Exhibit 10.2
TITAN INTERNATIONAL, INC.
5-1/4% Senior Convertible Notes
due 2009
INDENTURE
U.S. BANK NATIONAL ASSOCIATION
Dated as of July 26, 2004
CROSS REFERENCE TABLE*
TIA Section Indenture Section
310(a)(1)........................................................................... 7.10
(a)(2)........................................................................... N.A.
(a)(3)........................................................................... N.A.
(a)(4)........................................................................... N.A.
(a)(5)........................................................................... N.A.
(b).............................................................................. 7.10
(c).............................................................................. N.A.
311(a).............................................................................. 7.11
(b).............................................................................. 7.11
(c).............................................................................. N.A.
312(a).............................................................................. N.A.
(b).............................................................................. 11.03
(c).............................................................................. 11.03
313(a).............................................................................. 7.06
(b).............................................................................. 7.06
(c).............................................................................. N.A.
(d).............................................................................. N.A.
314(a).............................................................................. 4.02
(b).............................................................................. N.A.
(c)(1)........................................................................... N.A.
(c)(2)........................................................................... N.A.
(c)(3)........................................................................... N.A.
(d).............................................................................. N.A.
(e).............................................................................. N.A.
(f).............................................................................. N.A.
315(a).............................................................................. 7.01
(b).............................................................................. 7.05
(c).............................................................................. N.A.
(d)(1)........................................................................... 7.01
(d)(2)........................................................................... 7.01
(d)(3)........................................................................... 7.01
(e).............................................................................. 6.11
316(a) (last sentence).............................................................. N.A.
(a)(1)(A)........................................................................ 6.05
(a)(1)(B)........................................................................ 6.04
(a)(2)........................................................................... N.A.
(b).............................................................................. N.A.
317(a)(1)........................................................................... N.A.
(a)(2)........................................................................... N.A.
(b).............................................................................. N.A.
318(a).............................................................................. N.A.
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* Note: This Cross Reference Table shall not, for any purpose, be deemed to be
part of the Indenture.
TABLE OF CONTENTS
PAGE
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions............................................................................. 1
SECTION 1.02 Other Definitions....................................................................... 7
SECTION 1.03 Incorporation by Reference of Trust Indenture Act....................................... 8
SECTION 1.04 Rules of Construction................................................................... 8
SECTION 1.05 Acts of Holders......................................................................... 8
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating......................................................................... 9
SECTION 2.02 Execution and Authentication............................................................ 11
SECTION 2.03 Registrar, Paying Agent, Bid Solicitation Agent and Conversion Agent.................... 11
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust...................................... 12
SECTION 2.05 Holder Lists............................................................................ 12
SECTION 2.06 Transfer and Exchange................................................................... 12
SECTION 2.07 Replacement Securities.................................................................. 14
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action............................... 15
SECTION 2.09 Temporary Securities.................................................................... 15
SECTION 2.10 Cancellation............................................................................ 16
SECTION 2.11 Persons Deemed Owners................................................................... 16
SECTION 2.12 Global Securities....................................................................... 16
SECTION 2.13 CUSIP Numbers........................................................................... 21
SECTION 2.14 Defaulted Interest...................................................................... 21
SECTION 2.15 Registration Default.................................................................... 21
ARTICLE 3
PURCHASES OF SECURITIES
SECTION 3.01 Purchase of Securities at Option of the Holder upon Change in Control................... 22
SECTION 3.02 Effect of Change in Control Purchase Notice............................................. 28
SECTION 3.03 Deposit of Change in Control Purchase Price............................................. 29
SECTION 3.04 Securities Purchased in Part............................................................ 29
SECTION 3.05 Covenant to Comply with Securities Laws upon Purchase of Securities..................... 29
SECTION 3.06 Repayment to the Company................................................................ 30
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the Securities............................... 30
SECTION 4.02 SEC and Other Reports................................................................... 30
SECTION 4.03 Compliance Certificate.................................................................. 31
SECTION 4.04 Further Instruments and Acts............................................................ 31
SECTION 4.05 Maintenance of Office or Agency......................................................... 31
SECTION 4.06 Delivery of Certain Information......................................................... 31
SECTION 4.07 Additional Interest Amounts Notice...................................................... 32
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01 When Company May Merge or Transfer Assets............................................... 32
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default....................................................................... 33
SECTION 6.02 Acceleration............................................................................ 35
SECTION 6.03 Other Remedies.......................................................................... 35
SECTION 6.04 Waiver of Past Defaults................................................................. 35
SECTION 6.05 Control by Majority..................................................................... 36
SECTION 6.06 Limitation on Suits..................................................................... 36
SECTION 6.07 Rights of Holders to Receive Payment and to Convert..................................... 36
SECTION 6.08 Collection Suit by Trustee.............................................................. 37
SECTION 6.09 Trustee May File Proofs of Claim........................................................ 37
SECTION 6.10 Priorities.............................................................................. 37
SECTION 6.11 Undertaking for Costs................................................................... 38
SECTION 6.12 Waiver of Stay, Extension or Usury Laws................................................. 38
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee....................................................................... 38
SECTION 7.02 Rights of Trustee....................................................................... 39
SECTION 7.03 Individual Rights of Trustee............................................................ 41
SECTION 7.04 Trustee's Disclaimer.................................................................... 41
SECTION 7.05 Notice of Defaults...................................................................... 41
SECTION 7.06 Reports by Trustee to Holders........................................................... 42
SECTION 7.07 Compensation and Indemnity.............................................................. 42
SECTION 7.08 Replacement of Trustee.................................................................. 42
SECTION 7.09 Successor Trustee by Merger............................................................. 43
SECTION 7.10 Eligibility; Disqualification........................................................... 43
SECTION 7.11 Preferential Collection of Claims Against Company....................................... 43
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities.................................................... 44
SECTION 8.02 Repayment of the Company................................................................ 44
SECTION 8.03 Deposited Monies to Be Held in Trust by Trustee......................................... 44
SECTION 8.04 Reinstatement........................................................................... 44
ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders.............................................................. 45
SECTION 9.02 With Consent of Holders................................................................. 46
SECTION 9.03 Compliance with Trust Indenture Act..................................................... 46
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions.................................. 46
SECTION 9.05 Notation on or Exchange of Securities................................................... 47
SECTION 9.06 Trustee to Sign Supplemental Indentures................................................. 47
SECTION 9.07 Effect of Supplemental Indentures....................................................... 47
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion Rate.................................................... 47
SECTION 10.02 Exercise of Conversion Right............................................................ 47
SECTION 10.03 Fractions of Shares..................................................................... 49
SECTION 10.04 Adjustment of Conversion Rate........................................................... 49
SECTION 10.05 Notice of Adjustments of Conversion Rate................................................ 55
SECTION 10.06 Notice Prior to Certain Actions......................................................... 56
SECTION 10.07 Company to Reserve Common Stock......................................................... 57
SECTION 10.08 Taxes on Conversions.................................................................... 57
SECTION 10.09 Covenant as to Common Stock............................................................. 57
SECTION 10.10 Cancellation of Converted Securities.................................................... 57
SECTION 10.11 Effect of Reclassification, Consolidation, Merger or Sale............................... 57
SECTION 10.12 Adjustment for Other Distributions...................................................... 58
SECTION 10.13 Responsibility of Trustee for Conversion Provisions..................................... 59
SECTION 10.14 Rights Issued in Respect of Common Stock Issued Upon Conversion......................... 60
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls............................................................ 60
SECTION 11.02 Notices................................................................................. 60
SECTION 11.03 Communication by Holders with Other Holders............................................. 61
SECTION 11.04 Certificate and Opinion as to Conditions Precedent...................................... 61
SECTION 11.05 Statements Required in an Officers' Certificate or Opinion.............................. 61
SECTION 11.06 Separability Clause..................................................................... 62
SECTION 11.07 Rules by Trustee, Paying Agent, Conversion Agent and Registrar.......................... 62
SECTION 11.08 Legal Holidays.......................................................................... 62
SECTION 11.09 GOVERNING LAW........................................................................... 62
SECTION 11.10 No Recourse Against Others.............................................................. 62
SECTION 11.11 Successors.............................................................................. 62
SECTION 11.12 Multiple Originals...................................................................... 62
EXHIBITS
Exhibit A Form of Global Security................................................................. A-1
Exhibit B Form of Certificated Security........................................................... B-1
Exhibit C Transfer Certificate.................................................................... C-1
INDENTURE dated as of July 26, 2004 between TITAN INTERNATIONAL, INC.,
an Illinois corporation (the "Company"), and U.S. BANK NATIONAL ASSOCIATION, as
Trustee hereunder (the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 5-1/4%
Senior Convertible Notes due 2009 (the "Securities") of substantially the tenor
and amount hereinafter set forth, and to provide therefor the Company has duly
authorized the execution and delivery of this Indenture.
All things necessary to make the Securities, when the Securities are
executed by the Company and authenticated and delivered hereunder, the valid
obligations of the Company, and to make this Indenture a valid and binding
agreement of the Company, in accordance with their and its terms, have been
done. Further, all things necessary to duly authorize the issuance of the Common
Stock of the Company issuable upon the conversion of the Securities, and to duly
reserve for issuance the number of shares of Common Stock issuable upon such
conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.01 Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with GAAP; and
(3) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"144A Global Security" means a permanent Global Security in the form of
the Security attached hereto as Exhibit A, and that is deposited with and
registered in the name of the Depositary, representing Securities sold in
reliance on Rule 144A under the Securities Act.
"30-day Option" means the 30-day option granted by the Company to the
Initial Purchasers to purchase up to an additional $15,000,000 aggregate
principal amount of Securities pursuant to the Purchase Agreement.
"Additional Interest Amount" means the additional interest amount
payable by the Company upon the occurrence of an Event (as defined in the
Registration Rights Agreement), in the manner and in the amounts provided by the
Registration Rights Agreement.
"Affiliate" of any specified person means any other person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified person. For purposes of this definition, "control"
when used with respect to any specified person means the power to direct or
cause the direction of the management and policies of such person, directly or
indirectly, whether through the ownership of voting securities, by contract or
otherwise; and the terms "controlling" and "controlled" have meanings
correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each case to the
extent applicable to such transaction and as in effect from time to time.
"bank credit facilities" means the Company's three-year $100 million
senior secured revolving credit facility entered into as of July 23, 2004 among
the Company and LaSalle Bank Association and General Electric Capital
Corporation.
"Bankruptcy Law" means Title 11, United States Code, or any similar
federal or state law for the relief of debtors.
"Bid Solicitation Agent" means any person authorized by the Company to
solicit bids in accordance with Article 10 hereof.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
"Business Day" means each day of the year other than a Saturday or a
Sunday on which banking institutions are not required or authorized to close in
The City of New York.
"Capital Stock" of any corporation means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock or other equity issued by that
corporation.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit B.
2
"Closing Time" has the meaning specified in the Purchase Agreement.
"Common Stock" means the Common Stock, no par value per share, of the
Company as it exists on the date of this Indenture. Subject to the provisions of
Section 10.11, shares issuable on conversion of Securities shall include only
shares of Common Stock or shares of any class or classes of common stock
resulting from any reclassification or reclassifications thereof; provided,
however, that if at any time there shall be more than one such resulting class,
the shares so issuable on conversion of Securities shall include shares of all
such classes, and the shares of each such class then so issuable shall be
substantially in the proportion which the total number of shares of such class
resulting from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"common stock" means any stock of any class of Capital Stock 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 issuer.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture, and, thereafter, "Company" shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers.
"Conversion Agent" means any person authorized by the Company to
convert Securities in accordance with Article 10 hereof. On the date of this
Indenture, the Company hereby appoints the Trustee as the Conversion Agent.
"Conversion Price" means $1,000 divided by the applicable Conversion
Rate.
"Conversion Value" for the Securities is equal to the product of (i)
the Sale Price per share of the Common Stock on a given day and (ii) the then
current Conversion Rate.
"Corporate Trust Office" means the principal office of the Trustee at which at
any time its corporate trust business shall be administered, which office at the
date hereof is located at U.S. Bank, Corporate Trust Services, 100 Wall Street,
Suite 1600, New York, New York 10005, or such other address as the Trustee may
designate from time to time by notice to the Holders and the Company, or the
principal corporate trust office of any successor Trustee (or such other address
as a successor Trustee may designate from time to time by notice to the Holders
and the Company).
"Custodian" means any receiver, trustee, assignee, liquidator,
custodian or similar official under any Bankruptcy Law.
"Date of Delivery" has the meaning specified in the Purchase Agreement.
"Default" means any event which is, or after notice or passage of time
or both would be, an Event of Default.
3
"Dollar" or "U.S.$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"GAAP" means United States generally accepted accounting principles as
in effect from time to time.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A and, to the extent that such Securities
are required to bear the Legend required by Section 2.06, such Securities will
be in the form of a 144A Global Security.
"Holder" means a person in whose name a Security is registered on the
Registrar's books.
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Initial Purchasers" mean Merrill Lynch, Pierce, Fenner & Smith
Incorporated, LaSalle Debt Capital Markets, a division of ABN AMRO Financial
Services, Inc. and Harris Nesbitt Corp.
"Interest Payment Date" means the date specified in the Securities as
the fixed date on which an installment of interest on the Securities is due and
payable.
"Interest Rate" means 5-1/4% per annum.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Officer" means the Chairman of the Board, the Vice Chairman, the Chief
Executive Officer, the President, any Executive Vice President, any Senior Vice
President, any Vice President, the Treasurer or the Secretary or any Assistant
Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Section 11.05, signed in the name of the Company by any
two Officers, and delivered to the Trustee. An Officers' Certificate given
pursuant to Section 4.03 shall be signed by one authorized financial or
accounting Officer of the Company but need not contain the information specified
in Section 11.05.
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 11.04 and 11.05, from legal counsel who is reasonably
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"person" or "Person" means any individual, corporation, limited
liability company, partnership, joint venture, association, joint-stock company,
trust, unincorporated organization, or government or any agency or political
subdivision thereof, including any
4
subdivision or ongoing business of any such entity or substantially all of the
assets of any such entity, subdivision or business.
"principal" of a Security means the principal amount due on the Stated
Maturity as set forth on the face of the Security.
