities and Blue Sky laws) before the shares of Common Stock
issuable upon conversion of Securities may be lawfully issued and delivered, and
thereafter publicly traded, and qualified or listed as contemplated by clause
(ii); and (ii) will list the shares of Common Stock required to be issued and
delivered upon conversion of Securities prior to such issuance or delivery on
The New York Stock Exchange.
ARTICLE IV. REDEMPTION OF SECURITIES.
14
Section 4.1. Right of Redemption.
The Securities may be redeemed in accordance with the provisions of
the form of Securities set forth herein.
ARTICLE V. CONVERSION OF SECURITIES
Section 5.1. Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security may be converted into fully paid
and nonassessable shares (calculated as to each conversion to the nearest 1/100
of a share) of Common Stock of the Company at the Conversion Rate, determined as
hereinafter provided, in effect at the time of conversion. Such conversion
right shall commence immediately and expire at the close of business on
September 30, 2003, subject, in the case of the conversion of any Global
Security, to any applicable book-entry procedures of the Depositary therefor.
In case a Security is called for redemption at the election of the Company or
the Holder thereof exercises his right to require the Company to repurchase the
Security, such conversion right in respect of the Security shall expire at the
close of business on the business day next preceding the Redemption Date or the
Repurchase Date (as defined in Article VII), as the case may be, unless the
Company defaults in making the payment due upon redemption or repurchase, as the
case may be (in each case subject as aforesaid to any applicable book entry
procedures).
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 29.2547
shares of Common Stock for each $1,000 principal amount of Securities. The
Conversion Rate shall be adjusted in certain instances as provided in this
Article V.
Section 5.2. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of any
Security to be converted shall surrender such Security in blank at any office or
agency of the Company maintained for that purpose pursuant to Section 6.02 of
the Indenture, accompanied by a duly signed conversion notice substantially in
the form attached to the form of Security stating that the Holder elects to
convert such Security or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted. Each Security surrendered
for conversion (in whole or in part) during the period from the close of
business on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in the case
of any Security or portion thereof which has been called for redemption on a
Redemption Date, or repurchased on a Repurchase Date, occurring within such
period) be accompanied by payment in New York Clearing House funds or other
funds acceptable to the Company of an amount equal
15
to the interest payable on such Interest Payment Date on the principal amount of
such Security (or part thereof, as the case may be) being surrendered for
conversion. The interest so payable on such Interest Payment Date in respect of
such Security (or portion thereof, as the case may be) surrendered for
conversion shall be paid to the Holder of such Security as of such Regular
Record Date. Interest payable in respect of any Security surrendered for
conversion on or after an Interest Payment Date shall be paid to the Holder of
such Security as of the next preceding Regular Record Date, notwithstanding the
exercise of the right of conversion. Except as provided in this paragraph, no
cash payment or adjustment shall be made upon any conversion on account of, if
the date of conversion is not an Interest Payment Date, any interest accrued
from the Interest Payment Date next preceding the conversion date, in respect of
any Security (or part thereof, as the case may be) surrendered for conversion,
or on account of any dividends on the Common Stock issued upon conversion. The
Company's delivery to the Holder of the fixed number of shares of Common Stock
(or a cash adjustment, as provided in this Indenture) into which a Security is
convertible will be deemed to satisfy the Company's obligation to pay the
principal amount of the Security.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver to the Trustee, for delivery to the Holder, a
certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 5.3.
In the case of any Security 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 Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security
may be converted in part, but only if (i) such Security is of a denomination
larger than U.S.$1,000 and (ii) the principal amount of such Security both to be
converted and to remain Outstanding after such conversion is equal to U.S.$1,000
or any integral multiple of $1,000 in excess thereof.
Section 5.3. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon conversion
of any Security or Securities. If more than one Security shall be surrendered
for conversion at one time by the same Holder, the number of full shares which
shall be issuable upon conversion thereof shall be computed on the basis of the
16
aggregate principal amount of the Securities so surrendered. Instead of any
fractional share of Common Stock which would otherwise be issuable upon
conversion of any Security or Securities, the Company shall calculate and pay a
cash adjustment in respect of such fraction (calculated to the nearest one-100th
of a share) in an amount equal to the same fraction of the current market price
per share of Common Stock (calculated in accordance with Section 5.4(8) below)
at the close of business on the day of conversion.
Section 5.4. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustment from time to time
as follows:
(1) In case at any time after the date hereof, the Company shall pay
or make a dividend or other distribution on all of the shares of any class of
capital stock of the Company in shares of its Common Stock, the Conversion Rate
in effect at the opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend or other
distribution shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total number of
shares constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following the
date fixed for such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares issuable in
respect of scrip certificates issued in lieu of fractions of shares of Common
Stock.
