EXHIBIT 4.5
EXECUTION VERSION
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OIL STATES INTERNATIONAL, INC.
ISSUER
TO
WELLS FARGO BANK, NATIONAL ASSOCIATION
TRUSTEE
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INDENTURE
Dated as of June 21, 2005
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2-3/8% CONTINGENT CONVERTIBLE SENIOR NOTES DUE 2025
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TABLE OF CONTENTS
PAGE
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.................................. 1
SECTION 1.1 Definitions...................................................................... 1
SECTION 1.2 Compliance Certificates And Opinions............................................. 12
SECTION 1.3 Form of Documents Delivered to the Trustee....................................... 12
SECTION 1.4 Acts of Holders of Securities; Record Dates...................................... 13
SECTION 1.5 Notices, Etc to the Trustee and Company.......................................... 15
SECTION 1.6 Notice to Holders of Securities; Waiver.......................................... 16
SECTION 1.7 Effect of Headings and Table of Contents......................................... 16
SECTION 1.8 Successors and Assigns........................................................... 16
SECTION 1.9 Separability Clause.............................................................. 16
SECTION 1.10 Benefits of Indenture............................................................ 17
SECTION 1.11 Governing Law.................................................................... 17
SECTION 1.12 Legal Holidays................................................................... 17
SECTION 1.13 Conflict With Trust Indenture Act................................................ 17
ARTICLE II SECURITY FORMS.......................................................................... 17
SECTION 2.1 Form Generally................................................................... 17
SECTION 2.2 Form of Security................................................................. 18
SECTION 2.3 Form of Certificate of Authentication............................................ 32
SECTION 2.4 Form of Conversion Notice........................................................ 32
SECTION 2.5 Form of Assignment............................................................... 33
ARTICLE III THE SECURITIES......................................................................... 34
SECTION 3.1 Title and Terms.................................................................. 34
SECTION 3.2 Denominations.................................................................... 35
SECTION 3.3 Execution, Authentication, Delivery and Dating................................... 35
SECTION 3.4 Global Securities; Non-global Securities; Book-entry Provisions.................. 35
SECTION 3.5 Registration; Registration of Transfer and Exchange; Restrictions on
Transfer......................................................................... 37
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities.................................. 40
SECTION 3.7 Payment of Interest; Interest Rights Preserved................................... 42
SECTION 3.8 Persons Deemed Owners............................................................ 43
SECTION 3.9 Cancellation..................................................................... 43
SECTION 3.10 Computation of Interest.......................................................... 44
SECTION 3.11 CUSIP Numbers.................................................................... 44
ARTICLE IV SATISFACTION AND DISCHARGE.............................................................. 44
SECTION 4.1 Satisfaction and Discharge of Indenture.......................................... 44
SECTION 4.2 Application of Trust Money....................................................... 45
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ARTICLE V REMEDIES................................................................................. 46
SECTION 5.1 Events of Default................................................................ 46
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment............................... 47
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.................. 48
SECTION 5.4 Trustee May File Proofs of Claim................................................. 49
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities...................... 50
SECTION 5.6 Application of Money Collected................................................... 50
SECTION 5.7 Limitation on Suits.............................................................. 50
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest and to
Convert.......................................................................... 51
SECTION 5.9 Restoration of Rights and Remedies............................................... 51
SECTION 5.10 Rights and Remedies Cumulative................................................... 52
SECTION 5.11 Delay or Omission Not Waiver..................................................... 52
SECTION 5.12 Control by Holders of Securities................................................. 52
SECTION 5.13 Waiver of Past Defaults.......................................................... 52
SECTION 5.14 Undertaking for Costs............................................................ 53
SECTION 5.15 Waiver of Stay, Usury or Extension Laws.......................................... 53
ARTICLE VI THE TRUSTEE............................................................................. 53
SECTION 6.1 Certain Duties and Responsibilities.............................................. 53
SECTION 6.2 Notice of Defaults............................................................... 54
SECTION 6.3 Certain Rights of Trustee........................................................ 55
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities........................... 56
SECTION 6.5 May Hold Securities, Act as Trustee under Other Indentures....................... 57
SECTION 6.6 Money Held in Trust.............................................................. 57
SECTION 6.7 Compensation and Reimbursement................................................... 57
SECTION 6.8 Corporate Trustee Required; Eligibility.......................................... 58
SECTION 6.9 Resignation and Removal; Appointment of Successor................................ 58
SECTION 6.10 Acceptance of Appointment by Successor........................................... 59
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business...................... 60
SECTION 6.12 Authenticating Agents............................................................ 60
SECTION 6.13 Disqualification; Conflicting Interests.......................................... 61
SECTION 6.14 Preferential Collection of Claims Against Company................................ 62
ARTICLE VII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................... 62
SECTION 7.1 Company May Consolidate, Etc..................................................... 62
SECTION 7.2 Successor Substituted............................................................ 62
ARTICLE VIII SUPPLEMENTAL INDENTURES............................................................... 63
SECTION 8.1 Supplemental Indentures Without Consent of Holders of Securities................. 63
SECTION 8.2 Supplemental Indentures with Consent of Holders of Securities.................... 64
SECTION 8.3 Execution of Supplemental Indentures............................................. 65
SECTION 8.4 Effect of Supplemental Indentures................................................ 65
SECTION 8.5 Reference in Securities to Supplemental Indentures............................... 65
SECTION 8.6 Notice of Supplemental Indentures................................................ 65
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ARTICLE IX MEETINGS OF HOLDERS OF SECURITIES....................................................... 66
SECTION 9.1 Purposes for Which Meetings May Be Called........................................ 66
SECTION 9.2 Call, Notice and Place of Meetings............................................... 66
SECTION 9.3 Persons Entitled to Vote at Meetings............................................. 66
SECTION 9.4 Quorum; Action................................................................... 66
SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.............. 67
SECTION 9.6 Counting Votes and Recording Action of Meetings.................................. 68
ARTICLE X COVENANTS................................................................................ 68
SECTION 10.1 Payment of Principal and Interest................................................ 68
SECTION 10.2 Maintenance of Offices or Agencies............................................... 69
SECTION 10.3 Money for Security Payments to Be Held in Trust.................................. 69
SECTION 10.4 Existence........................................................................ 70
SECTION 10.5 Payment of Taxes and Other Claims................................................ 71
SECTION 10.6 Statement by Officers as to Default.............................................. 71
SECTION 10.7 Delivery of Certain Information.................................................. 71
SECTION 10.8 Contingent Subsidiary Guarantees of the Securities............................... 72
SECTION 10.9 Waiver of Certain Covenants...................................................... 73
SECTION 10.10 Additional Interest.............................................................. 73
ARTICLE XI REDEMPTION OF SECURITIES................................................................ 73
SECTION 11.1 Right of Redemption.............................................................. 73
SECTION 11.2 Applicability of Article......................................................... 74
SECTION 11.3 Election to Redeem; Notice to Trustee............................................ 74
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed................................ 74
SECTION 11.5 Notice of Redemption............................................................. 75
SECTION 11.6 Deposit of Redemption Price...................................................... 76
SECTION 11.7 Securities Payable on Redemption Date............................................ 76
SECTION 11.8 Conversion Arrangement on Call for Redemption.................................... 77
ARTICLE XII CONVERSION OF THE SECURITIES........................................................... 77
SECTION 12.1 Conversion Privilege............................................................. 77
SECTION 12.2 Conversion Procedure............................................................. 81
SECTION 12.3 Taxes on Conversion.............................................................. 82
SECTION 12.4 Company to Provide Stock......................................................... 83
SECTION 12.5 Adjustment of Conversion Price................................................... 83
SECTION 12.6 No Adjustment.................................................................... 88
SECTION 12.7 Equivalent Adjustments........................................................... 88
SECTION 12.8 Adjustment for Tax Purposes...................................................... 88
SECTION 12.9 Notice of Adjustment............................................................. 89
SECTION 12.10 Notice of Certain Transactions................................................... 89
SECTION 12.11 Effect of Reclassification, Consolidation, Merger, Share Exchange or Sale
on Conversion Privilege.......................................................... 90
SECTION 12.12 Trustee's Disclaimer............................................................. 91
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SECTION 12.13 Voluntary Reduction.............................................................. 91
SECTION 12.14 Conversion Value of Securities Tendered.......................................... 91
SECTION 12.15 Simultaneous Adjustments......................................................... 93
ARTICLE XIII REDEMPTION AND REPURCHASES............................................................ 93
SECTION 13.1 Repurchase of Securities at Option of the Holder on Specified Dates.............. 93
SECTION 13.2 Effect of Repurchase Notice...................................................... 95
SECTION 13.3 Deposit of Repurchase Price...................................................... 96
SECTION 13.4 Securities Repurchased in Part................................................... 96
SECTION 13.5 Covenant to Comply with Securities Laws upon Repurchase of Securities............ 97
SECTION 13.6 Repayment to the Company......................................................... 97
ARTICLE XIV REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER................................... 97
SECTION 14.1 Right to Require Repurchase Upon a Fundamental Change............................ 97
SECTION 14.2 Notices; Method of Exercising Repurchase Right, Etc.............................. 98
SECTION 14.3 Certain Definitions.............................................................. 100
ARTICLE XV HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY........................................ 101
SECTION 15.1 Company to Furnish Trustee Names and Addresses of Holders........................ 101
SECTION 15.2 Preservation of Information...................................................... 101
SECTION 15.3 Reports by Trustee............................................................... 102
SECTION 15.4 Reports by Company............................................................... 102
ARTICLE XVI IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS........................ 103
SECTION 16.1 Indenture and Securities Solely Corporate Obligations............................ 103
SCHEDULE A......................................................................................... 1
ANNEX A -- Form of Restricted Securities Certificate............................................... 1
ANNEX B -- Form of Unrestricted Securities Certificate............................................. 1
ANNEX C -- Form of Surrender Certificate........................................................... 1
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Indenture, dated as of June 21, 2005, between Oil States International,
Inc., a corporation duly organized and existing under the laws of the State of
Delaware, having its principal office at Three Allen Center, 333 Clay Street,
Suite 4620, Houston, Texas 77002 (herein called the "Company"), and Wells Fargo
Bank, National Association, a national banking association, as Trustee hereunder
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its 2-3/8%
Contingent Convertible Senior Notes due 2025 (herein called 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 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 I
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1 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 generally accepted accounting principles in
the United States, and, except as otherwise herein expressly provided, the term
"generally accepted accounting principles" with respect to any computation
required or permitted hereunder shall mean such accounting principles as are
generally accepted at the date of such computation; 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.
"Accepted Purchased Shares" has the meaning specified in Section 12.5.
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"Acquirer Common Stock" has the meaning specified in this Section 1.1
under the definition "Public Acquirer Fundamental Change."
"Acquisition Value" of the Common Stock means, for each Trading Day in the
Valuation Period, the value of the consideration paid per share of Common Stock
in connection with such Public Acquirer Fundamental Change, (i) for any cash,
100% of the face amount of such cash; (ii) for any Acquirer Common Stock, 100%
of the closing sale price of such Acquirer Common Stock on each such Trading
Day; and (iii) for any other securities, assets or property, 102% of the fair
market value of such security, asset or property on each such Trading Day, as
determined by two independent nationally recognized investment banks selected by
the Trustee for this purpose.
"Act," when used with respect to any Holder of a Security, has the meaning
specified in Section 1.4.
"Additional Interest" has the meaning specified in the Registration Rights
Agreement.
"Additional Shares" has the meaning specified in Section 12.1.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct 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.
"Agent" means any Security Registrar, Authenticating Agent, Paying Agent
or Conversion Agent.
"Agent Member" means any member of, or participant in, the Depositary.
"Applicable Procedures" means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the rules and
procedures of DTC or any successor Depositary, in each case to the extent
applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized pursuant to Section
6.12 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of that 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 have been duly adopted by the Board of Directors and to be in
full force and effect on the date of such certification, shall have been
delivered to the Trustee.
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"Business Day," when used with respect to any Place of Payment, Place of
Conversion or any other place, as the case may be, means each Monday, Tuesday,
Wednesday, Thursday and Friday which is not a day on which banking institutions
in such Place of Payment, Place of Conversion or other place, as the case may
be, are authorized or obligated by law or executive order to close.