"Purchase Agreement" means the Purchase Agreement, dated as of July 20,
2004, between the Company and the Initial Purchasers.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of July 26, 2004 entered into by the Company and the Initial
Purchasers.
"Regular Record Date" means, with respect to the interest payable on
any Interest Payment Date, the close of business on the June 15 or December 15
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Responsible Officer" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant secretary, assistant treasurer,
trust officer or any other officer of the Trustee who customarily performs
functions similar to those performed by the Persons who at the time shall be
such officers, respectively, or to whom any corporate trust matter is referred
because of such person's knowledge of and familiarity with the particular
subject.
"Restricted Security" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A and B of this
Indenture.
"Rule 144" means Rule 144 under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Sale Price" as of any date means the closing per share sale price (or
if no closing sale price is reported, the average of the bid price and ask
prices or, if more than one in either case, the average of the average bid and
average ask prices) on such date on the New York Stock Market or such other
principal United States securities exchange on which the Common Stock is traded
or, if the Common Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of Securities
Dealers Automated Quotation System or by the National Quotation Bureau
Incorporated. In the absence of a quotation, the Company will determine the sale
price on the basis of such quotations as the Company considers appropriate.
"SEC" means the Securities and Exchange Commission.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals of the Company."
5
"Securities Act" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.
"Significant Subsidiary" means any Subsidiary that would be, as of the
date of the applicable action set forth in Section 6.01(6) or Section 6.01(7)
hereof, a "significant subsidiary" of the Company within the meaning of Rule
1-02(w) of Regulation S-X promulgated by the SEC.
"Stated Maturity", when used with respect to any Security, means the
date specified in such Security as the fixed date on which the principal of such
Security is due and payable.
"Subsidiary" means, with respect to any person, (1) any corporation of
which at least a majority of the outstanding stock having by the terms thereof
voting power for the election of directors for such corporation under ordinary
circumstances is at the time, directly or indirectly, owned by such person or
(2) any other person of which at least a majority of the outstanding voting
interest under ordinary circumstances is at the time, directly or indirectly,
owned by such person.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on a
national or regional securities exchange, on the National Association of
Securities Dealers Automated Quotation System, or, if the Common Stock is not
quoted on the National Association of Securities Dealers Automated Quotation
System, on the principal other market on which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction (its "possessions" including Puerto Rico, the
U.S. Virgin Islands, Guam, American Samoa, Wake Island and the Northern Mariana
Islands).
"U.S. Government Obligations" means (A) securities that are (i) direct
obligations of the United States of America, for the payment of which the full
faith and credit of the United States is pledged or (ii) obligations of a Person
controlled or supervised by or acting as an agency or instrumentality of the
United States, the payment of which is unconditionally guaranteed as a full
faith and credit obligation by the United States, which, in either case, are not
callable or redeemable at the option of the issuer thereof at any time prior to
the stated maturity thereof, or (B) any mutual fund that has at least 95% of its
assets continuously invested in investments of the type described in clause (A)
above and has the highest rating attainable by
6
Moody's Investor Services and Standard & Poor's Ratings Services, and shall also
include a depository receipt issued by a bank or trust company as custodian with
respect to any such U.S. Government Obligation or a specific payment of interest
on or principal of any such U.S. Government Obligation held by such custodian
for the account of the holder of a depository receipt; provided that (except as
required by law) such custodian is not authorized to make any deduction from the
amount payable to the holder of such depository receipt from any amount received
by the custodian in respect of the U.S. Government Obligation for the specific
payment of interest on or principal of the U.S. Government Obligation evidenced
by such depository receipt.
SECTION 1.02 Other Definitions.
Term Defined in Section
- ---- ------------------
"Act"............................................................................... 1.05(a)
"Additional Interest Amounts Notice................................................. 4.07
"Agent Members"..................................................................... 2.12(f)(5)
"Change in Control"................................................................. 3.01(a)
"Change in Control Purchase Date"................................................... 3.01(a)
"Change in Control Purchase Notice"................................................. 3.01(c)
"Change in Control Purchase Price".................................................. 3.01(a)
"Conversion Date"................................................................... 10.02
"Conversion Rate"................................................................... 10.01
"Current Market Price".............................................................. 10.04(g)
"Depositary"........................................................................ 2.01(a)
"dividend threshold amount"......................................................... 10.04(e)
"DTC"............................................................................... 2.01(a)
"Effective Date".................................................................... 3.01(a)
"Event of Default".................................................................. 6.01
"Exchange Act"...................................................................... 3.01(a)
"excluded securities"............................................................... 10.04(d)
"Expiration Time"................................................................... 10.04(f)
"Ex-Dividend Date".................................................................. 10.12
"fair market value"................................................................. 10.04(g)
"Legal Holiday"..................................................................... 11.08
"Legend"............................................................................ 2.06(f)
"Make-Whole Premium"................................................................ 3.01(a)
"Non-Electing Share"................................................................ 10.11
"Notice of Default"................................................................. 6.01
"Paying Agent"...................................................................... 2.03
"Purchased Shares".................................................................. 10.04(f)
"Post-Distribution Price"........................................................... 10.12
"QIBs".............................................................................. 2.01(a)
"Record Date"....................................................................... 10.04(g)
"Reference Period".................................................................. 10.04(d)
"Registrar"......................................................................... 2.03
"Rights Plan"....................................................................... 10.14
"Rule 144A Information"............................................................. 4.06
7
"Stock Price"....................................................................... 3.01(a)
"transfer".......................................................................... 2.12(e)
SECTION 1.03 Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture Securities" means the Securities.
"indenture Security holder" means a Holder.
"indenture trustee" or "institutional trustee" means the Trustee.
"obligor" on the indenture Securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
SECTION 1.04 Rules of Construction. Unless the context otherwise
requires:
(a) a term has the meaning assigned to it;
(b) an accounting term not otherwise defined has the meaning assigned
to it in accordance with GAAP as in effect from time to time;
(c) "or" is not exclusive;
(d) "including" means including, without limitation; and
(e) words in the singular include the plural, and words in the plural
include the singular.
SECTION 1.05 Acts of Holders.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided by this Indenture to be given or taken by
Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by their agent
duly appointed in writing; and, except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments are
delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose
8
of this Indenture and conclusive in favor of the Trustee and the Company, if
made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the Person
executing the same, may also be proved in any other manner that the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the register for the
Securities or by a certificate of the Registrar.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of the Board of Directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for purposes of determining whether Holders of the requisite proportion
of outstanding Securities have authorized or agreed or consented to such
request, demand, authorization, direction, notice, consent, waiver or other Act,
and for that purpose the outstanding Securities shall be computed as of such
record date; provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it shall become
effective pursuant to the provisions of this Indenture not later than six months
after the record date.
ARTICLE 2
THE SECURITIES
SECTION 2.01 Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A
and B, which are incorporated into and made a part of this Indenture. The
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation,
9
legend or endorsement required by usage is in a form acceptable to the Company).
The Company shall provide any such notations, legends or endorsements to the
Trustee in writing. Each Security shall be dated the date of its authentication.
(a) 144A Global Securities. Securities offered and sold within the
United States to "qualified institutional buyers" as defined in Rule 144A
("QIBs") in reliance on Rule 144A shall be issued initially in the form of a
144A Global Security, which shall be deposited with the Trustee at its Corporate
Trust Office, as custodian for, and registered in the name of, The Depository
Trust Company ("DTC") or its nominee (such depositary, or any successor thereto,
and any such nominee being hereinafter referred to as the "Depositary") duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the 144A Global Security may from
time to time be increased or decreased by adjustments made on the records of the
Trustee and the Depositary as hereinafter provided.
(b) Global Securities in General. Except as provided in Section 2.06 or
2.12, owners of beneficial interests in Global Securities will not be entitled
to receive physical delivery of Certificated Securities. Each Global Security
shall represent such of the outstanding Securities as shall be specified therein
and each shall provide that it shall represent the aggregate principal amount of
outstanding Securities from time to time endorsed thereon and that the aggregate
principal amount of outstanding Securities represented thereby may from time to
time be reduced or increased, as appropriate, to reflect exchanges and
conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the principal amount of
outstanding Securities represented thereby shall be made by the Trustee in
accordance with instructions given by the Holder thereof as required by Section
2.12 hereof and shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.01(c) shall apply only to
Global Security deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions or held by the Trustee as custodian for such Depositary and (c)
shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR
REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS
IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
10
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS, IN
WHOLE BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR
TO A SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN
ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE TWO OF THE
INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Certificated Securities. Securities not issued as interests in the
Global Securities will be issued in certificated form substantially in the form
of Exhibit B attached hereto.
SECTION 2.02 Execution and Authentication. An Officer shall sign the
Security for the Company by manual or facsimile signature.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities the proper Officers of
the Company shall bind the Company, notwithstanding that such individuals or any
of them have ceased to hold such offices prior to the authentication and
delivery of such Securities or did not hold such offices at the date of
authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized signatory of the
Trustee, and such certificate upon any Security shall be conclusive evidence,
and the only evidence, that such Security has been duly authenticated and
delivered hereunder.
The Trustee shall authenticate and deliver Securities for original
issue in an aggregate principal amount of up to $100,000,000, or an aggregate
principal amount of up to $15,000,000 if the 30-day Option is exercised fully,
upon a Company Order without any further action by the Company. The aggregate
principal amount of Securities outstanding at any time may not exceed the amount
set forth in the foregoing sentence, except as provided in Section 2.07.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 in principal amount and any integral
multiple thereof.
SECTION 2.03 Registrar, Paying Agent, Bid Solicitation Agent and
Conversion Agent. The Company shall maintain an office or agency where
Securities may be presented for registration of transfer or for exchange
("Registrar"), an office or agency where Securities may be presented for
purchase or payment ("Paying Agent") and an office or agency where Securities
may be presented for conversion ("Conversion Agent"). The Company shall also
appoint a Bid Solicitation Agent to act pursuant to Article 10. The Registrar
shall keep a
11
register of the Securities and of their transfer and exchange. The Company may
have one or more co-registrars, one or more additional paying agents and one or
more additional conversion agents. The term Paying Agent includes any additional
paying agent, including any named pursuant to Section 4.05. The term Conversion
Agent includes any additional conversion agent, including any named pursuant to
Section 4.05.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (other than the
Trustee). The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.07. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities. None of the Company or
any Subsidiary or any Affiliate of the Company may act as Bid Solicitation
Agent.
SECTION 2.04 Paying Agent to Hold Money and Securities in Trust. Except
as otherwise provided herein, on or prior to each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum
of money (in immediately available funds if deposited on the due date)
sufficient to make such payments when so becoming due. The Company shall require
each Paying Agent (other than the Trustee) to agree in writing that the Paying
Agent shall hold in trust for the benefit of Holders or the Trustee all money
held by the Paying Agent for the making of payments in respect of the Securities
and shall notify the Trustee of any default by the Company in making any such
payment. At any time during the continuance of any such default, the Paying
Agent shall, upon the written request of the Trustee, forthwith pay to the
Trustee all money so held in trust. If the Company, a Subsidiary or an Affiliate
of either of them acts as Paying Agent, it shall segregate the money held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by it. Upon doing so, the Paying Agent shall
have no further liability for the money.
SECTION 2.05 Holder Lists. The Trustee shall preserve in as current a
form as is reasonably practicable the most recent list available to it of the
names and addresses of Holders. If the Trustee is not the Registrar, the Company
shall cause to be furnished to the Trustee at least semiannually on each June 15
and December 15 during the term of the Securities a listing of Holders dated
within 13 days of the date on which the list is furnished and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Holders.
SECTION 2.06 Transfer and Exchange. Subject to Sections 2.01(b),
2.06(b) and 2.12 hereof,
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(a) (i) upon surrender for registration of transfer of any Security,
together with a written instrument of transfer satisfactory to the Registrar
duly executed by the Holder or such Holder's attorney duly authorized in
writing, at the office or agency of the company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute, and the
Trustee shall authenticate and deliver, in the name of the designated transferee
or transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer
or exchange of the Securities from the Holder requesting such transfer or
exchange.
(ii) At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like
aggregate principal amount, upon surrender of the Securities to be
exchanged, together with a written instrument of transfer satisfactory to
the Registrar duly executed by the Holder or such Holder's attorney duly
authorized in writing, at such office or agency. Whenever any Securities
are so surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Securities that the Holder
making the exchange is entitled to receive.
(iii) The Company shall not be required to make, and the Registrar need
not register, transfers or exchanges of Securities in respect of which a
Change in Control Purchase Notice has been given and not withdrawn by the
Holder thereof in accordance with the terms of this Indenture (except, in
the case of Securities to be purchased in part, the portion thereof not to
be purchased).
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.06(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
13
(f) If Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the form of Security attached hereto as Exhibits A and B setting forth
such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence, which
shall include an Opinion of Counsel, as may be reasonably required by the
Company and the Registrar, that neither the Legend nor the restrictions on
transfer set forth therein are required to ensure that transfers thereof comply
with the provisions of Rule 144A or Rule 144 under the Securities Act or that
such Securities are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon (i) provision of such satisfactory evidence, or (ii)
notification by the Company to the Trustee and Registrar of the sale of such
Security pursuant to a registration statement that is effective at the time of
such sale, the Trustee, at the written direction of the Company, shall
authenticate and deliver a Security that does not bear the Legend.
(g) Any Security or Common Stock issued upon the conversion or exchange
of a Security that 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
Securities or Common Stock, as the case may be, no longer being "restricted
securities" (as defined under Rule 144).
SECTION 2.07 Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such Security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and principal amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article 3 hereof, the Company in its discretion may, instead
of issuing a new Security, pay or purchase such Security, as the case may be.
Upon the issuance of any new Securities under this Section 2.07, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.07 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
14
The provisions of this Section 2.07 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08 Outstanding Securities; Determinations of Holders' Action.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it or delivered to it for cancellation,
those paid pursuant to Section 2.07 and those described in this Section 2.08 as
not outstanding. A Security does not cease to be outstanding because the Company
or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of the
outstanding Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
knows to be so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in
any such determination (including, without limitation, determinations pursuant
to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If the Paying Agent holds, in accordance with this Indenture, on or
prior to the Business Day following the Change in Control Purchase Date, or on
the Stated Maturity, money or securities, if permitted hereunder, sufficient to
pay Securities payable on that date, then immediately after such Change in
Control Purchase Date or Stated Maturity, as the case may be, such Securities
shall cease to be outstanding and interest on such Securities shall cease to
accrue.
