Exhibit 4.5(c)
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J. P. MORGAN & CO. INCORPORATED
AND
FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION,
as Trustee
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SECOND SUPPLEMENTAL INDENTURE
Dated as of February 27, 1996
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SECOND SUPPLEMENTAL INDENTURE dated as of February 27, 1996 (this
"Supplemental Indenture"), between J. P. MORGAN & CO. INCORPORATED, a
corporation duly organized and existing under the laws of the State of Delaware
(the "Company") and FIRST TRUST OF NEW YORK, NATIONAL ASSOCIATION, successor to
Chemical Bank (formerly Manufacturers Hanover Trust Company), a national banking
association, as Trustee (hereinafter called the "Trustee", which term shall
include any successor trustee appointed pursuant to Article Six of the Basic
Indenture hereinafter referred to).
WHEREAS the Company and the Trustee have entered into an Indenture,
dated as of August 15, 1982, as amended by supplemental indentures, including a
First Supplemental Indenture, dated as of May 5, 1986 (as so amended, the "Basic
Indenture"), providing for the issuance from time to time of one or more series
of Securities (as such term is defined in the Basic Indenture) evidencing
unsecured indebtedness of the Company;
WHEREAS the Company proposes to issue one or more series of
"Mandatorily Exchangeable Debt Securities sm" (each such series of Securities
being referred to herein as "MEDS sm"), the principal amount at Maturity of
which is mandatorily exchangeable into securities or obligations (the "Exchange
Issuer Securities") of J.P. Morgan or other persons (collectively, the "Exchange
Issuers") or, at the option of the Company, payable in cash, in either case at
an Exchange Rate as described herein;
WHEREAS Sections 8.1(f) and (d) of the Basic Indenture provide that
without the consent of the Holders of Securities, the Company, when authorized
by a resolution of its Board of Directors, and the Trustee may enter into one or
more indentures supplemental to the Basic Indenture (a) to establish the form or
terms of Securities of any series as permitted by Sections 2.1 and 2.3 thereof
and (b) to cure any ambiguity or to correct or supplement any provision
contained in the Basic Indenture or any supplemental indenture which may be
defective or inconsistent with any other provision of the Basic Indenture or any
supplemental indenture or to make such other provisions in regard to matters or
questions arising under the Basic Indenture or any supplemental indenture as the
Board of Directors may deem necessary or desirable and which shall not
materially and adversely affect the interests of the Holders of the Securities;
WHEREAS the entry into this Supplemental Indenture by the parties
hereto is in all respects authorized by the provisions of the Basic Indenture;
and
WHEREAS all things necessary to make this Supplemental Indenture a
valid agreement of the Company in accordance with its terms have been done.
NOW, THEREFORE, for and in consideration of the premises and purchase
of the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders, without preference,
priority or distinction of any of the Securities over any of the others by
reason of difference in series or priority in time of issuance, negotiation or
maturity thereof, or otherwise except as otherwise provided in the Basic
Indenture or this Supplemental Indenture, as follows:
ARTICLE I
Amendments to the Basic Indenture
The Basic Indenture is amended as set forth below:
SECTION 1.01. Amendment to Section 2.3. The Basic Indenture is hereby
amended by amending Section 2.3 of the Basic Indenture by (i) adding as a new
paragraph (17) the following:
"(17) the terms and conditions, if any, upon which the Securities of
such series may or shall be convertible into or exchangeable or
exercisable for or payable in, among other things, other securities
(whether or not issued by, or the obligation of, the Company),
instruments, contracts, currencies, commodities or other forms of
property, rights or interests or any combination of the foregoing;
and";
and by (ii) renumbering current paragraph (17) of Section 2.3 to paragraph (18).
SECTION 1.02. Amendments to Authorize MEDS. The Basic Indenture is
hereby amended, solely with respect to one or more series of Securities that
consist of MEDS, as follows:
(a) By amending Section 1.1 to add new definitions thereto, in the
appropriate alphabetical sequence, as follows:
"Closing Price" has the meaning specified in Section 13.1.
"Conversion Premium", with respect to any issuance of MEDS, shall be
equal to the quotient of (i) the Threshold Appreciation Price less the Initial
price, divided by (ii) the Initial Price.
