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TRIARC COMPANIES, INC.
AS ISSUER
and
WILMINGTON TRUST COMPANY,
AS TRUSTEE
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INDENTURE
Dated as of
May 19, 2003
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5% Convertible Notes Due 2023
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TABLE OF CONTENTS
PAGE
----
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions......................................................................1
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation Amount and Issue of Notes............................................9
Section 2.02. Form of Notes....................................................................9
Section 2.03. Date and Denomination of Notes; Payments of Interest............................10
Section 2.04. Execution of Notes..............................................................12
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions on Transfer........12
Section 2.06. Mutilated, Destroyed, Lost or Stolen Notes......................................19
Section 2.07. Temporary Notes.................................................................20
Section 2.08. Cancellation of Notes...........................................................20
Section 2.09. CUSIP Numbers...................................................................21
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes at the Option of the Company................................21
Section 3.02. Notice of Optional Redemption; Selection of Notes...............................21
Section 3.03. Payment of Notes Called for Redemption by the Company...........................23
Section 3.04. Conversion Arrangement on Call for Redemption...................................24
Section 3.05. Redemption at Option of Holders Upon a Fundamental Change.......................24
Section 3.06. Company's Right to Elect Manner of Payment of Fundamental Change
Redemption Price.............................................................28
Section 3.07. Repurchase of Notes by the Company at Option of the Holder......................31
Section 3.08. Effect of Repurchase Notice.....................................................33
Section 3.09. Deposit of Purchase Price.......................................................34
Section 3.10. Notes Repurchased in Part.......................................................35
Section 3.11. Repayment to the Company........................................................35
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest......................................35
Section 4.02. Maintenance of Office or Agency.................................................35
Section 4.03. Appointments to Fill Vacancies in Trustee's Office..............................36
Section 4.04. Provisions as to Paying Agent...................................................36
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Section 4.05. Existence.......................................................................37
Section 4.06. Rule 144A Information Requirement...............................................37
Section 4.07. Stay, Extension and Usury Laws..................................................38
Section 4.08. Compliance Certificate..........................................................38
Section 4.09. Liquidated Damages Notice.......................................................39
ARTICLE 5
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Noteholders' Lists..............................................................39
Section 5.02. Preservation and Disclosure of Lists............................................39
Section 5.03. Reports by Trustee..............................................................40
Section 5.04. Reports by Company..............................................................40
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration.................................................40
Section 6.02. Payments of Notes on Default; Suit Therefor.....................................42
Section 6.03. Application of Monies Collected by Trustee......................................44
Section 6.04. Proceedings by Noteholder.......................................................45
Section 6.05. Proceedings by Trustee..........................................................46
Section 6.06. Remedies Cumulative and Continuing..............................................46
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders......46
Section 6.08. Notice of Defaults..............................................................47
Section 6.09. Undertaking to Pay Costs........................................................47
ARTICLE 7
THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee..........................................48
Section 7.02. Reliance on Documents, Opinions, Etc............................................49
Section 7.03. No Responsibility for Recitals, Etc.............................................50
Section 7.04. Trustee, Paying Agents, Conversion Agents or Registrar May Own Notes............50
Section 7.05. Monies to be Held in Trust......................................................50
Section 7.06. Compensation and Expenses of Trustee............................................51
Section 7.07. Officers' Certificate as Evidence...............................................51
Section 7.08. Conflicting Interests of Trustee................................................52
Section 7.09. Eligibility of Trustee..........................................................52
Section 7.10. Resignation Or Removal Of Trustee...............................................52
Section 7.11. Acceptance by Successor Trustee.................................................53
Section 7.12. Succession by Merger............................................................54
Section 7.13. Preferential Collection of Claims...............................................55
Section 7.14. Trustee's Application For Instructions From The Company.........................55
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ARTICLE 8
THE NOTEHOLDERS
Section 8.01. Action by Noteholders...........................................................55
Section 8.02. Proof of Execution by Noteholders...............................................56
Section 8.03. Who Are Deemed Absolute Owners..................................................56
Section 8.04. Company-Owned Notes Disregarded.................................................56
Section 8.05. Revocation of Consents, Future Holders Bound....................................57
ARTICLE 9
MEETINGS OF NOTEHOLDERS
Section 9.01. Purpose of Meetings.............................................................57
Section 9.02. Call of Meetings by Trustee.....................................................57
Section 9.03. Call of Meetings by Company or Noteholders......................................58
Section 9.04. Qualifications for Voting.......................................................58
Section 9.05. Regulations.....................................................................58
Section 9.06. Voting..........................................................................59
Section 9.07. No Delay of Rights by Meeting...................................................59
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders..........................60
Section 10.02. Supplemental Indenture with Consent of Noteholders..............................61
Section 10.03. Effect of Supplemental Indenture................................................62
Section 10.04. Notation on Notes...............................................................63
Section 10.05. Evidence of Compliance of Supplemental Indenture to be Furnished to Trustee.....63
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01. Company May Consolidate on Certain Terms........................................63
Section 11.02. Successor to be Substituted.....................................................64
Section 11.03. Opinion of Counsel to be Given Trustee..........................................64
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture..........................................................65
Section 12.02. Deposited Monies to be Held in Trust by Trustee.................................65
Section 12.03. Paying Agent to Repay Monies Held...............................................66
Section 12.04. Return of Unclaimed Monies......................................................66
Section 12.05. Reinstatement...................................................................66
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ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Indenture and Notes Solely Corporate Obligations................................66
ARTICLE 14
CONVERSION OF NOTES
Section 14.01. Right to Convert................................................................67
Section 14.02. Conversion Procedures...........................................................69
Section 14.03. Cash Payments in Lieu of Fractional Shares......................................72
Section 14.04. Conversion Rate.................................................................72
Section 14.05. Adjustment of Conversion Rate...................................................72
Section 14.06. Effect of Reclassification, Consolidation, Merger or Sale.......................81
Section 14.07. Taxes on Shares Issued..........................................................82
Section 14.08. Reservation of Shares, Shares to be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock........................................83
Section 14.09. Responsibility of Trustee.......................................................84
Section 14.10. Notice to Holders Prior to Certain Actions......................................84
Section 14.11. Rights Issued in Respect of Common Stock Issued Upon Conversion.................85
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors......................................85
Section 15.02. Official Acts by Successor Corporation..........................................85
Section 15.03. Addresses for Notices, Etc......................................................86
Section 15.04. Governing Law...................................................................86
Section 15.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee.......86
Section 15.06. Legal Holidays..................................................................87
Section 15.07. Trust Indenture Act.............................................................87
Section 15.08. No Security Interest Created....................................................87
Section 15.09. Benefits of Indenture...........................................................87
Section 15.10. Table of Contents, Headings, Etc................................................88
Section 15.11. Authenticating Agent............................................................88
Section 15.12. Execution in Counterparts.......................................................89
Section 15.13. Severability....................................................................89
Exhibit A Form of Note...................................................................A-1
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INDENTURE
INDENTURE dated as of May 19, 2003 between Triarc Companies, Inc., a
Delaware corporation (hereinafter called the "Company"), and Wilmington Trust
Company, a Delaware banking corporation, as trustee hereunder (hereinafter
called the "Trustee").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized
the issue of its 5% Convertible Notes due 2023 (hereinafter called the "Notes"),
in an aggregate principal amount not to exceed $175,000,000 and, to provide the
terms and conditions upon which the Notes are to be authenticated, issued and
delivered, the Company has duly authorized the execution and delivery of this
Indenture; and
WHEREAS, the Notes, the certificate of authentication to be borne by the
Notes, a form of assignment, a form of option to elect redemption upon a
fundamental change, a form of purchase notice, and a form of conversion notice
to be borne by the Notes are to be substantially in the forms hereinafter
provided for; and
WHEREAS, all acts and things necessary to make the Notes, when executed by
the Company and authenticated and delivered by the Trustee or a duly authorized
authenticating agent, as in this Indenture provided, the valid, binding and
legal obligations of the Company, and to constitute this Indenture a valid
agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized,
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are,
and are to be, authenticated, issued and delivered, and in consideration of the
premises and of the purchase and acceptance of the Notes by the holders thereof,
the Company covenants and agrees with the Trustee for the equal and
proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
Section 1.01. Definitions. The terms defined in this Section 1.01 (except
as herein otherwise expressly provided or unless the context otherwise requires)
for all purposes of this Indenture and of any indenture supplemental hereto
shall have the respective meanings specified in this Section 1.01. All other
terms used
in this Indenture that are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as herein otherwise
expressly provided or unless the context otherwise requires) shall have the
meanings assigned to such terms in the Trust Indenture Act and in the Securities
Act as in force at the date of the execution of this Indenture. The words
"herein," "hereof," "hereunder" and words of similar import refer to this
Indenture as a whole and not to any particular Article, Section or other
Subdivision. The terms defined in this Article include the plural as well as the
singular.
"Adjustment Event" has the meaning specified in Section 14.05(j).
"Agent Members" has the meaning specified in Section 2.05(b).
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise, and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Stock" means (i) the Common Stock and (ii) in the event of a
merger, consolidation or other similar transaction involving the Company that is
otherwise permitted hereunder in which the Company is not the surviving
corporation, the common stock, ordinary shares or American Depositary Shares of
such surviving corporation or its direct or indirect parent corporation.
"Applicable Stock Price" means, in respect of a Conversion Date, the
average of the Closing Sale Prices per share of Common Stock over the
five-Trading Day period starting the third Trading Day following such Conversion
Date.
"Board of Directors" means the Board of Directors of the Company or a
committee of such Board duly authorized to act for it hereunder.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and Friday
which is not a day on which the banking institutions in The City of New York or
the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close or be closed.
"Closing Sale Price" of the shares of Common Stock on any date means the
closing sale price per share (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported in composite transactions for the principal United States
securities exchange on which shares of Common Stock is traded or, if the shares
of
2
Common Stock are not listed on a United States securities exchange, as reported
by the Nasdaq system or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Company shall be entitled to determine the
Closing Sale Price on the basis of such quotations as it considers appropriate.
Closing Sale Price shall be determined without reference to extended or after
hours trading.
"Commission" means the Securities and Exchange Commission, as from time to
time constituted, created under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the provisions
of Section 14.06, however, shares issuable on conversion of Notes shall include
only shares of the class designated as Class A common stock, par value $0.10 or
shares of any class or classes resulting from any reclassification or
reclassifications of the Class A common stock and which have no preference in
respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are
not subject to redemption by the Company; provided that if at any time there
shall be more than one such resulting class, the shares of each such class then
so issuable on conversion 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.
"Company" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 11 and
Section 14.06, shall include its successors and assigns.
"Company Notice" has the meaning specified in Section 3.05(b).
"Company Notice Date" has the meaning specified in Section 3.05(b).
"Company Repurchase Notice" has the meaning specified in Section 3.07(c).
"Company Repurchase Notice Date" has the meaning specified in Section
3.07(b).
"Conversion Date" has the meaning set forth in Section 14.02.
3
"Conversion Price" as of any day will equal $1,000 divided by the
Conversion Rate as of such date.
"Conversion Rate" has the meaning specified in Section 14.04.
"Corporate Trust Office" or other similar term, means the designated office
of the Trustee at which at any particular time its corporate trust business as
it relates to this Indenture shall be administered, which office is, at the date
as of which this Indenture is dated, located at Rodney Square North, 1100 North
Market Street, Wilmington, Delaware 19890-1600, Attention: Corporate Trust
Administration.
"Current Market Price" has the meaning specified in Section 14.05(g).
"Custodian" means Wilmington Trust Company, as custodian with respect to
the Notes in global form, or any successor entity thereto.
"default" means any event that is, or after notice or passage of time, or
both, would be, an Event of Default.
"Defaulted Interest" has the meaning specified in Section 2.03.
"Depositary" means, the clearing agency registered under the Exchange Act
that is designated to act as the Depositary for the Global Notes. The Depository
Trust Company shall be the initial Depositary, until a successor shall have been
appointed and become such pursuant to the applicable provisions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
"Determination Date" has the meaning specified in Section 14.05(j).
"Event of Default" means any event specified in Section 6.01 as an Event of
Default.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and
the rules and regulations promulgated thereunder, as in effect from time to
time.
"Ex-Dividend Time" has the meaning specified in Section 14.01.
"Expiration Time" has the meaning specified in Section 14.05(f).
"Fair Market Value" has the meaning specified in Section 14.05(g).
"Fundamental Change" means the occurrence of any transaction or event
(whether by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification, recapitalization or
otherwise) in connection with which all or substantially all of the Common Stock
shall be exchanged for, converted into, acquired for or constitutes solely the
right to receive consideration
4
which is not all or substantially all common stock or American Depository Shares
that is (or, upon consummation of or immediately following such transaction or
event, which will be) listed on a United States national securities exchange or
approved (or, upon consummation of or immediately following such transaction or
event, which will be approved) for quotation on the Nasdaq National Market or
any similar United States system of automated dissemination of quotations of
securities prices.
"Fundamental Change Redemption Notice" has the meaning specified in Section
3.05(c).
"Fundamental Change Redemption Date" has the meaning specified in Section
3.05(a).
"Fundamental Change Redemption Price" has the meaning specified in Section
3.05(a).
"Global Note" has the meaning specified in Section 2.02.
"Indenture" means this instrument as originally executed or, if amended or
supplemented as herein provided, as so amended or supplemented.
"Initial Purchaser" means Morgan Stanley & Co. Incorporated.
"interest" means, when used with reference to the Notes, any interest
payable under the terms of the Notes; for purposes of this Indenture, "interest"
shall also be deemed to include any amounts payable as Liquidated Damages under
the terms of the Registration Rights Agreement.
"Liquidated Damages" has the meaning specified for "Liquidated Damages
Amount" in Section 2(e) of the Registration Rights Agreement.
"Liquidated Damages Notice" has the meaning specified in Section 4.09.
"Market Price" means, with respect to shares of Applicable Stock, 95% of
the average of the Closing Sale Price of the shares of Applicable Stock for the
five-Trading Day period immediately preceding and including the third Business
Day prior to the applicable Fundamental Change Redemption Date (if the third
Business Day prior to the Fundamental Change Redemption Date is a Trading Day,
or if not, then on the last Trading day prior to the third Business Day),
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of the Trading Days during the five-Trading Day period
and ending on the Fundamental Change Redemption Date of any event described in
Sections 14.05 and 14.06.
"Note" or "Notes" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
5
"Note register" has the meaning specified in Section 2.05(a).
"Note registrar" has the meaning specified in Section 2.05(a).
"Noteholder" or "holder" as applied to any Note, or other similar terms
(but excluding the term "beneficial holder"), means any Person in whose name at
the time a particular Note is registered on the Note registrar's books.
"nonelecting share" has the meaning specified in Section 14.06.
"Notice Date" means the date of mailing of the notice of redemption
pursuant to Section 3.02.
"Offer Expiration Time" has the meaning specified in Section 14.05(g).
"Officers' Certificate", when used with respect to the Company, means a
certificate signed on behalf of the Company by both (a) the Chairman of the
Board, the Chief Executive Officer, the President or any Vice President (whether
or not designated by a number or numbers or word or words added before or after
the title "Vice President") and (b) the Chief Financial Officer, Treasurer or
any Assistant Treasurer, the Controller or any Assistant Controller, or the
Secretary or any Assistant Secretary of the Company.
"Opinion of Counsel" means an opinion in writing signed by legal counsel,
who may be an employee of or counsel to the Company, or other counsel reasonably
acceptable to the Trustee.
"Optional Redemption" has the meaning specified in Section 3.01.
"outstanding", when used with reference to Notes and subject to the
provisions of Section 8.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption of which monies
in the necessary amount shall have been deposited in trust with the Trustee
or with any paying agent (other than the Company) or (ii) which shall have
been otherwise defeased in accordance with Article 12;
(c) Notes in lieu of which, or in substitution for which, other Notes
shall have been authenticated and delivered pursuant to the terms of
Section 2.06; and
(d) Notes converted into Common Stock pursuant to Article 14 and Notes
deemed not outstanding pursuant to Article 3.
6
"Person" means a corporation, an association, a partnership, a limited
liability company, a limited liability partnership, an individual, a joint
venture, a joint stock company, a trust, an unincorporated organization or a
government or an agency or a political subdivision thereof.
"Portal Market" means The Portal Market operated by the National
Association of Securities Dealers, Inc. or any successor thereto.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note, and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.06 in lieu of a lost, destroyed or
stolen Note shall be deemed to evidence the same debt as the lost, destroyed or
stolen Note that it replaces.
"Principal Value Conversion" has the meaning set forth in Section 14.01.
"premium" means any premium payable under the terms of the Notes.
"Purchased Shares" has the meaning specified in Section 14.05(f).
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"record date" has the meaning specified in Section 2.03 with respect to any
interest payment date, and for any other purpose means the record date
established by the Company for a specified purpose.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of May 19, 2003, between the Company and the Initial Purchaser, as
amended from time to time in accordance with its terms.
"Repurchase Date" has the meaning specified in Section 3.07.
"Repurchase Notice" has the meaning specified in Section 3.07.
"Responsible Officer", when used with respect to the Trustee, means an
officer of the Trustee in the Corporate Trust Office assigned and duly
authorized by the Trustee to administer this Indenture.
"Restricted Securities" has the meaning specified in Section 2.05(c).
"Rights" has the meaning specified in Section 14.11.
"Rights Agreement" has the meaning specified in Section 14.11.
"Rule 144A" means Rule 144A as promulgated under the Securities Act.
7
"Securities" has the meaning specified in Section 14.05(d).
"Securities Act" means the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder, as in effect from time to time.
"Significant Subsidiary" means, as of any date of determination, a
Subsidiary of the Company that would constitute a "significant subsidiary" as
such term is defined under Rule 1-02 of Regulation S-X of the Commission as in
effect on the date of this Indenture.
"Subsidiary" means, with respect to any Person, (i) any corporation,
association or other business entity of which more than 50% of the total voting
power of shares of capital stock or other equity interest entitled (without
regard to the occurrence of any contingency) to vote in the election of
directors, managers or trustees thereof is at the time owned or controlled,
directly or indirectly, by such Person or one or more of the other Subsidiaries
of that Person (or a combination thereof) and (ii) any partnership (a) the sole
general partner or managing general partner of which is such Person or a
Subsidiary of such Person or (b) the only general partners of which are such
Person or of one or more Subsidiaries of such Person (or any combination
thereof).
"Trading Day" has the meaning specified in Section 14.05(g).
"Trading Price" means, on any date of determination, the average of the
secondary market bid quotations for the Notes obtained by the Trustee for
$5,000,000 principal amount of Notes at approximately 3:30 p.m., New York City
time, on such date of determination from three independent nationally recognized
securities dealers selected by the Company; provided that if at least three such
bids cannot reasonably be obtained by the Trustee, but two bids are obtained,
then the average of the two bids shall be used, and if only one such bid can
reasonably be obtained by the Trustee, one bid shall be used; and provided
further that if the Trustee cannot reasonably obtain at least one bid for
$5,000,000 principal amount of Notes from a nationally recognized securities
dealer or in the Company's reasonable judgment, the bid quotations are not
indicative of the secondary market value of the Notes, then the Trading Price
per $1,000 principal amount of Notes shall be deemed to be less than 95% of the
product of (a) the number of shares of Common Stock issuable upon conversion of
$1,000 principal amount of Notes and (b) the Closing Sale Price on such date.
"Trigger Event" has the meaning specified in Section 14.05(d).
"Trust Indenture Act" means the Trust Indenture Act of 1939, as amended, as
it was in force at the date of this Indenture, except as provided in Sections
10.03 and 14.06; provided that if the Trust Indenture Act of 1939 is amended
after the date hereof, the term "Trust Indenture Act" shall mean, to the extent
required by such amendment, the Trust Indenture Act of 1939 as so amended.
8
"Trustee" means Wilmington Trust Company and its successors and any
corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at the time serving
as successor trustee hereunder.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
Section 2.01. Designation Amount and Issue of Notes. The Notes shall be
designated as "5% Convertible Notes Due 2023." Notes not to exceed the aggregate
principal amount of $175,000,000 (except pursuant to Sections 2.05, 2.06, 2.07,
3.03, 3.05, 3.10 and 14.02 hereof) upon the execution of this Indenture, or from
time to time thereafter, may be executed by the Company and delivered to the
Trustee for authentication, and the Trustee shall thereupon authenticate and
deliver said Notes to or upon the written order of the Company, signed by Error!
Bookmark not defined. its Chairman of the Board, Chief Executive Officer,
President or any Vice President (whether or not designated by a number or
numbers or word or words added before or after the title "Vice President") and
Error! Bookmark not defined. its Chief Financial Officer, its Treasurer or any
Assistant Treasurer, its Controller or any Assistant Controller or its Secretary
or any Assistant Secretary, without any further action by the Company hereunder.
Section 2.02. Form of Notes. The Notes and the Trustee's certificate of
authentication to be borne by such Notes shall be substantially in the form set
forth in Exhibit A. The terms and provisions contained in the form of Note
attached as Exhibit A hereto shall constitute, and are hereby expressly made, a
part of this Indenture and, to the extent applicable, the Company and the
Trustee, by their execution and delivery of this Indenture, expressly agree to
such terms and provisions and to be bound thereby.
Any of the Notes may have such letters, numbers or other marks of
identification and such notations, legends, endorsements or changes as the
officers executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the provisions of
this Indenture, or as may be required by the Custodian, the Depositary or by the
National Association of Securities Dealers, Inc. in order for the Notes to be
tradeable on The Portal Market or as may be required for the Notes to be
tradeable on any other market developed for trading of securities pursuant to
Rule 144A or as may be required to comply with any applicable law or with any
rule or regulation made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the Notes may be
listed, or to conform to usage, or to indicate any special limitations or
restrictions to which any particular Notes are subject.
So long as the Notes are eligible for book-entry settlement with the
Depositary, or unless otherwise required by law, or otherwise contemplated by
9
Section 2.05(b), all of the Notes will be represented by one or more Notes in
global form registered in the name of the Depositary or the nominee of the
Depositary (a "Global Note"). The transfer and exchange of beneficial interests
in any such Global Note shall be effected through the Depositary in accordance
with this Indenture and the applicable procedures of the Depositary. Except as
provided in Section 2.05(b), beneficial owners of a Global Note shall not be
entitled to have certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive form and
will not be considered holders of such Global Note.
Any Global Note shall represent such of the outstanding Notes as shall be
specified therein and shall provide that it shall represent the aggregate amount
of outstanding Notes from time to time endorsed thereon and that the aggregate
amount of outstanding Notes represented thereby may from time to time be
increased or reduced to reflect redemptions, repurchases, conversions, transfers
or exchanges permitted hereby. Any endorsement of a Global Note to reflect the
amount of any increase or decrease in the amount of outstanding Notes
represented thereby shall be made by the Trustee or the Custodian, at the
direction of the Trustee, in such manner and upon instructions given by the
holder of such Notes in accordance with this Indenture. Payment of principal of
and interest and premium, if any, on any Global Note shall be made to the holder
of such Global Note.
Section 2.03. Date and Denomination of Notes; Payments of Interest. Subject
to Section 2.02, the Notes shall be issuable in registered form without coupons
in denominations of $1,000 principal amount and multiples thereof. Each Note
shall be dated the date of its authentication and shall bear interest from the
date specified on the face of the form of Note attached as Exhibit A hereto.
Interest on the Notes shall be computed on the basis of a 360-day year comprised
of twelve 30-day months.
The Person in whose name any Note (or its Predecessor Note) is registered
on the Note register at the close of business on any record date with respect to
any interest payment date shall be entitled to receive the interest payable on
such interest payment date, except that the interest payable upon redemption or
repurchase will be payable to the Person to whom principal is payable pursuant
to such redemption or repurchase (unless the redemption date or the Repurchase
Date, as the case may be, is an interest payment date, in which case the
semi-annual payment of interest becoming due on such date shall be payable to
the holders of such Notes registered as such on the applicable record date).
Interest shall be payable at the office of the Company maintained by the Company
for such purposes in the City of Wilmington, State of Delaware, or such other
place in the City of Wilmington, State of Delaware or the City of New York,
State of New York as the Company may designate, which shall initially be the
Corporate Trust Office of the Trustee and may, as the Company shall specify to
the paying agent in writing by each record date, be paid either (i) by check
mailed to the address of the Person entitled thereto as it appears in the Note
register (provided
10
that any holder of Notes with an aggregate principal amount in excess of
$2,000,000 shall, at the written election of such holder (such election to be
made prior to the relevant record date and to contain appropriate wire transfer
information), be paid by wire transfer in immediately available funds) or (ii)
by transfer to an account maintained by such Person located in the United
States; provided that payments to the Depositary will be made by wire transfer
of immediately available funds to the account of the Depositary or its nominee.