If a Security is converted in accordance with Article 10, then from and
after the time of conversion on the conversion date, such Security shall cease
to be outstanding and interest shall cease to accrue on such Security.
SECTION 2.09 Temporary Securities. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive Securities in lieu of
which they are issued and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Securities may
determine, as conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any
15
one or more temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 2.10 Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion or registration of
transfer or exchange shall, if surrendered to any person other than the Trustee,
be delivered to the Trustee and shall be promptly cancelled by it. The Company
may at any time deliver to the Trustee for cancellation any Securities
previously authenticated and delivered hereunder which the Company may have
acquired in any manner whatsoever, and all Securities so delivered shall be
promptly cancelled by the Trustee. The Company may not reissue, reoffer or
resell new Securities to replace Securities it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant to Article
10. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section 2.10, except as expressly
permitted by this Indenture. All cancelled Securities shall be disposed of by
the Trustee in accordance with its customary procedures.
SECTION 2.11 Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Change in Control Purchase Price
in respect thereof, and interest thereon, for the purpose of conversion and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 2.12 Global Securities.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, (A) transfers of a Global Security, in whole or in part, shall
be made only in accordance with Sections 2.06 and 2.12(a)(i), (B) transfer
of a beneficial interest in a Global Security for a Certificated Security
shall comply with Sections 2.06 and 2.12(a)(ii) below, and (C) transfers
of a Certificated Security shall comply with Section 2.06 and Sections
2.12(a)(iii) and (iv) below.
(i) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any Person other than the Depositary
or a nominee or any successor thereof, and no such transfer to any such
other Person may be registered; provided that this clause (i) shall not
prohibit any transfer of a Security that is issued in exchange for a
Global Security but is not itself a Global Security. No transfer of a
Security to any Person shall be effective under this Indenture or the
Securities unless and until such Security has been registered in the name
of such Person. Nothing in this Section 2.12(a)(i) shall prohibit or
render ineffective (i) any transfer of a beneficial interest in a Global
Security effected in accordance with the other provisions of this Section
2.12(a); and (ii) the transfer and exchange of beneficial interests in a
Global Security effected through the Depositary in accordance with this
Indenture and the procedures of the Depositary.
16
(ii) Restrictions on Transfer of a Beneficial Interest in a Global
Security for a Certificated Security. A beneficial interest in a Global
Security may not be exchanged for a Certificated Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a transfer of a beneficial interest in a Global Security in
accordance with Applicable Procedures for a Certificated Security in the
form satisfactory to the Trustee, together with:
(1) so long as the Securities are Restricted Securities, a
certification in the form set forth in Exhibit C;
(2) written instructions from the Company to the Trustee to make,
or direct the Registrar to make, an adjustment on its books and records
with respect to such Global Security to reflect a decrease in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the
Depositary account to be credited with such decrease; and
(3) if the Company or Registrar so requests, an opinion of counsel
or other evidence reasonably satisfactory to them as to the compliance
with the restrictions set forth in the Legend,
then the Trustee shall cause, or direct the Registrar to cause, in accordance
with the standing instructions and procedures existing between the Depositary
and the Registrar, the aggregate principal amount of Securities represented by
the Global Security to be decreased by the aggregate principal amount of the
Certificated Security to be issued, shall issue such Certificated Security and
shall debit or cause to be debited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to the
principal amount of the Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented to the Registrar with a request:
(x) to register the transfer of such Certificated
Securities; or
(y) to exchange such Certificated Securities for an equal
principal amount of Certificated Securities of other authorized
denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Securities surrendered for
transfer or exchange:
(1) shall be duly endorsed or accompanied by a written
instrument of transfer in form reasonably satisfactory to the
Company and the Registrar, duly executed by the Holder thereof or
his attorney duly authorized in writing; and
(2) so long as such Securities are Restricted Securities,
such Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are
17
accompanied by the following additional information and documents,
as applicable:
(A) if such Certificated Securities are being
delivered to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a certification from
such Holder to that effect; or
(B) if such Certificated Securities are being
transferred to the Company, a certification to that effect; or
(C) if such Certificated Securities are being
transferred pursuant to an exemption from registration, (i) a
certification to that effect (in the form set forth in Exhibit
C, if applicable) and (ii) if the Company or Registrar so
requests, an Opinion of Counsel or other evidence reasonably
satisfactory to them as to the compliance with the
restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated Security may not
be exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the
Trustee of a Certificated Security, duly endorsed or accompanied by
appropriate instruments of transfer, in form reasonably satisfactory to
the Trustee, together with:
(1) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit C, that such
Certificated Security is being transferred to a QIB in accordance
with Rule 144A; and
(2) written instructions directing the Trustee to make, or
to direct the Registrar to make, an adjustment on its books and
records with respect to such Global Security to reflect an increase
in the aggregate principal amount of the Securities represented by
the Global Security, such instructions to contain information
regarding the Depositary account to be credited with such increase,
then the Trustee shall cancel such Certificated Security and cause,
or direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate principal amount of Securities represented
by the Global Security to be increased by the aggregate principal
amount of the Certificated Security to be exchanged, and shall
credit or cause to be credited to the account of the Person
specified in such instructions a beneficial interest in the Global
Security equal to the principal amount of the Certificated Security
so cancelled. If no Global Securities are then outstanding, the
Company shall issue and the Trustee shall authenticate, upon written
order of the Company in the form of an Officers' Certificate, a new
Global Security in the appropriate principal amount.
18
(b) Subject to the succeeding paragraph, every Security shall be
subject to the restrictions on transfer provided in the Legend, including the
delivery of an Opinion of Counsel, if so provided. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit C, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for such registration of transfer or
exchange any Security not so accompanied by a properly completed certificate and
other evidence the Registrar may request as to the compliance with the
restrictions set forth in the Legend.
(c) The restrictions imposed by the Legend upon the
transferability of any Security shall cease and terminate when such Security has
been sold pursuant to an effective registration statement under the Securities
Act or transferred in compliance with Rule 144 or, if earlier, upon the
expiration of the holding period applicable to sales thereof under Rule 144(k).
Any Security as to which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a surrender of
such Security for exchange to the Registrar in accordance with the provisions of
this Section 2.12 (accompanied, in the event that such restrictions on transfer
have terminated by reason of a transfer in compliance with Rule 144, by an
Opinion of Counsel having substantial experience in practice under the
Securities Act and otherwise reasonably acceptable to the Company, addressed to
the Company and in form acceptable to the Company, to the effect that the
transfer of such Security has been made in compliance with Rule 144 or such
successor provision), be exchanged for a new Security, of like tenor and
aggregate principal amount, which shall not bear the restrictive Legend. The
Company shall inform the Trustee of the effective date of any registration
statement registering the Securities under the Securities Act. The Trustee shall
have no obligation or duty to monitor, determine or inquire as to compliance
with any restrictions on transfer imposed under this Indenture or under
applicable law with respect to any transfer of any interest in any Security
(including any transfers between or among DTC participants, members or
beneficial owners in any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly required by,
and to do so if and when expressly required by, the terms of this Indenture, and
to examine the same to determine substantial compliance as to form with the
express requirements hereof. The Trustee shall not be liable for any action
taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.
(d) In the event that Rule 144(k) as promulgated under the
Securities Act is amended to shorten the two-year restriction period, then
restrictions on transfer on the Securities and the Common Stock will be deemed
to refer to the shortened restriction period. The Company undertakes to inform
the Trustee if such change to Rule 144(k) occurs and the effect (if any) to the
restrictions on transfer applicable to the Securities and Common Stock and shall
provide additional information (including an Opinion of Counsel and/or an
Officers' Certificate) if so requested by the Trustee.
(e) As used in the preceding two paragraphs of this Section 2.12,
the term "transfer" encompasses any sale, pledge, transfer, hypothecation or
other disposition of any Security.
19
(f) The provisions of clauses (1), (2), (3), (4) and (5) below
shall apply only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture
or the Securities, except as provided in Section 2.12(a)(i), a
Global Security shall not be exchanged in whole or in part for a
Security registered in the name of any Person other than the
Depositary or one or more nominees thereof; provided that a Global
Security may be exchanged for Securities registered in the names of
any person designated by the Depositary in the event that (i) the
Depositary has notified the Company that it is unwilling or unable
to continue as Depositary for such Global Security or such
Depositary has ceased to be a "clearing agency" registered under the
Exchange Act, and a successor Depositary is not appointed by the
Company within 90 days or (ii) an Event of Default has occurred and
is continuing with respect to the Securities. Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged in
whole and not in part, and any Global Security exchanged pursuant to
clause (ii) above may be exchanged in whole or from time to time in
part as directed by the Depositary. Any Security issued in exchange
for a Global Security or any portion thereof shall be a Global
Security; provided that any such Security so issued that is
registered in the name of a Person other than the Depositary or a
nominee thereof shall not be a Global Security.
(2) Securities issued in exchange for a Global Security or
any portion thereof shall be issued in definitive, fully registered
form, without interest coupons, shall have an aggregate principal
amount equal to that of such Global Security or portion thereof to
be so exchanged, shall be registered in such names and be in such
authorized denominations as the Depositary shall designate and shall
bear the applicable legends provided for herein. Any Global Security
to be exchanged in whole shall be surrendered by the Depositary to
the Trustee, as Registrar. With regard to any Global Security to be
exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of
an appropriate adjustment made on the records of the Trustee. Upon
any such surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the order
of the Depositary or an authorized representative thereof.
(3) Subject to the provisions of clause (5) below, the
registered Holder may grant proxies and otherwise authorize any
Person, including Agent Members (as defined below) and persons that
may hold interests through Agent Members, to take any action which a
Holder is entitled to take under this Indenture or the Securities.
(4) In the event of the occurrence of any of the events
specified in clause (1) above, the Company will promptly make
available to the Trustee a reasonable supply of Certificated
Securities in definitive, fully registered form, without interest
coupons.
20
(5) Neither any members of, or participants in, the
Depositary (collectively, the "Agent Members") nor any other Persons
on whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered in the
name of the Depositary or any nominee thereof, or under any such
Global Security, and the Depositary or such nominee, as the case may
be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and Holder of such
Global Security for all purposes whatsoever. Notwithstanding the
foregoing, nothing herein shall prevent the Company, the Trustee or
any agent of the Company or the Trustee from giving effect to any
written certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on
whose behalf an Agent Member may act, the operation of customary
practices of such Persons governing the exercise of the rights of a
Holder of any Security.
SECTION 2.13 CUSIP Numbers. The Company in issuing the Securities
may use "CUSIP" numbers; provided that any such notice may state that no
representation is made as to the correctness of such numbers as printed on the
Securities and that reliance may be placed only on the other identification
numbers printed on the Securities. The Company will promptly notify the Trustee
of any change in the CUSIP numbers.
SECTION 2.14 Defaulted Interest. If the Company defaults in a
payment of interest on the Securities, it shall pay, or shall deposit with the
Paying Agent money in immediately available funds sufficient to pay, the
defaulted interest, plus (to the extent lawful) any interest payable on the
defaulted interest, to the Persons who are Holders on a subsequent special
record date. A special record date, as used in this Section 2.14 with respect to
the payment of any defaulted interest, shall mean the 15th day next preceding
the date fixed by the Company for the payment of defaulted interest, whether or
not such day is a Business Day. At least 15 days before the subsequent special
record date, the Company shall mail to each Holder and to the Trustee (or cause
the Trustee to mail to each Holder) a notice that states the subsequent special
record date, the payment date and the amount of defaulted interest to be paid.
SECTION 2.15 Registration Default. The Additional Interest Amount
shall be payable upon the Securities in the case of an Event (as defined in the
Registration Rights Agreement). If an Event occurs, the Company shall deliver to
the Trustee an Officers' Certificate stating (1) the Additional Interest Amount
payable, (2) when such Additional Interest Amount began accruing and (3) when
such Additional Interest Amount is payable. Unless and until a Responsible
Officer of the Trustee receives such an Officer's Certificate, the Trustee shall
assume that no Additional Interest Amount is payable.
21
ARTICLE 3
PURCHASES OF SECURITIES
SECTION 3.01 Purchase of Securities at Option of the Holder upon
Change in Control.
(a) If there shall have occurred a Change in Control, all or any
portion of the Securities of any Holder equal to $1,000 or a whole multiple of
$1,000 shall be purchased by the Company in cash, at the option of such Holder,
at a purchase price equal to 100% of the principal amount of the Securities to
be purchased, together with accrued and unpaid interest, if any, to, but not
including, the purchase date (the "Change in Control Purchase Price"), on the
date (the "Change in Control Purchase Date") that is not later than 30 Business
Days after the date the Company provides notice of a Change in Control in
accordance with Section 3.01(b) hereof, provided, however, that if the Change in
Control Purchase Date is after a Regular Record Date but on or prior to the
corresponding Interest Payment Date, the accrued and unpaid interest becoming
due on such Interest Payment Date shall be payable to the Holders of such
Securities, or one or more predecessor Securities, registered as such on the
relevant Regular Record Date according to their terms, and the Change in Control
Purchase Price shall not include such interest payment.
If there shall have occurred a Change in Control pursuant to clause
(i) or (ii) of the definition thereof, the Company will pay on the Change in
Control Purchase Date a Make-Whole Premium to the Holders of the Securities in
addition to the Change in Control Purchase Price. The Make-Whole Premium will
also be paid on the Change in Control Purchase Date to the Holders of Securities
who convert their Securities on or after the date on which the Company has given
a notice to all Holders of Securities in accordance with Section 3.01(b) hereof
and on or before the Change in Control Purchase Date.
The "Make-Whole Premium" will be determined by reference to the
table below and is based on the date on which the Change in Control becomes
effective (the "Effective Date") and the price (the "Stock Price") paid per
share of the Company's Common Stock in the transaction constituting the Change
in Control. If the holders of the Company's Common Stock receive only cash in
the transaction, the Stock Price shall be the cash amount paid per share of the
Company's Common Stock. Otherwise, the Stock Price shall be equal to the average
Sale Price per share of the Company's Common Stock over the five Trading Day
period ending on the Trading Day immediately preceding the Effective Date.