"Exchange Issuer" means the Company or other persons into whose
securities or obligations the principal amount of the MEDS are mandatorily
exchangeable at Maturity, at the option of the Company.
"Exchange Issuer Securities" means the securities or obligations of the
Exchange Issuer into which the principal amount of the MEDS are mandatorily
exchangeable at Maturity, at the option of the Company.
"Exchange Rate" has the meaning specified in Section 13.1.
"Extraordinary Cash Dividend" has the meaning specified in Section
13.3.
"Initial Price", with respect to any issuance of MEDS, shall have the
meaning set forth in the applicable Prospectus Supplement.
"Maturity", when used with respect to any Security, means the date on
which the principal of such Security (or any installment of principal) becomes
due and payable as
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therein or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Price" has the meaning specified in Section 13.1.
"MEDS" means any series of "Mandatorily Exchangeable Debt SecuritiesSM"
of the Company, the principal amount at Maturity of which is mandatorily
exchangeable into the Exchange Issuer Securities of the Exchange Issuers at the
option of the Company.
"NYSE" has the meaning specified in Section 13.1.
"Prospectus Supplement" means any prospectus of the Company, whether or
not filed pursuant to Rule 424(b) of the Securities Act of 1933, as amended,
providing for the issuance of a series of MEDS.
"Reorganization Event" has the meaning specified in Section 13.3.
"Stated Maturity", when used with respect to any Security, or any
installment of principal thereof or interest thereon, means the date specified
in such Security as the fixed date on which the principal of such Security, or
such installment of principal or interest, is due and payable.
"Threshold Appreciation Price", with respect to any issuance of MEDS,
shall have the meaning set forth in the applicable Prospectus Supplement.
"Trading Day" has the meaning specified in Section 13.1.
"Transaction Value" has the meaning specified in Section 13.3.
(b) By amending Section 6.1 of the Basic Indenture by (i) deleting the
word "and" at the end of clause (b); (ii) replacing the period at the end of
clause (c) with "; and" ; and (iii) adding as a new clause (d) the following:
"(d) the Trustee shall not at any time be under any duty or
responsibility to any Holder of a Security that may or shall be convertible
into or exchangeable or exercisable for or payable in, among other things,
other securities, instruments, contracts, currencies, commodities or other
forms of property, rights or interests or any combination of the foregoing,
(A) to make or cause to be made any adjustment of the amount of, among
other things, the securities, instruments, contracts, currencies,
commodities or other forms of property, rights or interests or any
combination of the foregoing that may be issued, transferred or delivered
to such Holder, or to determine whether any facts exist which may require
any such adjustment, or with respect to the nature or extent of any such
adjustment when made, or with respect to any method employed in making the
same, (B) to account for the validity or value (or the kind or amount) of,
among other things, the securities, instruments, contracts, currencies,
commodities or other forms of property, rights or interests or any
combination of the foregoing that may at any time be issued, transferred or
delivered to such Holder or (C) with respect to the failure of the Company
to issue, transfer or deliver, among other things, any
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securities, instruments, contracts, currencies, commodities or other forms
of property, rights or interests or any combination of the foregoing
pursuant to the terms of such Security."
(c) By amending Section 8.2 of the Basic Indenture by deleting at the
end of proviso (a) thereof, the words "without the consent of the Holder of each
Security so affected, or" and inserting in place thereof the following: "or
change the terms or conditions of any Securities so as to adversely affect the
terms or conditions upon which such Securities are convertible into or
exchangeable or exercisable for or payable in, among other things, other
securities, instruments, contracts, currencies, commodities or other forms of
property, rights or interests or any combination of the foregoing without, in
each case, the consent of the Holder of each Security so affected, or".