The term "record date" with respect to any interest payment date shall mean the
May 1 or November 1 preceding the applicable May 15 or November 15 interest
payment date, respectively.
Any interest on any Note which is payable, but is not punctually paid or
duly provided for, on any May 15 or November 15 (herein called "Defaulted
Interest") shall forthwith cease to be payable to the Noteholder on the relevant
record date by virtue of his having been such Noteholder, and such Defaulted
Interest shall be paid by the Company, at its election in each case, as provided
in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to
the Persons in whose names the Notes (or their respective Predecessor
Notes) are registered at the close of business on a special record date for
the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall notify the Trustee in writing of the
amount of Defaulted Interest proposed to be paid on each Note and the date
of the proposed payment (which shall be not less than twenty-five (25) days
after the receipt by the Trustee of such notice, unless the Trustee shall
consent to an earlier date), and at the same time the Company shall deposit
with the Trustee an amount of money equal to the aggregate amount to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
clause provided. Thereupon the Trustee shall fix a special record date for
the payment of such Defaulted Interest which shall be not more than fifteen
(15) days and not less than ten (10) days prior to the date of the proposed
payment, and not less than ten (10) days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify
the Company of such special record date and, in the name and at the expense
of the Company, shall cause notice of the proposed payment of such
Defaulted Interest and the special record date therefor to be mailed,
first-class postage prepaid, to each holder at his address as it appears in
the Note register, not less than ten (10) days prior to such special record
date. Notice of the proposed payment of such Defaulted Interest and the
special record date therefor having been so mailed, such Defaulted Interest
shall be paid to the Persons in whose names the Notes (or their respective
Predecessor Notes) are registered at
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the close of business on such special record date and shall no longer be
payable pursuant to the following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any
other lawful manner not inconsistent with the requirements of any
securities exchange or automated quotation system on which the Notes may be
listed or designated for issuance, and upon such notice as may be required
by such exchange or automated quotation system, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause,
such manner of payment shall be deemed practicable by the Trustee.
Section 2.04. Execution of Notes. The Notes shall be signed in the name and
on behalf of the Company by the manual or facsimile signature of its Chairman of
the Board, Chief Executive Officer, President or any Vice President (whether or
not designated by a number or numbers or word or words added before or after the
title "Vice President") and attested by the manual or facsimile signature of its
Secretary or any of its Assistant Secretaries or its Chief Financial Officer,
its Treasurer or any of its Assistant Treasurers (which may be printed, engraved
or otherwise reproduced thereon, by facsimile or otherwise). Only such Notes as
shall bear thereon a certificate of authentication substantially in the form set
forth on the form of Note attached as Exhibit A hereto, manually executed by the
Trustee (or an authenticating agent appointed by the Trustee as provided by
Section 15.11), shall be entitled to the benefits of this Indenture or be valid
or obligatory for any purpose. Such certificate by the Trustee (or such an
authenticating agent) upon any Note executed by the Company shall be conclusive
evidence that the Note so authenticated has been duly authenticated and
delivered hereunder and that the holder is entitled to the benefits of this
Indenture.
In case any officer of the Company who shall have signed any of the Notes
shall cease to be such officer before the Notes so signed shall have been
authenticated and delivered by the Trustee, or disposed of by the Company, such
Notes nevertheless may be authenticated and delivered or disposed of as though
the person who signed such Notes had not ceased to be such officer of the
Company, and any Note may be signed on behalf of the Company by such persons as,
at the actual date of the execution of such Note, shall be the proper officers
of the Company, although at the date of the execution of this Indenture any such
person was not such an officer.
Section 2.05. Exchange and Registration of Transfer of Notes; Restrictions
on Transfer. The Company shall cause to be kept at the Corporate Trust Office a
register (the register maintained in such office and in any other office or
agency of the Company designated pursuant to Section 4.02 being herein sometimes
collectively referred to as the "Note register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Notes and of transfers of Notes. The Note register shall be in
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written form or in any form capable of being converted into written form within
a reasonably prompt period of time. The Trustee is hereby appointed "Note
registrar" for the purpose of registering Notes and transfers of Notes as herein
provided. The Company may appoint one or more co-registrars in accordance with
Section 4.02.
Upon surrender for registration of transfer of any Note to the Note
registrar or any co-registrar, and satisfaction of the requirements for such
transfer set forth in this Section 2.05, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Notes of any authorized denominations and of a
like aggregate principal amount and bearing such restrictive legends as may be
required by this Indenture.
Notes may be exchanged for other Notes of any authorized denominations and
of a like aggregate principal amount, upon surrender of the Notes to be
exchanged at any such office or agency maintained by the Company pursuant to
Section 4.02. Whenever any Notes are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Notes which
the Noteholder making the exchange is entitled to receive bearing registration
numbers not contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of Notes
shall be the valid obligations of the Company, evidencing the same debt, and
entitled to the same benefits under this Indenture, as the Notes surrendered
upon such registration of transfer or exchange.
All Notes presented or surrendered for registration of transfer or for
exchange, redemption, repurchase or conversion shall (if so required by the
Company or the Note registrar) be duly endorsed, or be accompanied by a written
instrument or instruments of transfer in form satisfactory to the Company, and
the Notes shall be duly executed by the Noteholder thereof or his attorney duly
authorized in writing.
No service charge shall be made to any holder for any registration of
transfer or exchange of Notes, but either the Company, the Trustee or both may
require payment by the holder of a sum sufficient to cover any tax, assessment
or other governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note registrar shall be
required to exchange or register a transfer of (a) any Notes for a period of
fifteen (15) days next preceding any selection of Notes to be redeemed, (b) any
Notes or portions thereof called for redemption pursuant to Section 3.02, (c)
any Notes or portions thereof surrendered for conversion pursuant to Article 14,
(d) any Notes or portions thereof tendered for redemption (and not withdrawn)
pursuant to
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Section 3.05 or (e) any Notes or portions thereof tendered for repurchase (and
not withdrawn) pursuant to Section 3.07.
(b) The following provisions shall apply only to Global Notes:
(i) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof and delivered
to such Depositary or a nominee thereof or Custodian therefor, and each
such Global Note shall constitute a single Note for all purposes of this
Indenture.
(ii) Notwithstanding any other provision in this Indenture, no Global
Note may be exchanged in whole or in part for Notes registered, and no
transfer of a Global Note in whole or in part may be registered, in the
name of any Person other than the Depositary or a nominee thereof unless
(A) the Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Note or (ii) has ceased to
be a clearing agency registered under the Exchange Act, (B) an Event of
Default has occurred and is continuing or (C) the Company, in its sole
discretion, notifies the Trustee in writing that it no longer wishes to
have all the Notes represented by Global Notes. Any Global Note exchanged
pursuant to clause (A) or (B) above shall be so exchanged in whole and not
in part and any Global Note exchanged pursuant to clause (C) above may be
exchanged in whole or from time to time in part as directed by the Company.
Any Note issued in exchange for a Global Note or any portion thereof shall
be a Global Note; provided that any such Note so issued that is registered
in the name of a Person other than the Depositary or a nominee thereof
shall not be a Global Note.
(iii) Securities issued in exchange for a Global Note or any portion
thereof pursuant to clause (ii) above and which is not a Global Note shall
be issued in definitive, fully registered form, without interest coupons,
shall have an aggregate principal amount equal to that of such Global Note
or portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall designate
and shall bear any legends required hereunder. Any Global Note to be
exchanged in whole shall be surrendered by the Depositary to the Trustee,
as Note registrar. With regard to any Global Note to be exchanged in part,
either such Global Note shall be so surrendered for exchange or, if the
Trustee is acting as Custodian for the Depositary or its nominee with
respect to such Global Note, the principal amount thereof shall be reduced,
by an amount equal to the portion thereof to be so exchanged, by means of
an appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and make available
for delivery the Note issuable on such exchange to or upon the written
order of the Depositary or an authorized representative thereof.
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(iv) In the event of the occurrence of any of the events specified in
clause (ii) above, the Company will promptly make available to the Trustee
a reasonable supply of certificated Notes in definitive, fully registered
form, without interest coupons.
(v) Neither any members of, or participants in, the Depositary ("Agent
Members") nor any other Persons on whose behalf Agent Members may act shall
have any rights under this Indenture with respect to any Global Note
registered in the name of the Depositary or any nominee thereof, and the
Depositary or such nominee, as the case may be, may be treated by the
Company, the Trustee and any agent of the Company or the Trustee as the
absolute owner and holder of such Global Note for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the Company,
the Trustee or any agent of the Company or the Trustee from giving effect
to any written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Note.
(vi) At such time as all interests in a Global Note have been
redeemed, repurchased, converted, canceled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the Custodian. At any time
prior to such cancellation, if any interest in a Global Note is redeemed,
repurchased, converted, canceled or exchanged for Notes in certificated
form, the principal amount of such Global Note shall, in accordance with
the standing procedures and instructions existing between the Depositary
and the Custodian, be appropriately reduced, and an endorsement shall be
made on such Global Note, by the Trustee or the Custodian, at the direction
of the Trustee, to reflect such reduction.
(c) Every Note that bears or is required under this Section 2.05(c) to bear
the legend set forth in this Section 2.05(c) (together with any Common Stock
issued upon conversion of the Notes and required to bear the legend set forth in
Section 2.05(d), collectively, the "Restricted Securities") shall be subject to
the restrictions on transfer set forth in this Section 2.05(c) (including those
set forth in the legend below) unless such restrictions on transfer shall be
waived by written consent of the Company, and the holder of each such Restricted
Security, by such Noteholder's acceptance thereof, agrees to be bound by all
such restrictions on transfer. As used in Sections 2.05(c) and 2.05(d), the term
"transfer" encompasses any sale, pledge, loan, transfer or other disposition
whatsoever of any Restricted Security or any interest therein.
15
Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
certificate evidencing such Note (and all securities issued in exchange therefor
or substitution thereof, other than Common Stock, if any, issued upon conversion
thereof, which shall bear the legend set forth in Section 2.05(d), if
applicable) shall bear a legend in substantially the following form, unless such
Note has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer), or unless otherwise agreed by the Company in writing,
with written notice thereof to the Trustee:
THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET
FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE
144A UNDER THE SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO
EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER
RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL
OR OTHERWISE TRANSFER THIS NOTE OR THE COMMON STOCK ISSUABLE UPON
CONVERSION OF THIS NOTE EXCEPT (A) TO TRIARC COMPANIES, INC. OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 1f44 UNDER THE SECURITIES ACT (IF AVAILABLE)
OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT
THE TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A
TRANSFER PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL FURNISH TO WILMINGTON
TRUST COMPANY, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH
CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (4)
16
AGREES THAT IT WILL DELIVER TO EACH PERSON TO WHOM THIS NOTE IS TRANSFERRED
A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THIS NOTE PURSUANT TO CLAUSE
(2)(D) ABOVE OR UPON ANY TRANSFER OF THIS NOTE UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION). THE INDENTURE CONTAINS A
PROVISION REQUIRING THE TRUSTEE TO REFUSE TO REGISTER ANY TRANSFER OF THIS
NOTE IN VIOLATION OF THE FOREGOING RESTRICTION.
Any Note (or security issued in exchange or substitution therefor) as to
which such restrictions on transfer shall have expired in accordance with their
terms or as to conditions for removal of the foregoing legend set forth therein
have been satisfied may, upon surrender of such Note for exchange to the Note
registrar in accordance with the provisions of this Section 2.05, be exchanged
for a new Note or Notes, of like tenor and aggregate principal amount, which
shall not bear the restrictive legend required by this Section 2.05(c). If the
Restricted Security surrendered for exchange is represented by a Global Note
bearing the legend set forth in this Section 2.05(c), the principal amount of
the legended Global Note shall be reduced by the appropriate principal amount
and the principal amount of a Global Note without the legend set forth in this
Section 2.05(c) shall be increased by an equal principal amount. If a Global
Note without the legend set forth in this Section 2.05(c) is not then
outstanding, the Company shall execute and the Trustee shall authenticate and
deliver an unlegended Global Note to the Depositary.
(d) Until the expiration of the holding period applicable to sales thereof
under Rule 144(k) under the Securities Act (or any successor provision), any
stock certificate representing Common Stock issued upon conversion of any Note
shall bear a legend in substantially the following form, unless such Common
Stock has been sold pursuant to a registration statement that has been declared
effective under the Securities Act (and which continues to be effective at the
time of such transfer) or such Common Stock has been issued upon conversion of
Notes that have been transferred pursuant to a registration statement that has
been declared effective under the Securities Act, or unless otherwise agreed by
the Company in writing with written notice thereof to the transfer agent:
THE COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED
STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY
STATE SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT
AS SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT,
UNTIL THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO
17
SALES OF THE COMMON STOCK EVIDENCED HEREBY, UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION), (1) IT WILL NOT RESELL OR
OTHERWISE TRANSFER THE COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO TRIARC
COMPANIES, INC. OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN
COMPLIANCE WITH RULE 144A, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION
PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D)
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE
UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME
OF SUCH TRANSFER); (2) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (1)(D) ABOVE), IT WILL FURNISH TO AMERICAN STOCK
TRANSFER & TRUST COMPANY, AS TRANSFER AGENT (OR A SUCCESSOR TRANSFER AGENT,
AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
SUCH TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT; AND (3) IT WILL
DELIVER TO EACH PERSON TO WHOM THE COMMON STOCK EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE COMMON STOCK EVIDENCED
HEREBY PURSUANT TO CLAUSE (1)(D) ABOVE OR UPON ANY TRANSFER OF THE COMMON
STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
Any such Common Stock as to which such restrictions on transfer shall have
expired in accordance with their terms or as to which the conditions for removal
of the foregoing legend set forth therein have been satisfied may, upon
surrender of the certificates representing such shares of Common Stock for
exchange in accordance with the procedures of the transfer agent for the Common
Stock, be exchanged for a new certificate or certificates for a like number of
18
shares of Common Stock, which shall not bear the restrictive legend required by
this Section 2.05(d).
(e) Any Note or Common Stock issued upon the conversion of a Note that,
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision), is purchased
or owned by the Company or any Affiliate thereof may not be resold by the
Company or such Affiliate unless registered under the Securities Act or resold
pursuant to an exemption from the registration requirements of the Securities
Act in a transaction which results in such Notes or Common Stock, as the case
may be, no longer being "restricted securities" (as defined under Rule 144).
Section 2.06 . Mutilated, Destroyed, Lost or Stolen Notes. In case any Note
shall become mutilated or be destroyed, lost or stolen, the Company in its
discretion may execute, and upon its written request the Trustee or an
authenticating agent appointed by the Trustee shall authenticate and make
available for delivery, a new Note, bearing a number not contemporaneously
outstanding, in exchange and substitution for the mutilated Note, or in lieu of
and in substitution for the Note so destroyed, lost or stolen. In every case,
the applicant for a substituted Note shall furnish to the Company, to the
Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss,
liability, cost or expense caused by or connected with such substitution, and,
in every case of destruction, loss or theft, the applicant shall also furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the case
may be, of satisfactory security or indemnity and evidence, as described in the
preceding paragraph, the Trustee or such authenticating agent may authenticate
any such substituted Note and make available for delivery such Note. Upon the
issuance of any substituted Note, either the Company, the Trustee or both may
require the payment by the holder of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in relation thereto
and any other expenses connected therewith. In case any Note which has matured
or is about to mature or has been called for redemption or has been tendered for
redemption upon a Fundamental Change (and not withdrawn) or has been surrendered
for repurchase on a Repurchase Date (and not withdrawn) or is to be converted
into Common Stock shall become mutilated or be destroyed, lost or stolen, the
Company may, instead of issuing a substitute Note, pay or authorize the payment
of or convert or authorize the conversion of the same (without surrender thereof
except in the case of a mutilated Note), as the case may be, if the applicant
for such payment or conversion shall furnish to the Company, to the Trustee and,
if applicable, to such authenticating agent such security or indemnity as may be
required by them to save each of them harmless for any loss, liability, cost or
expense caused by or in connection with such substitution, and, in every
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case of destruction, loss or theft, the applicant shall also furnish to the
Company, the Trustee and, if applicable, any paying agent or conversion agent
evidence to their satisfaction of the destruction, loss or theft of such Note
and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section
2.06 by virtue of the fact that any Note is destroyed, lost or stolen shall
constitute an additional contractual obligation of the Company, whether or not
the destroyed, lost or stolen Note shall be found at any time, and shall be
entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other
Notes duly issued hereunder. To the extent permitted by law, all Notes shall be
held and owned upon the express condition that the foregoing provisions are
exclusive with respect to the replacement or payment or conversion or redemption
or repurchase of mutilated, destroyed, lost or stolen Notes and shall preclude
any and all other rights or remedies notwithstanding any law or statute existing
or hereafter enacted to the contrary with respect to the replacement or payment
or conversion or redemption or repurchase of negotiable instruments or other
securities without their surrender.
Section 2.07. Temporary Notes. Pending the preparation of Notes in
certificated form, the Company may execute and the Trustee or an authenticating
agent appointed by the Trustee shall, upon the written request of the Company,
authenticate and deliver temporary Notes (printed or lithographed). Temporary
Notes shall be issuable in any authorized denomination, and substantially in the
form of the Notes in certificated form, but with such omissions, insertions and
variations as may be appropriate for temporary Notes, all as may be determined
by the Company. Every such temporary Note shall be executed by the Company and
authenticated by the Trustee or such authenticating agent upon the same
conditions and in substantially the same manner, and with the same effect, as
the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in
certificated form and thereupon any or all temporary Notes may be surrendered in
exchange therefor, at each office or agency maintained by the Company pursuant
to Section 4.02 and the Trustee or such authenticating agent shall authenticate
and make available for delivery in exchange for such temporary Notes an equal
aggregate principal amount of Notes in certificated form. Such exchange shall be
made by the Company at its own expense and without any charge therefor. Until so
exchanged, the temporary Notes shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Notes in
certificated form authenticated and delivered hereunder.
Section 2.08. Cancellation of Notes. If the Company shall acquire any of
the Notes, such acquisition shall not operate as a redemption, repurchase or
satisfaction of the indebtedness represented by such Notes unless and until the
same are delivered to the Trustee for cancellation. All Notes surrendered for
the purpose of payment, redemption, repurchase, conversion, exchange or
registration
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of transfer shall, if surrendered to the Company or any paying agent or any Note
registrar or any conversion agent, be surrendered to the Trustee and promptly
canceled by it, or, if surrendered to the Trustee, shall be promptly canceled by
it, and no Notes shall be issued in lieu thereof except as expressly permitted
by any of the provisions of this Indenture. The Trustee shall dispose of such
canceled Notes in accordance with its customary procedures.
Section 2.09. CUSIP Numbers. The Company in issuing the Notes may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Noteholders;
provided that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Notes or as contained in
any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Notes, and any such redemption shall not
be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
Section 3.01. Redemption of Notes at the Option of the Company. Except as
otherwise provided in Section 3.05, the Company may not redeem any Notes prior
to May 20, 2010. At any time on or after May 20, 2010 and prior to maturity, the
Notes may be redeemed at the option of the Company (an "Optional Redemption"),
in whole or in part, upon notice as set forth in Section 3.02, at the redemption
price equal to 100% of the principal amount of the Notes to be redeemed,
together with accrued and unpaid interest, if any, to, but excluding, the date
fixed for redemption.
Section 3.02 . Notice of Optional Redemption; Selection of Notes. In case
the Company shall desire to exercise the right to redeem all or, as the case may
be, any part, of the Notes pursuant to Section 3.01, it shall fix a date for
redemption and it or, at its written request received by the Trustee not fewer
than forty-five (45) days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date fixed for redemption, the Trustee in the
name of and at the expense of the Company, shall mail or cause to be mailed a
notice of such redemption not fewer than thirty (30) nor more than sixty (60)
days prior to the redemption date to each holder of Notes so to be redeemed as a
whole or in part at its last address as the same appears on the Note register;
provided that if the Company shall give such notice, it shall also give written
notice of the redemption date and the aggregate principal amount to be redeemed
to the Trustee. Such mailing shall be by first class mail. The notice, if mailed
in the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to
give such notice by mail or any defect in the notice to the holder of any Note
designated for redemption as a
21
whole or in part shall not affect the validity of the proceedings for the
redemption of any other Note. Concurrently with the mailing of any such notice
of redemption, the Company shall issue a press release announcing such
redemption, the form and content of which press release shall be determined by
the Company in its sole discretion. The failure to issue any such press release
or any defect therein shall not affect the validity of the redemption notice or
any of the proceedings for the redemption of any Note called for redemption.
Each such notice of redemption shall specify the aggregate principal amount
of Notes to be redeemed, the CUSIP number or numbers of the Notes being
redeemed, the date fixed for redemption (which shall be a Business Day), the
redemption price at which Notes are to be redeemed, the place or places of
payment, that payment will be made upon presentation and surrender of such
Notes, that interest accrued to the date fixed for redemption will be paid as
specified in said notice, and that on and after said date interest thereon or on
the portion thereof to be redeemed will cease to accrue. Such notice shall also
state the current Conversion Rate and that the right to convert such Notes or
portions thereof into Common Stock will expire at the close of business of the
Business Day immediately preceding the redemption date. If fewer than all the
Notes are to be redeemed, the notice of redemption shall identify the Notes to
be redeemed (including CUSIP numbers, if any). In case any Note is to be
redeemed in part only, the notice of redemption shall state the portion of the
principal amount thereof to be redeemed and shall state that, on and after the
redemption date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of redemption
given as provided in this Section 3.02, the Company will deposit with the
Trustee or with one or more paying agents (or, if the Company is acting as its
own paying agent, set aside, segregate and hold in trust as provided in Section
4.04) an amount of money in immediately available funds sufficient to redeem on
the redemption date all of the Notes (or portions thereof) so called for
redemption (other than those theretofore surrendered for conversion into Common
Stock) at the appropriate redemption price, together with accrued and unpaid
interest to, but excluding, the redemption date; provided that if such payment
is made on the redemption date it must be received by the Trustee or paying
agent, as the case may be, by 10:00 a.m. New York City time on such date. The
Company shall be entitled to retain any interest, yield or gain on amounts
deposited with the Trustee or any paying agent pursuant to this Section 3.02 in
excess of amounts required hereunder to pay the redemption price and accrued and
unpaid interest to, but excluding, the redemption date. If any Note called for
redemption is converted pursuant hereto prior to such redemption date, any money
deposited with the Trustee or any paying agent or so segregated and held in
trust for the redemption of such Note shall be paid to the Company upon its
written request, or, if then held by the Company, shall be discharged from such
trust.
22
If less than all of the outstanding Notes are to be redeemed, the Trustee
shall select the Notes or portions thereof of the Global Note or the Notes in
certificated form to be redeemed (in principal amounts of $1,000 or multiples
thereof) by lot, on a pro rata basis or by another method the Trustee deems fair
and appropriate. If any Note selected for partial redemption is submitted for
conversion in part after such selection, the portion of such Note submitted for
conversion shall be deemed (so far as may be possible) to be the portion to be
selected for redemption. The Notes (or portions thereof) so selected shall be
deemed duly selected for redemption for all purposes hereof, notwithstanding
that any such Note is submitted for conversion in part before the mailing of the
notice of redemption.
Upon any redemption of less than all of the outstanding Notes, the Company
and the Trustee may (but need not), solely for purposes of determining the pro
rata allocation among such Notes as are unconverted and outstanding at the time
of redemption, treat as outstanding any Notes surrendered for conversion during
the period of fifteen (15) days next preceding the mailing of a notice of
redemption and may (but need not) treat as outstanding any Note authenticated
and delivered during such period in exchange for the unconverted portion of any
Note converted in part during such period.
Section 3.03. Payment of Notes Called for Redemption by the Company. If
notice of redemption has been given as provided in Section 3.02, the Notes or
portion of Notes with respect to which such notice has been given shall, unless
converted into Common Stock pursuant to the terms hereof, become due and payable
on the date fixed for redemption and at the place or places stated in such
notice at the applicable redemption price, together with interest accrued to,
but excluding, the redemption date, and on and after said date (unless the
Company shall default in the payment of such Notes at the redemption price,
together with interest accrued to said date) interest on the Notes or portion of
Notes so called for redemption shall cease to accrue and, after the close of
business on the Business Day immediately preceding the redemption date, such
Notes shall cease to be convertible into Common Stock and, except as provided in
Sections 7.05 and 12.04, to be entitled to any benefit or security under this
Indenture, and the holders thereof shall have no right in respect of such Notes
except the right to receive the redemption price thereof and unpaid interest to,
but excluding, the redemption date. On presentation and surrender of such Notes
at a place of payment in said notice specified, the said Notes or the specified
portions thereof shall be paid and redeemed by the Company at the applicable
redemption price, together with interest accrued thereon to, but excluding, the
redemption date; provided that if the applicable redemption date is an interest
payment date, the interest payable on such interest payment date shall be
payable to the holders of record of such Notes on the applicable record date
instead of the holders surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall
execute and the Trustee shall authenticate and make available for delivery to
the
23
holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes or
mail any notice of redemption during the continuance of a default in payment of
interest or premium, if any, on the Notes. If any Note called for redemption
shall not be so paid upon surrender thereof for redemption, the principal and
premium, if any, shall, until paid or duly provided for, bear interest from the
redemption date at a rate equal to 1% per annum plus the rate borne by the Note
and such Note shall remain convertible into Common Stock until the principal and
premium, if any, and interest shall have been paid or duly provided for.