The following table shows what the Make-Whole Premium would be for
each hypothetical Stock Price and Effective Date set forth below, expressed as a
percentage of the principal amount of the Securities.
22
MAKE-WHOLE PREMIUM UPON A CHANGE IN CONTROL (% OF FACE VALUE)
Effective Date
-----------------------------------------------------------------------------------------------
Stock Price
on Effective July 26, July 26, July 26, July 26, July 26, July 26,
Date 2004 2005 2006 2007 2008 2009
------------ -------- -------- -------- -------- -------- --------
$ 9.87 0.0% 0.0% 0.0% 0.0% 0.0% 0.0%
$13.00 25.8% 23.8% 21.2% 17.7% 12.4% 0.0%
$16.00 26.4% 23.8% 20.5% 16.1% 9.9% 0.0%
$19.00 24.2% 21.4% 17.7% 13.0% 6.9% 0.0%
$22.00 22.7% 19.6% 15.9% 11.2% 5.6% 0.0%
$25.00 21.4% 18.4% 14.6% 10.2% 5.0% 0.0%
$28.00 20.4% 17.4% 13.8% 9.5% 4.7% 0.0%
$40.00 17.6% 14.9% 11.9% 8.3% 4.4% 0.0%
$50.00 15.5% 13.3% 10.7% 7.7% 4.2% 0.0%
$60.00 13.5% 11.6% 9.6% 7.1% 4.1% 0.0%
$70.00 11.5% 9.9% 8.5% 6.6% 3.9% 0.0%
The Make-Whole Premiums set forth above are based upon an interest rate of
5 1/4%, a Sale Price per share of the Company's common stock of $9.87 on July
19, 2004 and a Conversion Rate that results in a Conversion Price of $13.50,
which is 36.78% higher than the Sale Price per share of the Company's common
stock on July 12, 2004.
The actual Stock Price and Effective Date may not be set forth on the
table, in which case:
- If the actual Stock Price on the Effective Date is between two Stock
Prices on the table or the actual Effective Date is between two
Effective Dates on the table, the Make-Whole Premium will be determined
by a straight-line interpolation between the Make-Whole Premiums set
forth for the two Stock Prices and the two Effective Dates on the table
based on a 365-day year, as applicable.
- If the Stock Price on the Effective Date exceeds $70.00 per share
(subject to adjustment described below), no Make-Whole Premium will be
paid.
- If the Stock Price on the Effective Date is less than $9.87 per share
(subject to adjustment described below), no Make-Whole Premium will be
paid.
The Stock Prices set forth in the first column of the table above
will be adjusted as of any date on which the Conversion Rate is adjusted. The
adjusted Stock Prices will equal the Stock Prices applicable immediately prior
to such adjustment multiplied by a fraction, the numerator of which is the
Conversion Rate immediately prior to the adjustment giving rise to the Stock
Price adjustment and the denominator of which is the Conversion Rate so
adjusted.
23
The Company shall pay, at its option, the Make-Whole Premium in cash,
shares of its Common Stock or the same form of consideration used to pay for the
shares of the Company's Common Stock in connection with the transaction
constituting the Change in Control.
If the Company pays the Make-Whole Premium in shares of its Common Stock,
the value of its Common Stock to be delivered in respect of the Make-Whole
Premium shall be deemed to be equal to the average Sale Price per share over the
ten Trading Day period ending on the Trading Day immediately preceding the
Change in Control Purchase Date. The Company may pay the Make-Whole Premium in
shares of its Common Stock only if the information necessary to calculate the
Sale Price per share is published in a daily newspaper of general circulation or
by other appropriate means.
In addition, the Company's right to pay the Make-Whole Premium in shares
of its Common Stock is subject to the satisfaction of the following:
- listing such common stock on the principal United States securities
exchange on which the Common Stock is then listed or, if not so
listed, quoted on Nasdaq National Market;
- the registration of the common stock under the Securities Act and
the Exchange Act, if required; and
- any necessary qualification or registration under applicable state
securities law or the availability of an exemption from such
qualification and registration.
If such conditions are not satisfied with respect to a Holder prior to the
close of business on the Change in Control Purchase Date, the Company shall pay
the Make-Whole Premium in cash. The Company may not change the form of
consideration to be paid with respect to the Make-Whole Premium once it has
given notice set forth in Section 3.01(b) to Holders, except as described in the
immediately preceding sentence.
If the Company pays the Make-Whole Premium in the same form of
consideration used to pay for the shares of the Company's Common Stock in
connection with the transaction constituting the Change in Control, the value of
the consideration to be delivered in respect of the Make-Whole Premium will be
calculated as follows:
- securities that are traded on a United States national securities
exchange or approved for quotation on the Nasdaq National Market or
any similar system of automated dissemination of quotations of
securities prices will be valued based on the average closing price
or last Sale Price, as applicable, over the ten Trading Day period
ending on the Trading Day immediately preceding the Change in
Control Purchase Date;
- other securities, assets or property (other than cash) will be
valued based on 98% of the average of the fair market value of such
securities, assets or property (other than cash) as determined by
two independent nationally recognized investment banks selected by
the trustee; and
24
- 100% of any cash.
A "Change in Control" of the Company shall be deemed to have
occurred at such time after the original issuance of Securities as any of
the following events shall occur:
(i) the acquisition by any person, including any syndicate or
group deemed to be a "person" under Section 13(d)(3) of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), of beneficial
ownership, directly or indirectly, through a purchase, merger (except a
merger by the Company described in Section 3.01(a)(ii)) or other
acquisition transaction or series of transactions, of shares of the
Capital Stock of the Company entitling that person to exercise 50% or more
of the total voting power of all shares of such Capital Stock entitled to
vote generally in elections of directors, other than any acquisition by
the Company, any of its Subsidiaries or any employee benefit plans of the
Company; or
(ii) any consolidation or merger of the Company with or into any
other person, any merger of another person into the Company, or any
conveyance, transfer, sale, lease or other disposition of all or
substantially all of the Company's properties and assets to another
person, other than:
(A) any transaction (1) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of the Capital Stock of the Company and (2)
pursuant to which holders of the Capital Stock of the Company
immediately prior to the transaction are entitled to exercise,
directly or indirectly, 50% or more of the total voting power
of all shares of the Capital Stock of the Company entitled to
vote generally in the election of directors of the continuing
or surviving person immediately after the transaction;
(B) any merger, share exchange, transfer of assets or
similar transaction solely for the purpose of changing the
Company's jurisdiction of incorporation and resulting in a
reclassification, conversion or exchange of outstanding shares
of Common Stock solely into shares of Common Stock of the
surviving entity; or
(C) all of the consideration for the Common Stock
(excluding cash payments for fractional shares and cash
payments made in respect of dissenters' appraisal rights) in
the transaction or transactions constituting the Change in
Control consists of common stock traded on a United States
national securities exchange or quoted on the Nasdaq National
Market, or which will be so traded or quoted when issued or
exchanged in connection with the Change in Control, and as a
result of such transaction or transactions the Securities
become convertible solely into such common stock, or
25
(iii) during any consecutive two-year period, individuals who at the
beginning of that two-year period constituted the Board of Directors
(together with any new directors whose election to the Board of Directors,
or whose nomination for election by the shareholders of the Company, was
approved by a vote of a majority of the directors then still in office who
were either directors at the beginning of such period or whose election or
nomination for election were previously so approved) cease for any reason
to constitute a majority of the Board of Directors then in office.
Beneficial ownership shall be determined in accordance with Rule 13d-3
promulgated by the SEC under the Exchange Act.
(b) Prior to or on the 30th day after the occurrence of a Change
in Control, the Company, or, at the written request and expense of the
Company prior to or on the 30th day after such occurrence, the Trustee,
shall give to all Holders, in the manner provided in Section 11.02 hereof,
notice of the occurrence of the Change in Control and of the purchase
right set forth herein arising as a result thereof. The Company shall also
deliver a copy of such notice of a purchase right to the Trustee. The
notice shall include a form of Change in Control Purchase Notice to be
completed by the Holder and shall state:
(1) briefly, the events causing a Change in Control and the
date of such Change in Control;
(2) the date by which the Change in Control Purchase Notice
pursuant to this Section 3.01 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase Price;
(5) the name and address of the Paying Agent and the
Conversion Agent;
(6) that Securities as to which a Change in Control Purchase
Notice has been given may be converted pursuant to Article 10 hereof
only if the Change in Control Purchase Notice has been withdrawn in
accordance with the terms of this Indenture;
(7) that Securities must be surrendered to the Paying Agent
to collect payment;
(8) that the Change in Control Purchase Price for any
Security as to which a Change in Control Purchase Notice has been
duly given and not withdrawn will be paid promptly following the
later of the Change in Control Purchase Date and the time of
surrender of such Security as described in (7) above;
(9) briefly, the procedures the Holder must follow to
exercise rights under this Section 3.01;
26
(10) briefly, the conversion rights of the Securities,
including the Conversion Rate and any adjustments thereto;
(11) the procedures for withdrawing a Change in Control
Purchase Notice;
(12) the CUSIP number of the Securities;
(13) whether a Make-Whole Premium shall be paid by the
Company and the form of consideration to be paid in respect of the
Make-Whole Premium; and
(14) if a Make-Whole Premium is paid by the Company, that a
Make-Whole Premium shall be paid by the Company on the Change of
Control Purchase Date to Holders of Securities who have converted
their Securities into the Company's Common Stock on or after the
date the Company has given notice to all Holders in accordance with
this Section 3.01(b) and on or before the Change in Control Purchase
Date.
(c) A Holder may exercise its rights specified in Section 3.02(a)
hereof upon delivery of a written notice of purchase (a "Change in Control
Purchase Notice") to the Paying Agent prior to the Change in Control Purchase
Date, stating:
(1) the certificate number of the Security, if any, which
the Holder will deliver to be purchased or the appropriate
Depositary procedures if the Securities are not in certificated
form;
(2) the portion of the principal amount of the Security
which the Holder will deliver to be purchased, which portion must be
$1,000 or any whole multiple thereof; and
(3) that such Security shall be purchased pursuant to the
terms and conditions specified in paragraph 5 on the reverse side of
the Securities and in this Indenture.
The delivery of such Security to the Paying Agent prior to the
Change in Control Purchase Date (together with all necessary endorsements) at
the offices of the Paying Agent shall be a condition to the receipt by the
Holder of the Change in Control Purchase Price therefor; provided, however, that
such Change in Control Purchase Price shall be so paid pursuant to this Section
3.01 only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Change in Control
Purchase Notice.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.01, a portion of a Security so delivered for purchase 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 Security also apply to
the purchase of such portion of such Security.
27
Any purchase by the Company contemplated pursuant to the provisions
of this Section 3.01 shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Change in
Control Purchase Date and the time of delivery of the Security to the Paying
Agent in accordance with this Section 3.01.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Change in Control Purchase Notice
contemplated by this Section 3.01(c) shall have the right to withdraw such
Change in Control Purchase Notice at any time prior to the close of business on
the Change in Control Purchase Date by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section 3.02.
The Paying Agent shall promptly notify the Company of the receipt by
it of any Change in Control Purchase Notice or written withdrawal thereof.
SECTION 3.02 Effect of Change in Control Purchase Notice. Upon
receipt by the Paying Agent of the Change in Control Purchase Notice specified
in Section 3.01(c), the Holder of the Security in respect of which such Change
in Control Purchase Notice was given shall (unless such Change in Control
Purchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Change in Control Purchase Price
with respect to such Security. Such Purchase Price (along with the Make-Whole
Premium, if any) shall be paid to such Holder, subject to receipt of
consideration for the Securities by the Paying Agent, promptly following the
later of (x) the Change in Control Purchase Date with respect to such Security
(provided the conditions in Section 3.01(c), as the case may be, have been
satisfied) and (y) the time of delivery of such Security to the Paying Agent by
the Holder thereof in the manner required by Section 3.01(c), as the case may
be. Securities in respect of which a Change in Control Purchase Notice has been
given by the Holder thereof may not be converted pursuant to Article 10 hereof
on or after the date of the delivery of such Change in Control Purchase Notice
unless such Change in Control Purchase Notice has first been validly withdrawn
as specified in the following two paragraphs.
A Change in Control Purchase Notice may be withdrawn by means of a
written notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Change in Control Purchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Change in
Control Purchase Date specifying:
(1) the certificate number of the Security in respect of
which such notice of withdrawal is being submitted or, if not in
certificated form, the applicable Depositary procedures,
(2) the principal amount of the Security with respect to
which such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which
remains subject to the original Change in Control Purchase Notice
and which has been or will be delivered for purchase by the Company.
28
There shall be no purchase of any Securities pursuant to Section
3.01 if there has occurred (prior to, on or after, as the case may be, the
giving, by the Holders of such Securities, of the required Change in Control
Purchase Notice) and is continuing an Event of Default (other than a default in
the payment of the Change in Control Purchase Price with respect to such
Securities). The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Change in Control Purchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
during the continuance of an Event of Default (other than a default in the
payment of the Change in Control Purchase Price with respect to such Securities)
in which case, upon such return, the Change in Control Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
SECTION 3.03 Deposit of Change in Control Purchase Price. Prior to
11:00 a.m. (New York City time) on the Change in Control Purchase Date, the
Company shall deposit with the Trustee or with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in Section 2.04) an
amount of cash (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Change in Control Purchase Price of all the
Securities or portions thereof which are to be purchased as of the Change in
Control Purchase Date and an amount in cash or shares of Common Stock sufficient
to pay any Make-Whole Premium.
If the Trustee or other Paying Agent appointed by the Company, or
the Company or an Affiliate of the Company, if it or such Affiliate is acting as
the Paying Agent, holds cash sufficient to pay the aggregate Change in Control
Purchase Price of all the Securities or portions thereof that are to be
purchased as of the Change in Control Purchase Date, on or after the Change in
Control Purchase Date, and an amount in cash or shares of Common Stock
sufficient to pay any Make-Whole Premium (i) such Securities will cease to be
outstanding, (ii) interest on such Securities will cease to accrue and (iii) all
other rights of the holders of such Securities will terminate, whether or not
book-entry transfer of the Securities has been made or the Securities have been
delivered to the Trustee or Paying Agent, other than the right to receive the
Change in Control Purchase Price and the Make-Whole Premium, if any, upon
delivery of the Securities.