(d) By adding the following Article Thirteen:
"ARTICLE THIRTEEN
Exchange of MEDS
SECTION 13.1. Exchange at Maturity. At Maturity, the principal amount
payable with respect to each series of MEDS shall be automatically and
mandatorily exchanged into a number of securities ("Exchange Issuer
Securities") of the Exchange Issuer at the applicable Exchange Rate (as
defined below). The "Exchange Rate" with respect to each series of MEDS
shall be equal to, subject to adjustment as a result of certain dilution
events relating to the Issuer Exchange Securities as provided for in
Section 13.3, (a) if the Maturity Price (as defined below) is greater than
or equal to the "Threshold Appreciation Price" (as set forth in the
applicable Prospectus Supplement), a number of Exchange Issuer Securities
equal to a fraction, the numerator of which is one and the denominator of
which is the sum of one and the Conversion Premium, (b) if the Maturity
Price is less than the Threshold Appreciation Price but is greater than the
Initial Price, a fractional Exchange Issuer Security per MEDS so that the
value of such fractional Exchange Issuer Security (determined at the
Maturity Price) is equal to the Initial Price (such fractional share being
calculated to the nearest 1/10,000th of a share or, if there is not a
nearest 1/10,000th of a share, to the next highest 1/10,000th of a share)
and (c) if the Maturity Price is less than or equal to the Initial Price,
one Exchange Issuer Security per MEDS. No fractional Exchange Issuer
Securities will be issued at Maturity as provided in Section 13.2.
Notwithstanding the foregoing, the Company may, at its option in lieu of
delivering Exchange Issuer Securities, deliver cash in an amount
(calculated to the nearest 1/100th of a dollar per MEDS or, if there is not
a nearest 1/100th of a dollar, then to the next higher 1/100th of a dollar)
equal to the value of such number of Exchange Issuer Securities at the
Maturity Price. In determining the amount of cash deliverable in exchange
for the MEDS in lieu of Exchange Issuer Securities pursuant to the
immediately preceding sentence hereof, if more than one MEDS shall be
surrendered for exchange at one time by the same Holder, the amount of cash
which shall be delivered upon exchange shall be computed on the basis of
the aggregate number of MEDS so surrendered at Maturity.
The "Maturity Price" is defined as the average Closing Price per
Exchange Issuer Security on the number of Trading Days specified in the
applicable Prospectus Supplement
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immediately prior to, but not including, the Maturity date. The "Closing
Price" of any security on any date of determination means the closing sale
price (or, if no closing price is reported, the last reported sale price)
of such security on the New York Stock Exchange (the "NYSE") on such date
or, if such security is not listed for trading on the NYSE on any such
date, as reported in the composite transactions for the principal United
States securities exchange on which such security is so listed, or if such
security is not so listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers, Inc. Automated Quotation System, or, if such security is not so
reported, the last quoted bid price for such security in the
over-the-counter market as reported by the National Quotation Bureau or
similar organization, or, if such bid price is not available, the market
value of such security on such date as determined by a nationally
recognized independent investment banking firm retained for such purpose by
the Company. A "Trading Day" is defined as a day on which the security the
Closing Price of which is being determined (A) is not suspended from
trading on any national or regional securities exchange or association or
over-the-counter market at the close of business and (B) has traded at
least once on the national or regional securities exchange or association
or over-the-counter market that is the primary market for trading of such
security
SECTION 13.2. No Fractional Securities. No fractional securities or
scrips representing fractional Exchange Issuer Securities shall be issued
or delivered upon the exchange at Maturity of any MEDS. If more than one
MEDS of any series shall be surrendered for exchange at one time by the
same Holder, the number of full Exchange Issuer Securities which shall be
delivered upon exchange, in whole or in part, as the case may be, shall be
computed on the basis of the aggregate number of MEDS so surrendered at
Maturity. Instead of any fractional Exchange Issuer Security which would
otherwise be deliverable upon exchange of any MEDS at Maturity, the
Company, through any applicable paying agent, shall make a cash payment in
respect of such fractional interest in an amount equal to the value of such
fractional Exchange Issuer Security at the Maturity Price. The Company
shall, upon exchange of any MEDS, provide cash to any applicable paying
agent in an amount equal to the cash payable with respect to any fractional
Exchange Issuer Securities deliverable upon exchange of such MEDS in lieu
of such fractional Exchange Issuer Securities.