"Capital Stock" for any Person means any and all shares, interests, rights
to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock or other interests however designated
evidencing the right to participate in the value of the equity of such Person
issued by that Person, but excluding from all of the foregoing any debt
securities convertible into Capital Stock, whether or not such debt securities
include any right of participation with Capital Stock.
"Closing Sale Price" on any date means the closing sale price per share on
such date for the Acquirer Common Stock as reported in composite transactions on
the New York Stock Exchange or the principal United States securities exchange
on which such common stock is traded or the Nasdaq National Market, or, if such
common stock is not listed on the New York Stock Exchange or a United States
national or regional securities exchange or traded on the Nasdaq National
Market, as reported by The Nasdaq System. If the Acquirer Common Stock is not so
quoted, the "Closing Sale Price" will be the average of the mid-point of the
last bid and asked prices for the Acquirer Common Stock on the relevant date
quoted by each of at least three nationally recognized independent investment
banking firms selected by the Company for this purpose.
"Code" has the meaning specified in Section 2.1.
"Commission" means the United States Securities and Exchange Commission,
as from time to time constituted, created under the Exchange Act, or, if at any
time after the execution of this Indenture such Commission is not existing and
performing the duties now assigned to it under the Trust Indenture Act, then the
body performing such duties at such time.
"Common Stock" shall mean shares of the Company's Common Stock, $0.01 par
value per share, as they exist on the date of this Indenture or any other shares
of Capital Stock of the Company into which the Common Stock shall be
reclassified or changed.
"common stock" includes 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
thereof and which is not subject to redemption by the issuer thereof.
"Common Stock Price" on any date means the closing sale price per share on
such date for the Common Stock as reported in composite transactions on the New
York Stock Exchange or the principal United States securities exchange on which
the Common Stock is traded or, if the Common Stock is not traded on the New York
Stock Exchange or listed on a United States national securities exchange, as
reported by The Nasdaq System. If the Common Stock is not so listed or quoted,
the "Common Stock Price" will be the average of the mid-point of the last bid
and asked prices for the
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Common Stock on the relevant date quoted by each of at least three nationally
recognized independent investment banking firms selected by the Company for this
purpose.
"Company" means the Person named as the "Company" in the first paragraph
of this instrument until a successor Person shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Company" shall mean
such successor Person. References to the Company shall not include any
Subsidiary, unless otherwise stated.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by (i) its Chairman of the Board, its Vice
Chairman of the Board, its Chief Executive Officer, its President or a Vice
President, and by (ii) its principal financial officer, Treasurer, an Assistant
Treasurer, its Secretary or an Assistant Secretary, and delivered to the
Trustee.
"Company Repurchase Notice" has the meaning specified in Section 13.1.
"Conversion Agent" means any Person authorized by the Company to convert
Securities in accordance with Article XII. The Company has initially appointed
the Trustee as its Conversion Agent pursuant to Section 10.2.
"Conversion Price" means U.S.$31.75 per share of Common Stock as of the
date of this Indenture, subject to the adjustments described in Section 12.5
hereof.
"Conversion Rate" means the number of shares of Common Stock equal to
$1,000 divided by the Conversion Price, which shall be approximately 31.496
prior to any adjustment thereto.
"Conversion Value" has the meaning specified in Section 12.14.
"Corporate Trust Office" means the office of the Trustee at which at any
particular time the trust created by this Indenture shall be principally
administered (which at the date of this Indenture is located at 505 Main Street,
Fort Worth, Texas 76102, Attention: Corporate Trust Department).
"corporation" means a corporation, company, association, joint-stock
company or business trust.
"Credit Facilities," for purposes of Section 10.8, means one or more debt
facilities or commercial paper facilities (including the Company's current
U.S.$325 million secured bank credit facility), in each case with banks or other
institutional lenders providing for revolving credit loans, term loans,
receivables financing or letters of credit or letter of credit guarantees.
"Debt Securities," for purposes of Section 10.8, means all liabilities and
obligations, contingent or otherwise, evidenced by bonds, notes, debentures or
similar instruments (other than any such obligations under a Credit Facility)
which are registered under the Securities Act or distributed without
registration under the Securities Act in reliance on Rule 144A or Regulations S
(or any successor thereto or similar exemption).
"Defaulted Interest" has the meaning specified in Section 3.7.
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"Depositary" means, with respect to any Securities (including any Global
Securities), a clearing agency that is registered as such under the Exchange Act
and is designated by the Company to act as Depositary for such Securities (or
any successor securities clearing agency so registered), which shall initially
be DTC.
"Determination Date" has the meaning specified in Section 12.14.
"Dollar" or "U.S.$" or "$" 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.
"DTC" means The Depository Trust Company, a New York corporation.
"Effective Date" has the meaning specified in Section 12.1.
"Equity Interests" means with respect to any Person, Capital Stock of any
class or kind ordinarily having the power to vote for the election of directors,
managers, or other voting members of the governing body of such Person, as
applicable.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange Act of 1934 (or
any successor statute), as amended from time to time.
"Ex-Dividend Date" has the meaning specified in Section 12.1.
"Fundamental Change" has the meaning specified in Section 14.3.
"Fundamental Change Company Notice" has the meaning specified in Section
14.2.
"Fundamental Change Repurchase Date" has the meaning specified in Section
14.1.
"Fundamental Change Repurchase Price" has the meaning specified in Section
14.1.
"Global Security" means a Security that is registered in the Security
Register in the name of a Depositary or a nominee thereof.
"Guarantee" means any obligation, contingent or otherwise, of any Person
directly or indirectly guaranteeing any obligation of any other Person and,
without limiting the generality of the foregoing, any obligation, direct or
indirect, contingent or otherwise, of such Person (i) to purchase or pay (or
advance or supply funds for the purchase or payment of) such obligation of such
other Person (whether arising by virtue of partnership arrangements, or by
agreements to keep-well, to purchase assets, goods, securities or services
(unless such purchase arrangements are on arm's-length terms and are entered
into in the ordinary course of business), to take-or-pay, or to maintain
financial statement conditions or otherwise) or (ii) entered into for purposes
of assuring in any other manner the obligee of such obligation of the payment
thereof or to protect such obligee against loss in respect thereof (in whole or
in part).
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"Guarantor" means a Subsidiary that is required to Guarantee the
Securities pursuant to Section 10.8.
"Guaranty" means a Guarantee, entered into by a Subsidiary in compliance
with Section 10.8, of the obligations of the Company to (i) pay principal,
interest and any other payments due under the Indenture and the Securities, and
(ii) perform its obligations under Article XII of this Indenture.
"Holder" means the Person in whose name a Security is registered in the
Security Register.
"Incur," for the purposes of Section 10.8, means to issue, assume, incur,
Guarantee, become liable with respect to, or otherwise become responsible for,
contingently or otherwise.
"Indenture" means this instrument as originally executed or as it may from
time to time be supplemented or amended by one or more indentures supplemental
hereto entered into pursuant to the applicable provisions hereof, including, for
all purposes of this Indenture and any such supplemental indenture, the
provisions of the Trust Indenture Act that are deemed to be a part of and govern
this instrument and any such supplemental indenture, respectively.
"Initial Purchaser" means RBC Capital Markets Corporation.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Issue Date" means June 21, 2005.
"Investment Grade" for the purposes of Section 10.8 means a rating of Baa3
or above by Moody's Investors Service, Inc. (or any successor to its rating
agency business) and BBB- or above by Standard & Poor's Ratings Services (or any
successor to its rating agency business).
"Market Price" means the average of the Common Stock Prices for 20
consecutive Trading Days commencing 30 Trading Days before the record date with
respect to any distribution, issuance or other event requiring such computation,
appropriately adjusted (as determined in good faith by the Board of Directors,
whose determination shall be conclusive) to take into account the occurrence,
during the period commencing on the first of such 20 consecutive Trading Days
and ending on such record date, of any event requiring adjustment of the
Conversion Price under this Indenture.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article XIV or otherwise.
"Net Shares" has the meaning specified in Section 12.14.
"Net Share Amount" has the meaning specified in Section 12.14.
"Non-global Security" means a Security that is not a Global Security.
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"Non-Stock Fundamental Change" has the meaning specified in Section 12.1.
"Notice of Default" has the meaning specified in Section 5.1.
"Offer Expiration Time" has the meaning specified in Section 12.5.
"Officers' Certificate" means a certificate signed by (i) the Chairman of
the Board, a Vice Chairman of the Board, the Chief Executive Officer, the
President or a Vice President and by (ii) the principal financial officer, the
Treasurer, an Assistant Treasurer, the Secretary or an Assistant Secretary of
the Company, and delivered to the Trustee. One of the Officers signing an
Officers' Certificate given pursuant to Section 10.6 or Section 10.10 shall be
the principal executive, financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel to the Company and who shall be acceptable to the
Trustee, which opinion shall comply with the provisions of Sections 1.2 and 1.3.
"Outstanding," when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore canceled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for the payment, redemption or repurchase of which
money in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company)
in trust or set aside and segregated in trust by the Company
(if the Company shall act as its own Paying Agent) for the
Holders of such Securities, provided that if such Securities
are to be redeemed or repurchased, notice of such redemption
or repurchase has been duly given pursuant to this Indenture
or provision therefor satisfactory to the Trustee has been
made;
(iii) Securities which have been paid pursuant to Section 3.6 or in
exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other
than any such Securities in respect of which there shall have
been presented to the Trustee proof satisfactory to it that
such Securities are held by a protected purchaser in whose
hands such Securities are valid obligations of the Company;
and
(iv) Securities converted into cash and Common Stock, if any,
pursuant to Article XII;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of Outstanding Securities are present at a meeting of
Holders of Securities for quorum purposes or have given 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
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Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such determination as to the presence of a quorum or upon
any such request, demand, authorization, direction, notice, consent or waiver,
only Securities as to which a Responsible Officer of the Trustee actually
received written notice of such ownership shall be so disregarded. Securities so
owned which have been pledged in good faith may be regarded as Outstanding if
the pledgee establishes to the satisfaction of the Trustee the pledgee's right
so to act with respect to such Securities and that the pledgee is not the
Company or any other obligor upon the Securities or any Affiliate of the Company
or such other obligor, and the Trustee shall be protected in relying upon an
Officers' Certificate to such effect.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company and, except
as otherwise specifically set forth herein, such term shall include the Company
if it shall act as its own Paying Agent. The Company has initially appointed the
Trustee as its Paying Agent pursuant to Section 10.2 hereof.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, trust, estate, unincorporated organization or
government or any agency or political subdivision thereof.
"Place of Conversion" has the meaning specified in Section 3.1.
"Place of Payment" has the meaning specified in Section 3.1.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Pre-Dividend Sale Price" has the meaning specified in Section 12.5.
"Principal Return" has the meaning specified in Section 12.14.
"Public Acquirer Fundamental Change" means any transaction described in
clause (ii) or (iii) of the definition of Fundamental Change where the acquirer,
or any entity that it is a direct or indirect "beneficial owner" (as defined in
Rule 13d-3 under the Exchange Act) of more than 50% of the aggregate ordinary
voting power of all shares of such acquirer's Capital Stock that are entitled to
vote generally in the election of directors, but in each case other than the
Company, has a class 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 such Fundamental
Change. Such acquirer's or other entity's class 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 such Fundamental Change is herein referred to as "Acquirer
Common Stock."
"Purchase Agreement" means the Purchase Agreement, dated June 15, 2005,
between the Company and the Initial Purchaser, as such agreement may be amended
from time to time.
8
"Purchasers" has the meaning specified in Section 11.8.
"Qualified Institutional Buyer" shall mean a "qualified institutional
buyer" as defined in Rule 144A under the Securities Act.
"Quarter" has the meaning specified in Section 12.1.
"Ratings Event" has the meaning specified in Section 10.8.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business of any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Redemption Date," when used with respect to any Security to be redeemed,
means the date fixed for such redemption by or pursuant to this Indenture.
"Redemption Price," when used with respect to any Security to be redeemed,
means the price at which it is to be redeemed pursuant to this Indenture.
"Registrable Securities" has the meaning specified in the Registration
Rights Agreement.