SECTION 3.04 Securities Purchased in Part. Any Security which is to
be purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered which is not
purchased.
SECTION 3.05 Covenant to Comply with Securities Laws upon Purchase
of Securities. In connection with any offer to purchase or purchase of
Securities under Section 3.01 hereof (provided that such offer or purchase
constitutes an "issuer tender offer" for purposes of Rule 13e-4 (which term, as
used herein, includes any successor provision thereto) under the Exchange Act at
the time of such offer or purchase), the Company shall (i) comply with Rule
29
13e-4, Rule 14e-1 and any other tender offer rules under the Exchange Act which
may then be applicable, (ii) file the related Schedule TO (or any successor
schedule, form or report) or any other schedule required under the Exchange Act,
and (iii) otherwise comply with all federal and state securities laws so as to
permit the rights and obligations under Section 3.01 to be exercised in the time
and in the manner specified in Section 3.01.
SECTION 3.06 Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash or shares of Common Stock that
remains unclaimed as provided in paragraph 9 of the Securities, together with
interest or dividends, if any, thereon, held by them for the payment of the
Change in Control Purchase Price and Make-Whole Premium, if any; provided,
however, that to the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 3.03 exceeds the aggregate Change in Control
Purchase Price of the Securities and Make-Whole Premium, if any, or portions
thereof which the Company is obligated to purchase as of the Change in Control
Purchase Date then promptly after the Business Day following the Change in
Control Purchase Date the Trustee shall return any such excess to the Company
together with interest or dividends, if any, thereon.
ARTICLE 4
COVENANTS
SECTION 4.01 Payment of Principal, Premium, Interest on the
Securities. The Company will duly and punctually pay the principal of and
interest at the Interest Rate in respect of the Securities in accordance with
the terms of the Securities and this Indenture. The Company will deposit or
cause to be deposited with the Trustee as directed by the Trustee, no later than
11:00 a.m., New York time on the day of the Stated Maturity of any Security or
on any Interest Payment Date, all payments so due on such date. Principal amount
at Stated Maturity, Change in Control Purchase Price, and cash interest shall be
considered paid on the applicable date due if at 11:00 a.m., New York time on
such date the Trustee or the Paying Agent holds, in accordance with this
Indenture, money or securities, if permitted hereunder, sufficient to pay all
such amounts then due. Except as otherwise noted, all references to the payment
of interest include the payment of Additional Interest Amounts.
The Company shall, to the extent permitted by law, pay cash interest
on overdue amounts at the rate per annum set forth in paragraph 1 on the reverse
side of the Securities, compounded semiannually, which interest shall accrue
from the date such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided for. All such
overdue interest shall be payable on demand.
SECTION 4.02 SEC and Other Reports. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. If at any time the Company is not
subject to Section 13 or 15(d) of the Exchange Act, such reports shall be
provided at the times the Company would have been
30
required to provide reports had it continued to have been subject to such
reporting requirements. The Company also shall comply with the other provisions
of TIA Section 314(a).
SECTION 4.03 Compliance Certificate. The Company shall deliver to
the Trustee within 90 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on December 31, 2004) an Officers'
Certificate, stating whether or not to the best knowledge of the signers thereof
the Company is in default in the performance and observance of any of the terms,
provisions and conditions of this Indenture (without regard to any period of
grace or requirement of notice provided hereunder) and if the Company shall be
in default, specifying all such defaults and the nature and status thereof of
which they may have knowledge.
SECTION 4.04 Further Instruments and Acts. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05 Maintenance of Office or Agency. The Company will
maintain in The Borough of Manhattan, the City of New York, an office or agency
of the Trustee, Registrar, Paying Agent and Conversion Agent where Securities
may be presented or surrendered for payment, where Securities may be surrendered
for registration of transfer, exchange, purchase or conversion and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The New York branch office of the Corporate Trust
Office of the Trustee, shall initially be such office or agency for all of the
aforesaid purposes. The Corporate Trust Office of the Trustee shall provide
appropriate contact information therefor upon request. The Company shall give
prompt written notice to the Trustee of the location, and of any change in the
location, of any such office or agency (other than a change in the location of
the office of the Trustee). If at any time the Company shall fail to maintain
any such required office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and demands may be made
or served at the address of the Trustee set forth in Section 11.02.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes.
SECTION 4.06 Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, upon the
request of a holder or any beneficial holder of Securities or shares of Common
Stock issued upon conversion thereof, the Company will promptly furnish or cause
to be furnished Rule 144A Information (as defined below) to such Holder or any
beneficial holder of Securities or holder of shares of Common Stock issued upon
conversion of Securities, or to a prospective purchaser of any such security
designated by any such holder, as the case may be, to the extent required to
permit compliance by such Holder or holder with Rule 144A under the Securities
Act in connection with the resale of any such security. "Rule 144A Information"
shall be such information as is specified pursuant to Rule 144A(d)(4) under the
Securities Act.
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SECTION 4.07 Additional Interest Amounts Notice. In the event that
the Company is required to pay Additional Interest Amounts to Holders pursuant
to the Registration Rights Agreement, the Company will provide written notice
("Additional Interest Amount Notice") to the Trustee of its obligation to pay
Additional Interest Amounts no later than fifteen (15) days prior to the
proposed payment date for the Additional Interest Amounts, and the Additional
Interest Amounts Notice shall set forth the amount of Additional Interest
Amounts 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 to determine the
Additional Interest Amounts, or with respect to the nature, extent or
calculation of the amount of Additional Interest Amounts when made, or with
respect to the method employed in such calculation of the Additional Interest
Amounts.
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. When Company May Merge or Transfer Assets. The Company
shall not consolidate with, merge with or into any other person or convey,
transfer or lease its properties and assets substantially as an entirety to any
person, unless:
(a) either (1) the Company shall be the continuing corporation or
(2) the person (if other than the Company) formed by such consolidation or into
which the Company is merged or the person which acquires by conveyance, transfer
or lease the properties and assets of the Company substantially as an entirety
is a corporation, limited liability company, partnership or trust that (i) shall
be organized and validly existing under the laws of the United States or any
State of the United States and (ii) shall expressly assume, by an indenture
supplemental hereto, executed and delivered to the Trustee, in form reasonably
satisfactory to the Trustee, all of the obligations of the Company under the
Securities and this Indenture;
(b) at the time of such transaction, no Event of Default and no
event which, after notice or lapse of time, would become an Event of Default,
shall have occurred and be continuing; and
(c) the Company shall have delivered to the Trustee an Officers'
Certificate stating that such consolidation, merger, conveyance, transfer or
lease and, if a supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article 5 and that
all conditions precedent herein provided for relating to such transaction have
been satisfied.
For purposes of the foregoing, the transfer (by lease, assignment,
sale or otherwise) of the properties and assets of one or more Subsidiaries
(other than to the Company or another Subsidiary), which, if such assets were
owned by the Company, would constitute all or substantially all of the
properties and assets of the Company, shall be deemed to be the transfer of all
or substantially all of the properties and assets of the Company.
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The successor person formed by such consolidation or into which the
Company is merged or the successor person to which such conveyance, transfer or
lease is made shall succeed to, and be substituted for, and may exercise every
right and power of, the Company under this Indenture with the same effect as if
such successor had been named as the Company herein; and thereafter, except in
the case of a lease and obligations the Company may have under a supplemental
indenture pursuant to Section 10.11, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities. Subject to
Section 9.06, the Company, the Trustee and the successor person shall enter into
a supplemental indenture to evidence the succession and substitution of such
successor person and such discharge and release of the Company.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01 Events of Default. An "Event of Default" occurs if:
(1) the Company fails to pay when due the principal of any
of the Securities at Stated Maturity or the Change in Control
Purchase Price on any Security when the same becomes due and
payable;
(2) the Company fails to pay an installment of interest (or
Additional Interest Amounts, if any) on any of the Securities that
continues for 30 days after the date when due;
(3) the Company fails to deliver shares of Common Stock,
together with cash in lieu of fractional shares, when such shares of
Common Stock or cash in lieu of fractional shares is required to be
delivered upon conversion of a Security and such failure continues
for 10 days after written notice of default is given to the Company
by the Trustee or to the Company and the Trustee by the Holder of
such Security;
(4) the Company fails to perform or observe any other term,
covenant or agreement contained in the Securities or this Indenture
for a period of 30 days after receipt by the Company of a Notice of
Default (as defined in this Section 6.01);
(5) the Company fails to make any payment by the end of the
applicable grace period, if any, after the maturity of any
indebtedness for borrowed money in an amount in excess of $10
million, or there is an acceleration of indebtedness for borrowed
money in an amount in excess of $10 million because of a default
with respect to such indebtedness without such indebtedness having
been discharged or such acceleration having been cured, waived,
rescinded or annulled, in either case, for a period of 30 days after
receipt by the Company of a Notice of Default;
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(6) the Company or any Significant Subsidiary or any
Subsidiaries of the Company in the aggregate that would constitute a
Significant Subsidiary pursuant to or under or within the meaning of
any Bankruptcy Law:
(A) commences a voluntary case or proceeding;
(B) consents to the entry of an order for relief
against it in an involuntary case or proceeding or the
commencement of any case against it;
(C) consents to the appointment of a Custodian of it
or for any substantial part of its property;
(D) makes a general assignment for the benefit of its
creditors;
(E) files a petition in bankruptcy or answer or
consent seeking reorganization or relief; or
(F) consents to the filing of such a petition or the
appointment of or taking possession by a Custodian;
(7) a court of competent jurisdiction enters an order or
decree under any Bankruptcy Law that:
(A) is for relief against the Company or any
Significant Subsidiary or any Subsidiaries of the Company in
the aggregate that would constitute a Significant Subsidiary
in an involuntary case or proceeding, or adjudicates the
Company or any Significant Subsidiary or any Subsidiaries of
the Company in the aggregate would constitute a Significant
Subsidiary insolvent or bankrupt;
(B) appoints a Custodian of the Company or any
Significant Subsidiary or any Subsidiaries of the Company in
the aggregate that would constitute a Significant Subsidiary
or for any substantial part of its or their properties; or
(C) orders the winding up or liquidation of the
Company or any Significant Subsidiary or any Subsidiaries of
the Company in the aggregate that would constitute a
Significant Subsidiary;
and the order or decree remains unstayed and in effect for 60 days.
A Default under clause (4) or (5) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause (4)
or (5) above after actual receipt of such notice. Any such notice must be in
writing,
34
specify the Default, demand that it be remedied and state that such notice is a
"Notice of Default".
The Company will deliver to the Trustee, within five Business Days
of becoming aware of the occurrence of an Event of Default, written notice
thereof. In addition, the Company shall deliver to the Trustee, within 30 days
after it becomes aware of the occurrence thereof, written notice of any event
which with the giving of notice or the lapse of time, or both would become an
Event of Default under clause (4) or (5) above, its status and what action the
Company is taking or proposes to take with respect thereto.
SECTION 6.02 Acceleration. If an Event of Default (other than an
Event of Default specified in Section 6.01(6) or (7)) occurs and is continuing,
the Trustee by notice to the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding by written
notice to the Company and the Trustee, may declare the Securities due and
payable at their principal amount together with accrued and unpaid interest.
Upon a declaration of acceleration, such principal and accrued and unpaid
interest to the date of payment shall be immediately due and payable.
If an Event of Default specified in Section 6.01(6) or (7) above
occurs and is continuing, then the principal and the interest on all the
Securities shall become and be immediately due and payable without any
declaration or other act on the part of the Trustee or any Holders.
The Holders of a majority in aggregate principal amount of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Holder) may rescind or annul an acceleration and its consequences
if the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived, except nonpayment of the
principal and any accrued and unpaid cash interest that have become due solely
as a result of acceleration, and if all amounts due to the Trustee under Section
7.07 have been paid. No such rescission shall affect any subsequent Default or
impair any right consequent thereto.
SECTION 6.03 Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal and any accrued cash interest on the Securities or to enforce
the performance of any provision of the Securities or this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Holder in exercising any
right or remedy accruing upon an Event of Default shall not impair the right or
remedy or constitute a waiver of, or acquiescence in, the Event of Default. No
remedy is exclusive of any other remedy. All available remedies are cumulative.
SECTION 6.04 Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Holder), may waive an existing
Default and its consequences except (1) an Event of Default described in Section
6.01(1) or (2), (2) a Default in respect of a
35
provision that under Section 9.02 cannot be amended without the consent of each
Holder affected or (3) a Default which constitutes a failure to convert any
Security in accordance with the terms of Article 10. When a Default is waived,
it is deemed cured, but no such waiver shall extend to any subsequent or other
Default or impair any consequent right. This Section 6.04 shall be in lieu of
Section 316(a)1(B) of the TIA and such Section 316(a)1(B) is hereby expressly
excluded from this Indenture, as permitted by the TIA.
SECTION 6.05 Control by Majority. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Holders or would involve the Trustee in
personal liability unless the Trustee is offered indemnity reasonably
satisfactory to it against loss, liability or expense. This Section 6.05 shall
be in lieu of Section 316(a)1(A) of the TIA and such Section 316(a)1(A) is
hereby expressly excluded from this Indenture, as permitted by the TIA.
SECTION 6.06 Limitation on Suits. A Holder may not pursue any
remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Trustee written notice stating
that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal
amount of the Securities at the time outstanding make a written
request to the Trustee to pursue the remedy;
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity satisfactory to the Trustee against any loss,
liability or expense;
(4) the Trustee does not comply with the request within 60
days after receipt of such notice, request and offer of security or
indemnity; and
(5) the Holders of a majority in aggregate principal amount
of the Securities at the time outstanding do not give the Trustee a
direction inconsistent with the request during such 60-day period.
A Holder may not use this Indenture to prejudice the rights of any
other Holder or to obtain a preference or priority over any other Holder.
SECTION 6.07 Rights of Holders to Receive Payment and to Convert.