SECTION 13.3. Adjustment of Exchange Rate. (a) Adjustment for
Distributions, Reclassifications, etc. The Exchange Rate shall be subject
to adjustment from time to time as follows:
(i) If an Exchange Issuer shall:
(A) pay a dividend or make a distribution with respect to
the Exchange Issuer Securities in such securities;
(B) subdivide or split the outstanding Exchange Issuer
Securities into a greater number of securities;
(C) combine the outstanding Exchange Issuer Securities into
a smaller number of securities; or
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(D) issue by reclassification of Exchange Issuer Securities
any other securities of the Exchange Issuer;
then, in any such event, the Exchange Rate in effect immediately prior
to such event shall each be adjusted so that the holder of any MEDS of
the relevant series shall thereafter be entitled to receive, upon
mandatory exchange of the principal amount of such MEDS at Maturity,
as set forth in Section 13.1, the number of Exchange Issuer Securities
which such holder would have owned or been entitled to receive
immediately following any event described above had such MEDS been
exchanged immediately prior to such event or any record date with
respect thereto. Each such adjustment shall become effective at the
opening of business on the Business Day next following the record date
for determination of holders of Exchange Issuer Securities entitled to
receive such dividend or distribution in the case of a dividend or
distribution and shall become effective immediately after the
effective date in the case of a subdivision, split, combination or
reclassification. Each such adjustment shall be made successively.
(ii) If an Exchange Issuer shall, after the date hereof, issue
rights or warrants to all holders of Exchange Issuer Securities
entitling them to subscribe for or purchase Exchange Issuer Securities
(other than rights to purchase Exchange Issuer Securities pursuant to
a plan for the reinvestment of dividends or interest) at a price per
security less than the market price of Exchange Issuer Securities
(determined for purposes of this clause (ii) as the average Closing
Price per share of such Exchange Issuer Securities on the number of
Trading Days specified in the applicable Prospectus Supplement
immediately prior to the date such rights or warrants are issued),
then in each case the Exchange Rate for the relevant series of MEDS
shall be adjusted by multiplying the Exchange Rate in effect
immediately prior to the date of issuance of such rights or warrants
by a fraction, the numerator of which shall be the number of Exchange
Issuer Securities outstanding on the date of issuance of such rights
or warrants, immediately prior to such issuance, plus the number of
additional Exchange Issuer Securities offered for subscription or
purchase pursuant to such rights or warrants, and the denominator of
which shall be the number of Exchange Issuer Securities outstanding on
the date of issuance of such rights or warrants, immediately prior to
such issuance, plus the number of additional Exchange Issuer
Securities which the aggregate offering price of the total number of
Exchange Issuer Securities so offered for subscription or purchase
pursuant to such rights or warrants would purchase at such market
price (calculated as the average Closing Price per security of
Exchange Issuer Securities on the number of Trading Days specified in
the applicable Prospectus Supplement immediately prior to the date
such rights or warrants are issued), which shall be determined by
multiplying such total number of securities by the exercise price of
such rights or warrants and dividing the product so obtained by such
market price. Such adjustment shall become effective at the opening of
business on the Business Day next following the record date for the
determination of stockholders entitled to received such rights or
warrants. To the extent that Exchange Issuer Securities are not
delivered after the expiration of such rights or warrants, the
Exchange Rate for the relevant series of MEDS shall be readjusted to
the Exchange Rate which would then be in effect had such adjustments
for the issuance of such rights or warrants been made upon the basis
of delivery of only the number of
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Exchange Issuer Securities actually delivered. Each such adjustment
shall be made successively.
(iii) If an Exchange Issuer shall pay a dividend or make a
distribution to all holders of Exchange Issuer Securities of evidences
of its indebtedness or other assets (excluding any dividends or
distributions referred to in subparagraph (i) above and any cash
dividends that do not constitute Extraordinary Cash Dividends (as
defined in clause (vi) below)) or shall issue to all holders of
Exchange Issuer Securities rights or warrants to subscribe for or
purchase any of its securities (other than those referred to in
subparagraph (ii) above), then in each such case, the Exchange Rate
for the relevant series of MEDS shall be adjusted by multiplying the
Exchange Rate in effect on the record date mentioned below by a
fraction, the numerator of which shall be the market price per
Exchange Issuer Security on the record date for the determination of
securityholders entitled to receive such dividend or distribution
(such market price being the average Closing Price per security of the
Exchange Issuer Securities on the 20 Trading Days immediately prior to
such record date), and the denominator of which shall be such market
price per Exchange Issuer Security less the fair market value (as
determined by a nationally recognized independent investment banking
firm retained for such purpose by the Company) as of such record date
of the portion of the assets or evidences of indebtedness so
distributed or of such subscription rights or warrants applicable to
one Exchange Issuer Security. Each such adjustment shall become
effective on the opening of business on the Business Day next
following the record date for the determination of securityholders
entitled to receive such dividend or distribution. Each such
adjustment shall be made successively.