"Registration Rights Agreement" means the Registration Rights Agreement,
dated as of June 21, 2005, between the Company and the Initial Purchaser, as
such agreement may be amended from time to time.
"Regular Record Date" for interest payable in respect of any Security on
any Interest Payment Date means the December 15 or June 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 13.1
"Repurchase Notice" shall have the meaning specified in Section 13.1.
"Repurchase Price" has the meaning specified in Section 13.1
"Responsible Officer," when used with respect to the Trustee, means any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, 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 and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Global Security" has the meaning specified in Section 2.1.
"Restricted Securities" means all Securities required pursuant to Section
3.5(3) to bear any Restricted Securities Legend. Such term includes the
Restricted Global Security.
9
"Restricted Securities Certificate" means a certificate in substantially
the form set forth in Annex A.
"Restricted Securities Legend" means, collectively, the legends
substantially in the forms of the legends required in the form of Security set
forth in Section 2.2 to be placed upon each Restricted Security.
"Rights Plan" has the meaning specified in Section 12.5.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 10.7.
"Securities" has the meaning ascribed to it in the first paragraph under
the caption "Recitals of the Company."
"Securities Act" means the United States Securities Act of 1933 (or any
successor statute), as amended from time to time.
"Security Register" and "Security Registrar" have the respective meanings
specified in Section 3.5(1).
"Share Price" has the meaning specified in Section 12.1.
"Shelf Registration Statement" has the meaning specified in the
Registration Rights Agreement.
"Significant Subsidiary" has the meaning ascribed to such term under Rule
1-02 of Regulation S-X under the Securities Act.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Company pursuant to Section 3.7.
"Spinoff Valuation Period" has the meaning specified in Section 12.5.
"Stated Maturity," when used with respect to the principal of any Security
or any installment of interest thereon, means the date specified in such
Security as the fixed date on which the principal of such Security or such
installment of interest is due and payable, and when used with respect to
Additional Interest means the date specified in the Officers' Certificate
provided for in Section 10.10.
"Subsidiary" means with respect to any Person any other Person of which
more than 50% of the Equity Interests are owned, directly or indirectly, by such
Person, by such Person and one or more Subsidiaries of such Person or by one or
more Subsidiaries of such Person.
"Surrender Certificate" means a certificate in substantially the form set
forth in Annex C.
10
"Ten Day Average Stock Price" has the meaning specified in Section 12.14.
"Trading Day" means any regular or abbreviated trading day of the New York
Stock Exchange or, if the Common Stock or the Acquisition Common Stock, as the
case may be, is not traded on the New York Stock Exchange, the principal United
States national securities exchange on which such common stock is traded, or if
such common stock is not traded on the New York Stock Exchange or listed on a
United States national securities exchange, as reported by the Nasdaq System.
"Trading Price" on any date of determination means the average of the
secondary market bid quotations per $1,000 principal amount of Securities
obtained by the Trustee for $5,000,000 principal amount of the Securities at
approximately 3:30 p.m., New York City time, on such determination date from two
independent nationally recognized securities dealers the Company selects, which
may include the Initial Purchaser; provided that if at least two such bids
cannot reasonably be obtained by the Trustee, but one such bid can reasonably be
obtained by the Trustee, this one bid shall be used. If the Trustee cannot
reasonably obtain at least one such bid or, in the Company's reasonable
judgment, the bid quotations are not indicative of the secondary market value of
the Securities, then the Trading Price of the Securities will be deemed to be
less than 95% of the applicable Conversion Rate of the Securities multiplied by
the Common Stock Price on such Determination Date.
"Trust Indenture Act" means the Trust Indenture Act of 1939, and the rules
and regulations thereunder, as in force at the date as of which this Indenture
was executed, except as otherwise provided in Section 8.3, provided, however,
that in the event the Trust Indenture Act of 1939 is amended after such date,
"Trust Indenture Act" means, to the extent required by any such amendment, the
Trust Indenture Act of 1939, and the rules and regulations thereunder, as so
amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this Indenture until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
such successor Trustee.
"Unrestricted Securities Certificate" means a certificate in substantially
the form set forth in Annex B.
"Valuation Period" has the meaning specified in Section 12.1.
"Volume-Weighted Average Price" means, on any Trading Day, the
volume-weighted average price per share on such date for the Common Stock as
reported in composite transactions on the New York Stock Exchange or the
principal United States national securities exchange on which the Common Stock
is traded or, if the Common Stock is not traded on the New York Stock Exchange
or listed on a United States national securities exchange, as reported by The
Nasdaq System or as provided in the immediately following sentence herein, in
all cases, from 9:30 a.m. to 4:00 p.m., New York City time, on such Trading Day,
as displayed by Bloomberg or such other comparable service that has replaced
Bloomberg. If such volume-weighted average price is not
11
available, then the Board of Directors will in good faith determine the amount
to be used as the volume-weighted average price.
SECTION 1.2 Compliance Certificates And Opinions.
Upon any application or request by the Company to the Trustee to take or
refrain from taking any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate in form and
substance satisfactory to the Trustee stating that, in the opinion of the
signers thereof, all conditions precedent and covenants, if any, provided for in
this Indenture relating to the proposed action have been complied with and an
Opinion of Counsel in form and substance satisfactory to the Trustee stating
that, in the opinion of such counsel, all such conditions precedent, if any,
have been complied with, except that in the case of any such application or
request as to which the furnishing of such documents is specifically required by
any provision of this Indenture relating to such particular application or
request, no additional certificate or opinion need be furnished. Each such
Officers' Certificate and Opinion of Counsel shall comply with the requirements
of the Trust Indenture Act and any other requirements set forth in this
Indenture.
Every Officers' Certificate or Opinion of Counsel provided for in this
Indenture (other than a certificate provided pursuant to Trust Indenture Act
Section 314(a)(4)) (including certificates provided for in Section 10.6 or
Section 10.10) shall include:
(1) a statement that each individual signing such certificate or opinion
has read such covenant or condition and the definitions herein relating thereto;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(3) a statement that, in the opinion of each such individual, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and
(4) a statement as to whether, in the opinion of each such individual,
such condition or covenant has been complied with.
An Officers' Certificate, statement or Opinion of Counsel may be based,
insofar as it relates to accounting matters, upon a certificate or opinion of or
representation by an accountant (who may be an employee of the Company), or firm
of accountants, unless such officer or counsel, as the case may be, knows that
the certificate or opinion or representation with respect to the accounting
matters upon which his or her certificate, statement or opinion may be based as
aforesaid is erroneous.
SECTION 1.3 Form of Documents Delivered to the Trustee.
In any case where several matters are required to be certified by, or
covered by an opinion of, any specified Person, it is not necessary that all
such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other
12
such Persons as to other matters, and any such Person may certify or give an
opinion as to such matters in one or several documents.
Any Officers' Certificate may be based, insofar as it relates to legal
matters, upon a certificate or opinion of, or representations by, counsel,
unless such officer knows that the certificate or opinion or representations
with respect to the matters upon which such Officers' Certificate is based are
erroneous. Any Opinion of Counsel may be based, insofar as it relates to factual
matters, upon a certificate or opinion of, or representations by, an officer or
officers of the Company or any other Person deemed appropriate by such counsel,
unless such counsel knows that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 Acts of Holders of Securities; Record Dates.
(1) Any request, demand, authorization, direction, notice, consent, waiver
or other action provided or permitted by this Indenture to be given or taken by
Holders of Securities may be embodied in and evidenced by (A) one or more
instruments of substantially similar tenor signed (either physically or by means
of a facsimile or an electronic transmission, provided that such electronic
transmission is transmitted through the facilities of a Depositary) by such
Holders in person or by an agent or proxy duly appointed in writing by such
Holders or (B) the record of Holders of Securities voting in favor thereof,
either in person or by proxies duly appointed in writing, at any meeting of
Holders of Securities duly called and held in accordance with the provisions of
Article IX. Such action shall become effective when such instrument or
instruments or record is delivered (either physically or by means of a facsimile
or an electronic transmission, provided that such electronic transmission is
transmitted through the facilities of a Depositary) to the Trustee and, where it
is hereby expressly required, to the Company. The Trustee shall promptly deliver
to the Company copies of all such instruments and records delivered to the
Trustee. Such instrument or instruments and records (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders of Securities signing such instrument or instruments or so voting at
such meeting. Proof of execution of any such instrument or of a writing
appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 9.6. Without
limiting the generality of the foregoing, a Holder, including a Depositary that
is a Holder of a Global Security, may make, give or take, by a proxy or proxies,
duly appointed in writing, any request, demand, authorization, direction,
notice, consent, waiver or other action provided in this Indenture to be made,
given or taken by Holders, and a Depositary that is a Holder of a Global
Security may provide its proxy or proxies to the beneficial owners of interests
in any such Global Security.
(2) 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
13
signing such instrument or writing acknowledged to him the execution thereof.
Where such execution is by a signer acting in a capacity other than his
individual capacity, such certificate or affidavit shall also constitute
sufficient proof of his authority.
(3) The aggregate principal amount and serial number of any Security held
by any Person, and the date of his holding the same, shall be proved by the
Security Register.
(4) The fact and date of execution of any such instrument or writing and
the authority of the Person executing the same may also be proved in any other
manner which the Trustee deems sufficient; and the Trustee may in any instance
require further proof with respect to any of the matters referred to in this
Section 1.4.
(5) The Company may set any day as the record date for the purpose of
determining the Holders entitled to give or take any request, demand,
authorization, direction, notice, consent, waiver or other action, or to vote on
any action, authorized or permitted by this Indenture to be given or taken by
Holders. Promptly and in any case not later than ten days after setting a record
date, the Company shall notify the Trustee and the Holders of such record date.
If the Company elects to set a Record Date but it is not set by the Company
prior to the first solicitation of a Holder made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote, the record
date for any such action or vote shall be the 30th day (or, if later, the date
of the most recent list of Holders required to be provided pursuant to Section
15.1) prior to such first solicitation or vote, as the case may be. With regard
to any record date, the Holders of Outstanding Securities on such date (or their
duly appointed agents or proxies), and only such Persons, shall be entitled to
give or take, or vote on, the relevant action, whether or not such Holders
remain Holders after such record date. Notwithstanding the foregoing, the
Company shall not set a record date for, and the provisions of this paragraph
shall not apply with respect to, any notice, declaration or direction referred
to in the next paragraph.
Upon actual receipt by a Responsible Officer of the Trustee from any
Holder of (i) any notice of default or breach referred to in Section 5.1(4), if
such default or breach has occurred and is continuing and the Trustee shall not
have given such a notice to the Company, (ii) any declaration of acceleration
referred to in Section 5.2, if an Event of Default has occurred and is
continuing and the Trustee shall not have given such a declaration to the
Company, or (iii) any direction referred to in Section 5.12, if the Trustee
shall not have taken the action specified in such direction, then, with respect
to clauses (ii) and (iii), a record date shall automatically and without any
action by the Company or the Trustee be set for determining the Holders entitled
to join in such declaration or direction, which record date shall be the close
of business on the tenth day (or, if such day is not a Business Day, the first
Business Day thereafter) following the day on which the Trustee so receives such
declaration or direction, and, with respect to clause (i), the Trustee may set
any day as a record date for the purpose of determining the Holders entitled to
join in such notice of default. Promptly after such receipt by the Trustee of
any such declaration or direction referred to in clause (ii) or (iii), and
promptly after setting any record date with respect to clause (i), and as soon
as practicable thereafter, the Trustee shall notify the Company and the Holders
of any such record date so fixed. The Holders on such record date (or their duly
appointed agents or proxies), and only such Persons, shall be entitled to join
in such notice, declaration or direction, whether or not such Holders remain
Holders after such record date; provided that, unless such notice, declaration
or direction shall have
14
become effective by virtue of Holders of the requisite aggregate principal
amount of Securities on such record date (or their duly appointed agents or
proxies) having joined therein on or prior to the 90th day after such record
date, such notice, declaration or direction shall automatically and without any
action by any Person be canceled and of no further effect. Nothing in this
paragraph shall be construed to prevent a Holder (or a duly appointed agent or
proxy thereof) from giving, before or after the expiration of such 90-day
period, a notice, declaration or direction contrary to or different from, or,
after the expiration of such period, identical to, the notice, declaration or
direction to which such record date relates, in which event a new record date in
respect thereof shall be set pursuant to this paragraph. In addition, nothing in
this paragraph shall be construed to render ineffective any notice, declaration
or direction of the type referred to in this paragraph given at any time to the
Trustee and the Company by Holders (or their duly appointed agents or proxies)
of the requisite aggregate principal amount of Securities on the date such
notice, declaration or direction is so given.