(2) In case at any time after the date hereof, the Company shall
issue rights or warrants to all holders of its Common Stock (not being available
on an equivalent basis to Holders of the Securities upon conversion) entitling
them to subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share (determined as provided in
paragraph (8) of this Section 5.4) of the Common Stock on the date fixed for the
determination of shareholders entitled to receive such rights or warrants (other
than pursuant to a dividend reinvestment plan), the Conversion Rate in effect at
the opening of business on the day following the date fixed for such
determination shall be increased by dividing such Conversion Rate by a fraction
of which the numerator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus the
number of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the denominator shall
be the number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common
17
Stock so offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following the date fixed
for such determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but will include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock.
(3) In case at any time after the date hereof, the outstanding shares
of Common Stock shall be subdivided into a greater number of shares of Common
Stock, the Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely, in case at any time after the date
hereof, outstanding shares of Common Stock shall each be combined into a smaller
number of shares of Common Stock, the Conversion Rate in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case at any time after the date hereof the Company shall, by
dividend or otherwise, distribute to all holders of its Common Stock evidences
of its indebtedness or assets (including stock or other securities of the
Company or any other issuer, but excluding any rights or warrants referred to in
paragraph (2) of this Section 5.4, any dividend or distribution paid exclusively
in cash and any dividend or distribution referred to in paragraph (1) of this
Section 5.4), the Conversion Rate shall be adjusted so that the same shall equal
the rate determined by dividing the Conversion Rate in effect immediately prior
to the close of business on the date fixed for the determination of shareholders
entitled to receive such distribution by a fraction of which the numerator shall
be the current market price per share (determined as provided in paragraph (8)
of this Section 5.4) of the Common Stock on the date fixed for such
determination less the then fair market value (each reference to "fair market
value" in this Section 5.4 shall mean the fair market value as determined by the
Board of Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets or
evidences of indebtedness so distributed applicable to one share of Common Stock
and the denominator shall be such current market price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following the date fixed for the determination of
shareholders entitled to receive such distribution.
(5) In case (A) the Company shall, by dividend or otherwise, other
than regular, periodic or other dividends declared or paid in accordance with
the Company's practice as established from time to time, distribute to all
holders of its
18
Common Stock cash (excluding any cash that is distributed upon a merger or
consolidation to which Section 5.11 applies or as part of a distribution
referred to in paragraph (4) of this Section 5.4) and (B)(I) the total of (x)
the aggregate amount of such cash distribution, (y) the aggregate amount of any
other distributions to all holders of its Common Stock 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 paragraph (5) or paragraph (6)
of this Section 5.4 has been made (other than regular, periodic or other
dividends declared or paid in accordance with the Company's practice as
established from time to time) and (z) the aggregate of any cash plus the fair
market value of other consideration payable in respect of any tender offers by
the Company or any of its Subsidiaries for all or any portion of the Common
Stock concluded within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this paragraph
(5) or paragraph (6) of this Section 5.4 has been made, exceeds (II) 12.5% of
the product of the current market price per share (determined as provided in
paragraph (8) of this Section 5.4) of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to receive such
distribution times the number of shares of Common Stock outstanding on such
date, then, and in each such case, immediately after the close of business on
such date for determination, the Conversion Rate shall be increased so that the
same shall equal the rate determined by dividing the Conversion Rate in effect
immediately prior to the close of business on the date fixed for determination
of the shareholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to such current market price per share on the
date fixed for such determination less an amount equal to the quotient of
(X) the sum of (I) the total of the amounts referred to in subclauses (B)(I)(x)
and (y) of this paragraph (5) and (II) the aggregate of the excess of the amount
referred to in subclause (B)(I)(z) of this paragraph (5) for each tender offer
so referred to over the aggregate current market price of the shares of Common
Stock purchased in such tender offer as of the Expiration Time (as hereinafter
defined) for such tender offer divided by (Y) the number of shares of Common
Stock outstanding on such date for determination and (ii) the denominator of
which shall be equal to such current market price per share on such date for
determination.