Section 3.04. Conversion Arrangement on Call for Redemption. In connection
with any redemption of Notes, the Company may arrange for the purchase and
conversion of any Notes by an agreement with one or more investment banks or
other purchasers to purchase such Notes by paying to the Trustee in trust for
the Noteholders, on or before the date fixed for redemption, an amount not less
than the applicable redemption price, together with interest accrued to, but
excluding, the date fixed for redemption, of such Notes. Notwithstanding
anything to the contrary contained in this Article 3, the obligation of the
Company to pay the redemption price of such Notes, together with interest
accrued to, but excluding, the date fixed for redemption, shall be deemed to be
satisfied and discharged to the extent such amount is so paid by such
purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly
surrendered for conversion by the holders thereof may, at the option of the
Company, be deemed, to the fullest extent permitted by law, acquired by such
purchasers from such holders and (notwithstanding anything to the contrary
contained in Article 14) surrendered by such purchasers for conversion, all as
of immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Notes shall be extended through such time),
subject to payment of the above amount as aforesaid. At the direction of the
Company, the Trustee shall hold and dispose of any such amount paid to it in the
same manner as it would monies deposited with it by the Company for the
redemption of Notes. Without the Trustee's prior written consent, no arrangement
between the Company and such purchasers for the purchase and conversion of any
Notes shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Trustee as set forth in this Indenture.
Section 3.05. Redemption at Option of Holders Upon a Fundamental Change.
If there shall occur a Fundamental Change at any time prior to maturity of the
Notes, then each Noteholder shall have the right, at such holder's option, to
require the Company to redeem all of such holder's Notes, or any portion thereof
that is a multiple of $1,000 principal amount, on the date (the "Fundamental
Change Redemption Date") that is thirty (30) days after the date of the
Fundamental Change Redemption Notice (or, if such 30th day is not a
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Business Day, the next succeeding Business Day) at a redemption price (the
"Fundamental Change Redemption Price") equal to 100% of the principal amount
thereof, together with accrued and unpaid interest to, but excluding, the
Fundamental Change Redemption Date; provided that if such Fundamental Change
Redemption Date is an interest payment date, then the interest payable on such
interest payment date shall be paid to the holders of record of the Notes on the
applicable record date instead of the holders surrendering the Notes for
redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall
execute and, upon the Company's written direction to the Trustee, the Trustee
shall authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of authorized denominations, in
aggregate principal amount equal to the unredeemed portion of the Notes
presented.
(b) No later than 10 days after the occurrence of a Fundamental Change (the
"Company Notice Date"), the Company shall mail a written notice (the "Company
Notice") of the Fundamental Change by first class mail to the Trustee and to
each Holder (and to beneficial owners to the extent required by applicable law).
The Company Notice shall include a form of Fundamental Change Redemption Notice
to be completed by the Holder and shall state:
(i) briefly, the events causing a Fundamental Change and the date of
such Fundamental Change;
(ii) the date by which the Fundamental Change Redemption Notice
pursuant to this Section 3.05 must be delivered to the paying agent in
order for a Holder to exercise the repurchase rights;
(iii) the Fundamental Change Redemption Date;
(iv) the Fundamental Change Redemption Price;
(v) whether the Fundamental Change Redemption Price will be paid in
cash or Applicable Stock, or a combination thereof;
(vi) the name and address of the paying agent and the conversion
agent;
(vii) the Conversion Rate;
(viii) that the Notes as to which a Fundamental Change Redemption
Notice has been given may be converted if they are otherwise convertible
pursuant to Article 14 hereof only if the Fundamental Change Redemption
Notice has been withdrawn in accordance with the terms of this Indenture;
25
(ix) that the Notes must be surrendered to the paying agent to collect
payment;
(x) that the Fundamental Change Redemption Price for any Note as to
which a Fundamental Change Redemption Notice has been duly given and not
withdrawn will be paid promptly following the later of the Fundamental
Change Redemption Date and the time of surrender of such Note as described
in clause (ix);
(xi) briefly, the procedures the Holder must follow to exercise rights
under this Section 3.05;
(xii) briefly, the conversion rights, if any, on the Notes in
connection with the Fundamental Change;
(xiii) the procedures for withdrawing a Fundamental Change Redemption
Notice;
(xiv) that, unless the Company defaults in making payment of such
Fundamental Change Redemption Price or interest on Notes surrendered for
purchase by the Company, interest will cease to accrue on and after the
Fundamental Change Redemption Date; and
(xv) the CUSIP number(s) of the Notes.
In the event the Company has elected to pay the Fundamental Change
Redemption Price (or a specified percentage thereof), with shares of Applicable
Stock, the Company Notice shall:
(1) state that each Holder will receive a number of shares of Applicable
Stock equal to the quotient obtained by dividing (i) the portion of
the Fundamental Change Redemption Price to be paid in shares of
Applicable Stock, by (ii) the Market Price (except any cash amount to
be paid in lieu of fractional shares);
(2) set forth the method of calculating the Market Price of the shares of
Applicable Stock; and
(3) state that because the Market Price of shares of Applicable Stock will
be determined prior to the Fundamental Change Redemption Date, Holders
of the Notes will bear the market risk with respect to the value of
the shares of Applicable Stock to be received from the date such
Market Price is determined to the Fundamental Change Redemption Date.
(c) A Holder may exercise its rights specified in Section 3.05(a) upon
delivery of a written notice of purchase (a "Fundamental Change Redemption
Notice") to the paying agent at any time on or prior to the close of business on
the
26
second Business Day immediately preceding the Fundamental Change Redemption Date
stating:
(i) the certificate number of the Note which the Holder will deliver
to be purchased or the appropriate Depositary procedures if Certificated
Notes have not been issued;
(ii) the portion of the principal amount of the Note which the Holder
will deliver to be purchased, which portion must be $1,000 or an integral
multiple of $1,000;
(iii) that such Note shall be purchased pursuant to the terms and
conditions specified in this Indenture; and
(iv) in the event the Company elects, pursuant to Section 3.06, to pay
the Fundamental Change Redemption Price, in whole or in part, in shares of
Applicable Stock but such portion of the Fundamental Change Redemption
Price shall ultimately be paid to such Holder entirely in cash because any
of the conditions to payment of the Fundamental Change Redemption Price in
shares of Applicable Stock is not satisfied prior to the close of business
on the third Business Day prior to the relevant Fundamental Change
Redemption Date, as set forth in Section 3.06, whether such Holder elects
(i) to withdraw such Fundamental Change Redemption Notice as to some or all
of the Notes to which such Fundamental Change Redemption Notice relates
(stating the principal amount and certificate numbers, if any, of the
Securities as to which such withdrawal shall relate), or (ii) to receive
cash in respect of the entire Fundamental Change Redemption Price for all
Notes (or portions thereof) to which such Fundamental Change Redemption
Notice relates.
The delivery of such Note to the Paying Agent with the Fundamental Change
Redemption Notice (together with all necessary endorsements) at the offices of
the paying agent shall be a condition to the receipt by the Holder of the
Fundamental Change Redemption Price therefor; provided, however, that such
Fundamental Change Redemption Price shall be so paid pursuant to this Section
3.05 and Section 3.06 only if the Note so delivered to the paying agent shall
conform in all respects to the description thereof set forth in the related
Fundamental Change Redemption Notice.
If a Holder, in such Holder's Fundamental Change Redemption Notice and in
any written notice of withdrawal delivered by such Holder pursuant to the terms
of Section 3.08, fails to indicate such Holder's choice with respect to the
election set forth in Section 3.05(c)(iv), such Holder shall be deemed to have
elected to receive cash in respect of the entire Fundamental Change Redemption
Price for all Notes subject to such Fundamental Change Redemption Notice in the
circumstances set forth in such Section 3.05(c)(iv).
27
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.05 and Section 3.06, a portion of a Note if the principal amount of
such portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Note also apply to the purchase
of such portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.05 and Section 3.06 shall be consummated by the delivery of the
consideration to be received by the Holder on the Fundamental Change Redemption
Date.
Notwithstanding anything herein to the contrary, any Holder delivering to
the paying agent the Fundamental Change Redemption Notice contemplated by this
Section 3.05(c) shall have the right to withdraw such Fundamental Change
Redemption Notice at any time prior to the close of business on the last
Business Day immediately preceding the Fundamental Change Redemption Date by
delivery of a written notice of withdrawal to the paying agent in accordance
with Section 3.08.
The paying agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Redemption Notice or written withdrawal thereof.
Section 3.06. Company's Right to Elect Manner of Payment of Fundamental
Change Redemption Price. (a) The Notes to be purchased on any Fundamental Change
Redemption Date, pursuant to Section 3.05 and this Section 3.06, may be paid
for, in whole or in part, at the election of the Company, in U.S. legal tender
("cash") or shares of Applicable Stock, or in any combination of cash and shares
of Applicable Stock, subject to the conditions set forth in Section 3.05 and
Section 3.06. The Company shall designate in the Company Notice whether the
Company will purchase the Notes for cash or shares of Applicable Stock, or, if a
combination thereof, the percentages of the Fundamental Change Redemption Price
of Notes in respect of which it will pay in cash or shares of Applicable Stock;
provided that the Company will pay cash for fractional interests in shares of
Applicable Stock. For purposes of determining the existence of potential
fractional interests, all Notes subject to purchase by the Company held by a
Holder shall be considered together (no matter how many separate certificates
are to be presented). Each Holder whose Notes are purchased pursuant to Section
3.05 shall receive the same percentage of cash or shares of Applicable Stock in
payment of the Fundamental Change Redemption Price for such Notes, except (i) as
provided in this Section 3.06(a) with regard to the payment of cash in lieu of
fractional shares of Applicable Stock and (ii) in the event that the Company is
unable to purchase the Notes of a Holder or Holders for shares of Applicable
Stock because any necessary qualifications or registrations of the shares of
Applicable Stock under applicable state securities laws cannot be obtained, or
because the conditions to purchasing the Notes for shares of Applicable Stock
set forth in Section 3.06(c) have not been satisfied, the Company may purchase
the Notes of such Holder or Holders for cash. The Company may not change its
28
election with respect to the consideration (or components or percentages of
components thereof) to be paid once the Company has given its Company Notice to
Holders except pursuant to Section 3.06(b) or pursuant to Section 3.06(c) in the
event of a failure to satisfy, prior to the close of business on the third
Business Day immediately preceding the Fundamental Change Redemption Date, any
condition to the payment of the Fundamental Change Redemption Price, in whole or
in part, in shares of Applicable Stock.
On the Company Notice Date, the Company shall deliver an Officers'
Certificate to the Trustee specifying:
(i) the manner of payment selected by the Company,
(ii) the information required in the Company Notice pursuant to
Section 3.05(b), and
(iii) if the Company elects to pay the Fundamental Change Redemption
Price, or a specified percentage thereof, in shares of Applicable Stock,
that the conditions to such manner of payment set forth in Section 3.06(c)
have been or will be complied with.
(b) Purchase with Cash. At the option of the Company, the Fundamental
Change Redemption Price of Notes in respect of which a Company Notice pursuant
to Section 3.05(b) has been given, or a specified percentage thereof, may be
paid by the Company with cash equal to the aggregate Fundamental Change
Redemption Price of such Notes.
(c) Payment by Issuance of Shares of Applicable Stock. At the option of the
Company, the Fundamental Change Redemption Price of Notes in respect of which a
Fundamental Change Redemption Notice pursuant to Section 3.05(c) has been given,
or a specified percentage thereof, may be paid by the Company by the issuance of
a number of shares of Applicable Stock equal to the quotient obtained by
dividing (i) the portion of the Fundamental Change Redemption Price to be paid
in shares of Applicable Stock by (ii) the Market Price determined by the Company
in the Company Notice, subject to the next succeeding paragraph.
The Company will not issue fractional shares of Applicable Stock in payment
of the Fundamental Change Redemption Price. Instead, the Company will pay cash
based on the Current Market Price for all fractional shares. It is understood
that if a Holder elects to have more than one Note purchased, the number of
shares of Applicable Stock shall be based on the aggregate amount of Notes to be
purchased.
The Company's right to exercise its election to purchase Notes through the
issuance of shares of Applicable Stock shall be conditioned upon:
29
(i) the Company having given timely Company Notice of an election to
purchase all or a specified percentage of the Notes with shares of
Applicable Stock as provided herein;
(ii) the registration of such shares of Applicable Stock under the
Securities Act and the Exchange Act, in each case, if required;
(iii) the approval for listing of such shares of Applicable Stock on a
national securities exchange or the approval for quotation of such shares
of Applicable Stock in an inter-dealer quotation system of any registered
United States national securities association;
(iv) any necessary qualification or registration under applicable
state securities laws or the availability of an exemption from such
qualification and registration; and
(v) the receipt by the Trustee of an Officers' Certificate and an
Opinion of Counsel each stating that (A) the terms of the issuance of the
shares of Applicable Stock are in conformity with this Indenture and (B)
the shares of Applicable Stock to be issued by the Company in payment of
the Fundamental Change Redemption Price in respect of Notes have been duly
authorized and, when issued and delivered pursuant to the terms of this
Indenture in payment of the Fundamental Change Redemption Price in respect
of the Notes, will be validly issued, fully paid and non-assessable and, to
the best of such counsel's knowledge, free from preemptive rights, and, in
the case of such Officers' Certificate, stating that the conditions above
and the condition set forth in the second succeeding sentence to provide
notice of the actual number of shares of Applicable Stock to be issued have
been satisfied and, in the case of such Opinion of Counsel, stating that
the conditions in clauses (ii) through (iv) above have been satisfied. Such
Officers' Certificate shall also set forth the number of shares of
Applicable Stock to be issued for each $1,000 principal amount of Notes and
the Closing Sale Price of a share of Applicable Stock on each Trading Day
during the period commencing on the first Trading Day of the period during
which the Market Price is calculated and ending on the third day prior to
the applicable Fundamental Change Redemption Date.
If the foregoing conditions are not satisfied with respect to a Holder or
Holders prior to the close of business on the last day prior to the Fundamental
Change Redemption Date and the Company has elected to purchase the Notes
pursuant to this Section 3.06 through the issuance of shares of Applicable
Stock, the Company shall pay the entire Fundamental Change Redemption Price of
the Notes of such Holder or Holders in cash.
Upon determination of the actual number of shares of Applicable Stock to be
issued upon redemption or repurchase of Notes, the Company shall be required
30
to disseminate a press release through Business Wire National Circuit containing
this information or publish the information on the Company's web site or through
such other public medium as the Company may use at that time.
(d) In the case of a reclassification, change, consolidation, merger,
combination, sale or conveyance to which Section 14.06 applies, in which the
Common Stock of the Company is changed or exchanged as a result into the right
to receive stock, securities or other property or assets (including cash), which
includes shares of Common Stock of the Company or shares of common stock of
another Person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the
aggregate fair market value of such stock, securities or other property or
assets (including cash) (as determined by the Company, which determination shall
be conclusive and binding), then 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 (accompanied
by an Opinion of Counsel that such supplemental indenture complies with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture) modifying the provisions of this Indenture relating to the right of
holders of the Notes to cause the Company to repurchase the Notes following a
Fundamental Change, including without limitation the applicable provisions of
this Section 3.05 and the definitions of Common Stock and Fundamental Change, as
appropriate, as determined in good faith by the Company (which determination
shall be conclusive and binding), to make such provisions apply to such other
Person if different from the Company and the common stock issued by such Person
(in lieu of the Company and the Common Stock of the Company).
(e) The Company will comply with the provisions of Rule 13e-4 and any other
tender offer rules under the Exchange Act, including the offer period
requirements thereof, to the extent then applicable in connection with the
redemption rights of the holders of Notes in the event of a Fundamental Change.
Section 3.07. Repurchase of Notes by the Company at Option of the Holder.
Notes shall be purchased by the Company pursuant to the terms of the Notes at
the option of the holder on May 15, 2010, May 15, 2015 and May 15, 2020, and on
such additional dates that the Company may designate (each, a "Repurchase
Date"), at a purchase price of 100% of the principal amount, plus any accrued
and unpaid interest, in each case, to, but excluding, such Repurchase Date.
Repurchases of Notes under this Section 3.07 shall be made, at the option of the
holder thereof, upon:
(a) delivery to the Trustee (or other paying agent appointed by the
Company) by a holder of a duly completed Repurchase Notice (a "Repurchase
Notice") in the form set forth on the reverse of the Note during the period
beginning at any time from the opening of business on the date that is 20
Business
31
Days prior to the applicable relevant Repurchase Date until the close of
business on such Repurchase Date; and
(b) delivery or book-entry transfer of the Notes to the Trustee (or other
paying agent appointed by the Company) at any time after delivery of the
applicable Repurchase Notice (together with all necessary endorsements) at the
office of the Trustee (or other paying agent appointed by the Company), such
delivery being a condition to receipt by the holder of the purchase price
therefor; provided that such purchase price shall be so paid pursuant to this
Section 3.07 only if the Note so delivered to the Trustee (or other paying agent
appointed by the Company) shall conform in all respects to the description
thereof in the related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant to this
Section 3.07, a portion of a Note, if the principal amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this Indenture that
apply to the purchase of all of a Note also apply to the purchase of such
portion of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 3.07 shall be consummated by the delivery of the consideration to be
received by the holder promptly following the later of the Repurchase Date and
the time of the book-entry transfer or delivery of the Note.
Notwithstanding anything herein to the contrary, any holder delivering to
the Trustee (or other paying agent appointed by the Company) the Repurchase
Notice contemplated by this Section 3.07 shall have the right to withdraw such
Repurchase Notice at any time prior to the close of business on the Repurchase
Date by delivery of a written notice of withdrawal to the Trustee (or other
paying agent appointed by the Company) in accordance with Section 3.07(c)(1).
The Trustee (or other paying agent appointed by the Company) shall promptly
notify the Company of the receipt by it of any Repurchase Notice or written
notice of withdrawal thereof.
The Company shall pay the purchase price of Notes in respect of which a
Repurchase Notice pursuant to this Section 3.07 has been given, or a specified
percentage thereof, in cash. The Company Repurchase Notice, as provided in
Section 3.07(c), shall be sent to holders not less than 20 Business Days prior
to such Repurchase Date (the "Company Repurchase Notice Date").
(c) In connection with any repurchase of Notes, the Company shall, no less
than 20 Business Days prior to each Repurchase Date, give notice to holders (and
to beneficial owners as required by applicable law), with a copy to the Trustee,
setting forth information specified in this Section 3.07(c) (the "Company
Repurchase Notice").
Each Company Repurchase Notice shall:
32
(1) state the repurchase price and the Repurchase Date to which the
Company Repurchase Notice relates;
(2) include a form of Repurchase Notice;
(3) state the name and address of the Trustee (or other paying agent
or conversion agent appointed by the Company);
(4) state that Notes must be surrendered to the Trustee (or other
paying agent appointed by the Company) to collect the purchase price;
(5) if the Notes are then convertible, state that Notes as to which a
Repurchase Notice has been given may be converted only if the Repurchase
Notice is withdrawn in accordance with the terms of this Indenture; and
(6) state the CUSIP number of the Notes.
Company Repurchase Notices may be given by the Company or, at the Company's
request, the Trustee shall give such Company Repurchase Notice in the Company's
name and at the Company's expense.
(d) The Company will comply with the provisions of Rule 13e-4 and any other
tender offer rules under the Exchange Act to the extent then applicable in
connection with the repurchase rights of the holders of Notes.
Section 3.08. Effect of Repurchase Notice. Upon receipt by the Trustee (or
other paying agent appointed by the Company) of the Fundamental Change
Redemption Notice or Repurchase Notice specified in Section 3.05(c) or Section
3.07(a), as applicable, the holder of the Note in respect of which such notice
was given shall (unless such Fundamental Change Redemption Notice or Repurchase
Notice, as applicable, is validly withdrawn) thereafter be entitled to receive
solely the purchase price with respect to such Note. Such purchase price shall
be paid to such holder in cash and/or Applicable Stock, if applicable, subject
to receipt of funds and/or Notes by the Trustee (or other paying agent appointed
by the Company), promptly following the later of (x) the Fundamental Change
Redemption Date or Repurchase Date, as applicable, with respect to such Note
(provided the holder has satisfied the conditions in Section 3.05 or Section
3.07, as applicable) and (y) the time of delivery of such Note to the Trustee
(or other paying agent appointed by the Company) by the holder thereof in the
manner required by Section 3.05 or Section 3.07, as applicable. Notes in respect
of which a Fundamental Change Redemption Notice or Repurchase Notice, as
applicable, has been given by the holder thereof may not be converted pursuant
to Article 14 hereof on or after the date of the delivery of such Fundamental
Change Redemption Notice or Repurchase Notice, as applicable, unless such
Fundamental
33
Change Redemption Notice or Repurchase Notice, as applicable, has first been
validly withdrawn.
A Fundamental Change Redemption Notice or Repurchase Notice, as applicable,
may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Trustee (or other paying agent appointed by the Company) in
accordance with the Fundamental Change Redemption Notice or Repurchase Notice at
any time prior to the close of business on the Fundamental Change Redemption
Date or Repurchase Date, as applicable, specifying:
(a) the certificate number, if any, of the Note in respect of which such
notice of withdrawal is being submitted, or the appropriate Depositary
information if the Note in respect of which such notice of withdrawal is being
submitted is represented by a Global Note,
(b) the principal amount of the Note with respect to which such notice of
withdrawal is being submitted, and
(c) the principal amount, if any, of such Note which remains subject to the
original Fundamental Change Redemption Notice or Repurchase Notice, as
applicable, and which has been or will be delivered for purchase by the Company.
A written notice of withdrawal of a Fundamental Change Redemption Notice or
Repurchase Notice, as applicable, may be in the form set forth in the preceding
paragraph or, in the case of a Fundamental Change Redemption Notice may be in
the form of a conditional withdrawal containing the information set forth in
Section 3.05(c)(iv) and this Section 3.08.
Section 3.09. Deposit of Purchase Price. Prior to 10:00 a.m. (New York
City Time) on the second Business Day immediately following the Fundamental
Change Redemption Date or Repurchase Date, as applicable, the Company shall
deposit with the Trustee (or other paying agent appointed by the Company; or, if
the Company or a Subsidiary or an Affiliate of either of them is acting as the
paying agent, shall segregate and hold in trust as provided in Section 4.04) an
amount of cash (in immediately available funds if deposited on such Business
Day) or Applicable Stock, if permitted hereunder, sufficient to pay the
aggregate purchase price of all the Notes or portions thereof that are to be
purchased as of the Fundamental Change Redemption Date or Repurchase Date.
Payment for the Notes surrendered for redemption or repurchase (and not
withdrawn) will be made promptly (but in no event more than five (5) Business
Days) following the Fundamental Change Redemption Date or Repurchase date, as
the case may be.
As soon as practicable after the Fundamental Change Redemption Date (but in
no event not later than five (5) Business Days following the Fundamental Change
Redemption Date, the Company shall deliver to each holder entitled to receive
shares of Applicable Stock through the Trustee (or other paying agent appointed
by the Company), a certificate for the number of full shares of
34
Applicable Stock issuable in payment of the purchase price and cash in lieu of
any fractional interests. The person in whose name the certificate for the
shares of Applicable Stock is registered shall be treated as a holder of record
of Applicable Stock on the Business Day following the purchase date. No payment
or adjustment will be made for dividends on the shares of Applicable Stock the
record date for which occurred on or prior to the Fundamental Change Redemption
Date.
Section 3.10. Notes Repurchased in Part. Upon presentation of any Note
repurchased only in part, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the unrepurchased portion of the Notes
presented.
Section 3.11. Repayment to the Company. The Trustee (or other paying agent
appointed by the Company) shall return to the Company any cash or shares of
Applicable Stock that remain unclaimed, together with interest or dividends, if
any, thereon, held by them for the payment of the purchase price; provided that
to the extent that the aggregate amount of cash or shares of Applicable Stock
deposited by the Company pursuant to Section 3.07 exceeds the aggregate purchase
price of the Notes or portions thereof which the Company is obligated to
purchase as of the Fundamental Change Redemption Date then, unless otherwise
agreed in writing with the Company, promptly after the Business Day following
the Fundamental Change Redemption Date, the Trustee shall return any such excess
to the Company together with interest or dividends, if any, thereon.