(iv) Any Exchange Issuer Securities issuable in payment of a
dividend shall be deemed to have been issued immediately prior to the
close of business on the record date for such dividend for purposes of
calculating the number of outstanding Exchange Issuer Securities under
subparagraph (ii) above.
(v) All adjustments to the Exchange Rate shall be calculated to
the nearest 1/10,000th of an Exchange Issuer Security (or if there is
not a nearest 1/10,000th of a security, to the next lower 1/10,000th
of a security). No adjustment in the Exchange Rate shall be required
unless such adjustment would require an increase or decrease of at
least one percent therein; provided, however, that any adjustments
which by reason of this subparagraph are not required to be made shall
be carried forward and taken into account in any subsequent
adjustment. If an adjustment is made to the Exchange Rate pursuant to
subparagraph (i), (ii) or (iii) of this Section 13.3(a), an adjustment
shall also be made to the Maturity Price solely to determine which of
paragraphs (a), (b) or (c) of the definition of Exchange Rate in
Section 13.1 will apply at Maturity. The required adjustment shall be
determined by multiplying the Maturity Price by the number determined
under subparagraph (i), (ii) or (iii) by which the then existing
Exchange Rate was multiplied to adjust such rate. This subparagraph
(v) shall be so used to adjust the definition of Maturity Price only
as such term is used for the first time in each of subparagraphs (a),
(b) and (c) of the definition of Exchange Rate.
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(vi) For purposes of the foregoing, the term "Extraordinary Cash
Dividend" shall mean, with respect to any one-year period, all cash
dividends with respect to the Exchange Issuer Securities during such
period to the extent such dividends exceed on a per security basis 10%
of the average of the Closing Prices per security of the Exchange
Issuer Securities over such one-year period, and for purposes of
applying the formula set forth in clause (iii) above, the fair market
value of such dividends being calculated pursuant to such clause (iii)
shall be equal to (x) the aggregate amount of all such cash dividends
occurring in such period minus (y) the aggregate amount of such other
cash dividends occurring in such period for which a prior adjustment
in the Exchange Rate was previously made under this Section 13.3(a).
In making the determinations required by the foregoing sentence, the
amount of cash dividends paid on a per security basis shall be
appropriately adjusted to reflect the occurrence during such period of
any event described in Section 13.3(a).
(b) Adjustment for Consolidation, Merger or Other Reorganization
Event. In the event of (i) any consolidation or merger of an Exchange
Issuer, or any surviving entity or subsequent surviving entity of an
Exchange Issuer (an "Exchange Issuer Successor"), with or into another
entity (other than a merger or consolidation in which such Exchange Issuer
is the continuing corporation and in which the Exchange Issuer Securities
outstanding immediately prior to the merger or consolidation are not
exchanged for cash, securities or other property of such Exchange Issuer or
another corporation), (ii) any sale, transfer, lease or conveyance to
another corporation of the property of such Exchange Issuer or any Exchange
Issuer Successor as an entirety or substantially as an entirety, (iii) any
statutory exchange of securities of such Exchange Issuer or any Exchange
Issuer Successor with another corporation (other than in connection with a
merger or acquisition) or (iv) any liquidation, dissolution or winding up
of such Exchange Issuer or any Exchange Issuer Successor (any such event, a
"Reorganization Event"), the Exchange Rate used to determine the amount
payable upon exchange at Maturity for each MEDS of the relevant series will
be adjusted to provide that each holder of MEDS of such series will receive
at Maturity cash in an amount equal to (a) if the Transaction Value (as
defined below) is greater than or equal to the Threshold Appreciation
Price, the product of (I) a fraction, the numerator of which is one and the
denominator of which is the sum of one and the Conversion Premium and (II)
the Transaction Value, (b) if the Transaction Value is less than the
Threshold Appreciation Price but greater than the Initial Price, the
Initial Price and (c) if the Transaction Value is less than or equal to the
Initial Price, the Transaction Value. "Transaction Value" means (x) for any
cash received in any such Reorganization Event, the amount of cash received
per Exchange Issuer Security, (y) for any property other than cash or
securities received in any such Reorganization Event, an amount equal to