(6) In case (A) a tender offer made by the Company or any Subsidiary
for all or any portion of the Common Stock shall expire and (B)(I) the total of
(x) the fair market value of the aggregate consideration required to be paid
pursuant to such tender offer (as amended upon the expiration thereof) to
shareholders (based on the acceptance (up to any maximum specified in the terms
of the tender offer) of Purchased Shares (as defined below)), (y) the aggregate
of the cash plus the fair market value, as of the expiration of such tender
offer, of consideration payable in respect of any other tender offer, by the
Company or any Subsidiary for all or any portion of the Common Stock expiring
within the 12 months preceding the
19
expiration of such tender offer and in respect of which no adjustment pursuant
to this paragraph (6) or paragraph (5) of this Section 5.4 has been made and
(z) the aggregate amount of any distributions to all holders of the Company's
Common Stock made exclusively in cash within 12 months preceding the expiration
of such tender offer and in respect of which no adjustment pursuant to this
paragraph (6) or paragraph (5) of this Section 5.4 has been made (other than
regular, periodic or other dividends declared or paid in accordance with the
Company's practice as established from time to time), exceeds (II) 12.5% of the
product of the current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section 5.4) on the date of the last time (the
"Expiration Time") tenders could have been made pursuant to such tender offer
(as it may be amended) times the number of shares of Common Stock outstanding
(including any tendered shares) on 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 Rate shall be adjusted so that the same
shall equal the price determined by dividing the Conversion Rate immediately
prior to the close of business on the date of the Expiration Time by a fraction
(i) the numerator of which shall be equal to (a) the product of (I) such current
market price per share on the date of the Expiration Time and (II) the number of
shares of Common Stock outstanding (including any tendered shares) as of the
Expiration Time less (b) the total of the amounts referred to in Clause (B)(I)
of this paragraph (6), and (ii) the denominator of which shall be equal to the
product of (a) such current market price per share on the date of the Expiration
Time and (b) the number of shares of Common Stock outstanding (including any
tendered shares) as of the Expiration Time less the number of all shares validly
tendered and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased Shares").
(7) The reclassification of Common Stock into securities including
other than Common Stock (other than any reclassification upon a consolidation or
merger to which Section 5.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of Common
Stock (and the effective date of such reclassification shall be deemed to be
"the date fixed for the determination of shareholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 5.4), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section 5.4).
20
(8) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section 5.4, the current market price per share of Common Stock
on any date shall be calculated by the Company and be deemed to be the average
of the daily Closing Prices Per Share for the five consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "'ex' date", when used
with respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way on the applicable securities exchange or in the
applicable securities market without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate shall be required unless
such adjustment (plus any adjustments not previously made by reason of this
paragraph (9)) would require an increase or decrease of at least one percent in
such rate; provided, however, that any adjustments which by reason of this
-------- -------
paragraph (9) are not required to be made shall be carried forward and taken
into account in any subsequent adjustment. All calculations under this Article
shall be made to the nearest cent or to the nearest one-thousandth of a share,
as the case may be.
(10) The Company may make such increases in the Conversion Rate, for
the remaining term of the Securities or any shorter term, in addition to those
required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 5.4, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock or
from any event treated as such for income tax purposes or for any other reasons.
The Company shall have the power to resolve any ambiguity or correct any error
in this paragraph (10) and its actions in so doing shall be final and
conclusive.
Section 5.5. Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 5.4 and shall prepare a certificate signed by the
Chief Financial Officer or Treasurer of the Company setting forth the
adjusted Conversion Rate and showing in reasonable detail the facts upon
which such adjustment is based, and such certificate shall forthwith
promptly be filed with the Trustee and with each Conversion Agent; and
(2) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be required, and
as soon as practicable after it is required, such notice shall be provided
by the
21
Company to all Holders in accordance with Section 13.03 of the Indenture.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate, except to exhibit the same
to any Holder of Securities desiring inspection thereof at its office during
normal business hours.
Section 5.6. Notice of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other distribution)
on its Common Stock payable otherwise than in cash out of its earned
surplus; or
(2) the Company shall authorize the granting to all holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares
of capital stock of any class or of any other rights (other than any rights
that are substantially similar to the rights issued under the Rights
Agreement, dated as of December 19, 1994, between the Company and The Bank
of New York, as rights agent); or
(3) (a) of any reclassification of the Common Stock of the Company,
or (b) of any consolidation, merger or share exchange to which the Company
is a party and for which approval of any shareholders of the Company is
required, or (c) of any tender offer by the Company or any Subsidiary for
all or any portion of the Common Stock, or (d) of the conveyance, transfer,
sale or lease of all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 6.02 of the
Indenture, and shall cause to be provided to all Holders in accordance with
Section 13.03 of the Indenture, at least 20 days (or 10 days in any case
specified in clause (1), (2) or (3)(c) above) prior to the applicable record,
expiration or effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such dividend,
distribution, or grant of rights or warrants, or, if a record is not to be
taken, the effective date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution, rights or warrants are to be
determined, (y) the date on which the right to make tenders under such tender
offer is originally scheduled to expire or (z) the date on which such
reclassification, consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such
22
reclassification, consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up. Neither the failure to
give such notice or the notice referred to in the following paragraph nor any
defect therein shall affect the legality or validity of the proceedings
described in clauses (1) through (4) of this Section 5.6. If at the time the
Trustee shall not be the conversion agent, a copy of such notice and any notice
referred to in the following paragraph shall also forthwith be filed by the
Company with the Trustee.