(6) Any request, demand, authorization, direction, notice, consent,
election, 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.
(7) The provisions of this Section 1.4 are subject to the provisions of
Section 9.5.
SECTION 1.5 Notices, Etc to the Trustee and Company.
Any request, demand, authorization, direction, notice, consent, election,
waiver or other Act of Holders of Securities or other document provided or
permitted by this Indenture to be made upon, given or furnished to, or filed
with,
(1) the Trustee by any Holder of Securities or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or filed in
writing in the English language by first class mail postage prepaid (registered
or certified, return receipt requested) or by telecopier (receipt confirmed) or
delivered by hand or by overnight courier guaranteeing next day delivery, to or
with a Responsible Officer of the Trustee and actually received by the Trustee
at its Corporate Trust Office, Attention: Corporate Trust Department, or at any
other address previously furnished in writing by the Trustee, and
(2) the Company by the Trustee or by any Holder of Securities shall be
sufficient for every purpose hereunder (unless otherwise herein expressly
provided) if in writing in the English language, mailed, first-class postage
prepaid, or telecopied (receipt confirmed), or delivered by hand or overnight
courier, addressed to the Company at Three Allen Center, 333 Clay Street, Suite
4620, Houston, Texas 77002, Attention: Chief Financial Officer, facsimile: (713)
652-0499, or at any other address previously furnished in writing to the Trustee
by the Company.
All notices to the Company will be deemed to have been duly given: at the
time delivered by hand, if personally delivered; five Business Days after being
deposited in the mail, postage prepaid, if mailed; when receipt acknowledged, if
telecopied; and the next Business Day after timely delivery
15
to the courier, if delivered by overnight delivery. All notices and
communications to the Trustee will be deemed to have been duly given when
actually received by a Responsible Officer of the Trustee.
SECTION 1.6 Notice to Holders of Securities; Waiver.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Securities of any event, such notice shall be
sufficiently given to Holders if in writing in the English language and mailed,
first-class postage prepaid, or telecopied (receipt confirmed), or delivered by
an overnight delivery service, to each Holder of a Security affected by such
event, at the address of such Holder as it appears in the Security Register, not
earlier than the earliest date and not later than the latest date prescribed for
the giving of such notice.
Neither the failure to mail or deliver such notice, nor any defect in any
notice so mailed or delivered, to any particular Holder of a Security shall
affect the sufficiency of such notice with respect to other Holders of
Securities. In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification to Holders of Securities as shall be made with the
approval of the Trustee shall constitute a sufficient notification to such
Holders for every purpose hereunder.
Such notice shall be deemed to have been given when such notice is mailed
or delivered to the overnight delivery service, as applicable, and shall be
conclusively deemed to have been received by such Holder, whether or not such
Holder actually receives such notice.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders of Securities shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
SECTION 1.7 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are for
convenience only and shall not affect the construction hereof.
SECTION 1.8 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall bind
its successors and assigns, whether so expressed or not. All covenants and
agreements in this Indenture by the Trustee shall bind its successors, whether
so expressed or not.
SECTION 1.9 Separability Clause.
In case any provision in this Indenture or 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.
16
SECTION 1.10 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied, shall
give to any Person, other than the parties hereto and their successors and
assigns hereunder and the Holders of Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.
SECTION 1.11 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.12 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date, Repurchase
Date, Fundamental Change Repurchase Date or Stated Maturity of any Security or
the last day on which a Holder of a Security has a right to convert his Security
shall not be a Business Day at a Place of Payment or Place of Conversion, as the
case may be, then (notwithstanding any other provision of this Indenture or of
the Securities) payment of principal of or interest on, or the payment of the
Redemption Price, Repurchase Price or Fundamental Change Repurchase Price, if
applicable with respect to, or delivery for conversion of, such Security need
not be made at such Place of Payment or Place of Conversion, as the case may be,
on or by such day, but may be made on or by the next succeeding Business Day at
such Place of Payment or Place of Conversion, as the case may be, with the same
force and effect as if made on the Interest Payment Date, Redemption Date,
Repurchase Date, or Fundamental Change Repurchase Date, or at the Stated
Maturity or by such last day for conversion; provided, however, that in the case
that payment is made on such succeeding Business Day, no interest shall accrue
on the amount so payable for the period from and after such Interest Payment
Date, Redemption Date, Repurchase Date, Fundamental Change Repurchase Date,
Stated Maturity or last day for conversion, as the case may be.
SECTION 1.13 Conflict With Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision of
the Trust Indenture Act, the Trust Indenture Act shall control. If any provision
of this Indenture modifies or excludes any provision of the Trust Indenture Act
that may be so modified or excluded, the Indenture provision so modifying or
excluding such provision of the Trust Indenture Act shall be deemed to apply.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Form Generally.
The Securities shall be in substantially the form set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange, the Internal Revenue Code of 1986, as amended, and
regulations thereunder (the "Code"),
17
or any applicable securities laws, or as may, consistent herewith, be determined
by the officers executing such Securities, as evidenced by their execution
thereof. All Securities shall be in fully registered form.
The Trustee's certificates of authentication shall be in substantially the
form set forth in Section 2.3.
Conversion notices shall be in substantially the form set forth in Section
2.4.
Repurchase notices shall be in substantially the form set forth in Section
2.2.
The Securities shall be printed, lithographed, typewritten or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any automated quotation system or securities
exchange (including on steel engraved borders if so required by any securities
exchange upon which the Securities may be listed) on which the Securities may be
quoted or listed, as the case may be, all as determined by the officers
executing such Securities, as evidenced by their execution thereof.
Upon their original issuance, Securities issued as contemplated by the
Purchase Agreement to Qualified Institutional Buyers in reliance on Rule 144A
shall be issued in the form of one or more Global Securities in definitive,
fully registered form without interest coupons and bearing the Restricted
Securities Legend. Each such Global Security shall be registered in the name of
DTC, as Depositary, or its nominee, and deposited with the Trustee, as custodian
for DTC, for credit by DTC to the respective accounts of beneficial owners of
the Securities represented thereby (or such other accounts as they may direct).
Each such Global Security, together with its Successor Securities which are
Global Securities, are collectively herein called the "Restricted Global
Security."
SECTION 2.2 Form of Security.
[FORM OF FACE]
[THE FOLLOWING LEGEND (THE "RESTRICTED SECURITIES LEGEND") SHALL APPEAR ON
THE FACE OF EACH RESTRICTED SECURITY:
THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT
FROM REGISTRATION UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"), AND THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION HEREOF MAY NOT BE OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF THIS SECURITY
MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE COMPANY THAT (A) THIS
SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION HEREOF MAY BE
OFFERED, RESOLD, PLEDGED OR OTHERWISE
18
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN RULE 144A
UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE
144A, (II) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (III) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, OR (IV) TO THE COMPANY OR ONE
OF ITS SUBSIDIARIES, IN EACH OF CASES (I) THROUGH (IV) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER
WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN CLAUSE (A) ABOVE. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THE SECURITIES EXCEPT AS PERMITTED BY THE
SECURITIES ACT.
THIS SECURITY, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION, AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO MODIFY
THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS SECURITY AND ANY SUCH
SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION HEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS SECURITY AND SUCH SHARES
SHALL BE DEEMED BY THE ACCEPTANCE OF THIS SECURITY AND ANY SUCH SHARES TO HAVE
AGREED TO SUCH AMENDMENT OR SUPPLEMENT.]
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY:
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF THE DEPOSITARY OR A
NOMINEE OF THE DEPOSITARY, WHICH MAY BE TREATED BY THE COMPANY, THE TRUSTEE AND
ANY AGENT THEREOF AS OWNER AND HOLDER OF THIS SECURITY FOR ALL PURPOSES.
UNLESS AND UNTIL IT IS EXCHANGED IN WHOLE OR IN PART FOR SECURITIES IN
DEFINITIVE REGISTERED FORM IN THE LIMITED CIRCUMSTANCES REFERRED TO IN THE
INDENTURE, THIS GLOBAL SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE
DEPOSITARY TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE DEPOSITARY OR ANY
SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A NOMINEE OF SUCH SUCCESSOR
DEPOSITARY.]
19
[THE FOLLOWING LEGEND SHALL APPEAR ON THE FACE OF EACH GLOBAL SECURITY FOR WHICH
THE DEPOSITORY TRUST COMPANY IS TO BE THE DEPOSITARY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
20
OIL STATES INTERNATIONAL, INC.
2-3/8% CONTINGENT CONVERTIBLE SENIOR NOTE DUE 2025
No._________________________ $___________________
CUSIP NO. [__________]
OIL STATES INTERNATIONAL, INC., a corporation duly organized and existing
under the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to _________________, or
registered assigns, the principal sum of ________ United States Dollars
(U.S.$______ ) (which principal amount may from time to time be increased or
decreased to such other principal amounts (which, taken together with the
principal amounts of all other Outstanding Securities, shall not exceed
U.S.$175,000,000) by adjustments made on the records of the Trustee hereinafter
referred to in accordance with the Indenture) on July 1, 2025 and to pay
interest thereon, from June 21, 2005, or from the most recent Interest Payment
Date (as defined below) to which interest has been paid or duly provided for,
semi-annually in arrears on January 1 and July 1 in each year (each, an
"Interest Payment Date"), commencing January 1, 2006, at the rate of 2-3/8% per
annum, until the principal hereof is paid, and at the rate of 2-3/8% per annum
on any overdue principal and, to the extent permitted by law, on any overdue
interest (including Additional Interest, if any). Interest and Additional
Interest, if any, will be computed on the basis of a 360-day year composed of
twelve 30-day months. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date will, as provided in the Indenture,
be paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest, which shall be the December 15 or June 15 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security (or one or more Predecessor Securities) is registered at the
close of business on a Special Record Date for the payment of such Defaulted
Interest to be fixed by the Company, notice whereof shall be given to Holders of
Securities not less than 10 days prior to the Special Record Date, or be paid at
any time in any other lawful manner not inconsistent with the requirements of
any automated quotation system or securities exchange on which the Securities
may be quoted or listed, and upon such notice as may be required by such
exchange, all as more fully provided in the Indenture. Payments of principal
shall be made upon the surrender of this Security at any office or agency of the
Company as may be designated by it for such purpose in The City of New York, in
such lawful money of the United States of America as at the time of payment
shall be legal tender for the payment of public and private debts, by, at the
option of the Holder (i) United States Dollar check drawn on, or (ii) wire
transfer to, a United States Dollar account maintained in The City of New York
(such a transfer to be made only to a Holder of an aggregate principal amount of
Securities in excess of U.S.$2,000,000 and only if such Holder shall have
furnished wire instructions in writing to the Trustee no later than 15 days
prior to the relevant payment date). Payment of interest on this Security may be
made by United States Dollar check mailed to the address of the Person entitled
thereto as such address shall appear in the Security
21
Register, or, upon written application by the Holder to the Security Registrar
setting forth wire instructions not later than the relevant Record Date, by
transfer to a United States Dollar account maintained in The City of New York
(such a transfer to be made only to a Holder of an aggregate principal amount of
Securities in excess of U.S.$2,000,000 and only if such Holder shall have
furnished wire instructions in writing to the Trustee no later than 15 days
prior to the relevant payment date).
Except as specifically provided herein or in the Indenture, the Company
shall not be required to make any payment with respect to any tax, assessment or
other governmental charge imposed by any government or any political subdivision
or taxing authority thereof or therein.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
22
IN WITNESS WHEREOF, the Company has caused this Security to be duly executed.
OIL STATES INTERNATIONAL, INC.
By:_________________________________
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned Indenture.