the market value at Maturity of such property received per Exchange Issuer
Security as determined by a nationally recognized independent investment
banking firm retained for such purpose by the Company and (z) for any
securities received in any such Reorganization Event, an amount equal to
the average Closing Price per security of such securities on the 20 Trading
Days immediately prior to Maturity, multiplied by the number of such
securities received for each Exchange Issuer Security. Notwithstanding the
foregoing, in lieu of delivering cash as provided above, the Company may at
its option deliver an equivalent value of securities or other property
received in such Reorganization Event, determined in accordance with clause
(y) or (z) above, as applicable. The kind and amount of securities into
which the MEDS of the relevant series shall be
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exchangeable after consummation of such transaction shall be subject to
adjustment as described in paragraph (a) above following the date of
consummation of such transaction.
SECTION 13.4. Notice of Adjustments and Certain Other Events. (a)
Whenever the Exchange Rate for any series of MEDS is adjusted as herein
provided, the Company shall:
(i) forthwith compute the adjusted Exchange Rate in accordance
with Section 13.3 and prepare a certificate signed by an officer of
the Company setting forth the adjusted Exchange Rate, the method of
calculation thereof in reasonable detail, and the facts requiring such
adjustment and upon which such adjustment is based, which certificate
shall be conclusive, final and binding evidence of the correctness of
the adjustment, and file such certificate forthwith with the Trustee;
and
(ii) within 10 Business Days following the occurrence of an event
that permits or requires an adjustment to the Exchange Rate pursuant
to Section 13.3 (or if the Company is not aware of such occurrence, as
soon as practicable after becoming so aware), provide written notice
to the Trustee and to the Holders of the outstanding MEDS of the
relevant series of the occurrence of such event and a statement in
reasonable detail setting forth the method by which the adjustment to
the Exchange Rate was determined and setting forth the revised
Exchange Rate per MEDS of such series.
(b) In case at any time while any of the MEDS of any series are
outstanding the Company receives notice that:
(i) an Exchange Issuer shall declare a dividend (or any other
distribution) on or in respect of the Exchange Issuer Securities to
which Section 13.3(a)(i) or (ii) shall apply (other than any cash
dividends and distributions, if any, paid from time to time by such
Exchange Issuer that do not constitute Extraordinary Cash Dividends);
(ii) an Exchange Issuer shall authorize the issuance to all
holders of Exchange Issuer Securities of rights or warrants to
subscribe for or purchase Exchange Issuer Securities or of any other
subscription rights or warrants;
(iii) there shall occur any conversion or reclassification of
Exchange Issuer Securities (other than a subdivision or combination of
outstanding shares of such Exchange Issuer Securities) or any
consolidation, merger or reorganization to which such Exchange Issuer
is a party and for which approval of any securityholders of such
Exchange Issuer is required, or the sale or transfer of all or
substantially all of the assets of an Exchange Issuer; or
(iv) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of an Exchange Issuer;
then the Company shall promptly cause to be delivered to the Trustee and
any applicable paying agent and filed at the office or agency maintained
for the purpose of exchanging the MEDS of the relevant series at Maturity
in the Borough of Manhattan, in The City of New York by the Trustee (or any
applicable paying agent), and shall promptly cause to be mailed to the
Holders of MEDS of the relevant series at their last addresses as they
shall appear upon
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the registration books of the Trustee (or any applicable note registrar),
at least 10 days before the date hereinafter specified (or the earlier of
the dates hereinafter specified, in the event that more than one is
specified), a notice stating (x) the date on which a record is to be taken
for the purpose of such dividend, distribution or grant of rights or
warrants, or, if a record is not to be taken, the date as of which the
holders of the Exchange Issuer Securities of record to be entitled to such
dividend, distribution or grant of rights or warrants are to be determined,
or (y) the date, if known by the Company, on which such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding
up is expected to become effective.