ARTICLE 4
PARTICULAR COVENANTS OF THE COMPANY
Section 4.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of and premium, if any (including the redemption price upon
redemption or the purchase price upon repurchase, in each case pursuant to
Article 3), and interest, on each of the Notes at the places, at the respective
times and in the manner provided herein and in the Notes.
Section 4.02. Maintenance of Office or Agency. The Company will maintain
an office or agency in the City of Wilmington, State of Delaware or in the City
of New York, State of New York, where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for
conversion, redemption or repurchase and where notices and demands to or upon
the Company in respect of the Notes and this Indenture may be served. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency not designated or appointed by
the Trustee.
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The Company may also from time to time designate co-registrars and one or
more offices or agencies where the Notes may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Trustee as paying agent, Note
registrar, Custodian and conversion agent and the Corporate Trust Office shall
be considered as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee agrees to mail,
or cause to be mailed, the notices set forth in Section 7.10 and the third
paragraph of Section 7.11. If co-registrars have been appointed in accordance
with this Section, the Trustee shall mail such notices only to the Company and
the holders of Notes it can identify from its records.
Section 4.03. Appointments to Fill Vacancies in Trustee's Office. The
Company, whenever necessary to avoid or fill a vacancy in the office of Trustee,
will appoint, in the manner provided in Section 7.10, a Trustee, so that there
shall at all times be a Trustee hereunder.
Section 4.04. Provisions as to Paying Agent. (a) If the Company shall
appoint a paying agent other than the Trustee, or if the Trustee shall appoint
such a paying agent, the Company will cause such paying agent to execute and
deliver to the Trustee an instrument in which such agent shall agree with the
Trustee, subject to the provisions of this Section 4.04:
(1) that it will hold all sums held by it as such agent for the
payment of the principal of and premium, if any, or interest on the Notes
(whether such sums have been paid to it by the Company or by any other
obligor on the Notes) in trust for the benefit of the holders of the Notes;
(2) that it will give the Trustee notice of any failure by the Company
(or by any other obligor on the Notes) to make any payment of the principal
of and premium, if any, or interest on the Notes when the same shall be due
and payable; and
(3) that at any time during the continuance of an Event of Default,
upon request of the Trustee, it will forthwith pay to the Trustee all sums
so held in trust.
The Company shall, on or before each due date of the principal of, premium,
if any, or interest on the Notes, deposit with the paying agent a sum (in funds
which are immediately available on the due date for such payment) sufficient to
pay such principal, premium, if any, or interest, and (unless such
36
paying agent is the Trustee) the Company will promptly notify the Trustee of any
failure to take such action; provided that if such deposit is made on the due
date, such deposit shall be received by the paying agent by 10:00 a.m. New York
City time, on such date.
(b) If the Company shall act as its own paying agent, it will, on or before
each due date of the principal of, premium, if any, or interest on the Notes,
set aside, segregate and hold in trust for the benefit of the holders of the
Notes a sum sufficient to pay such principal, premium, if any, or interest so
becoming due and will promptly notify the Trustee of any failure to take such
action and of any failure by the Company (or any other obligor under the Notes)
to make any payment of the principal of, premium, if any, or interest on the
Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the
Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any paying agent hereunder
as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent
to the Trustee, the Company or such paying agent shall be released from all
further liability with respect to such sums.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the
agreement to hold sums in trust as provided in this Section 4.04 is subject to
Sections 12.03 and 12.04.
The Trustee shall not be responsible for the actions of any other paying
agents (including the Company if acting as its own paying agent) and shall have
no control of any funds held by such other paying agents.
Section 4.05. Existence. Subject to Article 11, the Company will do or
cause to be done all things necessary to preserve and keep in full force and
effect its existence and rights (charter and statutory); provided that the
Company shall not be required to preserve any such right if the Company shall
determine that the preservation thereof is no longer desirable in the conduct of
the business of the Company.
Section 4.06. Rule 144A Information Requirement. Within the period prior
to the expiration of the holding period applicable to sales thereof under Rule
144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Restricted Securities in connection with any sale thereof
for which the exemption provided for by Rule 144A is available and any
prospective purchaser of Notes or such Common Stock designated by such holder or
37
beneficial holder, the information required pursuant to Rule 144A(d)(4) under
the Securities Act upon the request of any holder or beneficial holder of the
Notes or such Common Stock and it will take such further action as any holder or
beneficial holder of such Notes or such Common Stock may reasonably request, all
to the extent required from time to time to enable such holder or beneficial
holder to sell its Notes or Common Stock without registration under the
Securities Act within the limitation of the exemption provided by Rule 144A, as
such Rule may be amended from time to time. Upon the request of any holder or
any beneficial holder of the Notes or such Common Stock, the Company will
deliver to such holder a written statement as to whether it has complied with
such requirements.
Section 4.07. Stay, Extension and Usury Laws. The Company covenants (to
the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of, premium,
if any, or interest on the Notes as contemplated herein, wherever enacted, now
or at any time hereafter in force, or which may affect the covenants or the
performance of this Indenture and the Company (to the extent it may lawfully do
so) hereby expressly waives all benefit or advantage of any such law, and
covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and
permit the execution of every such power as though no such law had been enacted.
Section 4.08. Compliance Certificate. The Company shall deliver to the
Trustee, within one hundred twenty (120) days after the end of each fiscal year
of the Company, a certificate signed on behalf of the Company by either the
principal executive officer, principal financial officer or principal accounting
officer of the Company, stating whether or not to the best knowledge of the
signer thereof, in his or her capacity as an officer of the Company, the Company
is in default in the performance and observance of any of the terms, provisions
and conditions of this Indenture (without regard to any period of grace or
requirement of notice provided hereunder) and, if the Company shall be in
default, specifying all such defaults and the nature and the status thereof of
which the signer may have knowledge.
The Company will deliver to the Trustee, forthwith upon becoming aware of
(i) any default in the performance or observance of any covenant, agreement or
condition contained in this Indenture, or (ii) any Event of Default, an
Officers' Certificate specifying with particularity such default or Event of
Default and further stating what action the Company has taken, is taking or
proposes to take with respect thereto.
Any notice required to be given under this Section 4.08 shall be delivered
to a Responsible Officer of the Trustee at its Corporate Trust Office.
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Section 4.09. Liquidated Damages Notice. In the event that the Company is
required to pay Liquidated Damages to holders of Notes pursuant to the
Registration Rights Agreement, the Company will provide written notice
("Liquidated Damages Notice") to the Trustee of its obligation to pay Liquidated
Damages no later than fifteen (15) days prior to the proposed payment date for
the Liquidated Damages or if such Liquidated Damages first begins to accrue
during such fifteen (15) day period, as soon as reasonably practicable prior to
the proposed payment date for the Liquidated Damages, and the Liquidated Damages
Notice shall set forth the amount of Liquidated Damages to be paid by the
Company on such payment date. The Trustee shall not at any time be under any
duty or responsibility to any holder of Notes to determine the Liquidated
Damages, or with respect to the nature, extent or calculation of the amount of
Liquidated Damages when made, or with respect to the method employed in such
calculation of the Liquidated Damages.
ARTICLE 5
NOTEHOLDERS' LISTS AND REPORTS BY THE COMPANY AND THE TRUSTEE
Section 5.01. Noteholders' Lists. The Company covenants and agrees that it
will furnish or cause to be furnished to the Trustee, semi-annually, not more
than fifteen (15) days after each June 1 and December 1 in each year beginning
with December 1, 2003, and at such other times as the Trustee may request in
writing, within thirty (30) days after receipt by the Company of any such
request (or such lesser time as the Trustee may reasonably request in order to
enable it to timely provide any notice to be provided by it hereunder), a list
in such form as the Trustee may reasonably require of the names and addresses of
the holders of Notes as of a date not more than fifteen (15) days (or such other
date as the Trustee may reasonably request in order to so provide any such
notices) prior to the time such information is furnished, except that no such
list need be furnished by the Company to the Trustee so long as the Trustee is
acting as the sole Note registrar.
Section 5.02. Preservation and Disclosure of Lists. (a) The Trustee shall
preserve, in as current a form as is reasonably practicable, all information as
to the names and addresses of the holders of Notes contained in the most recent
list furnished to it as provided in Section 5.01 or maintained by the Trustee in
its capacity as Note registrar or co-registrar in respect of the Notes, if so
acting. The Trustee may destroy any list furnished to it as provided in Section
5.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of Notes
with respect to their rights under this Indenture or under the Notes, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
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(c) Every Noteholder, by receiving and holding the same, agrees with the
Company and the Trustee that neither the Company nor the Trustee nor any agent
of either of them shall be held accountable by reason of any disclosure of
information as to names and addresses of holders of Notes made pursuant to the
Trust Indenture Act.
Section 5.03. Reports by Trustee. (a) Within sixty (60) days after
December 15 of each year commencing with the year 2003, the Trustee shall
transmit to holders of Notes such reports dated as of December 15 of the year in
which such reports are made concerning the Trustee and its actions under this
Indenture as shall be required, if any, pursuant to the Trust Indenture Act at
the times and in the manner provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to
holders of Notes, be filed by the Trustee with each stock exchange and automated
quotation system upon which the Notes are listed and with the Company. The
Company will promptly notify the Trustee in writing when the Notes are listed on
any stock exchange or automated quotation system or delisted therefrom.
Section 5.04. Reports by Company. The Company shall file with the Trustee
(and the Commission if at any time after the Indenture becomes qualified under
the Trust Indenture Act), and transmit to holders of Notes, such information,
documents and other reports and such summaries thereof, as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant to such Act, whether or not the Notes are governed by such Act;
provided that any such information, documents or reports required to be filed
with the Commission pursuant to Section 13 or 15(d) of the Exchange Act shall be
filed with the Trustee within fifteen (15) days after the same is so required to
be filed with the Commission (unless the Company files such documents with the
SEC via EDGAR, in which case the Company is not required to transmit such
information, documents or reports to the Trustee or the holders of the Notes).
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on an Officers' Certificates).
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
Section 6.01. Events of Default; Acceleration. In case one or more of the
following Events of Default (whatever the reason for such Event of Default and
whether it shall be voluntary or involuntary or be effected by operation of law
or pursuant to any judgment, decree or order of any court or any order, rule or
40
regulation of any administrative or governmental body) shall have occurred and
be continuing:
(a) default in the payment of any installment of interest or Liquidated
Damages with respect to any of the Notes as and when the same shall become due
and payable, and continuance of such default for a period of thirty (30) days;
or
(b) default in the payment of the principal of or premium, if any, on any
of the Notes as and when the same shall become due and payable either at
maturity or in connection with any redemption or repurchase, in each case
pursuant to Article 3, by acceleration or otherwise; or
(c) default in the Company's obligation to provide a Fundamental Change
Notice upon a Fundamental Change as provided in Section 3.05; or
(d) failure on the part of the Company duly to observe or perform any other
of the covenants or agreements on the part of the Company in the Notes or in
this Indenture (other than a covenant or agreement a default in whose
performance or whose breach is elsewhere in this Section 6.01 specifically dealt
with) continued for a period of sixty (60) days after the date on which written
notice of such failure, requiring the Company to remedy the same, shall have
been given to the Company by the Trustee, or the Company and a Responsible
Officer of the Trustee by the holders of at least twenty-five percent (25%) in
aggregate principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04; or
(e) the Company shall commence a voluntary case or other proceeding seeking
liquidation, reorganization or other relief with respect to the Company or its
debts under any bankruptcy, insolvency or other similar law now or hereafter in
effect or seeking the appointment of a trustee, receiver, liquidator, custodian
or other similar official of the Company or any substantial part of its
property, or shall consent to any such relief or to the appointment of or taking
possession by any such official in an involuntary case or other proceeding
commenced against it, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(f) an involuntary case or other proceeding shall be commenced against the
Company seeking liquidation, reorganization or other relief with respect to the
Company or its debts under any bankruptcy, insolvency or other similar law now
or hereafter in effect or seeking the appointment of a trustee, receiver,
liquidator, custodian or other similar official of it or any substantial part of
its property, and such involuntary case or other proceeding shall remain
undismissed and unstayed for a period of ninety (90) consecutive days;
then, and in each and every such case (other than an Event of Default specified
in Section 6.01(e) or 6.01(f)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of not
less than
41
twenty-five percent (25%) in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 8.04, by notice in
writing to the Company (and to the Trustee if given by Noteholders) may declare
the principal of and premium, if any, on all the Notes and the interest accrued
thereon to be due and payable immediately, and upon receipt of any such
declaration the same shall become and shall be immediately due and payable. If
an Event of Default specified in Section 6.01(e) or 6.01(f) occurs, the
principal of all the Notes and the interest accrued thereon shall be immediately
and automatically due and payable without necessity of further action. This
provision, however, is subject to the conditions that if, at any time after the
principal of the Notes shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal of and premium, if any, on any and all
Notes which shall have become due otherwise than by acceleration (with interest
on overdue installments of interest (to the extent that payment of such interest
is enforceable under applicable law) and on such principal and premium, if any,
at the rate borne by the Notes plus 1%, to the date of such payment or deposit)
and amounts due to the Trustee pursuant to Section 7.06, and if any and all
defaults under this Indenture, other than the nonpayment of principal of and
premium, if any, and accrued and unpaid interest on Notes which shall have
become due by acceleration, shall have been cured or waived pursuant to Section
6.07, then and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Company
and to the Trustee, may waive all defaults or Events of Default and rescind and
annul such declaration and its consequences; but no such waiver or rescission
and annulment shall extend to or shall affect any subsequent default or Event of
Default, or shall impair any right consequent thereon. The Company shall notify
in writing a Responsible Officer of the Trustee, promptly upon becoming aware
thereof, of any Event of Default.
In case the Trustee shall have proceeded to enforce any right under this
Indenture and such proceedings shall have been discontinued or abandoned because
of such waiver or rescission and annulment or for any other reason or shall have
been determined adversely to the Trustee, then and in every such case the
Company, the holders of Notes, and the Trustee shall be restored respectively to
their several positions and rights hereunder, and all rights, remedies and
powers of the Company, the holders of Notes, and the Trustee shall continue as
though no such proceeding had been taken.
Section 6.02. Payments of Notes on Default; Suit Therefor. The Company
covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
(30) days, or (b) in case default shall be made in the payment of the principal
of or premium, if any, on any of the Notes as and when the same shall have
become
42
due and payable, whether at maturity of the Notes or in connection with any
redemption, by or under this Indenture or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal and premium, if any, or interest, as the case may be,
with interest upon the overdue principal and premium, if any, and (to the extent
that payment of such interest is enforceable under applicable law) upon the
overdue installments of interest at the rate borne by the Notes, plus 1% and, in
addition thereto, such further amount as shall be sufficient to cover the
reasonable costs and expenses of collection, including reasonable compensation
to the Trustee, its agents, attorneys and counsel, and all other amounts due the
Trustee under Section 7.06. Until such demand by the Trustee, the Company may
pay the principal of and premium, if any, and interest on the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such
demand, the Trustee, in its own name and as trustee of an express trust, shall
be entitled and empowered to institute any actions or proceedings at law or in
equity for the collection of the sums so due and unpaid, and may prosecute any
such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes
and collect in the manner provided by law out of the property of the Company or
any other obligor on the Notes wherever situated the monies adjudged or decreed
to be payable.
In case there shall be pending proceedings for the bankruptcy or for the
reorganization of the Company or any other obligor on the Notes under Title 11
of the United States Code, or any other applicable law, or in case a receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, sequestrator or
similar official shall have been appointed for or taken possession of the
Company or such other obligor, the property of the Company or such other
obligor, or in the case of any other judicial proceedings relative to the
Company or such other obligor upon the Notes, or to the creditors or property of
the Company or such other obligor, the Trustee, irrespective of whether the
principal of the Notes shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.02, shall be entitled
and empowered, by intervention in such proceedings or otherwise, to file and
prove a claim or claims for the whole amount of principal, premium, if any, and
interest owing and unpaid in respect of the Notes, and, in case of any judicial
proceedings, to file such proofs of claim and other papers or documents as may
be necessary or advisable in order to have the claims of the Trustee and of the
Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property,
and to collect and receive any monies or other property payable or deliverable
on any such claims, and to distribute the same after the deduction of any
amounts due the Trustee under Section 7.06, and any
43
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
custodian or similar official is hereby authorized by each of the Noteholders to
make such payments to the Trustee, and, in the event that the Trustee shall
consent to the making of such payments directly to the Noteholders, to pay to
the Trustee any amount due it for reasonable compensation, expenses, advances
and disbursements, including reasonable counsel fees and expenses incurred by it
up to the date of such distribution. To the extent that such payment of
reasonable compensation, expenses, advances and disbursements out of the estate
in any such proceedings shall be denied for any reason, payment of the same
shall be secured by a lien on, and shall be paid out of, any and all
distributions, dividends, monies, securities, and other property which the
holders of the Notes may be entitled to receive in such proceedings, whether in
liquidation or under any plan of reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture, or under
any of the Notes, may be enforced by the Trustee without the possession of any
of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving
the interpretation of any provision of this Indenture to which the Trustee shall
be a party) the Trustee shall be held to represent all the holders of the Notes,
and it shall not be necessary to make any holders of the Notes parties to any
such proceedings.
Section 6.03. Application of Monies Collected by Trustee. Any monies
collected by the Trustee pursuant to this Article 6 shall be applied in the
order following, at the date or dates fixed by the Trustee for the distribution
of such monies, upon presentation of the several Notes, and stamping thereon the
payment, if only partially paid, and upon surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section
7.06;
SECOND: In case the principal of the outstanding Notes shall not have
become due and be unpaid, to the payment of interest on the Notes in
default in the order of the maturity of the installments of such interest,
with interest (to the extent that such interest has been collected by the
Trustee) upon the overdue installments of interest at the rate borne by the
Notes plus 1%, such payments to be made ratably to the Persons entitled
thereto;
44
THIRD: In case the principal of the outstanding Notes shall have
become due, by declaration or otherwise, and be unpaid, to the payment of
the whole amount then owing and unpaid upon the Notes for principal and
premium, if any, and interest, with interest on the overdue principal and
premium, if any, and (to the extent that such interest has been collected
by the Trustee) upon overdue installments of interest at the rate borne by
the Notes plus 1%, and in case such monies shall be insufficient to pay in
full the whole amounts so due and unpaid upon the Notes, then to the
payment of such principal and premium, if any, and interest without
preference or priority of principal and premium, if any, over interest, or
of interest over principal and premium, if any, or of any installment of
interest over any other installment of interest, or of any Note over any
other Note, ratably to the aggregate of such principal and premium, if any,
and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the Company or any
other Person lawfully entitled thereto.
Section 6.04. Proceedings by Noteholder. No holder of any Note shall have
any right by virtue of or by reference to any provision of this Indenture to
institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than twenty-five percent (25%)
in aggregate principal amount of the Notes then outstanding shall have made
written request upon the Trustee to institute such action, suit or proceeding in
its own name as Trustee hereunder and shall have offered to the Trustee such
reasonable indemnity as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty (60)
days after its receipt of such notice, request and offer of indemnity, shall
have neglected or refused to institute any such action, suit or proceeding and
no direction inconsistent with such written request shall have been given to the
Trustee pursuant to Section 6.07; it being understood and intended, and being
expressly covenanted by the taker and holder of every Note with every other
taker and holder and the Trustee, that no one or more holders of Notes shall
have any right in any manner whatever by virtue of or by reference to any
provision of this Indenture to affect, disturb or prejudice the rights of any
other holder of Notes, or to obtain or seek to obtain priority over or
preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 6.04, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
45
Notwithstanding any other provision of this Indenture and any provision of
any Note, the right of any holder of any Note to receive payment of the
principal of and premium, if any (including the redemption price upon redemption
pursuant to Article 6), and accrued and unpaid interest on such Note, on or
after the respective due dates expressed in such Note or in the event of
redemption, or to institute suit for the enforcement of any such payment on or
after such respective dates against the Company shall not be impaired or
affected without the consent of such holder.
Anything in this Indenture or the Notes to the contrary notwithstanding,
the holder of any Note, without the consent of either the Trustee or the holder
of any other Note, in its own behalf and for its own benefit, may enforce, and
may institute and maintain any proceeding suitable to enforce, its rights of
conversion as provided herein.
Section 6.05. Proceedings by Trustee. In case of an Event of Default, the
Trustee may, in its discretion, proceed to protect and enforce the rights vested
in it by this Indenture by such appropriate judicial proceedings as are
necessary to protect and enforce any of such rights, either by suit in equity or
by action at law or by proceeding in bankruptcy or otherwise, whether for the
specific enforcement of any covenant or agreement contained in this Indenture or
in aid of the exercise of any power granted in this Indenture, or to enforce any
other legal or equitable right vested in the Trustee by this Indenture or by
law.
Section 6.06. Remedies Cumulative and Continuing. Except as provided in
Section 2.06, all powers and remedies given by this Article 6 to the Trustee or
to the Noteholders shall, to the extent permitted by law, be deemed cumulative
and not exclusive of any thereof or of any other powers and remedies available
to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any default or Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein, and, subject to the provisions of Section
6.04, every power and remedy given by this Article 6 or by law to the Trustee or
to the Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority
of Noteholders. The holders of a majority in aggregate principal amount of the
Notes at the time outstanding determined in accordance with Section 8.04 shall
have the right to direct the time, method and place of conducting any proceeding
for any remedy available to the Trustee or exercising any trust or power
conferred on the Trustee; provided that (a) such direction shall not be in
conflict with any rule of law or with this Indenture, (b) the Trustee may take
any other action which is not inconsistent with such direction and (c) the
Trustee may
46
decline to take any action that would benefit some Noteholder to the detriment
of other Noteholders. The holders of a majority in aggregate principal amount of
the Notes at the time outstanding determined in accordance with Section 8.04
may, on behalf of the holders of all of the Notes, waive any past or existing
default or Event of Default hereunder and its consequences except (i) a past or
existing default in the payment of interest or premium, if any, on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes into
Common Stock, (iii) a default in the payment of the redemption price pursuant to
Article 3, (iv) a default in the payment of the purchase price pursuant to
Article 3 or (v) a default in respect of a covenant or provisions hereof which
under Article 10 cannot be modified or amended without the consent of the
holders of each or all Notes then outstanding or affected thereby. Upon any such
waiver, the Company, the Trustee and the holders of the Notes shall be restored
to their former positions and rights hereunder; but no such waiver shall extend
to any subsequent or other default or Event of Default or impair any right
consequent thereon. Whenever any default or Event of Default hereunder shall
have been cured or waived as permitted by this Section 6.07, said default or
Event of Default shall for all purposes of the Notes and this Indenture be
deemed to have been cured and to be not continuing for every purpose of this
Indenture; but no such waiver shall extend to any subsequent or other default or
Event of Default or impair any right consequent thereon.
Section 6.08. Notice of Defaults. The Trustee shall, within ninety (90)
days after a Responsible Officer of the Trustee has knowledge of the occurrence
of a default, mail to all Noteholders, as the names and addresses of such
holders appear upon the Note register, notice of all defaults known to a
Responsible Officer, unless such defaults or Event of Default shall have been
cured or waived before the giving of such notice; provided that except in the
case of default in the payment of the principal of, or premium, if any, or
interest on any of the Notes, the Trustee shall be protected in withholding such
notice if and so long as a trust committee of directors and/or Responsible
Officers of the Trustee in good faith determines that the withholding of such
notice is in the interests of the Noteholders.
Section 6.09. Undertaking to Pay Costs. All parties to this Indenture
agree, and each holder of any Note by his acceptance thereof shall be deemed to
have agreed, that any court may, in its discretion, require, in any suit for the
enforcement of any right or remedy under this Indenture, or in any suit against
the Trustee for any action taken or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit and
that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees and expenses, against any party litigant in such
suit, having due regard to the merits and good faith of the claims or defenses
made by such party litigant; provided that the provisions of this Section 6.09
(to the extent permitted by law) shall not apply to any suit instituted by the
Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than ten
47
percent in principal amount of the Notes at the time outstanding determined in
accordance with Section 8.04, or to any suit instituted by any Noteholder for
the enforcement of the payment of the principal of or premium, if any, or
interest on any Note on or after the due date expressed in such Note or to any
suit for the enforcement of the right to convert any Note in accordance with the
provisions of Article 14.