Notwithstanding any other provision of this Indenture, the right of any Holder
to receive payment of the principal amount, Change in Control Purchase Price or
any accrued and unpaid cash interest in respect of the Securities held by such
Holder, on or after the respective due dates expressed in the Securities, and to
convert the Securities in accordance with Article 10, or to bring suit for the
enforcement of any such payment on or after such respective dates or the right
to convert, shall not be impaired or affected adversely without the consent of
such Holder.
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SECTION 6.08 Collection Suit by Trustee. If an Event of Default
described in Section 6.01(1) or (2) occurs and is continuing, the Trustee may
recover judgment in its own name and as trustee of an express trust against the
Company for the whole amount owing with respect to the Securities and the
amounts provided for in Section 7.07.
SECTION 6.09 Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount, Change in Control Purchase Price or any accrued
and unpaid cash interest in respect of the Securities shall then be due and
payable as therein expressed or by declaration or otherwise and irrespective of
whether the Trustee shall have made any demand on the Company for the payment of
any such amount) shall be entitled and empowered, by intervention in such
proceeding or otherwise:
(a) to file and prove a claim for the whole amount of the principal
amount, Change in Control Purchase Price or any accrued and unpaid cash interest
and to file such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel or any other amounts due the Trustee under Section 7.07) and of the
Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due it for the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
SECTION 6.10 Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
(1) to the Trustee for amounts due under Section 7.07;
(2) to Holders for amounts due and unpaid on the Securities for
the principal amount, Change in Control Purchase Price or any accrued and
unpaid cash interest (including, Additional Interest Amounts, if any) as
the case may be, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and
(3) the balance, if any, to the Company.
37
The Trustee may fix a record date and payment date for any payment to
Holders pursuant to this Section 6.10. At least 15 days before such record date,
the Trustee shall mail to each Holder and the Company a notice that states the
record date, the payment date and the amount to be paid.
SECTION 6.11 Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
SECTION 6.12 Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount,
Change in Control Purchase Price or any accrued and unpaid cash interest in
respect of Securities, or any interest on such amounts, as contemplated herein,
or which may affect the covenants or the performance of this Indenture; and the
Company (to the extent that it may lawfully do so) hereby expressly waives all
benefit or advantage of any such law, and covenants that it will not hinder,
delay or impede the execution of any power herein granted to the Trustee, but
will suffer and permit the execution of every such power as though no such law
had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01 Duties of Trustee.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this Indenture and
use the same degree of care and skill in its exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
38
(2) in the absence of bad faith on its part, the Trustee
may conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements of
this Indenture, but in case of any such certificates or opinions which
by any provision hereof are specifically required to be furnished to
the Trustee, the Trustee shall examine the certificates and opinions to
determine whether or not they conform to the requirements of this
Indenture, but need not confirm or investigate the accuracy of
mathematical calculations or other facts stated therein.
This Section 7.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of
paragraph (b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer unless it is
proved that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any
action it takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.05.
Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or extend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
(acting in any capacity hereunder) shall be under no liability for interest on
any money received by it hereunder unless otherwise agreed in writing with the
Company.
SECTION 7.02 Rights of Trustee. Subject to its duties and
responsibilities under the provisions of Section 7.01, and, except as expressly
excluded from this Indenture pursuant to said Section 7.01, subject also to its
duties and responsibilities under the TIA:
39
(a) the Trustee may conclusively rely and shall be protected in
acting or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder
or perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken,
suffered, or omitted to be taken by it in good faith which it believes to be
authorized or within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any
advice or Opinion of Counsel shall be full and complete authorization and
protection in respect of any action taken or suffered or omitted by it hereunder
in good faith and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
satisfactory to it against the costs, expenses and liabilities which may be
incurred therein or thereby;
(g) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
resolution of the Board of Directors;
(h) the Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document, but
the Trustee, in its discretion, may make such further inquiry or investigation
into such facts or matters as it may see fit, and, if the Trustee shall
determine to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company, personally or by agent
or attorney at the sole cost of the Company (which cost shall be reasonable) and
shall incur no liability or additional liability of any kind by reason of such
inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default
or Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
Default is received by a Responsible Officer of
40
the Trustee at the Corporate Trust Office of the Trustee, and such notice
references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and to each agent, custodian and other Person
employed to act hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
(l) the Trustee shall not be responsible for information in any
notice provision provided to the Trustee by the Company. Before the Trustee acts
or refrains from acting, it may require an Officer's Certificate and/or an
Opinion of Counsel. The Trustee shall be protected and it shall not be liable
for any action it takes or omits to take in good faith in reliance on such
certificate or opinion.
SECTION 7.03 Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04 Trustee's Disclaimer. The Trustee makes no
representation as to the validity or adequacy of this Indenture, the Securities
or the Pledged Securities, it shall not be accountable for the Company's use or
application of the proceeds from the Securities, it shall not be responsible for
any statement in the registration statement for the Securities under the
Securities Act or in the Indenture or the Securities (other than its certificate
of authentication), or the determination as to which beneficial owners are
entitled to receive any notices hereunder.
SECTION 7.05 Notice of Defaults. If a Default occurs and if it is
known to a Responsible Officer of the Trustee, the Trustee shall give to each
Holder notice of the Default within 90 days after the occurrence thereof, unless
such Default shall have been cured or waived before the giving of such notice.
Except in the case of a Default described in Section 6.01(1) or (2), the Trustee
may withhold the notice if and so long as a committee of its Responsible
Officers in good faith determines that withholding the notice is in the best
interest of Holders. The second sentence of this Section 7.05 shall be in lieu
of the proviso to Section 315(b) of the TIA and such proviso is hereby expressly
excluded from this Indenture, as permitted by the TIA. The Trustee shall not be
deemed to have knowledge of a Default unless a Responsible Officer of the
Trustee has received written notice of such Default.
41
SECTION 7.06 Reports by Trustee to Holders. Within 60 days after
each May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each Holder a brief report dated as of such May 15 that
complies with TIA Section 313(a), if required by such Section 313(a). The
Trustee also shall comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Holders shall be
filed with the SEC and each securities exchange, if any, on which the Securities
are listed. The Company agrees to promptly notify the Trustee whenever the
Securities become listed on any securities exchange and of any delisting
thereof.
SECTION 7.07 Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such reasonable
compensation as the Company and the Trustee shall from time to time agree in
writing for all services rendered by it hereunder (which compensation shall not
be limited (to the extent permitted by law) by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including reasonable attorney's fees and expenses
and taxes (other than taxes based upon, measured by or determined by reference
to the income of the Trustee)) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or administration of
this trust, including the reasonable costs and expenses of defending itself
against any claim (whether asserted by the Company or any Holder or any other
Person) or liability in connection with the exercise or performance of any of
its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.07, the
Holders shall have been deemed to have granted to the Trustee a lien prior to
the Securities on all money or property held or collected by the Trustee, except
for the money and property held in trust to pay the principal amount, Change in
Control Purchase Price, or cash interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 7.07 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.01(6) or (7), the expenses, including the reasonable
charges and expenses of its counsel, are intended to constitute expenses of
administration under any Bankruptcy Law.
SECTION 7.08 Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.08. The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding may remove the
42
Trustee by so notifying the Trustee and the Company. The Company may remove the
Trustee and shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of the Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Holders. The retiring Trustee shall promptly transfer all property held by it as
Trustee to the successor Trustee, subject to the lien provided for in Section
7.07.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Holder may
petition any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
SECTION 7.09 Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
SECTION 7.10 Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee
(or its parent holding company) shall have a combined capital and surplus of at
least $50,000,000 as set forth in its most recent published annual report of
condition. Nothing herein contained shall prevent the Trustee from filing with
the Commission the application referred to in the penultimate paragraph of TIA
Section 310(b).
SECTION 7.11 Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA
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Section 311(b). A Trustee who has resigned or been removed shall be subject to
TIA Section 311(a) to the extent indicated therein.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01 Discharge of Liability on Securities. When all outstanding
Securities will become due and payable within one year of their Stated Maturity
and the Company has deposited with the Trustee cash sufficient to pay and
discharge all outstanding Securities on the date of their Stated Maturity, then
the Company may discharge its obligations under this Indenture while Securities
remain outstanding; provided that provisions of Section 2.03, Section 2.04,
Section 2.05, Section 2.06, Section 2.07, Section 2.12, Section 4.01, Section
4.05, Section 7.07, Article 10 and this Article 8 shall survive until the
Securities have been paid in full. The Trustee shall join in the execution of a
document prepared by the Company acknowledging satisfaction and discharge of
this Indenture on demand of the Company accompanied by an Officers' Certificate
and Opinion of Counsel and at the cost and expense of the Company.
SECTION 8.02 Repayment of the Company. The Trustee and the Paying
Agent shall promptly return to the Company upon written request (i) any excess
money held by them at any time and (ii) any money or securities held by them for
the payment of any amount with respect to the Securities that remains unclaimed
for two years, subject to applicable unclaimed property law. After return to the
Company, Holders entitled to the money or securities must look to the Company
for payment as general creditors unless an applicable abandoned property law
designates another person and the Trustee and the Paying Agent shall have no
further liability to the Holders with respect to such money or securities for
that period commencing after the return thereof.
SECTION 8.03 Deposited Monies to Be Held in Trust by Trustee.
Subject to Section 8.02, all monies deposited with the Trustee pursuant to
Section 8.01 shall be held in trust for the sole benefit of the Holders 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 for the payment of which such monies have been deposited
with the Trustee, of all sums due and to become due thereon for principal and
interest.
SECTION 8.04 Reinstatement. If the Trustee or the Paying Agent is
unable to apply any money in accordance with Sections 8.01 and 8.03 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 Securities shall be revived and reinstated as
though no deposit had occurred pursuant to Section 8.01 until such time as the
Trustee or the Paying Agent is permitted to apply all such money in accordance
with Sections 8.01 and 8.03; provided, however, that if the Company makes any
payment of interest on or principal of any Security following the reinstatement
of its obligations, the Company shall be subrogated to the rights of the Holders
to receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE 9
AMENDMENTS
SECTION 9.01 Without Consent of Holders. The Company and the Trustee
may amend this Indenture or the Securities without the consent of any Holder for
the purposes of, among other things:
(1) adding to the Company's covenants for the benefit of the
Holders;
(2) surrendering any right or power conferred upon the Company;
(3) providing for conversion rights of Holders if any
reclassification or change of Common Stock or any consolidation, merger or
sale of all or substantially all of the Company's assets occurs;
(4) increasing the Conversion Rate; provided that the increase
will not adversely affect the interests of Holders in any material respect;
(5) complying with the requirements of the SEC in order to effect
or maintain the qualification of this Indenture under the TIA;
(6) making any changes or modifications to this Indenture
necessary in connection with the registration of the Securities under the
Securities Act as contemplated by the Registration Rights Agreement;
provided that this action does not adversely affect the interests of the
Holders in any material respect;
(7) curing any ambiguity, omission, inconsistency or correcting or
supplementing any defective provision contained in this Indenture; provided
that such modification or amendment does not adversely affect the interests
of the Holders in any material respect; or
(8) adding or modifying any other provisions which the Company and
the Trustee may deem necessary or desirable and which will not
adversely affect the interests of the Holders in any material
respect;
(9) complying with Article 5;
(10) providing for uncertificated Securities in addition to the
Certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended; or
(11) providing for the appointment of a successor trustee.
45
SECTION 9.02 With Consent of Holders. With the written consent of the
Holders of not less than a majority in aggregate principal amount of the
Securities at the time outstanding or by the adoption of a resolution at a
meeting of Holders at which a quorum is present by at least a majority in
aggregate principal amount of the Securities represented at the meeting, the
Company may modify and amend this Indenture or the Securities and waive
noncompliance by the Company. However, without the consent of each Holder
affected, a modification, amendment or waiver to this Indenture or the
Securities may not:
(1) change the maturity of the principal of or any installment of
interest on any Security or any payment of Additional Interest Amounts;
(2) reduce the principal amount of, or interest on or any payment
of Additional Interest Amounts on, any Security;
(3) change the currency of payment of principal of, or interest on
any Security;
(4) impair the right to institute suit for the enforcement of any
payment on or with respect to, or conversion of, any Security;
(5) except as otherwise permitted or contemplated by provisions of
this Indenture concerning corporate reorganizations, materially adversely
affect the purchase option of Holders or the conversion rights of Holders;
or
(6) reduce the percentage in aggregate principal amount of
Securities outstanding necessary to modify or amend this Indenture or to
waive any past default.
It shall not be necessary for the consent of the Holders under this
Section 9.02 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03 Compliance with Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall comply with the TIA.
SECTION 9.04 Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Holder.
46
SECTION 9.05 Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Board of Directors, to any such
supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
SECTION 9.06 Trustee to Sign Supplemental Indentures. The Trustee
shall sign any supplemental indenture authorized pursuant to this Article 9 if
the amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall be entitled to receive, and (subject to the provisions of
Section 7.01) shall be fully protected in relying upon, an Officers' Certificate
and an Opinion of Counsel stating that such amendment is authorized or permitted
by this Indenture.
SECTION 9.07 Effect of Supplemental Indentures. Upon the execution
of any supplemental indenture under this Article, this Indenture shall be
modified in accordance therewith, and such supplemental indenture shall form a
part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE 10
CONVERSION
SECTION 10.01 Conversion Right and Conversion RateA Holder of a
Security may convert the principal amount of such Security (or any portion
thereof equal to $1,000 or any integral multiple of $1,000 in excess thereof)
into Common Stock at any time prior to the close of business on July 26, 2009,
at the Conversion Rate then in effect. The initial "Conversion Rate" is 74.0741
shares of Common Stock per $1,000 principal amount of the Securities and is
subject to adjustment as provided in this Article 10.
In addition, a Holder may be entitled to the Make-Whole Premium in
addition to the shares of Common Stock deliverable upon conversion of such
Holder's Securities in accordance with Section 3.01 hereof.
SECTION 10.02 Exercise of Conversion Right. To exercise the conversion
right, the Holder of any Security to be converted shall in the case of Global
Securities, comply with the procedures of the Depositary in effect at that time,
and, in the case of Certificated Securities, surrender such Security duly
endorsed or assigned to the Company or in blank, at the office of any Conversion
Agent, accompanied by a duly signed conversion notice substantially in the form
attached to the Security to the Company stating that the Holder elects to
convert such Security or, if less than the entire principal amount thereof is to
be converted, the portion thereof to be converted.