The preceding paragraph to the contrary notwithstanding, the Company
shall cause to be filed at each office or agency maintained for the purpose of
conversion of Securities pursuant to Section 6.02 of the Indenture, and shall
cause to be provided to all Holders in accordance with Section 13.03 of the
Indenture, notice of any tender offer by the Company or any Subsidiary for all
or any portion of the Common Stock at or about the time that such notice of
tender offer is provided to the public generally.
Section 5.7. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
Common Stock then issuable upon the conversion of all Outstanding Securities.
Section 5.8. Taxes on Conversions.
Except as provided in the next sentence, the Company will pay any and
all taxes and duties that may be payable in respect of the issue or delivery of
shares of Common Stock on conversion of Securities pursuant hereto. A Holder
delivering a Security for conversion 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 shares of Common Stock in a name other than that of the Holder of
the Security or Securities to be converted, and no such issue or delivery shall
be made unless and until the Person requesting such issue has paid to the
Company the amount of any such tax or duty, or has established to the
satisfaction of the Company that such tax or duty has been paid.
Section 5.9. Agreements as to Common Stock.
The Company agrees that all shares of Common Stock which may be
delivered upon conversion of Securities, upon such delivery, will have been duly
authorized and validly issued and will be fully paid and nonassessable and,
except as provided in Section 5.8, the Company will pay all taxes, liens and
charges with respect to the issue thereof.
Section 5.10. Cancellation of Converted Securities.
23
All Securities delivered for conversion shall be delivered to the
Trustee, which shall dispose of the same as provided in Section 2.08 of the
Indenture.
Section 5.11. Provision in Case of Consolidation, Merger or
Conveyance of Assets.
In case of any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the Company
(other than a merger which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any conveyance, transfer, sale or lease of all or substantially all of the
properties and assets of the Company, the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture providing that
the Holder of each Security then Outstanding shall have the right thereafter,
during the period such Security shall be convertible as specified in
Section 5.1, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
conveyance, transfer, sale or lease by a holder of the number of shares of
Common Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, transfer, sale or
lease, assuming such holder of Common Stock of the Company (i) is not a Person
with which the Company consolidated or into which the Company merged or which
merged into the Company or to which such conveyance, transfer, sale or lease was
made, as the case may be ("Constituent Person"), or an Affiliate of a
Constituent Person and (ii) failed to exercise his rights of election, if any,
as to the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, transfer, sale or lease (provided that
if the kind or amount of securities, cash and other property receivable upon
such consolidation, merger, conveyance, transfer, sale or lease is not the same
for each share of Common Stock of the Company held immediately prior to such
consolidation, merger, conveyance, transfer, sale or lease by others than a
Constituent Person or an Affiliate thereof and in respect of which such rights
of election shall not have been exercised ("Non-electing Share"), then for the
purpose of this Section 5.11 the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, transfer, sale
or lease by the holders of 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, for
events subsequent to the effective date of such supplemental indenture, shall be
as nearly equivalent as may be practicable to the adjustments provided for in
this Article. The above provisions of this Section 5.11 shall similarly apply
to successive consolidations, mergers, conveyances, transfers, sales or leases.
24
Neither the Trustee, any Paying Agent nor any Conversion Agent shall
be under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any such
consolidation, merger, conveyance, transfer, sale or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any such
provisions, and shall be protected in relying upon, an Opinion of Counsel with
respect thereto, which the Company shall cause to be furnished to the Trustee
upon request.
Section 5.12. Responsibility of Trustee for Conversion
Provisions.
The Trustee, subject to the provisions of Section 9.01 of the
Indenture, and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed, in
making the same, or whether a supplemental indenture need be entered into.