ARTICLE 7
THE TRUSTEE
Section 7.01. Duties and Responsibilities of Trustee. The Trustee, prior
to the occurrence of an Event of Default and after the curing of all Events of
Default which may have occurred, undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture. In case an Event of
Default has occurred (which has not been cured or waived), the Trustee shall
exercise such of the rights and powers vested in it by this Indenture, and use
the same degree of care and skill in their exercise, as a prudent person would
exercise or use under the circumstances in the conduct of his own affairs.
No provision of this Indenture shall be construed to relieve the Trustee
from liability for its own negligent action, its own negligent failure to act or
its own willful misconduct, except that:
(a) prior to the occurrence of an Event of Default and after the curing or
waiving of all Events of Default which may have occurred:
(i) the duties and obligations of the Trustee shall be determined
solely by the express provisions of this Indenture and the Trust Indenture
Act, and the Trustee shall not be liable except for the performance of such
duties and obligations as are specifically set forth in this Indenture and
no implied covenants or obligations shall be read into this Indenture and
the Trust Indenture Act against the Trustee; and
(ii) in the absence of bad faith and willful misconduct on the part of
the Trustee, the Trustee may conclusively rely as to the truth of the
statements and the correctness of the opinions expressed therein, upon any
certificates or opinions furnished to the Trustee and conforming to the
requirements of this Indenture; but, in the case of any such certificates
or opinions which by any provisions hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine the
same to determine whether or not they conform to the requirements of this
Indenture;
(b) the Trustee shall not be liable for any error of judgment made in good
faith by a Responsible Officer or Officers of the Trustee, unless the Trustee
was negligent in ascertaining the pertinent facts;
48
(c) the Trustee shall not be liable with respect to any action taken or
omitted to be taken by it in good faith in accordance with the written direction
of the holders of not less than a majority in principal amount of the Notes at
the time outstanding determined as provided in Section 8.04 relating to the
time, method and place of conducting any proceeding for any remedy available to
the Trustee, or exercising any trust or power conferred upon the Trustee, under
this Indenture;
(d) whether or not therein provided, every provision of this Indenture
relating to the conduct or affecting the liability of, or affording protection
to, the Trustee shall be subject to the provisions of this Section;
(e) the Trustee shall not be liable in respect of any payment (as to the
correctness of amount, entitlement to receive or any other matters relating to
payment) or notice effected by the Company or any paying agent or any records
maintained by any co-registrar with respect to the Notes;
(f) if any party fails to deliver a notice relating to an event the fact of
which, pursuant to this Indenture, requires notice to be sent to the Trustee,
the Trustee may conclusively rely on its failure to receive such notice as
reason to act as if no such event occurred; and
(g) the Trustee shall not be deemed to have knowledge of any Event of
Default hereunder unless it shall have been notified in writing of such Event of
Default by the Company or the holders of at least 10% in aggregate principal
amount of the Notes.
None of the provisions contained in this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur personal financial
liability in the performance of any of its duties or in the exercise of any of
its rights or powers, if there is reasonable ground for believing that the
repayment of such funds or adequate indemnity against such risk or liability is
not reasonably assured to it.
Section 7.02. Reliance on Documents, Opinions, Etc. Except as otherwise
provided in Section 7.01:
(a) the Trustee may rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice,
request, consent, order, bond, debenture, note, coupon or other paper or
document (whether in its original or facsimile form) believed by it in good
faith to be genuine and to have been signed or presented by the proper party or
parties;
(b) any request, direction, order or demand of the Company mentioned herein
shall be sufficiently evidenced by an Officers' Certificate (unless other
evidence in respect thereof be herein specifically prescribed); and any
resolution of the Board of Directors may be evidenced to the Trustee by a copy
thereof certified by the Secretary or an Assistant Secretary of the Company;
49
(c) the Trustee may consult with counsel of its own selection and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or omitted by it hereunder in good
faith and in accordance with such advice or Opinion of Counsel;
(d) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Noteholders pursuant to the provisions of this Indenture, unless such
Noteholders shall have offered to the Trustee reasonable security or indemnity
against the costs, expenses and liabilities which may be incurred therein or
thereby;
(e) the Trustee shall not be bound to make any investigation into the facts
or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture or
other paper or document, but the Trustee, in its discretion, may make such
further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or
investigation, it shall upon prior reasonable notice and during normal business
hours be entitled to examine the books, records and premises of the Company,
personally or by agent or attorney; and
(f) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed by it with due care
hereunder.
Section 7.03. No Responsibility for Recitals, Etc. The recitals contained
herein and in the Notes (except in the Trustee's certificate of authentication)
shall be taken as the statements of the Company, and the Trustee assumes no
responsibility for the correctness of the same. The Trustee makes no
representations as to the validity or sufficiency of this Indenture or of the
Notes. The Trustee shall not be accountable for the use or application by the
Company of any Notes or the proceeds of any Notes authenticated and delivered by
the Trustee in conformity with the provisions of this Indenture.
Section 7.04. Trustee, Paying Agents, Conversion Agents or Registrar May
Own Notes. The Trustee, any authentication agent, any paying agent, any
conversion agent or any Note registrar, in its individual or any other capacity,
may become the owner or pledgee of Notes with the same rights it would have if
it were not Trustee, authentication agent, paying agent, conversion agent or
Note registrar.
Section 7.05. Monies to be Held in Trust. Subject to the provisions of
Section 12.04, all monies received by the Trustee shall, until used or applied
as herein provided, be held in trust for the purposes for which they were
received. Money held by the Trustee in trust hereunder need not be segregated
from other
50
funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as may be
agreed in writing from time to time by the Company and the Trustee.
Section 7.06. Compensation and Expenses of Trustee. The Company covenants
and agrees to pay to the Trustee from time to time, and the Trustee shall be
entitled to, reasonable compensation for all services rendered by it hereunder
in any capacity (which shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust) as mutually agreed to from
time to time in writing between the Company and the Trustee, and the Company
will pay or reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances reasonably incurred or made by the Trustee in
accordance with any of the provisions of this Indenture (including the
reasonable compensation and the expenses and disbursements of its counsel and of
all Persons not regularly in its employ) except any such expense, disbursement
or advance as may arise from the negligence, willful misconduct, recklessness or
bad faith of the Trustee. The Company also covenants to indemnify the Trustee
(or any officer, director or employee of the Trustee), in any capacity under
this Indenture and its agents and any authenticating agent for, and to hold them
harmless against, any and all loss, liability, damage, claim, action, suit, cost
or expense (including fees and expenses of counsel) including taxes (other than
taxes based on the income of the Trustee or such agents) of any kind and nature
whatsoever incurred without negligence, willful misconduct, recklessness or bad
faith on the part of the Trustee or such officers, directors, employees and
agent or authenticating agent, as the case may be, and arising out of or in
connection with the acceptance or administration of this trust or in any other
capacity hereunder, including the costs and expenses of defending themselves
against any claim of liability in the premises. The obligations of the Company
under this Section 7.06 to compensate or indemnify the Trustee and to pay or
reimburse the Trustee for expenses, disbursements and advances shall be secured
by a lien prior to that of the Notes upon all property and funds held or
collected by the Trustee as such, except funds held in trust for the benefit of
the holders of particular Notes. The obligation of the Company under this
Section shall survive the satisfaction and discharge of this Indenture and the
resignation or removal of the Trustee.
When the Trustee and its agents and any authenticating agent incur expenses
or render services after an Event of Default specified in Section 6.01(d) or
Section 6.01(e) with respect to the Company occurs, the expenses and the
compensation for the services are intended to constitute expenses of
administration under any bankruptcy, insolvency or similar laws.
Section 7.07. Officers' Certificate as Evidence. Except as otherwise
provided in Section 7.01, whenever in the administration of the provisions of
this Indenture the Trustee shall deem it necessary or desirable that a matter be
proved or established prior to taking or omitting any action hereunder, such
matter (unless other evidence in respect thereof be herein specifically
prescribed) may, in the absence of bad faith or willful misconduct on the part
of the Trustee, be
51
deemed to be conclusively proved and established by an Officers' Certificate
delivered to the Trustee.
Section 7.08. Conflicting Interests of Trustee. If the Trustee has or
shall acquire a conflicting interest within the meaning of the Trust Indenture
Act, the Trustee shall either eliminate such interest or resign, to the extent
and in the manner provided by, and subject to the provisions of, the Trust
Indenture Act and this Indenture.
Section 7.09. Eligibility of Trustee. There shall at all times be a
Trustee hereunder which shall be a Person that is eligible pursuant to the Trust
Indenture Act to act as such and has a combined capital and surplus of at least
$50,000,000 (or if such Person is a member of a bank holding company system, its
bank holding company shall have a combined capital and surplus of at least
$50,000,000). If such Person publishes reports of condition at least annually,
pursuant to law or to the requirements of any supervising or examining
authority, then for the purposes of this Section the combined capital and
surplus of such Person shall be deemed to be its combined capital and surplus as
set forth in its most recent report of condition so published. If at any time
the Trustee shall cease to be eligible in accordance with the provisions of this
Section 7.09, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
Section 7.10. Resignation Or Removal Of Trustee. (a) The Trustee may at
any time resign by giving written notice of such resignation to the Company and
to the holders of Notes. Upon receiving such notice of resignation, the Company
shall promptly appoint a successor trustee by written instrument, in duplicate,
executed by order of the Board of Directors, one copy of which instrument shall
be delivered to the resigning Trustee and one copy to the successor trustee. If
no successor trustee shall have been so appointed and have accepted appointment
sixty (60) days after the mailing of such notice of resignation to the
Noteholders, the resigning Trustee may, upon ten (10) Business Days' notice to
the Company and the Noteholders, appoint a successor identified in such notice
or may petition, at the expense of the Company, any court of competent
jurisdiction for the appointment of a successor trustee, or, if any Noteholder
who has been a bona fide holder of a Note or Notes for at least six (6) months
may, subject to the provisions of Section 6.09, on behalf of himself and all
others similarly situated, petition any such court for the appointment of a
successor trustee. Such court may thereupon, after such notice, if any, as it
may deem proper and prescribe, appoint a successor trustee.
(b) In case at any time any of the following shall occur:
(i) the Trustee shall fail to comply with Section 7.08 after written
request therefor by the Company or by any Noteholder who has been a bona
fide holder of a Note or Notes for at least six (6) months; or
52
(ii) the Trustee shall cease to be eligible in accordance with the
provisions of Section 7.09 and shall fail to resign after written request
therefor by the Company or by any such Noteholder; or
(iii) the Trustee shall become incapable of acting, or shall be
adjudged a bankrupt or insolvent, or a receiver of the Trustee or of its
property shall be appointed, or any public officer shall take charge or
control of the Trustee or of its property or affairs for the purpose of
rehabilitation, conservation or liquidation;
then, in any such case, the Company may remove the Trustee and appoint a
successor trustee by written instrument, in duplicate, executed by order of the
Board of Directors, one copy of which instrument shall be delivered to the
Trustee so removed and one copy to the successor trustee, or, subject to the
provisions of Section 6.09, any Noteholder who has been a bona fide holder of a
Note or Notes for at least six (6) months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor trustee; provided that
if no successor Trustee shall have been appointed and have accepted appointment
sixty (60) days after either the Company or the Noteholders has removed the
Trustee, the Trustee so removed may petition, at the expense of the Company, any
court of competent jurisdiction for an appointment of a successor trustee. Such
court may thereupon, after such notice, if any, as it may deem proper and
prescribe, remove the Trustee and appoint a successor trustee.
(c) The holders of at least 66 2/3% in aggregate principal amount of the
Notes at the time outstanding may at any time remove the Trustee and nominate a
successor trustee which shall be deemed appointed as successor trustee unless,
within ten (10) days after notice to the Company of such nomination, the Company
objects thereto, in which case the Trustee so removed or any Noteholder, or if
such Trustee so removed or any Noteholder fails to act, the Company, upon the
terms and conditions and otherwise as in Section 7.10 provided, may petition any
court of competent jurisdiction for an appointment of a successor trustee.
(d) Any resignation or removal of the Trustee and appointment of a
successor trustee pursuant to any of the provisions of this Section 7.10 shall
become effective upon acceptance of appointment by the successor trustee as
provided in Section 7.11.
Section 7.11 . Acceptance by Successor Trustee. Any successor trustee
appointed as provided in Section 7.10 shall execute, acknowledge and deliver to
the Company and to its predecessor trustee an instrument accepting such
appointment hereunder, and thereupon the resignation or removal of the
predecessor trustee shall become effective and such successor trustee, without
any further act, deed or conveyance, shall become vested with all the rights,
powers, duties and obligations of its predecessor hereunder, with like effect as
if originally
53
named as trustee herein; but, nevertheless, on the written request of the
Company or of the successor trustee, the trustee ceasing to act shall, upon
payment of any amount then due it pursuant to the provisions of Section 7.06,
execute and deliver an instrument transferring to such successor trustee all the
rights and powers of the trustee so ceasing to act. Upon request of any such
successor trustee, the Company shall execute any and all instruments in writing
for more fully and certainly vesting in and confirming to such successor trustee
all such rights and powers. Any trustee ceasing to act shall, nevertheless,
retain a lien upon all property and funds held or collected by such trustee as
such, except for funds held in trust for the benefit of holders of particular
Notes, to secure any amounts then due it pursuant to the provisions of Section
7.06.
No successor trustee shall accept appointment as provided in this Section
7.11 unless, at the time of such acceptance, such successor trustee shall be
qualified under the provisions of Section 7.08 and be eligible under the
provisions of Section 7.09.
Upon acceptance of appointment by a successor trustee as provided in this
Section 7.11, the Company (or the former trustee, at the written direction of
the Company) shall mail or cause to be mailed notice of the succession of such
trustee hereunder to the holders of Notes at their addresses as they shall
appear on the Note register. If the Company fails to mail such notice within ten
(10) days after acceptance of appointment by the successor trustee, the
successor trustee shall cause such notice to be mailed at the expense of the
Company.
Section 7.12. Succession by Merger. Any corporation into which the Trustee
may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or substantially
all of the corporate trust business of the Trustee (including any trust created
by this Indenture), shall be the successor to the Trustee hereunder without the
execution or filing of any paper or any further act on the part of any of the
parties hereto, provided that in the case of any corporation succeeding to all
or substantially all of the corporate trust business of the Trustee, such
corporation shall be qualified under the provisions of Section 7.08 and eligible
under the provisions of Section 7.09.
In case at the time such successor to the Trustee shall succeed to the
trusts created by this Indenture, any of the Notes shall have been authenticated
but not delivered, any such successor to the Trustee may adopt the certificate
of authentication of any predecessor trustee or authenticating agent appointed
by such predecessor trustee, and deliver such Notes so authenticated; and in
case at that time any of the Notes shall not have been authenticated, any
successor to the Trustee or any authenticating agent appointed by such successor
trustee may authenticate such Notes in the name of the successor trustee; and in
all such cases such certificates shall have the full force that is provided in
the Notes or in this Indenture; provided that the right to adopt the certificate
of authentication of any
54
predecessor Trustee or authenticate Notes in the name of any predecessor Trustee
shall apply only to its successor or successors by merger, conversion or
consolidation.
Section 7.13. Preferential Collection of Claims. If and when the Trustee
shall be or become a creditor of the Company (or any other obligor upon the
Notes), the Trustee shall be subject to the provisions of the Trust Indenture
Act regarding the collection of the claims against the Company (or any such
other obligor).
Section 7.14. Trustee's Application For Instructions From The Company. Any
application by the Trustee for written instructions from the Company (other than
with regard to any action proposed to be taken or omitted to be taken by the
Trustee that affects the rights of the holders of the Notes or holders of Senior
Indebtedness under this Indenture, including, without limitation, under Article
4 hereof) may, at the option of the Trustee, set forth in writing any action
proposed to be taken or omitted by the Trustee under this Indenture and the date
on and/or after which such action shall be taken or such omission shall be
effective. The Trustee shall not be liable for any action taken by, or omission
of, the Trustee in accordance with a proposal included in such application on or
after the date specified in such application (which date shall not be less than
three (3) Business Days after the date any officer of the Company actually
receives such application, unless any such officer shall have consented in
writing to any earlier date) unless prior to taking any such action (or the
effective date in the case of an omission), the Trustee shall have received
written instructions in response to such application specifying the action to be
taken or omitted.
ARTICLE 8
THE NOTEHOLDERS
Section 8.01. Action by Noteholders. Whenever in this Indenture it is
provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article 9, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such
55
action. The record date shall be not more than fifteen (15) days prior to the
date of commencement of solicitation of such action.
Section 8.02. Proof of Execution by Noteholders. Subject to the provisions
of Sections 7.01, 7.02 and 9.05, proof of the execution of any instrument by a
Noteholder or its agent or proxy shall be sufficient if made in accordance with
such reasonable rules and regulations as may be prescribed by the Trustee or in
such manner as shall be satisfactory to the Trustee. The holding of Notes shall
be proved by the registry of such Notes or by a certificate of the Note
registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee,
any authenticating agent, any paying agent, any conversion agent and any Note
registrar may deem the Person in whose name such Note shall be registered upon
the Note register to be, and may treat it as, the absolute owner of such Note
(whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or
any Note registrar) for the purpose of receiving payment of or on account of the
principal of, premium, if any, and interest on such Note, for conversion of such
Note and for all other purposes; and neither the Company nor the Trustee nor any
authenticating agent, any paying agent nor any conversion agent nor any Note
registrar shall be affected by any notice to the contrary. All such payments so
made to any holder for the time being, or upon his order, shall be valid, and,
to the extent of the sum or sums so paid, effectual to satisfy and discharge the
liability for monies payable upon any such Note.
Section 8.04. Company-Owned Notes Disregarded. In determining whether the
holders of the requisite aggregate principal amount of Notes have concurred in
any direction, consent, waiver or other action under this Indenture, Notes which
are owned by the Company or any other obligor on the Notes or any Affiliate of
the Company shall be disregarded and deemed not to be outstanding for the
purpose of any such determination; provided that for the purposes of determining
whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Notes which a Responsible Officer knows
are so owned shall be so disregarded. Notes so owned which have been pledged in
good faith may be regarded as outstanding for the purposes of this Section 8.04
if the pledgee shall establish to the satisfaction of the Trustee the pledgee's
right to vote such Notes and that the pledgee is not the Company, any other
obligor on the Notes or any Affiliate of the Company or any such other obligor.
In the case of a dispute as to such right, any good faith decision by the
Trustee taken upon the advice of counsel shall be full protection to the
Trustee. Upon request of the Trustee, the Company shall furnish to the Trustee
promptly an Officers' Certificate listing and identifying all Notes, if any,
known by the Company to be owned or held by or for the account of any of the
above described
56
Persons, and, subject to Section 7.01, the Trustee shall be entitled to accept
such Officers' Certificate as conclusive evidence of the facts therein set forth
and of the fact that all Notes not listed therein are outstanding for the
purpose of any such determination.
Section 8.05. Revocation of Consents, Future Holders Bound. At any time
prior to (but not after) the evidencing to the Trustee, as provided in Section
8.01, of the taking of any action by the holders of the percentage in aggregate
principal amount of the Notes specified in this Indenture in connection with
such action, any holder of a Note which is shown by the evidence to be included
in the Notes the holders of which have consented to such action may, by filing
written notice with the Trustee at its Corporate Trust Office and upon proof of
holding as provided in Section 8.02, revoke such action so far as concerns such
Note. Except as aforesaid, any such action taken by the holder of any Note shall
be a continuing action and conclusive and binding upon such holder and upon all
future holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor. An
amendment, supplement or waiver becomes effective in accordance with its terms
and thereafter binds every holder.
ARTICLE 9
MEETINGS OF NOTEHOLDERS
Section 9.01. Purpose of Meetings. A meeting of Noteholders may be called
at any time and from time to time pursuant to the provisions of this Article 9
for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to give any
directions to the Trustee permitted under this Indenture, or to consent to
the waiving of any default or Event of Default hereunder and its
consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 6;
(2) to remove the Trustee and nominate a successor trustee pursuant to
the provisions of Article 7;
(3) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(4) to take any other action authorized to be taken by or on behalf of
the holders of any specified aggregate principal amount of the Notes under
any other provision of this Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. The Trustee may at any time
call a meeting of Noteholders to take any action specified in Section 9.01, to
be
57
held at such time and at such place as the Trustee shall determine. Notice of
every meeting of the Noteholders, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting and
the establishment of any record date pursuant to Section 8.01, shall be mailed
to holders of Notes at their addresses as they shall appear on the Note
register. Such notice shall also be mailed to the Company. Such notices shall be
mailed not less than twenty (20) nor more than ninety (90) days prior to the
date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders of
all Notes then outstanding are present in person or by proxy or if notice is
waived before or after the meeting by the holders of all Notes outstanding, and
if the Company and the Trustee are either present by duly authorized
representatives or have, before or after the meeting, waived notice.
Section 9.03. Call of Meetings by Company or Noteholders. In case at any
time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least twenty-five percent (25%) in aggregate principal amount of
the Notes then outstanding, shall have requested the Trustee to call a meeting
of Noteholders, by written request setting forth in reasonable detail the action
proposed to be taken at the meeting, and the Trustee shall not have mailed the
notice of such meeting within twenty (20) days after receipt of such request,
then the Company or such Noteholders may determine the time and the place for
such meeting and may call such meeting to take any action authorized in Section
9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at any
meeting of Noteholders a person shall (a) be a holder of one or more Notes on
the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting. The only persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this
Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 9.03, in which case the Company
or the Noteholders calling the meeting, as the case may be, shall in like
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manner appoint a temporary chairman. A permanent chairman and a permanent
secretary of the meeting shall be elected by vote of the holders of a majority
in principal amount of the Notes represented at the meeting and entitled to vote
at the meeting.
Subject to the provisions of Section 8.04, at any meeting each Noteholder
or proxyholder shall be entitled to one vote for each $1,000 principal amount of
Notes held or represented by him. If any vote cast or counted or proposed to be
cast or counted is challenged on the ground that such Note is not outstanding,
the chairman of the meeting shall determine whether the holder of such Note is
authorized to act. The chairman of the meeting shall have no right to vote other
than by virtue of Notes held by him or instruments in writing as aforesaid duly
designating him as the proxy to vote on behalf of other Noteholders. Any meeting
of Noteholders duly called pursuant to the provisions of Section 9.02 or 10.03
may be adjourned from time to time by the holders of a majority of the aggregate
principal amount of Notes represented at the meeting, whether or not
constituting a quorum, and the meeting may be held as so adjourned without
further notice.
Section 9.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the outstanding principal amount of the Notes held or represented by them. The
chairman of the meeting shall appoint two inspectors of votes who shall be
representatives of the Trustee, and who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the
secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record in duplicate of the proceedings of each
meeting of Noteholders shall be prepared by the secretary of the meeting and
there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons
having knowledge of the facts setting forth a copy of the notice of the meeting
and showing that said notice was mailed as provided in Section 9.02. The record
shall show the principal amount of the Notes voting in favor of or against any
resolution. The record shall be signed and verified by the affidavits of the
permanent chairman and secretary of the meeting and one of the duplicates shall
be delivered to the Company and the other to the Trustee to be preserved by the
Trustee, the latter to have attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the
matters therein stated, absent manifest error.
Section 9.07. No Delay of Rights by Meeting. Nothing contained in this
Article 9 shall be deemed or construed to authorize or permit, by reason of any
call of a meeting of Noteholders or any rights expressly or impliedly conferred
hereunder to make such call, any hindrance or delay in the exercise of any right
or
59
rights conferred upon or reserved to the Trustee or to the Noteholders under any
of the provisions of this Indenture or of the Notes.
ARTICLE 10
SUPPLEMENTAL INDENTURES
Section 10.01. Supplemental Indentures Without Consent of Noteholders. The
Company, when authorized by the resolutions of the Board of Directors, and the
Trustee may, from time to time, and at any time enter into an indenture or
indentures supplemental hereto for one or more of the following purposes:
(a) make provision with respect to the conversion rights of the holders of
Notes pursuant to the requirements of Section 14.06 and the redemption
obligations of the Company pursuant to the requirements of Section 3.06(d);
(b) to convey, transfer, assign, mortgage or pledge to the Trustee as
security for the Notes, any property or assets;
(c) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article 11;
(d) to add to the covenants of the Company such further covenants,
restrictions or conditions as the Board of Directors shall consider to be for
the benefit of the holders of Notes, and to make the occurrence, or the
occurrence and continuance, of a default in any such additional covenants,
restrictions or conditions a default or an Event of Default permitting the
enforcement of all or any of the several remedies provided in this Indenture as
herein set forth; provided that in respect of any such additional covenant,
restriction or condition, such supplemental indenture may provide for a
particular period of grace after default (which period may be shorter or longer
than that allowed in the case of other defaults) or may provide for an immediate
enforcement upon such default or may limit the remedies available to the Trustee
upon such default;
(e) to provide for the issuance under this Indenture of Notes in coupon
form (including Notes registrable as to principal only) and to provide for
exchangeability of such Notes with the Notes issued hereunder in fully
registered form and to make all appropriate changes for such purpose;
(f) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provision contained herein or in any supplemental
indenture, or to make such other provisions in regard to matters or questions
arising under this Indenture that shall not materially adversely affect the
interests of the holders of the Notes;
60
(g) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee with respect to the Notes; or
(h) to modify, eliminate or add to the provisions of this Indenture to such
extent as shall be necessary to effect the qualifications of this Indenture
under the Trust Indenture Act, or under any similar federal statute hereafter
enacted.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any supplemental indenture, the Trustee
is hereby authorized to join with the Company in the execution of any such
supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this Section
10.01 may be executed by the Company and the Trustee without the consent of the
holders of any of the Notes at the time outstanding, notwithstanding any of the
provisions of Section 10.02.