(c) On or prior to seven Business Days preceding the Stated Maturity
of the MEDS of any series, the Company will provide notice to the Holders
of record of the MEDS of such series and to the Trustee and will provide
such other notice as specified in the applicable Prospectus Supplement
stating whether the Company has irrevocably elected to deliver Exchange
Issuer Securities or cash (or any other property or securities that may be
delivered pursuant to Section 13.3(b)) upon the mandatory exchange of the
principal amount of the MEDS of such series in accordance with Section 13.
1.
SECTION 13.5. Shares Free and Clear. The Company hereby warrants that
upon exchange of MEDS at Maturity pursuant to this Indenture, the Holder of
MEDS shall receive all rights held by the Company in the Exchange Issuer
Securities for which such MEDS are at such time exchangeable pursuant to
this Indenture, free and clear of any and all liens, claims, charges and
encumbrances other than any liens, claims, charges and encumbrances which
may have been placed on any Exchange Issuer Securities by the prior owner
thereof, prior to the time such Exchange Issuer Securities were acquired by
the Company. In addition, the Company further warrants that any Exchange
Issuer Securities so delivered in exchange for MEDS hereunder shall be free
of any transfer restrictions under United States laws (other than such as
are solely attributable to any Holder's status as an affiliate of such
Exchange Issuer).
SECTION 13.6. Cancellation of Security. Upon receipt by the Trustee of
MEDS delivered to it for exchange under this Article Thirteen, the Trustee
shall cancel and dispose of the same as provided in Section 2.10.
(e) By amending the table of contents of the Basic Indenture to
reflect the additions described in sections (a) and (d) of this Section 1.02.
ARTICLE II
Miscellaneous
SECTION 2.01. Single Indenture. The Basic Indenture, as supplemented
and amended by this Supplemental Indenture and all other indentures supplemental
thereto, is in all respects ratified and confirmed, and the Basic Indenture,
this Supplemental Indenture and all indentures supplemental thereto shall be
read, taken and construed as one and the same instrument.
SECTION 2.02. Trust Indenture Act. If any provision hereof limits,
qualifies or conflicts with another provision hereof which is required to be
included in this Supplemental
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Indenture by any of the provisions of the Trust Indenture Act, such required
provision shall control.
SECTION 2.03. Successors and Assigns. All covenants and agreements in this
Supplemental Indenture by the Company shall bind its successors and assigns,
whether so expressed or not.
SECTION 2.04. Severability. In case any provision in this Supplemental
Indenture or in the Securities of any series shall be invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions (or of the other series of Securities) shall not in any way be
affected or impaired thereby.
SECTION 2.05. Third Party Rights. Nothing in this Supplemental Indenture,
expressed or implied, shall give to any Person, other than the parties hereto
and their successors hereunder, and the Holders of each series of Securities any
benefit or any legal or equitable right, remedy or claim under this Supplemental
Indenture.
SECTION 2.06. Applicable Law. This Supplemental Indenture and each Security
of any series shall be deemed to be a contract made under the laws of the State
of New York and this Supplemental Indenture and each such Security shall be
governed by and construed in accordance with the laws of the State of New York.
SECTION 2.07. Defined Terms. All terms used in this Supplemental Indenture
not otherwise defined herein that are defined in the Basic Indenture shall have
the meanings set forth therein.
SECTION 2.08. Counterparts. This Supplemental 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 2.09. Responsibility of Company. The recitals contained herein and
in the Securities, except the certificate of authentication of the Trustee
thereon, shall be taken as statements of the Company, and the Trustee assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of the Basic Indenture, this Supplemental Indenture
or of the Securities and shall not be accountable for the use or application by
the Company of the Securities or the proceeds thereof.
SECTION 2.10. Headings. The headings used herein are for convenience of
reference only, are not part of this Supplemental Indenture and are not to
affect the construction of, or to be taken into consideration in interpreting,
this Supplemental Indenture.
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
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