Neither the Trustee, subject to the provisions of Section 9.01 of the Indenture,
nor any Conversion Agent shall be accountable with respect to the validity or
value (or the kind or amount) of any Common Stock, or of any other securities or
property or cash, which may at any time be issued or delivered upon the
conversion of any Security; and it or they do not make any representation with
respect thereto. Neither the Trustee, subject to the provisions of Section 9.01
of the Indenture, nor any Conversion Agent shall be responsible for any failure
of the Company to make or calculate any cash payment or to issue, transfer or
deliver any shares of Common Stock or share certificates or other securities or
property or cash upon the surrender of any Security for the purpose of
conversion; and the Trustee, subject to the provisions of Section 9.01 of the
Indenture, and any Conversion Agent shall not be responsible for any failure of
the Company to comply with any of the covenants of the Company contained in this
Article.
ARTICLE VI. SUBORDINATION.
Section 6.1. Securities Subordinated to Senior Debt.
The Company covenants and agrees, and each Holder of a Security, by
his acceptance thereof, likewise covenants and agrees, that, to the extent and
in the manner hereinafter set forth in this Article, the payment of the
principal of and interest on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior payment in full of
all Senior Debt.
25
Section 6.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or proceeding,
or any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary and whether or not involving
insolvency or bankruptcy, or (c) any assignment for the benefit of creditors or
any other marshalling of assets and liabilities of the Company, then and in any
such event specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, or provision shall be made for such payment in cash
or cash equivalents or otherwise in a manner satisfactory to the holders of
Senior Debt, before the Holders of the Securities are entitled to receive any
payment or distribution of any kind or character, whether in cash, property or
securities, on account of principal of or interest on the Securities or on
account of any purchase or other acquisition of Securities by the Company or any
Subsidiary of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively, as a "Securities
Payment"), and to that end the holders of all Senior Debt shall be entitled to
receive, for application to the payment thereof, any Securities Payment which
may be payable or deliverable in respect of the Securities in any such
Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full or payment thereof
provided for in cash or cash equivalents or otherwise in a manner satisfactory
to the holders of Senior Debt, and if such fact shall, at or prior to the time
of such Securities Payment, have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such Securities Payment shall be
paid over or delivered forthwith to the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee, agent or other Person making payment
or distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent jurisdiction in a
reorganization proceeding under any applicable bankruptcy law or of any other
corporation provided for by such plan of reorganization or readjustment which
stock or securities are subordinated in right of payment to all then outstanding
26
Senior Debt to substantially the same extent as the Securities are so
subordinated as provided in this Article. The consolidation of the Company
with, or the merger of the Company into, another Person or the liquidation or
dissolution of the Company following the conveyance, transfer, sale or lease of
all or substantially all of its properties and assets to another Person upon the
terms and conditions set forth in Article XI of the Indenture shall not be
deemed a Proceeding for the purposes of this Section if the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer, sale or lease such properties and assets, as
the case may be, shall, as a part of such consolidation, merger, conveyance,
transfer, sale or lease comply with the conditions set forth in Article XI of
the Indenture.
Section 6.3. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as defined below) shall
have occurred and be continuing, then no Securities Payment shall be made unless
and until such Senior Payment Default shall have been cured or waived or shall
have ceased to exist or all amounts then due and payable in respect of Senior
Debt to which such Senior Payment Default relates shall have been paid in full,
or provision shall have been made for such payment in cash or cash equivalents
or otherwise in a manner satisfactory to the holders of Senior Debt. "Senior
Payment Default" means any default in the payment of principal of or premium, if
any, or interest on any Senior Debt.
In the event that any Senior Nonmonetary Default (as defined below)
shall have occurred and be continuing, then, from and after the sixtieth day
after the receipt by the Company and the Trustee of written notice of such
Senior Nonmonetary Default from any Permitted Holder of Senior Debt, no
Securities Payment shall be made until such Senior Nonmonetary Default shall
have been cured or waived or shall have ceased to exist and any acceleration of
Senior Debt shall have been rescinded or annulled or the Senior Debt to which
such Senior Nonmonetary Default relates shall have been discharged. "Senior
Nonmonetary Default" means the occurrence or existence and continuance of any
event of default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any instrument
pursuant to which any Senior Debt is outstanding, permitting (whether
immediately or after notice or lapse of time or both) one or more holders of
such Senior Debt (or a trustee or agent on behalf of the holders thereof) to
declare such Senior Debt due and payable prior to the date on which it would
otherwise become due and payable, other than a Senior Payment Default.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such Securities Payment, have been made known to the Trustee or, as the
case may be, such Holder, then and in such event such
27
Securities Payment shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 6.2 would be applicable.
Section 6.4. Payment Permitted If No Default.
Nothing contained in this Article or in any of the Securities insofar
as they incorporate the provisions of this Article shall prevent (a) the
Company, at any time except during the pendency of any Proceeding referred to in
Section 6.2 or under the conditions described in Section 6.3, from making
Securities Payments, or (b) the application by the Trustee of any money
deposited with it hereunder to Securities Payments or the retention of such
Securities Payment by the Holders, if, at the time of such application by the
Trustee, the Trustee did not have knowledge that such Securities Payment would
have been prohibited by the provisions of this Article.