Notwithstanding any other provision of the Indenture or the Notes, the
Registration Rights Agreement and the obligation to pay Liquidated Damages
thereunder may be amended, modified or waived in accordance with the provisions
of the Registration Rights Agreement.
Section 10.02. Supplemental Indenture with Consent of Noteholders. With the
consent (evidenced as provided in Article 8) of the holders of not less than at
least a majority in aggregate principal amount of the Notes at the time
outstanding, the Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time and at any time, enter into an
indenture or indentures supplemental hereto for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of
this Indenture or any supplemental indenture or of modifying in any manner the
rights of the holders of the Notes; provided that no such supplemental indenture
shall (i) extend the fixed maturity of any Note, or reduce the rate or extend
the time of payment of interest thereon, or reduce the principal amount thereof
or premium, if any, thereon, or reduce any amount payable on redemption or
repurchase thereof, or impair the right of any Noteholder to institute suit for
the payment thereof, or make the principal thereof or interest or premium, if
any, thereon payable in any coin or currency other than that provided in the
Notes, or change the obligation of the Company to redeem any Note on a
redemption date in a manner adverse to the holders of Notes, or change the
obligation of the Company to redeem any Note upon the happening of a Fundamental
Change in a manner adverse to the holders of Notes, or change the obligation of
the Company
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to repurchase any Note on a Repurchase Date in a manner adverse to the holders
of Notes, or impair the right to convert the Notes into Common Stock subject to
the terms set forth herein, including Section 14.06, or reduce the quorum or the
voting requirements under the Indenture, in each case, without the consent of
the holder of each Note so affected, or modify any of the provisions of this
Section 10.02 or Section 6.07, except to increase any such percentage or to
provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the holder of each Note so affected, or change any
obligation of the Company to maintain an office or agency in the places and for
the purposes set forth in Section 4.01, or (ii) reduce the aforesaid percentage
of Notes, the holders of which are required to consent to any such supplemental
indenture, without the consent of the holders of all Notes then outstanding.
Upon the written request of the Company, accompanied by a copy of the
resolutions of the Board of Directors certified by its Secretary or Assistant
Secretary authorizing the execution of any such supplemental indenture, and upon
the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under this
Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
Section 10.03. Effect of Supplemental Indenture. Any supplemental indenture
executed pursuant to the provisions of this Article 10 shall comply with the
Trust Indenture Act, as then in effect, provided that this Section 10.03 shall
not require such supplemental indenture or the Trustee to be qualified under the
Trust Indenture Act prior to the time such qualification is in fact required
under the terms of the Trust Indenture Act or the Indenture has been qualified
under the Trust Indenture Act, nor shall it constitute any admission or
acknowledgment by any party to such supplemental indenture that any such
qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article 10, this Indenture shall be
and be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Notes shall
thereafter be determined, exercised and enforced hereunder, subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and be deemed to be part of the
terms and conditions of this Indenture for any and all purposes.
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Section 10.04. Notation on Notes. Notes authenticated and delivered after
the execution of any supplemental indenture pursuant to the provisions of this
Article 10 may bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company or the Trustee shall
so determine, new Notes so modified as to conform, in the opinion of the Trustee
and the Board of Directors, to any modification of this Indenture contained in
any such supplemental indenture may, at the Company's expense, be prepared and
executed by the Company, authenticated by the Trustee (or an authenticating
agent duly appointed by the Trustee pursuant to Section 15.11) and delivered in
exchange for the Notes then outstanding, upon surrender of such Notes then
outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to be
Furnished to Trustee. Prior to entering into any supplemental indenture, the
Trustee may request an Officers' Certificate and an Opinion of Counsel as
conclusive evidence that any supplemental indenture executed pursuant hereto
complies with the requirements of this Article 10.
ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
Section 11.01. Company May Consolidate on Certain Terms. Subject to the
provisions of Section 11.02, nothing contained in this Indenture or in any of
the Notes shall prevent any consolidation or merger of the Company with or into
any other Person or Persons (whether or not affiliated with the Company), or
successive consolidations or mergers in which the Company or its successor or
successors shall be a party or parties, or shall prevent any sale, conveyance or
lease (or successive sales, conveyances or leases) of substantially all of the
property of the Company, to any other Person (whether or not affiliated with the
Company), authorized to acquire and operate the same and that shall be organized
under the laws of the United States of America, any state thereof or the
District of Columbia; provided that upon any such consolidation, merger, sale,
conveyance or lease, the due and punctual payment of the principal of and
premium, if any, and interest on all of the Notes, according to their tenor and
the due and punctual performance and observance of all of the covenants and
conditions of this Indenture to be performed by the Company, shall be expressly
assumed, by operation of law or by supplemental indenture satisfactory in form
to the Trustee, executed and delivered to the Trustee by the Person (if other
than the Company) formed by such consolidation, or into which the Company shall
have been merged, or by the Person that shall have acquired or leased such
property, and such supplemental indenture shall provide for the applicable
conversion rights set forth in Section 14.06; provided further that immediately
after giving effect to the transaction described above, no Event of Default, and
no event which, after notice or lapse of time or both, would become an Event of
Default, shall have happened and be continuing; provided further that the
transfer by the Company, in a single
63
transaction or series of transactions, of all or substantially all of its cash,
cash equivalents and marketable securities of non-affiliates for which the
Company receives fair market value, as determined by the Company's Board, will
not constitute a sale of all or substantially all of the Company's assets.
Section 11.02. Successor to be Substituted. In case of any such
consolidation, merger, sale, conveyance or lease and upon the assumption by the
successor Person, by supplemental indenture, executed and delivered to the
Trustee and satisfactory in form to the Trustee, of the due and punctual payment
of the principal of and premium, if any, and interest on all of the Notes and
the due and punctual performance of all of the covenants and conditions of this
Indenture to be performed by the Company, such successor Person shall succeed to
and be substituted for the Company, with the same effect as if it had been named
herein as the party of this first part. Such successor Person thereupon may
cause to be signed, and may issue either in its own name or in the name of
Triarc Companies, Inc. any or all of the Notes, issuable hereunder that
theretofore shall not have been signed by the Company and delivered to the
Trustee; and, upon the order of such successor Person instead of the Company and
subject to all the terms, conditions and limitations in this Indenture
prescribed, the Trustee shall authenticate and shall deliver, or cause to be
authenticated and delivered, any Notes that previously shall have been signed
and delivered by the officers of the Company to the Trustee for authentication,
and any Notes that such successor Person thereafter shall cause to be signed and
delivered to the Trustee for that purpose. All the Notes so issued shall in all
respects have the same legal rank and benefit under this Indenture as the Notes
theretofore or thereafter issued in accordance with the terms of this Indenture
as though all of such Notes had been issued at the date of the execution hereof.
In the event of any such consolidation, merger, sale, conveyance or lease, the
Person named as the "Company" in the first paragraph of this Indenture or any
successor that shall thereafter have become such in the manner prescribed in
this Article 11 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released from its liabilities as obligor and maker of
the Notes and from its obligations under this Indenture.
In case of any such consolidation, merger, sale, conveyance or lease, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
Section 11.03. Opinion of Counsel to be Given Trustee. The Trustee shall
receive an Officers' Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance or lease and any
such assumption complies with the provisions of this Article 11.
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ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE
Section 12.01. Discharge of Indenture. When (a) the Company shall deliver
to the Trustee for cancellation all Notes theretofore authenticated (other than
any Notes that have been destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
and not theretofore canceled, or (b) all the Notes not theretofore canceled or
delivered to the Trustee for cancellation shall have become due and payable, or
are by their terms to become due and payable within one year or are to be called
for redemption within one year under arrangements satisfactory to the Trustee
for the giving of notice of redemption, and the Company shall deposit with the
Trustee, in trust, funds sufficient to pay at maturity or upon redemption of all
of the Notes (other than any Notes that shall have been mutilated, destroyed,
lost or stolen and in lieu of or in substitution for which other Notes shall
have been authenticated and delivered) not theretofore canceled or delivered to
the Trustee for cancellation, including principal and premium, if any, and
interest due or to become due to such date of maturity or redemption date, as
the case may be, accompanied by a verification report, as to the sufficiency of
the deposited amount, from an independent certified accountant or other
financial professional satisfactory to the Trustee, and if the Company shall
also pay or cause to be paid all other sums payable hereunder by the Company,
then this Indenture shall cease to be of further effect (except in the case of
clause (b) as to (i) remaining rights of registration of transfer, substitution
and exchange and conversion of Notes and (ii) rights hereunder of Noteholders to
receive payments of principal of and premium, if any, and interest on, the Notes
and the other rights, duties and obligations of Noteholders, as beneficiaries
hereof with respect to the amounts, if any, so deposited with the Trustee). The
rights, obligations and immunities of the Trustee hereunder shall survive any
discharge pursuant to paragraph (a) and (b) of this Section. The Trustee, on
written demand of the Company accompanied by an Officers' Certificate and an
Opinion of Counsel as required by Section 15.05 and at the cost and expense of
the Company, shall execute proper instruments acknowledging satisfaction of and
discharging this Indenture; the Company, however, hereby agrees to reimburse the
Trustee for any costs or expenses thereafter reasonably and properly incurred by
the Trustee and to compensate the Trustee for any services thereafter reasonably
and properly rendered by the Trustee in connection with this Indenture or the
Notes.
Section 12.02. Deposited Monies to be Held in Trust by Trustee. Subject to
Section 12.04, all monies deposited with the Trustee pursuant to Section 12.01,
shall be held in trust for the sole benefit of the Noteholders, and such monies
shall be applied by the Trustee to the payment, either directly or through any
paying agent (including the Company if acting as its own paying agent), to the
holders of the particular Notes for the payment or redemption of which such
monies have been deposited with the Trustee, of all sums due and to become due
thereon for principal and interest and premium, if any.
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Section 12.03. Paying Agent to Repay Monies Held. Upon the satisfaction and
discharge of this Indenture, all monies then held by any paying agent of the
Notes (other than the Trustee) shall, upon written request of the Company, be
repaid to it or paid to the Trustee, and thereupon such paying agent shall be
released from all further liability with respect to such monies.
Section 12.04. Return of Unclaimed Monies. Subject to the requirements of
applicable law and this Indenture, any monies deposited with or paid to the
Trustee for payment of the principal of, premium, if any, or interest on Notes
and not applied but remaining unclaimed by the holders of Notes for two years
after the date upon which the principal of, premium, if any, or interest on such
Notes, as the case may be, shall have become due and payable, shall be repaid to
the Company by the Trustee on demand and all liability of the Trustee shall
thereupon cease with respect to such monies; and the holder of any of the Notes
shall thereafter look only to the Company for any payment that such holder may
be entitled to collect unless an applicable abandoned property law designates
another Person.
Section 12.05. Reinstatement. If the Trustee or the paying agent is unable
to apply any money in accordance with Section 12.02 by reason of any order or
judgment of any court or governmental authority enjoining, restraining or
otherwise prohibiting such application, the Company's obligations under this
Indenture and the Notes shall be revived and reinstated as though no deposit had
occurred pursuant to Section 12.01 until such time as the Trustee or the paying
agent is permitted to apply all such money in accordance with Section 12.02;
provided that if the Company makes any payment of interest on or principal of
any Note following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the holders of such Notes to receive such payment
from the money held by the Trustee or paying agent.
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
Section 13.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or premium, if any, or interest on
any Note, or for any claim based thereon or otherwise in respect thereof, and no
recourse under or upon any obligation, covenant or agreement of the Company in
this Indenture or in any supplemental indenture or in any Note, or because of
the creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company or any successor corporation, whether by
virtue of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that all such
66
liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE 14
CONVERSION OF NOTES
Section 14.01. Right to Convert. Subject to and upon compliance with the
provisions of this Indenture, the holder of any Note shall have the right, at
such holder's option, to convert the principal amount of the Note, or any
portion of such principal amount which is a multiple of $1,000, into fully paid
and non-assessable shares of Common Stock (as such shares shall then be
constituted) at the Conversion Rate in effect at such time, by surrender of the
Note so to be converted in whole or in part, together with any required funds,
in the manner provided in Section 14.02. The Notes shall be convertible only
upon the occurrence of one of the following events:
(i) during any fiscal quarter commencing after June 29, 2003, if the
Closing Sale Price exceeds 120% of the Conversion Price for at least 20
Trading Days in the 30 consecutive Trading Day period ending on the last
Trading Day of the immediately preceding fiscal quarter (it being
understood for purposes of this Section 14.01(a)(i) that the Conversion
Price in effect at the close of business on each of the 30 consecutive
Trading Days should be used);
(ii) during each of the five Business Day period after any ten
consecutive Trading Day period in which the Trading Price per $1,000
principal amount of the Notes for each day of such ten day period was less
than 95% of the product of the Closing Sale Price on the applicable date
and the number of shares of Common Stock issuable upon conversion of $1,000
principal amount of the Notes; provided that if on the date of any
conversion pursuant to this clause (ii) that is on or after May 15, 2018
the Closing Sale Price of the Common Stock is greater than the Conversion
Price, a holder shall receive, in lieu of Common Stock based on the
Conversion Price, cash or Common Stock or a combination of cash and Common
Stock, at the Company's option, with a value equal to the principal amount
of the holder's Notes plus accrued and unpaid interest, as of the
conversion date (a "Principal Value Conversion");
(iii) if such Note has been called for redemption, at any time on or
after the date the notice of redemption has been given until the close of
business on the Business Day immediately preceding the redemption date; or
(iv) as provided in Section (b) of this Section 14.01.
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The Trustee (or other conversion agent appointed by the Company) shall, on
behalf of the Company, determine on a daily basis whether the Notes shall be
convertible as a result of the occurrence of an event specified in clause (i)
above and, if the Notes shall be convertible, the Trustee (or other conversion
agent appointed by the Company) shall promptly deliver to the Company and the
Trustee (if the Trustee is not the conversion agent) written notice thereof.
Whenever the Notes shall become convertible pursuant to this Section 14.01, the
Company or, at the Company's request, the Trustee in the name and at the expense
of the Company, shall notify the holders of the event triggering such
convertibility in the manner provided in Section 15.03, and the Company shall
also publicly announce such information and publish it on the Company's web
site. Any notice so given shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice.
The Trustee (or other conversion agent appointed by the Company) shall have
no obligation to determine the Trading Price under this Section 14.01 unless the
Company has requested such a determination; and the Company shall have no
obligation to make such request unless a holder provides it with reasonable
evidence that the Trading Price per $1,000 principal amount of Notes would be
less than 95% of the product of the Closing Sale Price of Common Stock and the
number of shares of Common Stock issuable upon conversion of $1,000 principal
amount of Notes. If such evidence is provided, the Company shall instruct the
Trustee (or other conversion agent) to determine the Trading Price of the Notes
beginning on the next Trading Day and on each successive Trading Day until the
Trading Price per $1,000 principal amount of Notes is greater than or equal to
95% of the product of the Closing Sale Price of Common Stock and the number of
shares issuable upon conversion of $1,000 principal amount of the Notes.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock
rights or warrants entitling them (for a period expiring within 45 days of
the record date for the determination of the stockholders entitled to
receive such distribution) to subscribe for or purchase shares of Common
Stock, at a price per share less than the average of the Closing Sale Price
for the ten Trading Days immediately preceding, but not including, the date
such distribution is first publicly announced by the Company, or (B) the
Company distributes to all holders of its Common Stock, cash, assets (other
than cash distributions permitted by Section 14.05(e)), debt securities or
rights to purchase its securities, where the Fair Market Value of such
distribution per share of Common Stock exceeds 5% of the Closing Sale Price
of the Common Stock on the Trading Day immediately preceding, the date such
distribution is first publicly announced by the Company, then, in either
case, the Notes may be surrendered for conversion at any time on and after
the date that the Company gives notice to the holders of such distribution,
which shall be not less than 20 days prior to the Ex-Dividend Time for such
distribution, until the earlier of the
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close of business on the Business Day immediately preceding the Ex-Dividend
Time or the date the Company publicly announces that such distribution will
not take place; provided that no adjustment to the Conversion Price or the
ability of a holder of a Note to convert will be made if the holder will
otherwise participate in such distribution without conversion; or
(ii) the Company consolidates with or merges with or into another
Person or is a party to a binding share exchange or conveys, transfers,
sells, leases or otherwise disposes of all or substantially all of its
properties and assets, in each case pursuant to which the Common Stock
would be converted into cash, securities or other property, then the Notes
may be surrendered for conversion at any time from and after the date
fifteen (15) days prior to the anticipated effective date of the
transaction and ending on and including the date fifteen (15) days after
the consummation of the transaction. The Board of Directors shall determine
the anticipated effective date of the transaction, and such determination
shall be conclusive and binding on the holders and shall be publicly
announced by the Company and posted on its web site not later than two
Business Day prior to such 15th day.
"Ex-Dividend Time" means, with respect to any distribution on shares of
Common Stock, the first date on which the shares of Common Stock trade regular
way on the principal securities market on which the shares of Common Stock are
then traded without the right to receive such distribution.
(c) A Note in respect of which a holder is electing to exercise its option
to require redemption upon a Fundamental Change pursuant to Section 3.05(a) or
repurchase pursuant to Section 3.07 may be converted only if such holder
withdraws its election in accordance with Section 3.08. A holder of Notes is not
entitled to any rights of a holder of Common Stock until such holder has
converted his Notes to Common Stock, and only to the extent such Notes are
deemed to have been converted to Common Stock under this Article 14.
Section 14.02. Conversion Procedures. To convert a Note, a holder must (a)
complete and manually sign the Conversion Notice or a facsimile of the
Conversion Notice on the back of the Note and deliver such notice to the
Conversion Agent, (b) surrender the Note to a Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Registrar or
the Conversion Agent, (d) pay any transfer or similar tax, if required and (e)
if required, pay funds equal to the interest payable on the next interest
payment date. In the case of a Global Note, the Conversion Notice shall be
completed by a DTC participant on behalf of the beneficial holder. The date on
which the holder satisfies all of those requirements is the "Conversion Date."
Within two Business Days following the Conversion Date, the Company shall
deliver to the holder, through the Trustee, written notice of whether such Notes
shall be converted into Common Stock or paid in cash or a combination of cash
and Common Stock
69
(unless the Company shall have already done so pursuant to a Company Notice in
respect of a Conversion Date occurring before the Fundamental Change Redemption
Date set forth in such notice). If the Company shall have notified the holder
that all of such Notes shall be converted into Common Stock or a combination of
cash and Common Stock, the Company shall deliver to the holder through the
Conversion Agent, no later than the third Business Day following the date on
which the Applicable Stock Price is determined, a certificate for the number of
whole shares of Common Stock issuable upon the conversion and, if applicable,
cash in lieu of such Common Stock and cash in lieu of any fractional shares
pursuant to Section 14.03. Except as otherwise provided in this Article 14, if
the Company shall have notified the holder that all or a portion of such Note
shall be paid solely in cash, the Company shall deliver to the holder
surrendering such Note the amount of cash per Note (or a portion of a Note)
equal to the Applicable Stock Price multiplied by the Conversion Rate in effect
with respect to such Conversion Date no later than the third Business Day
following the date on which the Applicable Stock Price is determined.
Except as otherwise provided in this Article 14, the Company may not change
its election with respect to the consideration to be delivered upon conversion
of a Note once the Company has notified the holder in accordance with this
paragraph. Anything herein to the contrary notwithstanding, in the case of
Global Notes, Conversion Notices may be delivered and such Notes may be
surrendered for conversion in accordance with the applicable procedures of the
Depositary as in effect from time to time. The Person in whose name the Common
Stock certificate is registered shall be deemed to be a shareholder of record at
the close of business on the date on which the Applicable Stock Price is
determined with respect to the applicable Conversion Date; provided, however,
that if any such date is a date when the stock transfer books of the Company are
closed, such Person shall be deemed a shareholder of record as of the next date
on which the stock transfer books of the Company are open.
In the case of a Principal Value Conversion, a holder will receive, in lieu
of Common Stock, cash, Common Stock or a combination of cash and Common Stock,
at the Company's option, with a value equal to the principal amount of the Note
converted plus accrued and unpaid interest, as of the Conversion Date. If a
holder surrenders its Notes for conversion and it is a Principal Value
Conversion, the Company will notify the holder by the second Trading Day
following the Conversion Date whether it will pay the principal amount plus
accrued and unpaid interest in cash, Common Stock or a combination of cash and
Common Stock, and in what percentage. Any Common Stock delivered upon a
Principal Value Conversion will be valued at the greater of (x) the Conversion
Price on the Conversion Date and (y) the Applicable Stock Price as of the
Conversion Date. The Company will pay any portion of the principal amount plus
accrued interest to be paid in cash and deliver Common Stock with respect to any
portion of the principal amount plus accrued and unpaid interest to be paid in
Common Stock no
70
later than the third Business Day following the determination of the Applicable
Stock Price.
No payment or adjustment shall be made for dividends on, or other
distributions with respect to, any Common Stock except as provided in this
Article. On conversion of a Note, except for conversion during the period from
the close of business on any record date immediately preceding any interest
payment date to the close of business on the Business Day immediately preceding
such interest payment date, in which case the holder on such record date shall
receive the interest payable on such interest payment date, that portion of
accrued and unpaid interest on the converted Note attributable to the period
from the most recent interest payment date (or, if no interest payment date has
occurred, from the Issue Date) through the Conversion Date shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares), or cash or a
combination of cash and Common Stock in lieu thereof, in exchange for the Note
being converted pursuant to the provisions hereof, and the Fair Market Value of
such shares of Common Stock (together with any such cash payment in lieu of
fractional shares), or cash or a combination of cash and Common Stock in lieu
thereof, shall be treated as issued, to the extent thereof, first in exchange
for accrued and unpaid interest accrued through the Conversion Date and the
balance, if any, of such Fair Market Value of such Common Stock (and any such
cash payment), or cash in lieu thereof, shall be treated as issued in exchange
for the principal amount of the Note being converted pursuant to the provisions
hereof.
If a holder converts more than one Note at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the
aggregate principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the holder, a new
Note equal in principal amount to the principal amount of the unconverted
portion of the Note surrendered.
Notes or portions thereof surrendered for conversion during the period from
the close of business on any record date immediately preceding any interest
payment date to the close of business on the Business Day immediately preceding
such interest payment date shall be accompanied by payment to the Company or its
order, in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the interest payable on such interest payment
date with respect to the principal amount of Notes or portions thereof being
surrendered for conversion; provided that no such payment need be made if (1)
the Company has specified a Redemption Date that occurs during the period from
the close of business on a record date to the close of business on the Business
Day immediately preceding the interest payment date to which such record date
relates, (2) the Company has specified a Fundamental Change Redemption Date
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during such period or (3) only to the extent of overdue interest, any overdue
interest exists on the Conversion Date with respect to the Notes converted.
The holders' rights to convert Notes into Common Stock are subject to the
Company's right to elect instead to pay each such holder the amount of cash
determined pursuant to this Article (or an equivalent amount in a combination of
cash and shares of Common Stock), in lieu of delivering such Common Stock;
provided, however, that if an Event of Default (other than a default in a cash
payment upon conversion of the Notes) shall have occurred and be continuing, the
Company shall deliver Common Stock in accordance with this Article (together
with a cash payment, if any, in lieu of fractional shares), whether or not the
Company has delivered a notice pursuant to this Section 14.02 to the effect that
the Notes would be paid in cash or a combination of cash and Common Stock.
Section 14.03. Cash Payments in Lieu of Fractional Shares. No fractional
shares of Common Stock or scrip certificates representing fractional shares
shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash at the current market price
thereof to the holder of Notes. For purposes of this Section 14.03, the "current
market price" of a share of Common Stock shall be the Closing Sale Price on the
last Business Day immediately preceding the day on which the Notes (or specified
portions thereof) are deemed to have been converted.
Section 14.04. Conversion Rate. Each $1,000 principal amount of the Notes
shall be convertible into the number of shares of Common Stock specified in the
form of Note (herein called the "Conversion Rate") attached as Exhibit A hereto,
subject to adjustment as provided in this Article 14.