Dated:
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:____________________________________________
Authorized Signatory
23
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities of the
Company designated as its "2-3/8% Contingent Convertible Senior Notes due 2025"
(herein called the "Securities"), limited in aggregate principal amount to
U.S.$175,000,000, issued and to be issued under an Indenture, dated as of June
21, 2005 (herein called the "Indenture"), between the Company and Wells Fargo
Bank, National Association, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and delivered.
No sinking fund is provided for the Securities.
Prior to July 6, 2012, the Securities shall not be redeemable. On or after
July 6, 2012, the Company may redeem all or any portion of the Securities for
cash at a Redemption Price equal to 100% of the principal amount of the
Securities plus accrued and unpaid interest (including Additional Interest, if
any) to, but excluding, the Redemption Date. Interest installments on Securities
whose Stated Maturity is on or prior to such Redemption Date will be payable to
the Holders of such Securities, or one or more Predecessor Securities, of record
at the close of business on the relevant Record Dates referred to on the face
hereof, all as provided in the Indenture. Whenever in this Security there is a
reference, in any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Redemption Price payable
in respect of such Security to the extent that such Redemption Price is, was or
would be so payable at such time, and express mention of the Redemption Price in
any provision of this Security shall not be construed as excluding the
Redemption Price so payable in those provisions of this Security when such
express mention is not made.
In any case where the due date for the payment of the principal of or
interest, including Additional Interest, if any, on any Security or the last day
on which a Holder of a Security has a right to convert his Security shall not be
a Business Day, at any Place of Payment or Place of Conversion as the case may
be, then payment of principal, interest, including Additional Interest, if any,
or delivery for conversion of such Security need not be made on or by such date
at such place but may be made on or by the next succeeding Business Day at such
Place of Payment or Place of Conversion, as the case may be, with the same force
and effect as if made on the date for such payment, or by such last day for
conversion, and if the payment is made on such next succeeding Business Day no
interest shall accrue on the amount so payable for the period after such due
date.
Under certain circumstances involving the incurrence of certain
indebtedness or the issuance of certain guarantees by the Company's
Subsidiaries, such Subsidiaries would be required to guarantee the Company's
obligations under the Indenture and the Securities.
Subject to the terms and conditions of the Indenture, the Company shall
become obligated to repurchase, at the option of the Holder on July 1, 2012,
July 1, 2015 and July 1, 2020 (each a "Repurchase Date"), all or a portion of
the Securities held by such Holder, in any integral multiple of
24
U.S.$1,000, for cash at a price per Security equal to 100% of the aggregate
principal amount of the Security (the "Repurchase Price"), together with accrued
but unpaid interest (including Additional Interest, if any) thereon to, but
excluding, the Repurchase Date upon delivery of a Repurchase Notice containing
the information set forth in the Indenture, together with the Securities subject
thereto, at any time from the opening of business on the date that is 30
Business Days prior to such Repurchase Date until the close of business on the
Repurchase Date, and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture.
If cash sufficient to pay the Repurchase Price and accrued but unpaid
interest (including Additional Interest, if any) on all Securities or portions
thereof to be repurchased as of the Repurchase Date is held by the Paying Agent
by 10:30 a.m., New York City time, on the Business Day immediately following the
Repurchase Date, interest (including Additional Interest, if any) shall cease to
accrue on such Securities (or portions thereof) as of such Repurchase Date and
the Holder thereof shall have no other rights as such, other than the right to
receive the Repurchase Price and interest (including Additional Interest, if
any) upon surrender of such Security.
Upon satisfaction of the conditions set forth in Section 12.1(1) of the
Indenture, a Holder of a Security may convert any portion of the principal
amount of any Security that is an integral multiple of U.S.$1,000 into cash and
fully paid and non-assessable shares (calculated as to each conversion to the
nearest 1/1,000th of a share) of Common Stock in accordance with the provisions
of Section 12.14 of the Indenture; provided that if such Security is called for
redemption or delivered for repurchase pursuant to Article XIII or XIV of the
Indenture, the conversion right will terminate at the close of business on the
Business Day immediately preceding the Redemption Date, Repurchase Date or
Fundamental Change Repurchase Date, as applicable, of such Security (unless the
Company shall default in making the redemption or repurchase payment when due,
in which case the conversion right shall terminate at the close of business on
the date such default is cured and such Security is redeemed or repurchased).
Subject to the satisfaction of the conditions set forth in Section 12.1(1) of
the Indenture, such conversion right shall commence on the initial issuance date
of the Securities and expire at the close of business on the date of maturity,
subject, in the case of conversion of any Global Security, to any Applicable
Procedures. The Conversion Price shall, as of the date of the Indenture,
initially be $31.75 per share of Common Stock. The Conversion Rate shall, as of
the date of the Indenture, initially be approximately 31.496. The Conversion
Price and Conversion Rate will be adjusted under the circumstances specified in
the Indenture. Upon conversion, no adjustment for interest (including Additional
Interest, if any) or dividends will be made. No fractional shares will be issued
upon conversion; in lieu thereof, an amount will be paid in cash based upon the
Ten Day Average Stock Price. Except as provided in Section 12.2(3) of the
Indenture, delivery of the Principal Return, Net Shares and cash in lieu of
fractional shares shall be deemed to satisfy the Company's obligation to pay the
principal amount of a converted Security and accrued but unpaid interest
(including Additional Interest, if any) thereon. Any accrued interest (including
Additional Interest, if any) payable on a converted Security will be deemed paid
in full, rather than canceled, extinguished or forfeited.
In addition, following certain corporate transactions that occur on or
prior to July 1, 2012 and that constitute a Fundamental Change (other than
relating to the composition of the Board of Directors as described in clause (i)
of the definition of Fundamental Change in Section 14.3(2)) and for which 10% or
more of the fair market value of the consideration for the Common Stock (as
25
determined by the Board of Directors) in the corporate transaction consists of
(i) cash (not including cash payments for fractional shares and cash payments
pursuant to dissenters' appraisal rights), (ii) other property or (iii)
securities that are not traded or scheduled to be traded immediately following
such transaction on a U.S. national securities exchange or the Nasdaq National
Market, a Holder who elects to convert its Securities in connection with such
corporate transaction will be entitled to receive Additional Shares of Common
Stock upon conversion in certain circumstances set forth in the Indenture,
subject to the provisions of Section 12.1(3) of the Indenture.
To convert a Security, a Holder must (a) complete and manually sign the
conversion notice set forth below, if the Security is in definitive form, and
deliver such notice to the Conversion Agent, (b) surrender the Security to the
Conversion Agent, (c) if the Security is in definitive form, furnish appropriate
endorsements and transfer documents if required by the Security Registrar or the
Conversion Agent, (d) pay any transfer or other tax, if required and (e) if the
Security is held in book-entry form, complete and deliver to the Depositary
appropriate instructions pursuant to the Applicable Procedures. If a Holder
surrenders a Security for conversion between the close of business on the
Regular Record Date and prior to the opening of business on the related Interest
Payment Date, including the date of maturity, the Security must be accompanied
by payment of an amount equal to the interest (including Additional Interest, if
any) payable on such Interest Payment Date on the principal amount of the
Security or portion thereof then converted; provided that no such payment shall
be required if such Security has been called for redemption on a Redemption Date
within the period between close of business on such Record Date and the opening
of business on such Interest Payment Date, or if such Security is surrendered
for conversion on the Interest Payment Date. A Holder may convert a portion of a
Security equal to U.S.$1,000 or any integral multiple thereof.
A Security in respect of which a Holder has delivered a repurchase notice
exercising the option of such Holder to require the Company to repurchase such
Security as provided in Article XIII or Article XIV, respectively, of the
Indenture may be converted only if such notice of exercise is withdrawn in
accordance with the terms of the Indenture.
If this Security is a Registrable Security (as defined in the Indenture),
then the Holder of this Security (including any Person that has a beneficial
interest in this Security) and the Common Stock of the Company issuable upon
conversion hereof is entitled to the benefits of a Registration Rights
Agreement, dated as of June 21, 2005, executed by the Company (the "Registration
Rights Agreement").
Whenever in this Security there is a reference, in any context, to the
payment of interest on, or in respect of, any Security as of any time, such
reference shall be deemed to include reference to Additional Interest, as
described in the preceding paragraph, if any, payable in respect of such
Security to the extent that such Additional Interest, if any, is, was or would
be so payable at such time, and express mention of Additional Interest, if any,
in any provision of this Security shall not be construed as excluding Additional
Interest, if any, so payable in those provisions of this Security when such
express mention is not made.
If this Security is a Registrable Security and the Holder of this Security
(including any Person that has a beneficial interest in this Security) elects to
sell this Security pursuant to the Shelf
26
Registration Statement then, by its acceptance hereof, such Holder of this
Security agrees to be bound by the terms of the Registration Rights Agreement
relating to the Registrable Securities which are the subject of such election.
If a Fundamental Change occurs, the Holder of this Security, at the
Holder's option, shall have the right, in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the aggregate principal amount hereof that is at least U.S.$1,000 or an integral
multiple of U.S.$1,000 in excess thereof, provided that the portion of the
aggregate principal amount of this Security to be Outstanding after such
repurchase is at least equal to U.S.$1,000) for cash at a Fundamental Change
Repurchase Price equal to 100% of the aggregate principal amount thereof plus
interest (including Additional Interest, if any) accrued to, but excluding, the
Fundamental Change Repurchase Date, as provided in the Indenture. Whenever in
this Security there is a reference, in any context, to the principal of any
Security as of any time, such reference shall be deemed to include reference to
the Fundamental Change Repurchase Price payable in respect of such Security to
the extent that such Fundamental Change Repurchase Price is, was or would be so
payable at such time, and express mention of the Fundamental Change Repurchase
Price in any provision of this Security shall not be construed as excluding the
Fundamental Change Repurchase Price so payable in those provisions of this
Security when such express mention is not made.
If this Security is a Global Security, then, in the event of a deposit or
withdrawal of an interest in this Security, including an exchange, transfer,
redemption, repurchase or conversion of this Security in part only, the Trustee,
as custodian of the Depositary, shall make an adjustment on its records to
reflect such deposit or withdrawal in accordance with the Applicable Procedures.
If an Event of Default shall occur and be continuing, the principal of all
the Securities, together with accrued interest to the date of declaration, may
be declared due and payable in the manner and with the effect provided in the
Indenture. Upon payment (i) of the amount of principal so declared due and
payable, together with accrued interest to the date of declaration, and (ii) of
interest on any overdue principal and, to the extent permitted by applicable
law, overdue interest, all of the Company's obligations in respect of the
payment of the principal of and interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with either (a) the written consent of
the Holders of not less than a majority in aggregate principal amount of the
Securities at the time Outstanding, or (b) by the adoption of a resolution, at a
meeting of Holders of the Outstanding Securities at which a quorum is present,
by the Holders of at least 66 2/3% in aggregate principal amount of the
Outstanding Securities represented and entitled to vote at such meeting. The
Indenture also contains provisions permitting the Holders of specified
percentages in aggregate principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued upon the
registration of transfer hereof or in
27
exchange herefor or in lieu hereof whether or not notation of such consent or
waiver is made upon this Security or such other Security. Certain modifications
or amendments to the Indenture require the consent of the Holder of each
Outstanding Security affected.
As provided in and subject to the provisions of the Indenture, the Holder
of this Security shall not have the right to institute any proceeding with
respect to the Indenture or for the appointment of a receiver or trustee or for
any other remedy thereunder, unless such Holder shall have previously given the
Trustee written notice of a continuing Event of Default, the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities shall have
made written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee security or indemnity
reasonably satisfactory to the Trustee and the Trustee shall not have received
from the Holders of a majority in aggregate principal amount of the Securities
Outstanding a direction inconsistent with such request, and shall have failed to
institute any such proceeding, for 60 days after receipt of such notice, request
and offer of security or indemnity (or if requested, receipt of security or
indemnity). The foregoing shall not apply to any suit instituted by the Holder
of this Security for the enforcement of any payment of principal hereof or
interest (including Additional Interest, if any) hereon, on or after the
respective due dates expressed herein or for the enforcement of the right to
convert this Security as provided in the Indenture.