47
Securities surrendered for conversion during the period from the close
of business on any Regular Record Date to the opening of business on the next
succeeding Interest Payment Date shall be accompanied by payment in New York
Clearing House funds or other funds acceptable to the Company of an amount equal
to the interest to be received on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions (the "Conversion Date"), and at such
time the rights of the Holders of such Securities as Holders shall cease (and
all obligations of the Company with respect thereto shall be deemed satisfied,
including with respect to the principal amount and any accrued and unpaid
interest, including any Additional Interest), and the Person or Persons entitled
to receive the Common Stock issuable upon conversion shall be treated for all
purposes as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the Conversion Date, the Company shall cause
to be issued and delivered to such Conversion Agent a certificate or
certificates for or, if applicable, other book-entry confirmation representing
the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share as provided in Section 10.03
hereof.
Except as specifically provided herein, no cash payment or other
adjustment will be made on conversion of any Securities for interest accrued
thereon or for dividends on any Common Stock. Accrued and unpaid interest will
be deemed paid in full rather than canceled, extinguished or forfeited.
In the case of any Certificated Security which is converted in part
only, upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company, a
new Security or Securities of authorized denominations in an aggregate principal
amount equal to the unconverted portion of the principal amount of such
Securities.
If shares of Common Stock to be issued upon conversion of a Restricted
Security or portion thereof are to be registered in a name other than that of
the Holder of such Restricted Security, such Holder must deliver to the
Conversion Agent a certificate in substantially the form set forth in the form
of Security set forth in Exhibit C annexed hereto, dated the date of surrender
of such Restricted Security and signed by such Holder, as to compliance with the
restrictions on transfer applicable to such Restricted Security. Neither the
Trustee nor any Conversion Agent, Registrar or Transfer Agent shall be required
to register in a name other than that of the Holder shares of Common Stock or
Securities issued upon conversion of any such Restricted Security not so
accompanied by a properly completed certificate.
If the Notes are converted after a Record Date for an Interest Payment
Date but prior to the next Interest Payment Date, those Notes must be
accompanied by funds equal to the interest payable to the Holder of the Notes on
such Record Date on the next Interest Payment Date on the principal amount so
converted.
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SECTION 10.03 Fractions of Shares. No fractional shares of Common Stock
shall be issued upon conversion of any Security or Securities. If more than one
Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issued upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities (or
specified portions thereof) so surrendered. Instead of any fractional share of
Common Stock which would otherwise be issued upon conversion of any Security or
Securities (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction (calculated to the nearest one-100th of a
share) in an amount equal to the same fraction of the Sale Price per Share of
the Common Stock as of the Trading Day preceding the Conversion Date.
SECTION 10.04 Adjustment of Conversion Rate. The Conversion Rate shall
be subject to adjustments, calculated by the Company, from time to time as
follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, 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 shall be increased by multiplying
such Conversion Rate by a fraction:
(1) the numerator of which shall be the sum of the number of
shares of Common Stock outstanding at the close of business on the Record
Date fixed for such determination and the total number of shares
constituting such dividend or other distribution, and
(2) the denominator of which shall be the number of shares of
Common Stock outstanding at the close of business on the Record Date fixed
for such determination.
Such increase shall become effective immediately after the opening of business
on the Business Day following the Record Date. If any dividend or distribution
of the type described in this Section 10.04(a) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate which
would then be in effect if such dividend or distribution had not been declared.
(b) In case the outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and
conversely, in case 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. In each such case, the
Conversion Rate shall be adjusted by multiplying such Conversion Rate by a
fraction, the numerator of which shall be the number of shares of Common Stock
outstanding immediately after giving effect to such subdivision or combination
and the denominator of which shall be the number of shares of Common Stock
outstanding immediately prior to such subdivision or combination. Such reduction
or increase, as the case may be, to become effective immediately after the
opening of
49
business on the day following the day upon which such subdivision or combination
becomes effective.
(c) In case the Company shall issue rights or warrants to all
holders of its outstanding shares of Common Stock (other than as contemplated by
Section 10.14) entitling them (for a period of not more than 60 days) to
subscribe for or purchase shares of Common Stock (or securities convertible into
Common Stock) at a price per share (or having a Conversion Price per share) less
than the Current Market Price per share of Common Stock on the Record Date fixed
for the determination of stockholders entitled to receive such rights or
warrants, the Conversion Rate shall be adjusted so that the same shall equal the
price determined by multiplying the Conversion Rate in effect at the opening of
business on the date after such Record Date by a fraction:
(1) the numerator of which shall be the number of shares
of Common Stock outstanding on the close of business on the Record Date
plus the total number of additional shares of Common Stock so offered
for subscription or purchase (or into which the convertible securities
so offered are convertible) at such below Current Market Price, and
(2) the denominator of which shall be the number of
shares of Common Stock outstanding at the close of business on the
Record Date plus the number of shares which the aggregate offering
price of the total number of shares so offered for subscription or
purchase (or the aggregate Conversion Price of the convertible
securities so offered) would purchase at 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 Record Date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock (or securities convertible into Common Stock) are not delivered pursuant
to such rights or warrants, upon the expiration or termination of such rights or
warrants the Conversion Rate shall be readjusted to the Conversion Rate which
would then be in effect had the adjustments made upon the issuance of such
rights or warrants been made on the basis of the delivery of only the number of
shares of Common Stock (or securities convertible into Common Stock) actually
delivered. In the event that such rights or warrants are not so issued, the
Conversion Rate shall again be adjusted to be the Conversion Rate which 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 for such rights or
warrants, the value of such consideration if other than cash, to be determined
by the Board of Directors.
(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 (other than any dividends or distributions to which Section
10.04(a) applies) or evidences of its indebtedness or other assets, including
securities, but excluding (1) any rights or warrants referred to in Section
10.04(c) or 10.14, (2) any dividends or distributions in connection with a
reclassification,
50
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance to which Section 10.11 hereof applies and (3) dividends and
distributions paid exclusively in cash referred to in Section 10.04(e) (the
securities described in foregoing clauses (1), (2) and (3) hereinafter in this
Section 10.04(d) called the "excluded securities"), then, in each such case,
subject to the second succeeding paragraph of this Section 10.04(d), the
Conversion Rate shall be adjusted so that the same shall be equal to the price
determined by multiplying the Conversion Rate in effect immediately prior to the
close of business on the Record Date with respect to such distribution by a
fraction:
(1) the numerator of which shall be such Current Market
Price per share of the Common Stock on the Record Date, and
(2) the denominator of which shall be the Current Market
Price per share of Common Stock on such date, less the then fair market
value (as determined by the Board of Directors, whose determination
shall be conclusive and set forth in a Board Resolution) on such date
of the portion of the securities, evidences of indebtedness or other
assets so distributed (other than excluded securities) applicable to
one share of Common Stock (determined on the basis of the number of
shares of the Common Stock outstanding on the Record Date).
Such increase shall become effective immediately prior to the opening of
business on the day following the Record Date. However, in the event that the
then fair market value (as so determined) of the portion of the securities,
evidences of indebtedness or other assets so distributed (other than excluded
securities) 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 Holder shall have the
right to receive upon conversion of a Security (or any portion thereof) the
amount of securities, evidences of indebtedness or other assets so distributed
(other than excluded securities) such Holder would have received had such Holder
converted such Security (or portion thereof) immediately prior to such Record
Date. In the event that such dividend or distribution is not so paid or made,
the Conversion Rate shall again be adjusted to be the Conversion Rate which
would then be in effect if such dividend or distribution had not been declared.
If the Board of Directors determines the fair market value of any
distribution for purposes of this Section 10.04(d) by reference to the actual or
when issued trading market for any securities comprising all or part of such
distribution (other than excluded securities), it must in doing so consider the
prices in such market over the same period (the "Reference Period") used in
computing the Current Market Price pursuant to Section 10.04(g) to the extent
possible, unless the Board of Directors in a Board Resolution determines in good
faith that determining the fair market value during the Reference Period would
not be in the best interests of the Holder.
For purposes of this Section 10.04(d) and Sections 10.04(a), 10.04(b)
and 10.04(c), any dividend or distribution to which this Section 10.04(d) is
applicable that also includes shares of Common Stock, a subdivision or
combination of Common Stock to which Section 10.04(b) applies, or rights or
warrants to subscribe for or purchase shares of Common
51
Stock (or securities convertible into Common Stock) to which Section 10.04(c)
applies (or any combination thereof), shall be deemed instead to be:
(1) a dividend or distribution of the evidences of indebtedness,
assets, shares of capital stock, rights or warrants other than such shares
of Common Stock, such subdivision or combination or such rights or warrants
to which Sections 10.04(a), 10.04(b) and 10.04(c) apply, respectively (and
any Conversion Rate increase required by this Section 10.04(d) with respect
to such dividend or distribution shall then be made), immediately followed
by
(2) a dividend or distribution of such shares of Common Stock,
such subdivision or combination or such rights or warrants (and any further
Conversion Rate increase required by Sections 10.04(a), 10.04(b) and
10.04(c) with respect to such dividend or distribution shall then be made),
except:
(A) the Record Date of such dividend or distribution
shall be substituted as (x) "the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution",
"Record Date fixed for such determinations" and "Record Date" within
the meaning of Section 10.04(a), (y) "the day upon which such
subdivision becomes effective" and "the day upon which such combination
becomes effective" within the meaning of Section 10.04(b), and (z) as
"the date fixed for the determination of stockholders entitled to
receive such rights or warrants", "the Record Date fixed for the
determination of the stockholders entitled to receive such rights or
warrants" and such "Record Date" within the meaning of Section
10.04(c), and
(B) any shares of Common Stock included in such dividend
or distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the meaning
of Section 10.04(a) and any increase or reduction in the number of
shares of Common Stock resulting from such subdivision or combination
shall be disregarded in connection with such dividend or distribution.
(e) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock, cash (excluding any cash (1) that
is distributed as part of a distribution referred to in Section 10.04(d) hereof,
and (2) any quarterly cash dividend on Common Stock to the extent that the
aggregate cash dividend per share of Common Stock in any quarter does not exceed
$0.005 (the "dividend threshold amount"); (the dividend threshold amount is
subject to adjustment on the same basis as the Conversion Rate, provided that no
adjustment will be made to the dividend threshold amount for any adjustment made
to the Conversion Rate pursuant to this Section 10.04(e)), then and in each such
case, immediately after the close of business on such date, the Conversion Rate
shall be increased so that the same shall equal the price determined by
multiplying the Conversion Rate in effect immediately prior to the close of
business on such Record Date by a fraction:
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(i) the numerator of which shall be equal to the Current Market
Price on such Record Date, and
(ii) the denominator of which shall be equal to the Current Market
Price on the Record Date less an amount equal to the quotient of (x) the
aggregate amount of the cash distributed and (y) the number of shares of
Common Stock outstanding on the Record Date.
In the event that such dividend or distribution is not so paid or made, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared.
(f) In case the Company or any of its Subsidiaries pays holders of
the Common Stock in respect of a tender offer or exchange offer, other than an
odd-lot offer, by the Company or any of its Subsidiaries for shares of Common
Stock to the extent that the cash and fair market value of any other
consideration included in the payment per share of Common Stock exceeds the Sale
Price per share of Common Stock on the Trading Day next succeeding the last date
on which tenders or exchanges may be made pursuant to such tender offer or
exchange offer (the "Expiration Time"), then, and in each such case, the
Conversion Rate shall be adjusted so that the same shall equal the price
determined by multiplying the Conversion Rate in effect immediately prior to
close of business on the date of the Expiration Time by a fraction:
(1) 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 offer 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 Sale
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time, and
(2) 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 Sale Price of the Common Stock on the
Trading Day next succeeding the Expiration Time.
Such increase (if any) shall become effective immediately prior to the opening
of business on the day following the Expiration Time. In the event that the
Company is obligated to purchase shares pursuant to any such tender offer 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 which would then be in
effect if such tender offer or exchange offer had not been made.
(g) For purposes of this Section 10.04, the following terms shall
have the meanings indicated:
53
"Current Market Price" shall mean the average of the daily Sale Prices
per share of Common Stock for the ten consecutive Trading Days ending not later
than the earlier of the date immediately prior to the date in question and the
day before the "ex" date with respect to the issuance, distribution, subdivision
or combination requiring such computation. If another issuance, distribution,
subdivision or combination to which Section 10.04 applies occurs during the
period applicable for calculating "Current Market Price" pursuant to the
preceding definition, then "Current Market Price" shall be appropriately
adjusted to reflect the impact of such issuance, distribution, subdivision or
combination on the Sale Price of the Common Stock during such period. For
purposes of this paragraph, the term "ex" date, when used:
(A) with respect to any issuance or distribution, means the first
date on which the Common Stock trades regular way on the relevant exchange
or in the relevant market from which the Sale Price was obtained without
the right to receive such issuance or distribution;
(B) with respect to any subdivision or combination of 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, and
(C) with respect to any tender or exchange offer, means the first
date on which the Common Stock trades regular way on such exchange or in
such market after the Expiration Time of such offer.
Notwithstanding the foregoing, whenever successive adjustments to the Conversion
Rate are called for pursuant to this Section 10.04, such adjustments shall be
made to the Current Market Price as may be necessary or appropriate to
effectuate the intent of this Section 10.04 and to avoid unjust or inequitable
results as determined in good faith by the Board of Directors.
(2) "fair market value" shall mean the amount which a willing
buyer would pay a willing seller in an arm's length transaction.
(3) "Record Date" shall mean for purposes of this Article 10, 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).
(h) The Company may make such increases in the Conversion Rate, in
addition to those required by Section 10.04(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.