Section 14.05. Adjustment of Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Conversion Rate shall be increased so that the same shall equal the
rate determined by multiplying the Conversion Rate in effect at the opening of
business on the date following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution by a
fraction,
(i) the numerator of which shall be the sum of the number of shares of
Common Stock outstanding at the close of business on the date fixed for the
determination of stockholders entitled to receive such
72
dividend or other distribution plus the total number of shares of Common
Stock constituting such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purpose of this
paragraph (a), the number of shares of Common Stock at any time outstanding
shall not include shares held in the treasury of the Company unless the Company
pays such dividend or makes such distribution on shares of Common Stock held in
the treasury of the Company. If any dividend or distribution of the type
described in this Section 14.05(a) is declared but not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(b) In case the Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock entitling them (for a period expiring
within forty-five (45) days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the Current
Market Price on the date fixed for determination of stockholders entitled to
receive such rights or warrants, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the date fixed for determination of stockholders
entitled to receive such rights or warrants by a fraction,
(i) the numerator of which shall be the number of shares of Common
Stock outstanding on the date fixed for determination of stockholders
entitled to receive such rights or warrants plus the total number of
additional shares of Common Stock offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of shares
of Common Stock outstanding at the close of business on the date fixed for
determination of stockholders entitled to receive such rights or warrants
plus the number of shares that the aggregate offering price of the total
number of shares so offered would purchase at such Current Market Price.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Conversion Rate shall be readjusted to the Conversion Rate that would then be in
73
effect had the adjustments made upon the issuance of such rights or warrants
been made on the basis of delivery of only the number of shares of Common Stock
actually delivered. If such rights or warrants are not so issued, the Conversion
Rate shall again be adjusted to be the Conversion Rate that would then be in
effect if such date fixed for the determination of stockholders entitled to
receive such rights or warrants had not been fixed. In determining whether any
rights or warrants entitle the holders to subscribe for or purchase shares of
Common Stock at less than such Current Market Price, and in determining the
aggregate offering price of such shares of Common Stock, there shall be taken
into account any consideration received by the Company for such rights or
warrants and any amount payable on exercise or conversion thereof, the value of
such consideration, if other than cash, to be determined by the Board of
Directors.
(c) In case outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Conversion Rate in effect at the
opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the 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.
(d) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock shares of any class of capital stock of the Company
or evidences of its indebtedness or assets (including securities, but excluding
any rights or warrants referred to in Section 14.05(b), and excluding any
dividend or distribution (x) paid exclusively in cash or (y) referred to in
Section 14.05(a) (any of the foregoing hereinafter in this Section 14.05(d))
called the "Securities")), then, in each such case (unless the Company elects to
reserve such Securities for distribution to the Noteholders upon the conversion
of the Notes so that any such holder converting Notes will receive upon such
conversion, in addition to the shares of Common Stock to which such holder is
entitled, the amount and kind of such Securities which such holder would have
received if such holder had converted its Notes into Common Stock immediately
prior to the Record Date) the Conversion Rate shall be increased so that the
same shall be equal to the rate determined by multiplying the Conversion Rate in
effect on the Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the Current Market Price on such
Record Date; and
(ii) the denominator of which shall be the Current Market Price on
such Record Date less the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive, and
74
described in a resolution of the Board of Directors) on the Record Date of
the portion of the Securities so distributed applicable to one share of
Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that if the then fair market
value (as so determined) of the portion of the Securities so distributed
applicable to one share of Common Stock is equal to or greater than the Current
Market Price on the Record Date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Noteholder shall have the right to receive
upon conversion the amount of Securities such holder would have received had
such holder converted each Note on the Record Date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If the Board of Directors determines the
Fair Market Value of any distribution for purposes of this Section 14.05(d) by
reference to the actual or when issued trading market for any securities, it
must in doing so consider the prices in such market over the same period used in
computing the Current Market Price on the applicable Record Date.
Notwithstanding the foregoing, if the Securities distributed by the Company to
all holders of its Common Stock consist of capital stock of, or similar equity
interests in, a Subsidiary or other business unit, the Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying
the Conversion Rate in effect on the Record Date with respect to such
distribution by a fraction:
(i) the numerator of which shall be the sum of (x) the average Closing
Price of one share of Common Stock over the ten consecutive Trading Day
period (the "Spinoff Valuation Period") commencing on and including the
fifth Trading Day after the date on which "ex-dividend trading" commences
on the Common Stock on the New York Stock Exchange or such other national
or regional exchange or market on which the Common Stock is then listed or
quoted and (y) the average Closing Price over the Spinoff Valuation Period
of the portion of the Securities so distributed applicable to one share of
Common Stock; and
(ii) the denominator of which shall be the average Closing Price of
one share of Common Stock over the Spinoff Valuation Period,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that the Company may in lieu of
the foregoing adjustment make adequate provision so that each Noteholder shall
have the right to receive upon conversion the amount of Securities such holder
would have received had such holder converted each note on the Record Date with
respect to such distribution.
Rights or warrants distributed by the Company to all holders of Common
Stock entitling the holders thereof to subscribe for or purchase shares of the
75
Company's capital stock (either initially or under certain circumstances), which
rights or warrants, until the occurrence of a specified event or events
("Trigger Event"): (i) are deemed to be transferred with such shares of Common
Stock; (ii) are not exercisable; and (iii) are also issued in respect of future
issuances of Common Stock, shall be deemed not to have been distributed for
purposes of this Section 14.05 (and no adjustment to the Conversion Rate under
this Section 14.05 will be required) until the occurrence of the earliest
Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion
Rate shall be made under this Section 14.05(d). If any such right or warrant,
including any such existing rights or warrants distributed prior to the date of
this Indenture, are subject to events, upon the occurrence of which such rights
or warrants become exercisable to purchase different securities, evidences of
indebtedness or other assets, then the date of the occurrence of any and each
such event shall be deemed to be the date of distribution and record date with
respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the
holders thereof). In addition, in the event of any distribution (or deemed
distribution) of rights or warrants, or any Trigger Event or other event (of the
type described in the preceding sentence) with respect thereto that was counted
for purposes of calculating a distribution amount for which an adjustment to the
Conversion Rate under this Section 14.05 was made, (1) in the case of any such
rights or warrants that shall all have been redeemed or repurchased without
exercise by any holders thereof, the Conversion Rate shall be readjusted upon
such final redemption or repurchase to give effect to such distribution or
Trigger Event, as the case may be, as though it were a cash distribution, equal
to the per share redemption or repurchase price received by a holder or holders
of Common Stock with respect to such rights or warrants (assuming such holder
had retained such rights or warrants), made to all holders of Common Stock as of
the date of such redemption or repurchase, and (2) in the case of such rights or
warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and
warrants had not been issued.
No adjustment of the Conversion Rate shall be made pursuant to this Section
14.05(d) in respect of rights or warrants distributed or deemed distributed on
any Trigger Event to the extent that such rights or warrants are actually
distributed, or reserved by the Company for distribution to holders of Notes
upon conversion by such holders of Notes to Common Stock.
For purposes of this Section 14.05(d) and Section 14.01(a) and (b), any
dividend or distribution to which this Section 14.05(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (or both), shall be deemed instead to be (1) a
dividend or distribution of the evidences of indebtedness, assets or shares of
capital stock other than such shares of Common Stock or rights or warrants (and
any Conversion Rate adjustment required by this Section 14.05(d) with respect to
76
such dividend or distribution shall then be made) immediately followed by (2) a
dividend or distribution of such shares of Common Stock or such rights or
warrants (and any further Conversion Rate adjustment required by Sections
14.05(a) and (b) with respect to such dividend or distribution shall then be
made), except
(A) the Record Date of such dividend or distribution shall be
substituted as "the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution", "the date fixed
for the determination of stockholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the meaning of
Section 14.05(a) and (b) and
(B) any shares of Common Stock included in such dividend or
distribution shall not be deemed "outstanding at the close of business on
the date fixed for such determination" within the meaning of Section
14.05(a).
(e) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash (excluding (x) any cash dividend on its Common
Stock to the extent that the aggregate percentage (calculated as the sum of the
percentages that each dividend represents of the average of the daily Closing
Sale Price of the Common Stock during the ten Trading Days immediately prior to
the declaration date of such dividend) of all dividends declared during the
twelve-month period through and including the applicable date of declaration
does not exceed 5% and, (y) any dividend or distribution in connection with the
liquidation, dissolution or winding up of the Company, whether voluntary or
involuntary), then, in such case, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the close of business on such record date by a
fraction,
(i) the numerator of which shall be the Current Market Price on such
record date; and
(ii) the denominator of which shall be the Current Market Price on
such record date less the amount of cash so distributed (and not excluded
as provided above) applicable to one share of Common Stock,
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Noteholder shall have
the right to receive upon conversion the amount of cash such holder would have
received had such holder converted each Note on the record date. If such
dividend or distribution is not so paid or made, the Conversion Rate shall again
be adjusted to
77
be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared. If any adjustment is required to be made as
set forth in this Section 14.05(e), such adjustment shall be based upon the
amount by which such distribution exceeds the amount permitted to be excluded
pursuant hereto.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended) exceeds
the Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying the Conversion Rate in
effect immediately prior to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market
Value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the
Closing Sale Price of a share of Common Stock on the Trading Day next
succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the Closing Sale Price of a share of Common
Stock on the Trading Day next succeeding the Expiration Time
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would then be in effect if such tender or exchange
offer had not been made.
(g) For purposes of this Section 14.05, the following terms shall have the
meaning indicated:
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(1) "Current Market Price" shall mean the average of the daily Closing
Sale Prices per share of Common Stock for the ten consecutive Trading Days
selected by the Company commencing no more than 30 Trading Days before and
ending not later than the earlier of such date of determination and the day
before the "ex" date with respect to the issuance, distribution,
subdivision or combination requiring such computation immediately prior to
the date in question. For purpose of this paragraph, the term "ex" date,
(1) when used with respect to any issuance or distribution, means the first
date on which the Common Stock trades, regular way, on the relevant
exchange or in the relevant market from which the Closing Sale Price was
obtained without the right to receive such issuance or distribution, and
(2) when used with respect to any subdivision or combination of shares of
Common Stock, means the first date on which the Common Stock trades,
regular way, on such exchange or in such market after the time at which
such subdivision or combination becomes effective.
If another issuance, distribution, subdivision or combination to which
Section 14.05 applies occurs during the period applicable for calculating
"Current Market Price" pursuant to the definition in the preceding
paragraph, "Current Market Price" shall be calculated for such period in a
manner determined by the Board of Directors to reflect the impact of such
issuance, distribution, subdivision or combination on the Closing Sale
Price of the Common Stock during such period.
(2) "Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
(3) "Record Date" shall mean, with respect to any dividend,
distribution or other transaction or event in which the holders of Common
Stock have the right to receive any cash, securities or other property or
in which the Common Stock (or other applicable security) is exchanged for
or converted into any combination of cash, securities or other property,
the date fixed for determination of stockholders entitled to receive such
cash, securities or other property (whether such date is fixed by the Board
of Directors or by statute, contract or otherwise).
(4) "Trading Day" shall mean (x) if the applicable security is quoted
on the Nasdaq National Market, a day on which trades may be made thereon or
(y) if the applicable security is listed or admitted for trading on the New
York Stock Exchange or such other national securities exchange, a day on
which the New York Stock Exchange or another national securities exchange
is open for business or (z) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday or Sunday or
a day on which banking institutions in the State of New York are authorized
or obligated by law or executive order to close.
79
(h) The Company may make such increases in the Conversion Rate, in addition
to those required by Section 14.05(a), (b), (c), (d), (e) or (f) as the Board of
Directors considers to be advisable to avoid or diminish any income tax to
holders of Common Stock or rights to purchase Common Stock resulting from any
dividend or distribution of stock (or rights to acquire stock) or from any event
treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for any period of time if the
period is at least twenty (20) days, the increase is irrevocable during the
period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to holders of record of the Notes a
notice of the increase at least fifteen (15) days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.
(i) No adjustment in the Conversion Rate shall be required unless such
adjustment would require an increase or decrease of at least one percent (1%) in
such rate; provided that any adjustments that by reason of this Section 14.05(i)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. All calculations under this Article 14 shall be made
by the Company and shall be made to the nearest cent or to the nearest one-ten
thousandth (1/10,000) of a share, as the case may be. No adjustment need be made
for rights to purchase Common Stock pursuant to a Company plan for reinvestment
of dividends or interest. To the extent the Notes become convertible into cash,
assets, property or securities (other than capital stock of the Company), no
adjustment need be made thereafter as to the cash, assets, property or such
securities. Interest will not accrue on any cash into which the Notes are
convertible.
(j) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any conversion agent other than
the Trustee an Officers' Certificate setting forth the Conversion Rate after
such adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee shall have
received such Officers' Certificate, the Trustee shall not be deemed to have
knowledge of any adjustment of the Conversion Rate and may assume that the last
Conversion Rate of which it has knowledge is still in effect. Promptly after
delivery of such certificate, the Company shall prepare a notice of such
adjustment of the Conversion Rate setting forth the adjusted Conversion Rate and
the date on which each adjustment becomes effective and shall mail such notice
of such adjustment of the Conversion Rate to the holder of each Note at his last
address appearing on the Note register provided for in Section 2.05 of this
Indenture, within twenty (20) days after execution thereof. Failure to deliver
such notice shall not affect the legality or validity of any such adjustment.
80
(k) In any case in which this Section 14.05 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 14.05(a), (3) a date
fixed for the determination of stockholders entitled to receive rights or
warrants pursuant to Section 14.05(b) or (4) the Expiration Time for any tender
or exchange offer pursuant to Section 14.05(f) (each a "Determination Date"),
the Company may elect to defer until the occurrence of the applicable Adjustment
Event (as hereinafter defined) (x) issuing to the holder of any Note converted
after such Determination Date and before the occurrence of such Adjustment
Event, the additional shares of Common Stock or other securities issuable upon
such conversion by reason of the adjustment required by such Adjustment Event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (y) paying to such holder any amount in cash in
lieu of any fraction pursuant to Section 14.03. For purposes of this Section
14.05(k), the term "Adjustment Event" shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence of
such event,
(ii) in any case referred to in clause (2) hereof, the date any such
dividend or distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a sale or
exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(l) For purposes of this Section 14.05, 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. The Company will not pay
any dividend or make any distribution on shares of Common Stock held in the
treasury of the Company.
Section 14.06. Effect of Reclassification, Consolidation, Merger or Sale.
If any of the following events occur, namely (i) any reclassification or change
of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 14.05(c) applies), (ii) any consolidation, merger
or combination of the Company with another Person as a result of which holders
of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, or (iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company to any other Person as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including
81
cash) with respect to or in exchange for such Common Stock, then the Company or
the successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the Trust Indenture
Act as in force at the date of execution of such supplemental indenture)
providing that each Note shall be convertible into the kind and amount of shares
of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance by a holder of a number of shares of Common
Stock issuable upon conversion of such Notes (assuming, for such purposes, a
sufficient number of authorized shares of Common Stock are available to convert
all such Notes) immediately prior to such reclassification, change,
consolidation, merger, combination, sale or conveyance assuming such holder of
Common Stock did not exercise his rights of election, if any, as to the kind or
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance (provided that, if the kind or amount of stock,
other securities or other property or assets (including cash) receivable upon
such reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("nonelecting share"),
then for the purposes of this Section 14.06 the kind and amount of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
14.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note register provided for in Section 2.05 of this Indenture, within twenty (20)
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 14.06 applies to any event or occurrence, Section 14.05
shall not apply.
Section 14.07. Taxes on Shares Issued. The issue of stock certificates on
conversions of Notes shall be made without charge to the converting Noteholder
for any documentary, stamp or similar issue or transfer tax in respect of the
issue thereof. The Company shall not, however, be required to pay any such tax
which may be payable in respect of any transfer involved in the issue and
delivery of stock in any name other than that of the holder of any Note
converted, and the
82
Company shall not be required to issue or deliver any such stock certificate
unless and until the Person or Persons requesting the issue thereof shall have
paid to the Company the amount of such tax or shall have established to the
satisfaction of the Company that such tax has been paid.
Section 14.08. Reservation of Shares, Shares to be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock. The Company shall
provide, free from preemptive rights, out of its authorized but unissued shares
or shares held in treasury, sufficient shares of Common Stock to provide for the
conversion of the Notes from time to time as such Notes are presented for
conversion.
Before taking any action which would cause an adjustment increasing the
Conversion Rate to an amount that would cause the Conversion Price to be reduced
below the then par value, if any, of the shares of Common Stock issuable upon
conversion of the Notes, the Company will take all corporate action which may,
in the opinion of its counsel, be necessary in order that the Company may
validly and legally issue shares of such Common Stock at such adjusted
Conversion Rate.
The Company covenants that all shares of Common Stock which may be issued
upon conversion of Notes will upon issue be fully paid and non-assessable by the
Company and free from all taxes, liens and charges with respect to the issue
thereof.
The Company covenants that, if any shares of Common Stock to be provided
for the purpose of conversion of Notes hereunder require registration with or
approval of any governmental authority under any federal or state law before
such shares may be validly issued upon conversion, the Company will in good
faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock shall
be listed on the Nasdaq National Market or any other national securities
exchange or automated quotation system, the Company will, if permitted by the
rules of such exchange or automated quotation system, list and keep listed, so
long as the Common Stock shall be so listed on such exchange or automated
quotation system, all Common Stock issuable upon conversion of the Note;
provided that if the rules of such exchange or automated quotation system permit
the Company to defer the listing of such Common Stock until the first conversion
of the Notes into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Notes in accordance with the requirements of such exchange or
automated quotation system at such time.
83
Section 14.09. Responsibility of Trustee. The Trustee and any other
conversion agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation 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. The Trustee and any other
conversion agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Note; and the Trustee and any other conversion agent make no representations
with respect thereto. Neither the Trustee nor any conversion agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the Company contained
in this Article 14. Without limiting the generality of the foregoing, neither
the Trustee nor any conversion agent shall be under any responsibility to
determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 14.06 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable
by Noteholders upon the conversion of their Notes after any event referred to in
such Section 14.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in relying upon,
the Officers' Certificate (which the Company shall be obligated to file with the
Trustee prior to the execution of any such supplemental indenture) with respect
thereto.
Section 14.10. Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other distribution) on its
Common Stock that would require an adjustment in the Conversion Rate pursuant to
Section 14.05; or
(b) the Company shall authorize the granting to the holders of all or
substantially all of its Common Stock of rights or warrants to subscribe for or
purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of the
Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or winding up
of the Company;
84
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at his address appearing on the Note register provided for in
Section 2.05 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
Section 14.11. Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Notes pursuant
to this Article 14 shall be entitled to receive the appropriate number of common
stock or preferred stock purchase rights, as the case may be (the "Rights"), if
any, that shares of Common Stock are entitled to receive and the certificates
representing the Common Stock issued upon such conversion shall bear such
legends, if any, in each case as may be provided by the terms of any shareholder
rights agreement that may be adopted by the Company, as the same may be amended
from time to time (in each case, a "Rights Agreement"). Provided that such
Rights Agreement requires that each share of Common Stock issued upon conversion
of Notes at any time prior to the distribution of separate certificates
representing the Rights be entitled to receive such Rights, then,
notwithstanding anything else to the contrary in this Article 14 there shall not
be any adjustment to the conversion privilege or Conversion Rate as a result of
the issuance of Rights, but an adjustment to the Conversion Rate shall be made
pursuant to Section 14.05(d) (to the extent required thereby) upon the
separation of the Rights from the Common Stock.
ARTICLE 15
MISCELLANEOUS PROVISIONS
Section 15.01. Provisions Binding on Company's Successors. All the
covenants, stipulations, promises and agreements by the Company contained in
this Indenture shall bind its successors and assigns whether so expressed or
not.
Section 15.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
85
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
Section 15.03. Addresses for Notices, Etc. Any notice or demand which by
any provision of this Indenture is required or permitted to be given or served
by the Trustee or by the holders of Notes on the Company shall be deemed to have
been sufficiently given or made, for all purposes, if given or served by being
deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
Trustee) to Triarc Companies, Inc., 280 Park Avenue, New York, New York 10017;
Attention: General Counsel. Any notice, direction, request or demand hereunder
to or upon the Trustee shall be deemed to have been sufficiently given or made,
for all purposes, if given or served by being deposited, postage prepaid, by
registered or certified mail in a post office letter box addressed to the
Corporate Trust Office.
The Trustee, by notice to the Company, may designate additional or
different addresses for subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him
by first class mail, postage prepaid, at his address as it appears on the Note
register and shall be sufficiently given to him if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in
it shall not affect its sufficiency with respect to other Noteholders. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
Section 15.04. Governing Law. This Indenture and each Note shall be deemed
to be a contract made under the laws of the State of New York, and for all
purposes shall be construed in accordance with the laws of the State of New
York, without regard to conflicts of laws principles thereof.
Section 15.05. Evidence of Compliance with Conditions Precedent,
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
Each certificate or opinion provided for in this Indenture and delivered to
the Trustee with respect to compliance with a condition or covenant provided for
in this Indenture shall include: (1) a statement that the person making such
86
certificate or opinion has read such covenant or condition; (2) a brief
statement as to the nature and scope of the examination or investigation upon
which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of such person, he has made such
examination or investigation as is reasonably necessary to enable him to express
an informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 15.06. Legal Holidays. In any case in which the date of maturity of
interest on or principal of the Notes or the redemption date of any Note will
not be a Business Day, then payment of such interest on or principal of the
Notes need not be made on such date, but may be made on the next succeeding
Business Day with the same force and effect as if made on the date of maturity
or the redemption date, and no interest shall accrue for the period from and
after such date.
Section 15.07. Trust Indenture Act. This Indenture is hereby made subject
to, and shall be governed by, the provisions of the Trust Indenture Act required
to be part of and to govern indentures qualified under the Trust Indenture Act;
provided that unless otherwise required by law, notwithstanding the foregoing,
this Indenture and the Notes issued hereunder shall not be subject to the
provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust
Indenture Act as now in effect or as hereafter amended or modified; provided
further that this Section 15.07 shall not require this Indenture or the Trustee
to be qualified under the Trust Indenture Act prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act,
nor shall it constitute any admission or acknowledgment by any party to the
Indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act. If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in an indenture qualified under the
Trust Indenture Act, such required provision shall control.
Section 15.08. No Security Interest Created. Nothing in this Indenture or
in the Notes, expressed or implied, shall be construed to constitute a security
interest under the Uniform Commercial Code or similar legislation, as now or
hereafter enacted and in effect, in any jurisdiction in which property of the
Company or its subsidiaries is located.
Section 15.09. Benefits of Indenture. Nothing in this Indenture or in the
Notes, express or implied, shall give to any Person, other than the parties
hereto, any paying agent, any authenticating agent, conversion agent, any Note
registrar and their successors hereunder and the holders of Notes any benefit or
any legal or equitable right, remedy or claim under this Indenture.
87
Section 15.10 . Table of Contents, Headings, Etc. The table of contents and
the titles and headings of the Articles and Sections of this Indenture have been
inserted for convenience of reference only, are not to be considered a part
hereof, and shall in no way modify or restrict any of the terms or provisions
hereof.
Section 15.11. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.04, 2.05, 2.06, 2.07, 3.03, 3.05 and 3.10, as fully
to all intents and purposes as though the authenticating agent had been
expressly authorized by this Indenture and those Sections to authenticate and
deliver Notes. For all purposes of this Indenture, the authentication and
delivery of Notes by the authenticating agent shall be deemed to be
authentication and delivery of such Notes "by the Trustee" and a certificate of
authentication executed on behalf of the Trustee by an authenticating agent
shall be deemed to satisfy any requirement hereunder or in the Notes for the
Trustee's certificate of authentication. Such authenticating agent shall at all
times be a Person eligible to serve as trustee hereunder pursuant to Section
7.09.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 15.11, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written notice of
resignation to the Trustee and to the Company. The Trustee may at any time
terminate the agency of any authenticating agent by giving written notice of
termination to such authenticating agent and to the Company. Upon receiving such
a notice of resignation or upon such a termination, or in case at any time any
authenticating agent shall cease to be eligible under this Section, the Trustee
shall either promptly appoint a successor authenticating agent or itself assume
the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Notes as the names and
addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to time
such reasonable compensation for its services as shall be agreed upon in writing
between the Company and the authenticating agent.
88
The provisions of Sections 7.02, 7.03, 7.04, 8.03 and this Section 15.11
shall be applicable to any authenticating agent.
Section 15.12. Execution in Counterparts. This Indenture 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.