Section 6.5. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, or the provision for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders of Senior Debt,
the Holders of the Securities shall be subrogated to the rights of the holders
of such Senior Debt to receive payments and distributions of cash, property and
securities applicable to the Senior Debt until the principal of and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
Section 6.6. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders on the one hand and the
holders of Senior Debt on the other hand. Nothing contained in this Article or
elsewhere in this Indenture or in the Securities is intended to or shall
(a) impair, as among the Company, its creditors other than holders of Senior
Debt and the Holders of the Securities, the obligation of the Company, which is
absolute and unconditional (and which, subject to the rights under this Article
of the holders of Senior Debt, is intended to rank equally with all other
general obligations of the Company), to pay to the Holders
28
of the Securities the principal of and interest on the Securities as and when
the same shall become due and payable in accordance with their terms; or
(b) affect the relative rights against the Company of the Holders of the
Securities and creditors of the Company other than the holders of Senior Debt;
or (c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 6.7. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 6.8. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt to enforce
subordination as herein provided shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms, provisions and covenants of this Indenture,
regardless of any knowledge thereof any such holder may have or be otherwise
charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) amend or supplement in any manner Senior Debt
or any instrument evidencing the same or any agreement under which Senior Debt
is outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
Section 6.9. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Notwithstanding the provisions of
this Article or any other provision of this Fourth Supplemental Indenture, the
Trustee shall not be charged with knowledge of the existence of
29
any facts which would prohibit the making of any payment to or by the Trustee in
respect of the Securities, unless and until the Trustee shall have received
written notice thereof from the Company or a holder of Senior Debt or from any
trustee therefor or representative thereof; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 9.01 of
the Indenture, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
-------- -------
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of the principal of or interest on
any Security), then, anything herein contained to the contrary notwithstanding,
the Trustee shall have full power and authority to receive such money and to
apply the same to the purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date.
Subject to the provisions of Section 9.01 of the Indenture, the
Trustee shall be entitled to rely on the delivery to it of a written notice by a
Person representing himself to be a holder of Senior Debt (or a trustee therefor
or representative thereof) to establish that such notice has been given by a
holder of Senior Debt (or a trustee therefor or representative thereof). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the Trustee
may request such Person to furnish evidence to the reasonable satisfaction of
the Trustee as to the amount of Senior Debt held by such Person, the extent to
which such Person is entitled to participate in such payment or distribution and
any other facts pertinent to the rights of such Person under this Article, and
if such evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to receive
such payment.
Section 6.10. Reliance on Judicial Order or Certificate
of Liquidating Agent.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 9.01 of the
Indenture, and the Holders of the Securities shall be entitled to rely upon any
order or decree entered by any court of competent jurisdiction in which such
Proceeding is pending, or a certificate of the trustee in bankruptcy, receiver,
liquidating trustee, custodian, assignee for the benefit of creditors, agent or
other Person making such payment or distribution, delivered to the Trustee or to
the Holders of Securities, for the purpose of ascertaining the Persons entitled
to participate in such payment or distribution, the holders of the Senior Debt
and other indebtedness of the Company, the amount thereof or payable thereon,
the amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
30
Section 6.11. Trustee Not Fiduciary for Holders of Senior
Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
With respect to the holders of Senior Debt, the Trustee undertakes to
perform or to observe only such of its covenants or obligations as are
specifically set forth in this Article and no implied covenants or obligations
with respect to holders of Senior Debt shall be read into this Indenture against
the Trustee.
Section 6.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
Section 6.13. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall have
been appointed by the Company and be then acting hereunder, the term "Trustee"
as used in this Article shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
--------
however, that Section 6.12 shall not apply to the Company or any Affiliate of
- -------
the Company if it or such Affiliate acts as Paying Agent.
Section 6.14. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article V
shall not be deemed to constitute a Securities Payment and (2) the payment,
issuance or delivery of cash, property or securities (other than junior
securities) upon conversion of a Security shall be deemed to constitute a
Securities Payment. For the purposes of this Section, the term "junior
securities" means shares of any common stock. Nothing contained in this Article
or elsewhere in this Fourth Supplemental Indenture or in the Securities is
intended to or shall impair, as among the Company, its creditors other than
holders of Senior Debt and the Holders of the Securities, the
31
right, which is absolute and unconditional, of the Holder of any Security to
convert such Security in accordance with Article V.