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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 20 days and the increase is irrevocable during the period
and the Board of Directors determines in good faith that such increase would be
in the best interests of the Company, which determination shall be conclusive
and set forth in a Board Resolution. Whenever the Conversion Rate is increased
pursuant to the preceding sentence, the Company shall mail to the Trustee and
each Holder at the address of such Holder as it appears in the Register a notice
of the increase at least 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 1% in the
Conversion Price then in effect; provided, however, that any adjustments which
by reason of this Section 10.04(i) are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. In the event that,
on the date that is five Business Days prior to the maturity of the Securities
(whether at Stated Maturity or otherwise), an adjustment has been carried
forward pursuant to the preceding sentence but has not yet been taken into
account in an adjustment to the Conversion Rate and notwithstanding the first
sentence of this paragraph (i), an adjustment to the Conversion Rate will be
made on such date in accordance with the relevant paragraph of this Section
10.04. All calculations under this Article 10 shall be made by the Company and
shall be made to the nearest cent or to the nearest one hundredth of a share, as
the case may be. No adjustment need be made for a change in the par value or no
par value of the Common Stock. No adjustment in the Conversion Rate shall be
required if the Holders participate in the transactions that would otherwise
lead to an adjustment in the Conversion Rate pursuant to this Section 10.04.
(j) In any case in which this Section 10.04 provides that an
adjustment shall become effective immediately after a Record Date for an event,
the Company may defer until the occurrence of such event (i) issuing to the
Holder of any Security converted after such Record Date and before the
occurrence of such event the additional shares of Common Stock issuable upon
such conversion by reason of the adjustment required by such event over and
above the Common Stock issuable upon such conversion before giving effect to
such adjustment and (ii) paying to such Holder any amount in cash in lieu of any
fraction pursuant to Section 10.03 hereof.
(k) For purposes of this Section 10.04, 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 10.05 Notice of Adjustments of Conversion Rate. Whenever the
Conversion Rate is adjusted as herein provided (other than in the case of an
adjustment pursuant to the second paragraph of Section 10.04(h) for which the
notice required by such paragraph has been provided), the Company shall promptly
file with the Trustee and any Conversion Agent other than the Trustee an
Officers' Certificate setting forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment is based. Promptly after
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delivery of such Officers' Certificate, the Company shall prepare a notice
stating that the Conversion Rate has been adjusted and setting forth the
adjusted Conversion Rate and the date on which each adjustment becomes
effective, and shall mail, or cause the Trustee to mail, at the Company's
expense, such notice to each Holder at the address of such Holder as it appears
in the Register within 20 days of the effective date of such adjustment. Failure
to deliver such notice shall not affect the legality or validity of any such
adjustment.
SECTION 10.06 Notice Prior to Certain Actions. In case at any time
after the date hereof:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in cash out of its
capital surplus or its consolidated retained earnings;
(2) the Company shall authorize (other than pursuant to a Rights
Plan) the granting to the holders of its Common Stock of rights or warrants
to subscribe for or purchase any shares of capital stock of any class (or
of securities convertible into shares of capital stock of any class) or of
any other rights;
(3) there shall occur any reclassification of the Common Stock of
the Company (other than a subdivision or combination of its outstanding
Common Stock, a change in par value, a change from par value to no par
value or a change from no par value to par value), or any merger,
consolidation, statutory share exchange or combination to which the Company
is a party and for which approval of any shareholders of the Company is
required, or the sale, transfer or conveyance of all or substantially all
of the assets of the Company; or
(4) there shall occur the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
the Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 4.05 hereof, and shall
cause to be provided to the Trustee and all Holders in accordance with Section
11.02 hereof, at least 15 days prior to the applicable record or effective date
hereinafter specified, a notice stating:
(A) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights or warrants, or, if a
record is not to be taken, the date as of which the holders of Common
Stock of record to be entitled to such dividend, distribution, rights
or warrants are to be determined, or
(B) the date on which such reclassification, merger,
consolidation, statutory share exchange, combination, sale, transfer,
conveyance, dissolution, liquidation or winding up is expected to
become effective, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their shares
of Common Stock for securities, cash or other property deliverable
upon such reclassification, merger, consolidation, statutory share
exchange, sale, transfer, dissolution, liquidation or winding up.
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Neither the failure to give such notice nor any defect therein shall
affect the legality or validity of the proceedings or actions described in
clauses (1) through (4) of this Section 10.06.
SECTION 10.07 Company to Reserve Common Stock. The Company shall at
all times use its best efforts to reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock, for the
purpose of effecting the conversion of Securities, the full number of shares of
fully paid and nonassessable Common Stock then issuable upon the conversion of
all Securities outstanding.
SECTION 10.08 Taxes on Conversions. Except as provided in the next
sentence, the Company will pay any and all taxes (other than taxes on income)
and duties that may be payable in respect of the issue or delivery of shares of
Common Stock on conversion of Securities pursuant hereto. A Holder delivering a
Security for conversion shall be liable for and will be required to pay any tax
or duty which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the Holder
of the Security or Securities to be converted, and no such issue or delivery
shall be made unless the Person requesting such issue has paid to the Company
the amount of any such tax or duty, or has established to the satisfaction of
the Company that such tax or duty has been paid.
SECTION 10.09 Covenant as to Common Stock. The Company covenants
that all shares of Common Stock which may be issued upon conversion of
Securities will upon issue be fully paid and nonassessable.
SECTION 10.10 Cancellation of Converted Securities. All Securities
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.10.
SECTION 10.11 Effect of Reclassification, Consolidation, Merger or
Sale. If any of following events occur, namely:
(1) any reclassification or change of the outstanding Common Stock
(other than a change in par value, or from par value to no par value, or
from no par value to par value, or as a result of a subdivision or
combination),
(2) any merger, consolidation, statutory share exchange or
combination of the Company with another corporation, or
(3) any sale or conveyance of all, or substantially all, the
properties and assets of the Company to any other Person,
in each case, as a result of which holders of Common Stock shall be entitled to
receive stock, securities or other property or assets (including cash or any
combination thereof) with respect to or in exchange for such Common Stock, the
Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture (which shall comply with the
TIA as in force at the date of execution of such supplemental indenture if such
supplemental indenture is then required to so comply) providing that such
Security shall be convertible into the kind and amount of shares of stock and
other securities or property or assets
57
(including cash or any combination thereof) which such Holder would have been
entitled to receive upon such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance had such Securities
been converted into Common Stock immediately prior to such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance assuming such holder of Common Stock did not exercise its rights of
election, if any, as to the kind or amount of securities, cash or other property
receivable upon such reclassification, change, merger, consolidation, statutory
share exchange, combination, sale or conveyance (provided that, if the kind or
amount of securities, cash or other property receivable upon such
reclassification, change, merger, consolidation, statutory share exchange,
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
("Non-Electing Share"), then for the purposes of this Section 10.11 the kind and
amount of securities, cash or other property receivable upon such
reclassification, change, merger, consolidation, statutory share exchange,
combination, sale or conveyance for each Non-Electing Share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
Non-Electing Shares). Such supplemental indenture shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the adjustments
provided for in this Article 10. If, in the case of any such reclassification,
change, merger, consolidation, statutory share exchange, combination, sale or
conveyance, the stock or other securities and assets receivable thereupon by a
holder of shares of Common Stock includes shares of stock or other securities
and assets of a corporation other than the successor or purchasing corporation,
as the case may be, in such reclassification, change, merger, consolidation,
statutory share exchange, combination, sale or conveyance, then such
supplemental indenture shall also be executed by such other corporation and
shall contain such additional provisions to protect the interests of the Holders
of the Securities as the Board of Directors shall reasonably consider necessary
by reason of the foregoing, including to the extent practicable the provisions
providing for the purchase rights set forth in Section 3.01 hereof.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder, at the address of such Holder as it
appears on the Register, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such
supplemental indenture.
The above provisions of this Section 10.11 shall similarly apply to
successive reclassifications, mergers, consolidations, statutory share
exchanges, combinations, sales and conveyances.
If this Section 10.11 applies to any event or occurrence, Section 10.04
hereof shall not apply to such event or occurrence.
SECTION 10.12 Adjustment for Other Distributions. If, after the Issue
Date of the Securities, the Company pays a dividend or makes a distribution to
all holders of its Common Stock consisting of Capital Stock of any class or
series, or similar equity interests as described in Section 10.04(d), of or
relating to a Subsidiary or other business unit of the Company, the Conversion
Rate shall be adjusted in accordance with the formula:
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P' = P x 1/(1 + M/F)
where:
P' = the adjusted Conversion Rate.
P = the current Conversion Rate.
F = the fair market value of the securities distributed in respect of each
share of Common Stock, which shall be the number of securities distributed in
respect of each share of Common Stock multiplied by the average of the
Post-Distribution Prices of those securities distributed for the 10 Trading Days
commencing on and including the fifth Trading Day after the Ex-Dividend Date.
M = the average of the Post-Distribution Prices of the Common Stock for
the 10 Trading Days commencing on and including the fifth Trading Day after the
date on which "ex-dividend trading" commences for such dividend or distribution
on the New York Stock Exchange or such other national or regional exchange or
market which such securities are then listed or quoted (the "Ex-Dividend Date").
"Post-Distribution Price" of Capital Stock or any similar equity
interest on any date means the closing per unit sale price (or, if no closing
sale price is reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average ask prices)
on such date for trading of such units on a "when issued" basis without due
bills (or similar concept) as reported in the composite transactions for the New
York Stock Exchange or such other national or regional exchange or market on
which such Capital Stock or equity interest is traded or, if the Capital Stock
or equity interest, as the case may be, is not listed on a United States
national or regional securities exchange or market, as reported by the Nasdaq
system or by the National Quotation Bureau Incorporated; provided that if on any
date such units have not traded on a "when issued" basis, the Post-Distribution
Price shall be the closing per unit sale price (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on such date
for trading of such units on a "regular way" basis without due bills (or similar
concept) as reported in the composite transactions for the New York Stock
Exchange or such other national or regional exchange on which such Capital Stock
or equity interest is traded or, if the Capital Stock or equity interest as the
case may be, is not listed on a United States national or regional securities
exchange, as reported by the Nasdaq system or by the National Quotation Bureau
Incorporated. In the absence of such quotation, the Company shall be entitled to
determine the Post-Distribution Price on the basis of such quotations, which
reflect the post-distribution value of the Capital Stock or equity interests as
it considers appropriate.
SECTION 10.13 Responsibility of Trustee for Conversion Provisions. The
Trustee and any Conversion Agent shall not at any time be under any duty or
responsibility to any Holder of Securities to determine whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or intent of any such adjustments when made, or with respect to the
method employed, or herein or in any supplemental indenture provided to be
employed, in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (of the kind or amount) of
any Common Stock, or of any other securities or property, which may at any time
be issued or delivered upon the conversion of any Security; and it or they do
not make any representation with respect thereto. Neither the Trustee nor any
Conversion Agent
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shall be responsible for any failure of the Company to make any cash payment or
to issue, transfer or deliver any shares of stock or share certificates or other
securities or property upon the surrender of any Security for the purpose of
conversion; and the Trustee and any Conversion Agent shall not be responsible or
liable for any failure of the Company to comply with any of the covenants of the
Company contained in this Article.
SECTION 10.14 Rights Issued in Respect of Common Stock Issued Upon
Conversion. In the event that the Company implements a new rights plan or any
similar plan (a "Rights Plan"), or the Company's current Rights Plan is still in
effect, upon conversion of the Securities into Common Stock, to the extent that
any such Rights Plan has been implemented and is still in effect upon such
conversion, the holders of Securities will receive, in addition to the Common
Stock, the rights described therein (whether or not the rights have separated
from the Common Stock at the time of conversion), subject to the limitations set
forth in the Rights Plan. Any distribution of rights or warrants pursuant to a
Rights Plan complying with the requirements set forth in the immediately
preceding sentence of this paragraph (including the issuance of the rights, the
distribution of separate certificates representing the rights, the exercise or
redemption of such rights in accordance with the applicable rights agreement and
the termination or invalidation of the rights) shall not constitute a
distribution of rights or warrants pursuant to Section 10.04.
ARTICLE 11
MISCELLANEOUS
SECTION 11.01 Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control. If any provision of this Indenture expressly modifies or excludes
any provision of the TIA that may be so modified or excluded, the Indenture
provision so modifying or excluding such provision of the TIA shall be deemed to
apply.
SECTION 11.02 Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows, or, other
than notices to the Company, transmitted by facsimile transmission (confirmed by
guaranteed overnight courier) to the following facsimile numbers:
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if to the Company:
Titan International, Inc.
2701 Spruce Street
Quincy, Illinois 62301
Attention: Cheri Holley
Facsimile: (217) 228-3040
if to the Trustee:
U.S. Bank National Association
101 West Washington Street
Suite 655 S
Indianapolis, Indiana 46255
Attention: Ann Forey
Facsimile: (317) 267-7658
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Holder shall be mailed to the
Holder, by first-class mail, postage prepaid, at the Holder's address as it
appears on the registration books of the Registrar and shall be sufficiently
given if so mailed within the time prescribed.
Failure to mail a notice or communication to a Holder or any defect in
it shall not affect its sufficiency with respect to other Holders. If a notice
or communication is mailed in the manner provided above, it is duly given,
whether or not received by the addressee.
If the Company mails a notice or communication to the Holders, it shall
mail a copy to the Trustee and each Registrar, Paying Agent, Conversion Agent or
co-registrar.
SECTION 11.03 Communication by Holders with Other Holders. Holders may
communicate pursuant to TIA Section 312(b) with other Holders with respect to
their rights under this Indenture or the Securities. The Company, the Trustee,
the Registrar, the Paying Agent, the Conversion Agent and anyone else shall have
the protection of TIA Section 312(c).
SECTION 11.04 Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee an Opinion of
Counsel stating that, in the opinion of such counsel, all such conditions
precedent have been complied with.
SECTION 11.05 Statements Required in an Officers' Certificate or
Opinion.Each Officers' Certificate or Opinion of Counsel with respect to
compliance with a covenant or condition provided for in this Indenture shall
include:
(1) a statement that each person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
61
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are
based;
(3) a statement that, in the opinion of each such person,
he has made such examination or investigation as is necessary to enable
such person to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement that, in the opinion of such person, such
covenant or condition has been complied with.
SECTION 11.06 Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 11.07 Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Holders. The Registrar, Conversion Agent and the Paying Agent may make
reasonable rules for their functions.
SECTION 11.08 Legal Holidays. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
SECTION 11.09 GOVERNING LAW. THIS INDENTURE AND THE NOTES WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW
YORK.
SECTION 11.10 No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder shall waive and release all such
liability. The waiver and release shall be part of the consideration for the
issue of the Securities.
SECTION 11.11 Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
SECTION 11.12 Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
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