Section 15.13. Severability. In case any provision in this Indenture or in
the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Wilmington Trust Company hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
89
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed.
TRIARC COMPANIES, INC., as Issuer
By: /s/ Brian L. Schorr
-----------------------------
Name: Brian L. Schorr
Title: Executive Vice President
WILMINGTON TRUST COMPANY, as
Trustee
By: /s/ Kathleen A. Pedelini
-----------------------------
Name: Kathleen A. Pedelini
Title: Financial Services Officer
90
EXHIBIT A
[Include only for Global Notes:]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) (THE
"DEPOSITARY", WHICH TERM INCLUDES ANY SUCCESSOR DEPOSITARY FOR THE CERTIFICATES)
TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT,
AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH
OTHER NAME AS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND
ANY PAYMENT HEREIN IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY), ANY TRANSFER, PLEDGE, OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH
AS THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Include only for Notes that are Restricted Securities]
[THE NOTE EVIDENCED HEREBY HAS NOT BEEN REGISTERED UNDER THE UNITED STATES
SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR ANY STATE
SECURITIES LAWS AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH
IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1) REPRESENTS
THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE
SECURITIES ACT); (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION OF THE HOLDING
PERIOD APPLICABLE TO SALES OF THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES
ACT (OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THIS NOTE OR THE
COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE EXCEPT (A) TO TRIARC
COMPANIES, INC. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE
EXEMPTION FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED
EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE
TIME OF SUCH TRANSFER); (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER
PURSUANT TO CLAUSE (2)(D) ABOVE), IT WILL FURNISH TO WILMINGTON TRUST COMPANY,
AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE) AND UPON THE COMPANY'S
REQUEST, TO THE COMPANY, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE TRUSTEE OR THE COMPANY MAY
A-1
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN
EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT; AND (4) AGREES THAT IT WILL DELIVER TO EACH
PERSON TO WHOM THIS NOTE IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF
THIS LEGEND. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE TRANSFER OF THE
NOTE EVIDENCED HEREBY PURSUANT TO CLAUSE (2)(D) ABOVE OR UPON ANY TRANSFER OF
THIS NOTE UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY SUCCESSOR
PROVISION). THE INDENTURE CONTAINS A PROVISION REQUIRING THE TRUSTEE TO REFUSE
TO REGISTER ANY TRANSFER OF THIS NOTE IN VIOLATION OF THE FOREGOING
RESTRICTION.]
A-2
TRIARC COMPANIES, INC.
5% CONVERTIBLE NOTE DUE 2023
CUSIP: ___
No. $ ___
Triarc Companies, Inc., a corporation duly organized and validly existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received hereby promises to pay to __________ or its
registered assigns, [the principal sum of _______________ DOLLARS] [the
principal sum set forth on Schedule I hereto] (1) on May 15, 2023 at the office
or agency of the Company maintained for that purpose in accordance with the
terms of the Indenture, in such coin or currency of the United States of America
as at the time of payment shall be legal tender for the payment of public and
private debts, and to pay interest, semiannually on May 15 and November 15 of
each year, commencing November 15, 2003, on said principal sum at said office or
agency, in like coin or currency, at the rate per annum of 5%, from the May 15
or November 15, as the case may be, next preceding the date of this Note to
which interest has been paid or duly provided for, unless the date hereof is a
date to which interest has been paid or duly provided for, in which case from
the date of this Note, or unless no interest has been paid or duly provided for
on the Notes, in which case from May 19, 2003 until payment of said principal
sum has been made or duly provided for. Notwithstanding the foregoing, if the
date hereof is after any May 1 or November 1, as the case may be, and before the
following May 15 or November 15, this Note shall bear interest from such May 15
or November 15; provided that if the Company shall default in the payment of
interest due on such May 15 or November 15, then this Note shall bear interest
from the next preceding May 15 or November 15 to which interest has been paid or
duly provided for or, if no interest has been paid or duly provided for on such
Note, from May 19, 2003. Except as otherwise provided in the Indenture, the
interest payable on the Note pursuant to the Indenture on any May 15 or November
15 will be paid to the Person entitled thereto as it appears in the Note
register at the close of business on the record date, which shall be the May 1
or November 1 (whether or not a Business Day) next preceding such May 15 or
November 15, as provided in the Indenture; provided that any such interest not
punctually paid or duly provided for shall be payable as provided in the
Indenture. Interest may, at the option of the Company, be paid either (i) by
check mailed to the registered address of such Person (provided that the holder
of Notes with an aggregate principal amount in excess of $2,000,000 shall, at
the written election (timely made and containing appropriate wire transfer
information) of such
- ----------
(1) For Global Notes only.
A-3
holder, be paid by wire transfer of immediately available funds) or (ii) by
transfer to an account maintained by such Person located in the United States;
provided that payments to the Depositary will be made by wire transfer of
immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal, premium, if any
(to the extent that payment of such interest is enforceable under applicable
law) at the rate of 6%, per annum.
Reference is made to the further provisions of this Note set forth on the
reverse hereof, including, without limitation, provisions giving the holder of
this Note the right to convert this Note into Common Stock of the Company on the
terms and subject to the limitations referred to on the reverse hereof and as
more fully specified in the Indenture. Such further provisions shall for all
purposes have the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the State
of New York, and for all purposes shall be construed in accordance with and
governed by the laws of the State of New York, without regard to conflicts of
laws principles thereof.
This Note shall not be valid or become obligatory for any purpose until the
certificate of authentication hereon shall have been manually signed by the
Trustee or a duly authorized authenticating agent under the Indenture.
A-4
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
TRIARC COMPANIES, INC.
By:
----------------------------------
By:
----------------------------------
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
WILMINGTON TRUST COMPANY,
as Trustee
By:
----------------------------------
Authorized Officer
Dated: May 19, 2003
A-5
FORM OF REVERSE OF NOTE
TRIARC COMPANIES, INC.
5% CONVERTIBLE NOTE DUE 2023
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 5% Convertible Notes Due 2023 (herein called the "Notes"),
limited in aggregate principal amount to $175,000,000, issued and to be issued
under and pursuant to an Indenture dated as of May 19, 2003 (herein called the
"Indenture"), between the Company and Wilmington Trust Company, as trustee
(herein called the "Trustee"), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the
Trustee, the Company and the holders of the Notes.
In case an Event of Default shall have occurred and be continuing, the
principal of, premium, if any, and accrued and unpaid interest, on all Notes may
be declared by either the Trustee or the holders of not less than 25% in
aggregate principal amount of the Notes then outstanding, and upon said
declaration shall become, due and payable, in the manner, with the effect and
subject to the conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee,
with the consent of the holders of at least a majority in aggregate principal
amount of the Notes at the time outstanding, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the
provisions of the Indenture or of any supplemental indenture or modifying in any
manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall (i) extend the fixed maturity of any Note, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof or premium, if any, thereon, or reduce any amount
payable upon redemption or repurchase thereof, or impair the right of any
Noteholder to institute suit for the payment thereof, or make the principal
thereof or interest or premium, if any, thereon payable in any coin or currency
other than that provided in the Notes, or change the obligation of the Company
to redeem any Note upon the happening of a Fundamental Change in a manner
adverse to the holder of the Notes, or change the obligation of the Company to
repurchase any Note on a Repurchase Date in a manner adverse to the holder of
the Notes, or impair the right to convert the Notes into Common Stock subject to
the terms set forth in the Indenture, including Section 14.06 thereof, without
the consent of the holder of each Note so affected, or reduce the quorum or the
voting requirements under the Indenture, in each case without the consent of the
holder of each Note so affected, or modify any of the provisions of Section
10.02 or Section 6.07 thereof, except to increase any such percentage or to
provide that certain other provisions of the Indenture cannot be modified or
waived without the consent of the holder of each Note so affected, or change any
obligation of the Company to maintain an office
A-6
or agency in the places and for the purposes set forth in Section 4.01 thereof,
or (ii) reduce the aforesaid percentage of Notes, the holders of which are
required to consent to any such supplemental indenture, without the consent of
the holders of all Notes then outstanding. Subject to the provisions of the
Indenture, the holders of a majority in aggregate principal amount of the Notes
at the time outstanding may on behalf of the holders of all of the Notes waive
any past default or Event of Default under the Indenture and its consequences
except a default in the payment of interest, or any premium on, or the principal
of, any of the Notes, or a failure by the Company to convert any Notes into
Common Stock of the Company, or a default in the payment of the redemption
price, or a default in the payment of the repurchase price on a Repurchase Date,
or a default in respect of a covenant or provisions of the Indenture which under
Article 10 of the Indenture cannot be modified or amended without the consent of
the holders of each or all Notes then outstanding or affected thereby. Any such
consent or waiver by the holder of this Note (unless revoked as provided in the
Indenture) shall be conclusive and binding upon such holder and upon all future
holders and owners of this Note and any Notes which may be issued in exchange or
substitution hereof, irrespective of whether or not any notation thereof is made
upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note 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, including contingent interest, if any, on this Note at the place, at
the respective times, at the rate and in the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year of
twelve 30-day months.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.
At any time on or after May 20, 2010 and prior to maturity, the Notes may
be redeemed at the option of the Company, in whole or in part, upon mailing a
notice of such redemption not less than 30 days but not more than 60 days before
the redemption date to the holders of Notes at their last registered addresses,
all as provided in the Indenture, at a redemption price equal to 100% of the
principal amount of the Notes to be redeemed, together with accrued and unpaid
interest to, but excluding, the redemption date; provided that if the redemption
date is on a May 15 or November 15, then the interest payable on such date shall
be paid to the holder of record on the preceding May 1 or November 1,
respectively.
A-7
The Company may not give notice of any redemption of the Notes if a default
in the payment of interest, or premium, if any, on the Notes has occurred and is
continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Fundamental Change occurs at any time prior to maturity of the Notes,
this Note will be redeemable on a Fundamental Change Redemption Date, 30 days
after notice thereof, at the option of the holder of this Note at a redemption
price equal to 100% of the principal amount thereof, together with accrued
interest to, but excluding, the redemption date; provided that if such
Fundamental Change Redemption Date is a May 15 or November 15, the interest
payable on such date shall be paid to the holder of record of this Note on the
preceding May 1 or November 1, respectively. The Notes will be redeemable in
multiples of $1,000 principal amount. The Company shall mail to all holders of
record of the Notes a notice of the occurrence of a Fundamental Change and of
the redemption right arising as a result thereof on or before the 10th day after
the occurrence of such Fundamental Change. For a Note to be so redeemed at the
option of the holder, the Company must receive at the office or agency of the
Company maintained for that purpose in accordance with the terms of the
Indenture, such Note with the form entitled "Fundamental Change Redemption
Notice" on the reverse thereof duly completed, together with such Note, duly
endorsed for transfer, on or before the 30th day after the date of such notice
of a Fundamental Change (or if such 30th day is not a Business Day, the
immediately succeeding Business Day).
The repurchase price may be paid, at the option of the Company, in cash or
by the issuance and delivery of shares of Common Stock, or in any combination
thereof, subject to the terms and conditions of the Indenture.
If cash, shares of Applicable Stock or any combination thereof, as
permitted under the Indenture, sufficient to pay the purchase price of all Notes
or portions thereof to be purchased as of the Fundamental Change Redemption Date
is deposited with the Trustee (or other paying agent appointed by the Company),
on the Business Day following the Fundamental Change Redemption Date, interest
will cease to accrue on such Notes (or portions thereof) immediately after such
Fundamental Change Redemption Date, and the holder thereof shall have no other
rights as such other than the right to receive the purchase price upon surrender
of such Note.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to purchase in cash, at the option of the holder, all or any
portion of the Notes held by such holder on May 15, 2010, May 15, 2015 and May
15, 2020, and such other dates as the Company may designate, in whole multiples
of $1,000 at a purchase price of 100% of the principal amount, plus any accrued
and unpaid interest, on such Note up to the Repurchase Date. To exercise
A-8
such right, a holder shall deliver to the Company such Note with the form
entitled "Repurchase Notice" on the reverse thereof duly completed, together
with the Note, duly endorsed for transfer, at any time from the opening of
business on the date that is 20 Business Days prior to such Repurchase Date
until the close of business on the fourth Business Day prior to the Repurchase
Date, and shall deliver the Notes to the Trustee (or other paying agent
appointed by the Company) as set forth in the Indenture.
Holders have the right to withdraw any Fundamental Change Redemption Notice
or Repurchase Notice by delivering to the Trustee (or other paying agent
appointed by the Company) a written notice of withdrawal up to the close of
business on the Fundamental Change Redemption Date or Repurchase Date, as
applicable, all as provided in the Indenture.
Subject to the occurrence of certain events and in compliance with the
provisions of the Indenture, the holder hereof has the right, at its option, to
convert each $1,000 principal amount of the Notes into 25 shares of the
Company's Common Stock. A Note in respect of which a holder is exercising its
right to require redemption upon a Fundamental Change or repurchase on a
Repurchase Date may be converted only if such holder withdraws its election to
exercise either such right in accordance with the terms of the Indenture. The
Conversion Rate for the Securities on any Conversion Date shall be determined as
set forth in the Indenture. The Company shall deliver cash or a check in lieu of
any fractional share of Common Stock.
A holder's right to convert the Notes into Common Stock of the Company is
also subject to the Company's right to elect to pay such holder the amount of
cash set forth in the next succeeding sentence in lieu of delivering all or part
of such Common Stock; provided, however, that if such payment of cash is not
permitted pursuant to the provisions of the Indenture, the Company shall deliver
Common Stock (and cash in lieu of fractional shares of Common Stock) in
accordance with the Indenture, whether or not the Company has delivered a notice
pursuant to the Indenture to the effect that the Notes will be paid in cash. If
the Company shall elect to make such payment in shares of Common Stock or a
combination of cash and Common Stock, the Company shall deliver to the holder
through the Conversion Agent, no later than the third Business Day following the
date on which the Applicable Stock Price is determined, a certificate for the
number of whole shares of Common Stock issuable upon the conversion and, if
applicable, cash in lieu of such Common Stock and cash in lieu of any fractional
shares. If, however, the Company shall elect to make all or a portion of such
payment solely in cash, the Company shall deliver to the holder surrendering a
Note the amount of cash per Note (or a portion of a Note) equal to the
Applicable Stock Price multiplied by the Conversion Rate in effect with respect
to such Conversion Date no later than the third Business Day following such
Conversion Date.
A-9
If an Event of Default (other than a default in a cash payment upon
conversion of the Notes) shall have occurred and be continuing, the Company
shall deliver Common Stock in accordance with the terms of the Indenture
(together with a cash payment in lieu of fractional shares, if any), whether or
not the Company has delivered a notice pursuant to Section 14.02 of the
Indenture to the effect that the Notes would be paid in cash or a combination of
cash and Common Stock.
A holder may convert a portion of a Note if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. No payment or adjustment
shall be made for dividends on the Common Stock except as provided in the
Indenture. On conversion of a Note, except for conversion during the period from
the close of business on any record date immediately preceding any interest
payment date to the close of business on the Business Day immediately preceding
such interest payment date, in which case the holder on such record date shall
receive the interest payable on such interest payment date, that portion of
accrued and unpaid interest on the converted Note attributable to the period
from the most recent interest payment date (or, if no interest payment date has
occurred, from the Issue Date) through the Conversion Date shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the holder thereof through delivery of the Common Stock (together with
the cash payment, if any, in lieu of fractional shares), or cash in lieu
thereof, in exchange for the Note being converted pursuant to the provisions
hereof.
Notes or portions thereof surrendered for conversion during the period from
the close of business on any record date immediately preceding any interest
payment date to the close of business on the Business Day immediately preceding
such interest payment date shall be accompanied by payment to the Company or its
order, in New York Clearing House funds or other funds acceptable to the
Company, of an amount equal to the interest payable on such interest payment
date with respect to the principal amount of Notes or portions thereof being
surrendered for conversion; provided that no such payment need be made if (1)
the Company has specified a Redemption Date that occurs during the period from
the close of business on a record date to the close of business on the Business
Day immediately preceding the interest payment date to which such record date
relates, (2) the Company has specified a Fundamental Change Redemption Date
during such period or (3) only to the extent of overdue interest, any overdue
interest exists on the Conversion Date with respect to the Notes converted.
No fractional shares will be issued upon conversion; in lieu thereof, an
amount will be paid in cash based upon the Applicable Stock Price.
To convert a Note, a holder must (a) complete and manually sign the
conversion notice set forth below or a facsimile thereof and deliver such notice
to a Conversion Agent, (b) surrender the Note to the Conversion Agent, (c)
furnish appropriate endorsements and transfer documents (including any
certification that may be required under applicable law) if required by the
Conversion Agent, (d)
A-10
pay any transfer or similar tax, if required and (e) if required pay funds equal
to the interest payable on the next interest payment date.
The Conversion Rate will be adjusted as set forth in Article 14 of the
Indenture
Any Notes called for redemption, unless surrendered for conversion by the
holders thereof on or before the close of business on the Business Day preceding
the redemption date, may be deemed to be redeemed from the holders of such Notes
for an amount equal to the applicable redemption price, together with accrued
but unpaid interest to, but excluding, the date fixed for redemption, by one or
more investment banks or other purchasers who may agree with the Company (i) to
purchase such Notes from the holders thereof and convert them into shares of the
Company's Common Stock and (ii) to make payment for such Notes as aforesaid to
the Trustee in trust for the holders.
Upon due presentment for registration of transfer of this Note at the
office or agency of the Company maintained for that purpose in accordance with
the terms of the Indenture, a new Note or Notes of authorized denominations for
an equal aggregate principal amount will be issued to the transferee in exchange
thereof, subject to the limitations provided in the Indenture, without charge
except for any tax, assessment or other governmental charge imposed in
connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent, any
conversion agent and any Note registrar may deem and treat the registered holder
hereof as the absolute owner of this Note (whether or not this Note shall be
overdue and notwithstanding any notation of ownership or other writing hereon
made by anyone other than the Company or any Note registrar) for the purpose of
receiving payment hereof, or on account hereof, for the conversion hereof and
for all other purposes, and neither the Company nor the Trustee nor any other
authenticating agent nor any paying agent nor other conversion agent nor any
Note registrar shall be affected by any notice to the contrary. All payments
made to or upon the order of such registered holder shall, to the extent of the
sum or sums paid, satisfy and discharge liability for monies payable on this
Note.
No recourse for the payment of the principal of or any premium or interest
on this Note, or for any claim based hereon or otherwise in respect hereof, and
no recourse under or upon any obligation, covenant or agreement of the Company
in the Indenture or any supplemental indenture or in any Note, or because of the
creation of any indebtedness represented thereby, shall be had against any
incorporator, stockholder, employee, agent, officer or director or subsidiary,
as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor
corporation, whether by virtue of any constitution, statute or rule of law or by
the enforcement of any assessment or penalty or otherwise, all such liability
being, by acceptance hereof
A-11
and as part of the consideration for the issue hereof, expressly waived and
released.
This Note shall be deemed to be a contract made under the laws of New York,
and for all purposes shall be construed in accordance with the laws of New York,
without regard to conflicts of laws principles thereof.
Terms used in this Note and defined in the Indenture are used herein as
therein defined.
A-12
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Note, shall be construed as though they were written out in full according
to applicable laws or regulations.
TEN COM - as tenants in common UNIF GIFT MIN ACT -___ Custodian ___
TEN ENT - as tenant by the entireties (Cust) (Minor)
JT TEN - as joint tenants with right of under Uniform Gifts to Minors Act
survivorship and not as tenants
in common ____________________________
(State)
Additional abbreviations may also be used though not in the above list.
CONVERSION NOTICE
TO: TRIARC COMPANIES, INC.
WILMINGTON TRUST COMPANY
The undersigned registered owner [beneficial holder]* of this Note hereby
irrevocably exercises the option to convert this Note, or the portion thereof
(which is $1,000 or a multiple thereof) below designated, into shares of Common
Stock of Triarc Companies, Inc. in accordance with the terms of the Indenture
referred to in this Note, and directs that the shares issuable and deliverable
upon such conversion, together with any check in payment for fractional shares
and any Notes representing any unconverted principal amount hereof, be issued
and delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest, including contingent interest,
if any, accompanies this Note.
Dated:
----------------------
--------------------------------------
Name of Holder or underlying
participant of Depository
--------------------------------------
--------------------------------------
Signature(s)
Signature(s) must be guaranteed by an "eligible guarantor institution" meeting
the requirements of the Note registrar, which requirements include membership or
participation in the Security Transfer Agent Medallion Program ("STAMP") or such
other "signature guarantee program" as may be determined by the Note registrar
in addition to, or in substitution for, STAMP, all in accordance with the
Securities Exchange Act of 1934, as amended.
--------------------------------------
- ----------
* Insert for Global Note.
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued, and
Notes if to be delivered, other than to and in the name of the registered
holder:
- ---------------------------------------
(Name)
- ---------------------------------------
(Street Address)
- ---------------------------------------
(City, State and Zip Code)
- ---------------------------------------
Please print name and address
Principal amount to be converted
(if less than all):
$
- ---------------------------------------
Social Security or Other Taxpayer
Identification Number:
- ---------------------------------------
FUNDAMENTAL CHANGE REDEMPTION NOTICE
TO: TRIARC COMPANIES, INC.
WILMINGTON TRUST COMPANY
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Triarc Companies, Inc. (the "Company") as
to the occurrence of a Fundamental Change with respect to the Company and
requests and instructs the Company to redeem the entire principal amount of this
Note, or the portion thereof (which is $1,000 or a multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Note at the price of 100% of such entire principal amount or portion thereof,
together with accrued and unpaid interest to, but excluding, the Fundamental
Change Redemption Date, to the registered holder hereof. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the
Indenture. If the Company elects to pay the purchase price, in whole or in part,
in shares of Applicable Stock but such portion of the purchase price shall
ultimately be paid to such holder entirely in cash because any of the conditions
to payment of the purchase price in shares of Applicable Stock is not satisfied
prior to the close of business on the applicable Fundamental Change Redemption
Date, the undersigned registered owner elects:
[ ] to withdraw this Repurchase Notice as to $[ ] principal amount of the Notes
to which this Fundamental Change Redemption Notice relates, or
[ ] to receive cash in respect of $[ ] principal amount of the Notes to which
this Fundamental Change Redemption Notice relates.
Dated:
----------------------
--------------------------------------
--------------------------------------
Signature(s)
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
REPURCHASE NOTICE
TO: TRIARC COMPANIES, INC.
WILMINGTON TRUST COMPANY
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from Triarc Companies, Inc. (the "Company")
regarding the right of holders to elect to require the Company to repurchase the
Notes and requests and instructs the Company to repay the entire principal
amount of this Note, or the portion thereof (which is $1,000 or an integral
multiple thereof) below designated, in accordance with the terms of the
Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued and unpaid interest to, by excluding, the
Repurchase Date, to the registered holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.
The Notes shall be repurchased by the Company as of the Repurchase Date pursuant
to the terms and conditions specified in the Indenture.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Note in every particular without
alteration or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
ASSIGNMENT
For value received ______________________________hereby sell(s) assign(s)
and transfer(s) unto ___________________________________ (Please insert social
security or other Taxpayer Identification Number of assignee) the within Note,
and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Note on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Note prior to the expiration of the
holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Note is being transferred:
[ ] To Triarc Companies, Inc. or a subsidiary thereof; or
[ ] To a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
[ ] Pursuant to and in compliance with Rule 144 under the Securities Act
of 1933, as amended; or
[ ] Pursuant to a Registration Statement which has been declared effective
under the Securities Act of 1933, as amended, and which continues to
be effective at the time of transfer;
and unless the Note has been transferred to Triarc Companies, Inc. or a
subsidiary thereof, the undersigned confirms that such Note is not being
transferred to an "affiliate" of the Company as defined in Rule 144 under the
Securities Act of 1933, as amended.
Unless one of the boxes is checked, the Trustee will refuse to register any
of the Notes evidenced by this certificate in the name of any person other than
the registered holder thereof.
Dated:
----------------------
--------------------------------------
--------------------------------------
Signature(s)
Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Note registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program
("STAMP") or such other "signature guarantee program" as may be determined
by the Note registrar in addition to, or in substitution for, STAMP, al in
accordance with the Securities Exchange Act of 1934, as amended.
--------------------------------------
Signature Guarantee
NOTICE: The signature on the Conversion Notice, the Option to Elect
Redemption Upon a Fundamental Change, the Repurchase Notice or the Assignment
must correspond with the name as written upon the face of the Note in every
particular without alteration or enlargement or any change whatever.
Schedule I
[Include Schedule I only for a Global Note]
TRIARC COMPANIES, INC.
5% Convertible Note Due 2023
No. _______
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Authorized Signature
Notation Explaining Principal of Trustee or
Date Principal Amount Amount Recorded Custodian
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