No reference herein to the Indenture and no provision of this Security or
of the Indenture shall alter or impair (without the consent of the Holder
hereof) the obligation of the Company, which is absolute and unconditional, to
pay the principal of and interest (including Additional Interest, if any) on
this Security at the times, places and rate, and in the coin or currency, herein
prescribed or to convert this Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable on the Security Register
upon surrender of this Security for registration of transfer at such office or
agency of the Company as may be designated by it for such purpose in The City of
New York (which shall initially be at Wells Fargo Corporate Trust, c/o DTC, 1st
Floor, TADS Department, 55 Water Street, New York, New York 10041), or at such
other offices or agencies as the Company may designate, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar duly executed by, the Holder thereof or his
attorney duly authorized in writing, and thereupon one or more new Securities,
of authorized denominations and for the same aggregate principal amount, will be
issued to the designated transferee or transferees by the Security Registrar. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of any authorized denominations as requested by the Holder surrendering the same
upon surrender of the Security or Securities to be exchanged, at such office or
agency of the Company. The Trustee upon such surrender by the Holder will issue
the new Securities in the requested denominations. No service charge shall be
made for any such registration of transfer or exchange, but the Company may
require payment of a sum sufficient to cover any tax or other governmental
charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee, any Agent and any agent of the Company, the Trustee or
any Agent may treat the Person in whose name such Security is registered as the
owner thereof for all purposes, whether or not such
28
Security be overdue, and neither the Company, the Trustee nor any Agent or other
such agent shall be affected by notice to the contrary.
No recourse for the payment of the principal or interest on this Security
and no recourse under or upon any obligation, covenant or agreement of the
Company in the Indenture or any indenture supplemental thereto or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer or
director or subsidiary, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by the acceptance hereof and as part of consideration for the
issue hereof, expressly waived and released by the Holder hereof.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
All terms used in this Security which are defined in the Indenture shall
have the meanings assigned to them in the Indenture.
29
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of
this Security, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM as tenant in common UNIF GIFT MIN ACT ____ Custodian ____
TEN ENT as tenants by the entireties (Cust) (Cust) (Minor)
JT TEN as joint tenants with right of survivorship under Uniform Gifts to
and not as tenants in common Minors Act _____
(State)
Additional abbreviations may also be used though not in the above list.
30
ELECTION OF HOLDER TO REQUIRE REPURCHASE
(1) Pursuant to Section 14.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
(2) The undersigned hereby directs the Trustee or the Company to pay it or
______________ an amount in cash equal to 100% of the aggregate principal amount
to be repurchased (as set forth below), plus interest and Additional Interest,
if any, accrued to, but excluding, the Fundamental Change Repurchase Date, as
provided in the Indenture.
Dated:
_____________________________________
_____________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934.
_____________________________________
Signature Guaranteed
Principal amount to be repurchased (at least U.S.$1,000 or an integral multiple
of $1,000 in excess thereof): ___________________
Remaining aggregate principal amount following such repurchase (not less than
U.S.$1,000):
____________________
NOTICE: The signature to the foregoing election must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
31
SECTION 2.3 Form of Certificate of Authentication.
The Trustee's certificate of authentication shall be in substantially the
following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated:________________________________
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By:________________________________
Authorized Signatory
SECTION 2.4 Form of Conversion Notice.
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably exercises the
option to convert this Security, or any portion of the aggregate principal
amount hereof (which is U.S.$1,000 or an integral multiple of U.S.$1,000 in
excess thereof, provided that the unconverted portion of such aggregate
principal amount is U.S.$1,000 or any integral multiple of U.S.$1,000 in excess
thereof) below designated, into shares of Common Stock in accordance with the
terms of the Indenture referred to in this Security, and directs that such
shares, together with a check in payment for any fractional share and any
Securities representing any unconverted aggregate principal amount hereof, be
delivered to and be registered in the name of the undersigned unless a different
name has been indicated below. If shares of Common Stock or Securities are to be
registered in the name of a Person other than the undersigned, (a) the
undersigned will pay all transfer taxes payable with respect thereto and (b)
signature(s) must be guaranteed by an Eligible Guarantor Institution with
membership in an approved signature guarantee program pursuant to Rule 17Ad-15
under the Securities Exchange Act of 1934. Any amount required to be paid by the
undersigned on account of interest accompanies this Security.
Dated:______________________________ _______________________________
Signature(s)
If shares or Securities are to be registered in the name of a Person other than
the Holder, please print such Person's name and address:
___________________________________
(Name)
___________________________________
32
____________________________________________
(Address)
____________________________________________
Social Security or other Identification
Number, if any
____________________________________________
[Signature Guaranteed]
If only a portion of the Securities is to be converted, please indicate:
1. Principal amount to be converted: U.S.$ ___________
2. Principal amount and denomination of Securities representing unconverted
aggregate principal amount to be issued:
Amount: U.S.$___________ Denominations: U.S.$____________
(U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof, provided
that the unconverted portion of such aggregate principal amount is U.S.$1,000 or
any integral multiple of U.S.$1,000 in excess thereof) SECTION 2.5 Form of
Assignment.
For value received ________________ hereby sell(s), assign(s) and
transfer(s) unto ________________ (Please insert social security or other
identifying number of assignee) the within Security, and hereby irrevocably
constitutes and appoints ____________________as attorney to transfer the said
Security on the books of the Company, with full power of substitution in the
premises.
Dated:____________________ __________________________________________
__________________________________________
Signature(s)
Signature(s) must be guaranteed by an Eligible
Guarantor Institution with membership in an
approved signature guarantee program pursuant
to Rule 17Ad - 15 under the Securities Exchange
Act of 1934.
_________________________________________
Signature Guaranteed
33
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to U.S.$125,000,000 and shall be
increased to the extent the Initial Purchaser exercises its option to purchase
up to an additional U.S.$50,000,000 such that the total aggregate principal
amount of Securities which may be authenticated and delivered under this
Indenture shall not exceed U.S.$175,000,000 of Securities from the Company,
except for Securities authenticated and delivered pursuant to Section 3.4, 3.5,
3.6, 8.5, 12.2, 13.4 or 14.2(5) in exchange for, or in lieu of, other Securities
previously authenticated and delivered under this Indenture.
(1) The Securities shall be known and designated as the "2-3/8% Contingent
Convertible Senior Notes due 2025" of the Company. The Stated Maturity with
respect to the principal of the Securities shall be July 1, 2025 and they shall
bear interest on their aggregate principal amount from June 21, 2005, payable
semi-annually in arrears on January 1 and July 1 in each year, commencing
January 1, 2006, at the rate of 2-3/8% per annum until the principal thereof is
due and at the rate of 2-3/8% per annum on any overdue principal and, to the
extent permitted by law, on any overdue interest; provided, however, that
payments shall only be made on a Business Day as provided in Section 1.12.
The principal of and interest (including Additional Interest, if any) on
the Securities shall be payable as provided in the form of Securities set forth
in Section 2.2, and the Repurchase Price, Fundamental Change Repurchase Price,
and the Redemption Price shall be payable at such places in The City of New
York, as are identified in the applicable notice given by the Company or the
Trustee on its behalf pursuant to Section 11.5, Section 13.1 or Section 14.2, as
appropriate (each location of any Paying Agent in The City of New York is being
herein called a "Place of Payment").
The Registrable Securities are entitled to the benefits of the
Registration Rights Agreement and in the form of Security set forth in Section
2.2. The Securities are entitled to the payment of Additional Interest as
provided in the Registration Rights Agreement and in the form of Security set
forth in Section 2.2. Whenever in this Indenture there is a reference, in any
context, to the payment of interest on, or in respect of, any Security as of any
time, such reference shall be deemed to include reference to Additional
Interest, if any, payable in respect of such Security to the extent that such
Additional Interest, if any, is, was or would be so payable at such time, and
express mention of Additional Interest, if any, in any provision of this
Indenture shall not be construed as excluding Additional Interest, if any, so
payable in those provisions of this Indenture when such express mention is not
made.
The Securities shall be redeemable at the option of the Company at any
time on or after July 6, 2012, in whole or in part, subject to the conditions
and as otherwise provided in Article XI and in the form of Security set forth in
Section 2.2.
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The Securities shall be convertible as provided in Article XII (any city
in which any Conversion Agent is located being herein called a "Place of
Conversion").
The Securities shall be subject to repurchase at the option of the Holders
on July 1, 2012, July 1, 2015 and July 1, 2020 as provided in Article XIII. The
Securities shall be subject to repurchase by the Company upon the occurrence of
a Fundamental Change at the option of the Holders as provided in Article XIV.
SECTION 3.2 Denominations.
The Securities shall be issuable only in registered form, without coupons,
in denominations of U.S.$1,000 and integral multiples of U.S.$1,000 in excess
thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its Chairman
of the Board, its Vice Chairman of the Board, its Chief Executive Officer, its
President or one of its Vice Presidents. Any such signature may be manual or
facsimile.
Securities bearing the manual or facsimile signature of individuals who
were at any time 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 such Securities.
At any time and from time to time after the execution and delivery of this
Indenture, the Company may deliver Securities executed by the Company to the
Trustee or to its order for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities as in this Indenture provided.
Each Security shall be dated the date of its authentication.
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
executed by the Trustee by manual signature of an authorized signatory, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.4 Global Securities; Non-global Securities; Book-entry Provisions.
(1) Global Securities
(i) Each Global Security authenticated under this Indenture shall be
registered in the name of the Depositary designated by the Company for such
Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
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(ii) Except for exchanges of Global Securities for definitive,
Non-global Securities at the sole discretion of the Company, no Global Security
may be exchanged in whole or in part for Securities registered, and no transfer
of a Global Security in whole or in part may be registered, in the name of any
Person other than the Depositary for such Global Security or a nominee thereof
unless (A) such Depositary (i) has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or (ii) has ceased to
be a clearing agency registered as such under the Exchange Act or announces an
intention permanently to cease business or does in fact do so, and in either
such event, a successor Depositary for such Global Security is not appointed by
the Company within 90 days after the Company receives such notice or becomes
aware of such ineligibility, or (B) there shall have occurred and be continuing
an Event of Default with respect to such Global Security and the Depositary
notifies the Trustee of its decision to exchange such Global Security for
definitive Non-global Securities. In any such event, the Company will execute,
and the Trustee, upon actual receipt by a Responsible Officer of an Officers'
Certificate directing the authentication and delivery of Securities and an
Opinion of Counsel with respect thereto, will authenticate and deliver pursuant
to such instructions, Securities, in any authorized denominations in an
aggregate principal amount equal to the aggregate principal amount of such
Global Security in exchange for such Global Security.
(iii) If any Global Security is to be exchanged for other Securities
or canceled in whole, it shall be surrendered by or on behalf of the Depositary
or its nominee to the Trustee, as Security Registrar, for exchange or
cancellation, as provided in this Article III. If any Global Security is to be
exchanged for other Securities or canceled in part, or if another Security is to
be exchanged in whole or in part for a beneficial interest in any Global
Security, in each case, as provided in Section 3.5, then either (A) such Global
Security shall be so surrendered for exchange or cancellation, as provided in
this Article III, or (B) the aggregate principal amount thereof shall be reduced
or increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the aggregate principal amount of such other Security to
be so exchanged for a beneficial interest therein, as the case may be, by means
of an appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 3.5(3) and as
otherwise provided in this Article III, authenticate and deliver any Securities
issuable in exchange for such Global Security (or any portion thereof) to or
upon the order of, and registered in such names as may be directed by, the
Depositary or its authorized representative. Upon the request of the Trustee in
connection with the occurrence of any of the events specified in the preceding
paragraph, the Company shall promptly make available to the Trustee a reasonable
supply of Securities that are not in the form of Global Securities. The Trustee
shall be entitled to rely upon any order, direction or request of the Depositary
or its authorized representative which is given or made pursuant to this Article
III and the Trustee may request an Officers' Certificate directing the
authentication and delivery of the Securities and an Opinion of Counsel related
thereto.
(iv) Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Security or any portion
thereof, whether pursuant to this Article III or otherwise, shall be
authenticated and delivered in the form of, and shall be, a registered Global
Security, unless such Security is registered in the name of a Person other than
the Depositary
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for such Global Security or a nominee thereof, in which case such Security shall
be authenticated and delivered in definitive, fully registered form, without
interest coupons.