ARTICLE VII. REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL.
Section 7.1. Right to Require Repurchase.
In the event that a Change of Control (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, to require
the Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Securities, or any portion of the principal
amount thereof that is an integral multiple of U.S.$1,000 (provided that no
--------
single Security may be repurchased in part unless the portion of the principal
amount of such Security to be Outstanding after such repurchase is equal to
U.S.$1,000 or integral multiples of U.S.$1,000 in excess thereof), on the date
(the "Repurchase Date") that is 45 days after the date of the Company Notice (as
defined in Section 7.2) for cash in Dollars at a purchase price equal to 100% of
the principal amount plus interest accrued to the Repurchase Date (the
"Repurchase Price"); provided that installments of interest on Securities whose
--------
Stated Maturity is on or prior to the Repurchase Date shall be payable to the
Holders of such Securities registered as such on the relevant Record Date
according to their terms and the provisions of Section 2.09 of the Indenture.
Such right to require the repurchase of the Securities shall not continue after
a discharge of the Company from its obligations with respect to the Securities
in accordance with Article XI of the Indenture, unless a Change of Control shall
have occurred prior to such discharge. Whenever in this Indenture there is a
reference, in any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Repurchase Price payable
in respect of such Security 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.
Section 7.2. Notices; Method of Exercising Repurchase Right,
Etc.
(a) Unless the Company shall have theretofore called for redemption
all of the Outstanding Securities, on or before the 30th day after the
occurrence of a Change in Control, the Company or, at the request of the Company
on or before the 15th day after such occurrence, the Trustee, shall give to all
Holders of Securities, in the manner provided in Section 13.03 of the Indenture
notice (the "Company 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.
32
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and the amount of accrued and unpaid
interest to the Repurchase Date, if any,
(4) a description of the procedure which a Holder must follow to
exercise a repurchase right,
(5) that on the Repurchase Date the Repurchase Price, and the amount
of accrued and unpaid interest to the Repurchase Date, if any, will become
due and payable upon each such Security designated by the Holder to be
repurchased, and that interest thereon shall cease to accrue on and after
said date,
(6) the Conversion Rate, the date on which the right to convert the
Securities to be repurchased will terminate and the places where such
Securities may be surrendered for conversion, and
(7) the place or places where such Securities are to be surrendered
for payment of the Repurchase Price and accrued interest, if any.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (i) written notice of the Holder's exercise of such right, which
notice shall set forth the name of the Holder, the principal amount of the
Securities to be repurchased (and, if any Security is to repurchased in part,
the serial number thereof, the portion of the principal amount thereof to be
repurchased and the name of the Person in which the portion thereof to remain
Outstanding after such repurchase is to be registered) and a statement that an
election to exercise the repurchase right is being made thereby, and (ii) the
Securities with respect to which the repurchase right is being exercised.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash, for payment to the Holder on
the Repurchase Date, together with accrued and unpaid interest to the
33
Repurchase Date payable with respect to the Securities as to which the purchase
right has been exercised (subject to the provisions of Section 7.1).
(d) If any Security (or portion thereof) surrendered for repurchase
shall not be so paid on the Repurchase Date, the principal amount of such
Security (or portion thereof, as the case may be) shall, until paid, bear
interest from the Repurchase Date at the rate of 5% per annum, and each Security
shall remain convertible into Common Stock until the principal of such Security
(or portion thereof, as the case may be) shall have been paid or duly provided
for.
(e) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (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 his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, containing identical terms and conditions,
each in an authorized denomination in aggregate principal amount equal to and in
exchange for the unrepurchased portion of the principal of the Security so
surrendered.
Section 7.3. Certain Definitions.