(v) The Depositary or its nominee, as registered owner of a Global
Security, shall be the Holder of such Global Security for all purposes under the
Indenture and the Securities, and owners of beneficial interests in a Global
Security shall hold such interests pursuant to the Applicable Procedures.
Accordingly, any such owner's beneficial interest in a Global Security will be
shown only on, and the transfer of such interest shall be effected only through,
records maintained by the Depositary or its nominee or its Agent Members and
such owners of beneficial interests in a Global Security will not be considered
the owners or holders thereof.
(2) Non-global Securities. Securities issued upon the events described in
Section 3.4(1)(ii) shall be in definitive, fully registered form, without
interest coupons, and shall bear the Restricted Securities Legend if and as
required by this Indenture.
SECTION 3.5 Registration; Registration of Transfer and Exchange; Restrictions on
Transfer.
(1) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office referred to as
the "Security Register") in which, subject to such reasonable regulations as it
may prescribe, the Company shall provide for the registration of Securities and
of transfers of Securities. The Trustee is hereby appointed "Security Registrar"
for the purpose of registering Securities and transfers and exchanges of
Securities as herein provided.
Subject to the other provisions of this Section 3.5, upon surrender for
registration of transfer of any Security at an office or agency of the Company
designated pursuant to Section 10.2 for such purpose, 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
denominations and of a like aggregate principal amount and bearing such
restrictive legends as may be required by this Indenture.
At the option of the Holder, and subject to the other provisions of this
Section 3.5, Securities may be exchanged for other Securities of any authorized
denomination and of a like aggregate principal amount, upon surrender of the
Securities to be exchanged at any such office or agency. Whenever any Securities
are so surrendered for exchange, and subject to the other provisions of this
Section 3.5, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities that the Holder making the exchange is entitled to
receive. Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Security Registrar) be
duly endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company, the Trustee and the Security Registrar, duly
executed by the Holder thereof or his attorney duly authorized in writing.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt and entitled to the same benefits under this Indenture as the Securities
surrendered upon such registration of transfer or exchange.
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No service charge shall be made to a Holder for any registration of
transfer or exchange of Securities except as provided in Section 3.6, but the
Company may require payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any registration of
transfer or exchange of Securities, other than exchanges pursuant to Section
3.4, 8.5, 12.2, 13.4 or 14.2 not involving any transfer.
In the event of a redemption of the Securities, neither the Company nor
the Securities Registrar will be required (a) to register the transfer of or
exchange Securities for a period of 15 days immediately preceding the date
notice is given identifying the serial numbers of the Securities called for such
redemption or (b) to register the transfer of or exchange any Security, or
portion thereof, called for redemption, except for the unredeemed portion of any
Securities being redeemed in part.
(2) Certain Transfers and Exchanges. Notwithstanding any other provision
of this Indenture or the Securities, transfers and exchanges of Securities and
beneficial interests in a Global Security of the kinds specified in this Section
3.5(2) shall be made only in accordance with this Section 3.5(2).
(i) Restricted Global Security to Restricted Non-global Security. In
the event that Non-global Securities are to be issued pursuant to Section
3.4(1)(ii) in connection with any transfer of Securities, such transfer may be
effected only in accordance with the provisions of this Clause (2)(i) and
subject to the Applicable Procedures. Upon actual receipt by a Responsible
Officer of the Trustee, as Security Registrar, of (A) a Company Order from the
Company directing the Trustee, as Security Registrar, to (x) authenticate and
deliver pursuant to such Order one or more Securities of the same aggregate
principal amount as the beneficial interest in the Restricted Global Security to
be transferred, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of the
Securities to be so issued and appropriate delivery instructions and (y)
decrease the beneficial interest of a specified Agent Member's account in a
Restricted Global Security by a specified aggregate principal amount not greater
than the aggregate principal amount of such Restricted Global Security, and (B)
such other certifications, legal opinions or other information as the Company or
the Trustee may require for any reason, including to confirm that such transfer
is being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act and/or that the transfer is
being made pursuant to the terms of this Indenture, then the Trustee, as
Security Registrar, shall decrease the aggregate principal amount of the
Restricted Global Security by the specified amount and authenticate and deliver
Securities in accordance with such instructions from the Company as provided in
Section 3.4(1)(iii).
(ii) Restricted Non-global Security to Restricted Global Security.
If the Holder of a Restricted Security (other than a Global Security) wishes at
any time to transfer all or any portion of such Restricted Security to a Person
who wishes to take delivery thereof in the form of a beneficial interest in the
Restricted Global Security, such transfer may be effected only in accordance
with the provisions of this Clause (2)(ii) and subject to the Applicable
Procedures. Upon actual receipt by a Responsible Officer of the Trustee, as
Security Registrar, of (A) such Restricted Security as provided in Section
3.5(1) and instructions from the Company directing that a beneficial interest in
the Restricted Global Security in a specified aggregate principal amount not
greater than the aggregate principal amount of such Security be credited to a
specified Agent Member's account,
38
and (B) a Restricted Securities Certificate, satisfactory to the Trustee, and
duly executed by such Holder or its attorney duly authorized in writing, then
the Trustee, as Security Registrar, shall cancel such Restricted Security (and
issue a new Restricted Security in respect of any untransferred portion thereof)
as provided in Section 3.5(1) and increase the aggregate principal amount of the
Restricted Global Security by the specified aggregate principal amount as
provided in Section 3.4(1)(iii).
(iii) Exchanges Between Global Security and Non-global Security. A
beneficial interest in a Global Security may be exchanged for a Security that is
not a Global Security only as provided in Section 3.4 or only if such exchange
occurs in connection with a transfer effected in accordance with Clause 2(i)
above, provided that, if such interest is a beneficial interest in the
Restricted Global Security, then such interest shall be exchanged for a
Restricted Security (subject in each case to Section 3.5(3)). A Security that is
not a Global Security may be exchanged for a beneficial interest in a Global
Security only if such exchange occurs in connection with a transfer effected in
accordance with Clause (2)(ii) above.
(3) Securities Act Legends. All Securities originally issued pursuant to
this Indenture, and all Successor Securities, shall bear the Restricted
Securities Legend, subject to the following:
(i) subject to the following Clauses of this Section 3.5(3), a
Security or any portion thereof which is exchanged, upon transfer or otherwise,
for a Global Security or any portion thereof shall bear the Restricted
Securities Legend borne by such Global Security for which the Security was
exchanged;
(ii) subject to the following Clauses of this Section 3.5(3), a new
Security that is not a Global Security and is issued in exchange for another
Security (including a Global Security) or any portion thereof, upon transfer or
otherwise, shall bear the Restricted Securities Legend borne by the Security for
which the new Security was exchanged;
(iii) any Securities that are sold or otherwise disposed of pursuant
to an effective registration statement under the Securities Act (including the
Shelf Registration Statement), together with their successor Securities, shall
not bear a Restricted Securities Legend; the Company shall inform the Trustee in
writing of the effective date of any such registration statement registering the
Securities under the Securities Act, shall notify the Trustee in writing at any
time when prospectuses must be delivered with respect to Securities to be sold
pursuant to such registration statement and, if a Global Security without the
Restricted Securities Legend is not then Outstanding, the Company shall execute
and, upon receipt of a Company Order as provided in Section 3.3, the Trustee
shall authenticate a Global Security without the Restricted Securities Legend
and make the same available for delivery to the Depositary or its custodian;
provided, however, neither the Trustee nor any of its agents shall be liable,
and the Company shall indemnify the Trustee and each such agent, for any action
taken or omitted to be taken by it in good faith in accordance with the
aforementioned registration statement;
(iv) at any time after the Securities may be freely transferred
without registration under the Securities Act or without being subject to
transfer restrictions pursuant to the Securities Act, a new Security that does
not bear a Restricted Securities Legend may be issued in exchange for or in lieu
of a Security (other than a Global Security) or any portion thereof that bears
such a legend
39
if a Responsible Officer of the Trustee has actually received an Unrestricted
Securities Certificate, satisfactory to the Trustee and duly executed by, or on
behalf of, the Holder of such Security bearing a Restricted Securities Legend or
his attorney duly authorized in writing, and after such date and receipt of such
certificate, the Trustee shall at the direction of the Company in a Company
Order authenticate and deliver such new Security in exchange for or in lieu of
such other Security as provided in this Article III;
(v) a new Security that does not bear a Restricted Securities Legend
may be issued in exchange for or in lieu of a Security or any portion thereof
that bears such a legend if, in the Company's judgment, placing such a legend
upon such new Security is not necessary to ensure compliance with the
registration requirements of the Securities Act, and the Trustee, at the
direction of the Company in a Company Order to such effect, shall authenticate
and deliver such a new Security as provided in this Article III; and
(vi) notwithstanding the foregoing provisions of this Section
3.5(3), a successor Security of a Security that does not bear a Restricted
Securities Legend shall not bear such legend unless the Company has reasonable
cause to believe that such successor Security is a "restricted security" within
the meaning of Rule 144, in which case the Trustee, at the direction of the
Company in a Company Order to such effect, shall authenticate and deliver a new
Security bearing a Restricted Securities Legend in exchange for such Successor
Security as provided in this Article III.
(4) Any stock certificate representing shares of Common Stock issued
upon conversion of the Securities shall bear the Restricted Securities Legend
borne by such Securities, to the extent required by this Indenture, unless such
shares of Common Stock have been sold pursuant to a registration statement that
has been declared effective under the Securities Act (including the Shelf
Registration Statement) (and that continues to be effective at the time of such
transfer) or sold pursuant to Rule 144(k) of the Securities Act, or unless
otherwise agreed by the Company in writing with written notice thereof to the
transfer agent for the Common Stock. With respect to the transfer of shares of
Common Stock issued upon conversion of the Securities that are restricted
hereunder, any deliveries of certificates, legal opinions or other instruments
that would be required to be made to the Security Registrar in the case of a
transfer of Securities, as described above, shall instead be made to the
transfer agent for the Common Stock.
(5) Neither the Trustee, the Paying Agent, the Security Registrar, the
Conversion Agent or any other Agent nor any of their respective agents shall (i)
have any duty to monitor compliance with or with respect to any federal or state
or other securities or tax laws or (ii) have any duty to obtain documentation on
any transfers or exchanges other than as specifically and expressly required
hereunder.
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee (together with
such security or indemnity as may be satisfactory to the Company and the Trustee
to fully protect each of them and any Agent or other agent of either of them or
any Agent, from any loss, damage, liability, cost or expense which any of them
may suffer or incur if the Security is replaced), the Company shall execute and,
upon actual receipt by a Responsible Officer of the Trustee of a Company Request
to
40
such effect, the Trustee shall authenticate and deliver in exchange therefor a
new Security of like tenor and aggregate principal amount and bearing a number
not contemporaneously outstanding.
If there be delivered to the Company and to the Trustee:
(1) evidence to their satisfaction of the destruction, loss or theft of
any Security, and
(2) such security, indemnity bond or other indemnity as may be
satisfactory to the Company and the Trustee to fully protect and hold harmless
each of them and any Agent or other agent of either of them or any Agent from
any loss, damage, liability, cost or expense which any of them may suffer or
incur, if the Security is replaced,
then, in the absence of actual notice to the Company or the Trustee that such
Security has been acquired by a protected purchaser, the Company shall execute
and, upon actual receipt by a Responsible Officer of the Trustee of a Company
Request to such effect, the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Security, a new Security of like tenor and
aggregate principal amount and bearing a number not contemporaneously
Outstanding. If, after the delivery of such new Security, a protected holder of
the original Security in lieu of which such new Security was issued presents for
payment or registration or transfer such original Security, the Trustee shall be
entitled to recover such new Security from the party to whom it was delivered or
any party taking therefrom, except a protected purchaser, and shall be entitled
to recover upon the security or indemnity provided therefor to the extent of any
loss, damage, liability, cost or expense incurred by the Company, the Trustee or
any Agent in connection therewith.