For purposes of this Article VII,
(a) the term "beneficial owner" shall be determined in accordance
with Rule 13d-3 promulgated by the Commission pursuant to the Exchange Act, as
in effect on the date of the execution of this Fourth Supplemental Indenture;
(b) the term "Person" shall include any syndicate or group which
would be deemed to be a "person" under Section 13(d)(3) of the Exchange Act, as
in effect on the date of the original execution of this Fourth Supplemental
Indenture;
(c) the term "Quoted Price" of the Common Stock on any Trading Day
shall mean the Closing Price Per Share of the Common Stock on such Trading Day;
(d) a "Change of Control" shall be deemed to have occurred at such
time as:
(i) any Person (other than the Company, any Subsidiary of the Company
or any employee benefit plan of the Company or any such
Subsidiary) is or becomes the beneficial owner, directly or
indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of capital stock
of the Company entitling such Person to exercise 50% or more of
the total voting power of all shares of capital stock of the
34
Company entitled to vote generally in the elections of directors;
or
(ii) there occurs any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person
into the Company, or any sale or transfer of all or substantially
all of the assets of the Company to another Person (other than
(a) any such transaction pursuant to which the holders of the
Common Stock immediately prior to such transaction have, directly
or indirectly, at least a majority of the common equity of the
continuing or surviving corporation immediately after such
transaction and (b) any merger (x) which does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock or (y) which is effected
solely to change the jurisdiction of incorporation of the Company
and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of Common
Stock;
provided, however, that a Change of Control with respect to the Securities shall
- -------- -------
not be deemed to have occurred if either (A) the Quoted Price on any five
Trading Days during the 10 Trading Day period immediately preceding the date of
the Change of Control shall equal or exceed 105% of the Conversion Price in
effect on each such Trading Day or (B) with respect to clause (ii) above, all
the consideration (excluding cash payments for fractional shares) in the
transaction or transactions constituting the Change of Control consists of
shares of common stock traded on a national securities exchange or quoted on the
Nasdaq National Market and as a result of such transaction or transactions the
Securities become convertible solely into such common stock. The "Conversion
Price" shall equal U.S.$1,000 divided by the Conversion Rate.
ARTICLE VIII. MISCELLANEOUS.
Section 8.1. Reference to and Effect on the Indenture.
This Fourth Supplemental Indenture shall be construed as supplemental
to the Indenture and all the terms and conditions of this Fourth Supplemental
Indenture shall be deemed to be part of the terms and conditions of the
Indenture. Except as set forth herein, the Indenture heretofore executed and
delivered is hereby (i) incorporated by reference in this Fourth Supplemental
Indenture and (ii) ratified, approved and confirmed.
Section 8.2. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
term, provision, or condition set forth in Article III hereof if the Holders of
a majority in principal
35
amount of the Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision, or condition except to the extent so expressly waived, and, until
such waiver shall become effective, the obligations of the Company and the
duties of the Trustee in respect of any such term, provision, or condition shall
remain in full force and effect.
Section 8.3. Fourth Supplemental Indenture May be Executed In
Counterparts.
This instrument may be executed in any number of counterparts, each of
which shall be an original; but such counterparts shall together constitute but
one and the same instrument.
36
Section 8.4. Effect of Headings.
The Article and Section headings herein are for convenience only and
shall not affect the construction hereof.
In Witness Whereof, the parties hereto have caused this Fourth
Supplemental Indenture to be duly executed, and their respective corporate seals
to be hereunto affixed and attested, all as of the day and year first above
written.
[Seal] Federated Department Stores, Inc.
By:
---------------------------
Name:
Title:
Attest:
- ----------------------------
Name:
Title:
The First National Bank of Boston,
as Trustee
By:
---------------------------
Name:
Title:
Attest:
- ---------------------------
Name:
Title:
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On this 27th day of September, 1995, before me personally came
, to me known, who, being by me duly sworn, did depose and say that he/she
is a of Federated Department Stores, Inc., one of the entities
described in and which executed the above instrument; that he/she knows the seal
of said entity; that the seal or a facsimile thereof affixed to said instrument
is such seal; that it was so affixed by authority of the Board of Directors of
said entity, and that he/she signed his/her name thereto by like authority.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
-----------------------
Notary Public
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF NORFOLK )
On this 27th day of September, 1995, before me personally came
, to me known, who, being by me duly sworn, did depose and say that
he/she is a of The First National Bank of Boston, one of the
entities described in and which executed the above instrument; that he/she knows
the seal of said entity; that the seal or a facsimile thereof affixed to said
instrument is such seal; that it was so affixed by authority of the Board of
Directors of said entity, and that he/she signed his/her name thereto by like
authority.
In Witness Whereof, I have hereunto set my hand and affixed my
official seal the day and year in this certificate first above written.
--------------------
Notary Public
Schedule I
Particular Terms of Notes
Maturity: The Notes will mature on October 1, 2003.
Interest: The interest rate per annum on the Notes shall be 5%.
Redemption: The Notes will be redeemable at the option of the Company prior
to maturity at the Redemption Prices (expressed as a percentage
of the principal amount) for the 12-month period beginning on
October 1 of the following years:
Year Redemption Price
---- ----------------
1998 . . . . . . . . . . 103.125%
1999 . . . . . . . . . . 102.500%
2000 . . . . . . . . . . 101.875%
2001 . . . . . . . . . . 101.250%
2002 . . . . . . . . . . 100.625%
In each case together with accrued and unpaid interest to the date of
redemption.