In case any Security which has become, or is about to become, due and
payable is submitted for repurchase or the repayment pursuant to Article XI,
Article XIII or Article XIV, respectively, or is about to be converted into
Common Stock pursuant to Article XII shall become mutilated, destroyed, lost or
stolen, the Company in its discretion, but subject to any conversion rights,
may, instead of issuing a new Security, pay or authorize the payment of or
convert or authorize the conversion of such Security (without surrender thereof,
except in the case of a mutilated Security), upon satisfaction of the conditions
set forth in the preceding paragraph.
Upon the issuance of any new Security under this Section 3.6, 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 (other than any
stamp and other duties, if any, which may be imposed in connection therewith by
the United States or any political subdivision thereof or therein, which shall
be paid by the Company) and any other expenses (including the fees and expenses
of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 3.6 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and such new Security shall be entitled to all the benefits of this Indenture
equally and proportionately with any and all other Securities duly issued,
authenticated and delivered hereunder.
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The provisions of this Section 3.6 are exclusive and shall preclude (to
the extent lawful) all other rights and remedies of any Holder with respect to
the replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 Payment of Interest; Interest Rights Preserved.
Subject to the last paragraph of this Section, interest, including
Additional Interest, on any Security that is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest, including Additional Interest, if any, on any Security that
is payable, but is not punctually paid or duly provided for, on any Interest
Payment Date (herein called "Defaulted Interest") shall forthwith cease to be
payable to the Holder on the relevant Regular Record Date by virtue of having
been such Holder, and such Defaulted Interest may be paid by the Company, at its
election in each case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on a "Special Record Date"
for the payment of such Defaulted Interest, which shall be fixed in the
following manner. The Company shall promptly notify the Trustee in writing of
the amount of Defaulted Interest proposed to be paid on each Security, the date
of the proposed payment and the Special Record Date, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the aggregate
amount proposed to be paid in respect of such Defaulted Interest or shall make
arrangements satisfactory to the Trustee for such deposit prior to the date of
the proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this Clause
provided. The Special Record Date for the payment of such Defaulted Interest
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the actual receipt by a
Responsible Officer of the Trustee of the notice of the proposed payment. The
Trustee, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder at such
Holder's address as it appears in the Security Register, not less than 10 days
prior to such Special Record Date. Notice of the proposed payment of such
Defaulted Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names the
Securities (or their respective Predecessor Securities) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
or automated quotation system on which the Securities may be listed or
designated for issuance, and upon such notice as may be required by such
exchange or automated quotation system, if, after notice given by the Company to
the Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
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Subject to the provisions of this Section 3.7 and Section 3.5, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to interest
accrued and unpaid, and to accrue, which were carried by such other Security.
Interest on any Security that is converted in accordance with Section 12.2
during a Record Date Period shall be payable in accordance with the provisions
of Section 12.2.
SECTION 3.8 Persons Deemed Owners.
Prior to due presentment of a Security for registration of transfer, the
Company, the Trustee, the Securities Registrar, any Paying Agent or Conversion
Agent and any other Agent, and any agent of the Company, the Trustee, the
Securities Registrar, any Paying Agent or Conversion Agent or any other Agent
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 and (subject
to Section 3.7) interest including any Additional Interest, if any, on such
Security and for all other purposes whatsoever, whether or not such Security be
overdue, and none of the Company, the Trustee, the Securities Registrar, any
Paying Agent or Conversion Agent nor any other Agent nor any agent of the
Company, the Trustee, the Securities Registrar, any Paying Agent or Conversion
Agent or any other Agent, shall be affected by notice to the contrary. No holder
of any beneficial interest in any Global Security held on its behalf by a
Depositary (including through its nominee) shall have any rights under this
Indenture with respect to such Global Security, and such Depositary (including
through its nominee) may be treated by the Company, the Trustee and each Agent
and any agent of the Company or the Trustee or any Agent, as the owner of such
Global Security for all purposes whatsoever. None of the Company, the Trustee or
any Agent or any agent of the Company or the Trustee or any Agent of the Trustee
will have any responsibility or liability for any aspect of the records relating
to or payments made on account of beneficial ownership interests of a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests.
SECTION 3.9 Cancellation.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered to the Trustee shall be canceled promptly by the Trustee. The Company
may at any time deliver to the Trustee for cancellation any Security which the
Company may have acquired in any manner. No Securities shall be authenticated in
lieu of or in exchange for any Securities canceled as provided in this Section
3.9. The Trustee shall dispose of all canceled Securities held by the Trustee in
accordance with applicable law and its customary practices in effect from time
to time. Upon written request of the Company actually received by a Responsible
Officer of the Trustee, the Trustee shall deliver certification of the disposal
of all cancelled Securities to the Company.
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SECTION 3.10 Computation of Interest.
Interest on the Securities (including Additional Interest, if any) shall
be computed on the basis of a 360-day year of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing Securities may use CUSIP numbers (if then generally
in use) in addition to serial numbers; if so, the Trustee shall use such CUSIP
numbers in addition to serial numbers in notices of redemption or repurchase as
a convenience to Holders; provided that any such notice may state that no
representation is made as to the correctness of such CUSIP numbers either as
printed on the Securities or as contained in any notice of a redemption or
repurchase and that reliance may be placed only on the serial or other
identification numbers printed on the Securities, and any such redemption or
repurchase shall not be affected by any defect in or omission of such CUSIP
numbers.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall, upon a Company Request, cease to be of further
effect (except as to any surviving rights of conversion, or registration of
transfer or exchange, or replacement of Securities herein expressly provided for
and as further provided in the last paragraph of this Section 4.1), and the
Trustee, at the expense of the Company, shall execute proper instruments in form
and substance satisfactory to the Trustee acknowledging satisfaction and
discharge of this Indenture, when
(1) either
(i) all Securities theretofore authenticated and delivered
pursuant to this Indenture (other than (A) Securities which have been destroyed,
lost or stolen and that have been replaced or paid as provided in Section 3.6
and (B) Securities for whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and thereafter repaid to
the Company or discharged from such trust, as provided in Section 10.3) have
been delivered to the Trustee for cancellation; or
(ii) all such Securities not theretofore cancelled or delivered to
the Trustee or its agent for cancellation (other than Securities referred to in
clauses (A) and (B) of clause (1)(i) above)
(A) have become due and payable, or
(B) will have become due and payable at their Stated Maturity
within one year, or
(C) are to be called for redemption within one year under
arrangements reasonably satisfactory to the Trustee for the giving of notice of
redemption by the Trustee in the name, and at the expense, of the Company,
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and the Company, in the case of clause (A), (B) or (C) above, has irrevocably
deposited or caused to be deposited with the Trustee in trust, funds
(immediately available to the Holders in the case of clause (a)) in cash
sufficient to pay and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for principal and
interest (including any Additional Interest) to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated Maturity
or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, (x) the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Company to any Authenticating Agent under Section 6.12, the obligation of
the Company to pay Additional Interest as provided in the Registration Rights
Agreement and in the form of Securities set forth in Section 2.2, any obligation
of the Company existing under Section 14.1 at the time of such satisfaction and
discharge, and the right of the Trustee to resign under Section 6.9 shall
survive and (y) if money shall have been deposited with the Trustee pursuant to
clause (1)(ii) of this Section 4.1, the obligations of the Trustee under Section
4.2 and the last paragraph of Section 10.3, the obligations of the Company under
Section 15.1, and the obligations of the Company and the Trustee under Section
3.5 and Article XII shall survive.
SECTION 4.2 Application of Trust Money.
All money deposited with the Trustee pursuant to Section 4.1 shall be held
in trust for the sole benefit of the Holders, and such money shall be applied by
the Trustee, in accordance with the provisions of the Securities and this
Indenture, to the payment, either directly or through any Paying Agent, to the
Persons entitled thereto, of the principal and interest (including Additional
Interest, if any) for whose payment such money has been deposited with the
Trustee.
All money deposited with the Trustee pursuant to Section 4.1 (and held by
it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
The Company shall pay and indemnify the Trustee and each Agent against any
tax, fee or other charge imposed or assessed against all money deposited with
the Trustee pursuant to Section 4.1.
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ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default", wherever used herein, means any one of the following
events (whatever the reason for such Event of Default and whether it shall be
voluntary or involuntary or be effected by operation of law or pursuant to any
judgment, decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of principal of any Securities, when such
principal becomes due and payable, at Stated Maturity, upon acceleration, upon
redemption or otherwise (including the failure to make cash payments due upon
conversion or make a payment to repurchase Securities tendered in connection
with a Fundamental Change or pursuant to a Repurchase Notice), whether or not
such failure shall be due to compliance with agreements with respect to any
other indebtedness; or
(2) default in the payment of any interest (including Additional Interest,
if any) upon any Security when it becomes due and payable, and continuance of
such default for a period of 30 days, whether or not such failure shall be due
to compliance with agreements with respect to any other indebtedness; or
(3) failure by the Company to give a Fundamental Change Company Notice in
accordance with Section 14.2; or
(4) default in the performance, or breach, of any covenant of the Company
in this Indenture (other than a covenant, a default in the performance or breach
of which is specifically dealt with elsewhere in this Section), and continuance
of such default or breach for a period of 60 days after there has been given
written notice, sent by registered or certified mail, to the Company by the
Trustee or to the Company and the Trustee by the Holders of at least 25% in
aggregate principal amount of the Outstanding Securities specifying such default
or breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder; or
(5) any indebtedness under any bonds, debentures, notes or other evidences
of indebtedness for money borrowed (or guarantee thereof) by the Company or any
Significant Subsidiary with an aggregate principal amount in excess of
U.S.$10,000,000, whether such indebtedness now exists or shall hereafter be
created, is not paid when due (either at its stated maturity or upon
acceleration thereof), and such indebtedness is not discharged, or such
acceleration is not rescinded or annulled, within a period of 30 days after
there has been given written notice, sent by registered or certified mail, to
the Company by the Trustee or to the Company and the Trustee by the Holders of
at least 25% in aggregate principal amount of the Outstanding Securities
specifying such default and requiring the Company to cause such indebtedness to
be discharged or cause such default to be cured or waived or such acceleration
to be rescinded or annulled and stating that such notice is a "Notice of
Default" hereunder; or
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(6) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under any applicable Federal or
State bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company or any Significant Subsidiary a bankrupt
or insolvent, or approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company or any
Significant Subsidiary under any applicable Federal or State law, or appointing
a custodian, receiver, liquidator, assignee, trustee, sequestrator or other
similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of either, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or order for
relief or any such other decree or order unstayed and in effect for a period of
60 consecutive days;
(7) the commencement by the Company or any Significant Subsidiary of a
voluntary case or proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by either
to the entry of a decree or order for relief in respect of the Company or any
Significant Subsidiary in an involuntary case or proceeding under any applicable
Federal or State bankruptcy, insolvency, reorganization or other similar law or
to the commencement of any bankruptcy or insolvency case or proceeding against
either, or the filing by either of a petition or answer or consent seeking
reorganization or similar relief under any applicable Federal or State law, or
the consent by either to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or any Significant
Subsidiary or of any substantial part of the property of either, or the making
by either of an assignment for the benefit of creditors, or the admission by
either in writing of its inability to pay its debts generally as they become
due, or the taking of corporate action by the Company or any Significant
Subsidiary in furtherance of any such action; or
(8) if any Subsidiary of the Company shall be or shall have been required
to provide for a Guaranty under Section 10.8, such Guaranty shall fail for any
reason to remain in full force and effect (except as permitted in Section 10.8).
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(6) or 5.1(7) with respect to the Company) occurs and is continuing,
then in every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal of and accrued and unpaid interest (including Additional Interest, if
any) on all the Securities to be due and payable immediately, by a notice in
writing to the Company (and to the Trustee if given by the Holders), and upon
any such declaration such principal and accrued and unpaid interest (including
Additional Interest, if any) thereon shall become immediately due and payable.
If an Event of Default specified in Section 5.1(6) or 5.1(7) with respect to the
Company occurs, the principal of, including and accrued and unpaid interest
(including Additional Interest, if any) on, all the Securities shall ipso facto
become immediately due and payable without any declaration or other Act of the
Holders or any act on the part of the Trustee.
47
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article V provided, the Holders of a majority
in aggregate principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may, on behalf of all Holders, rescind and annul
such declaration and its consequences if:
(1) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(i) all overdue interest on all Securities,
(ii) the principal on any Securities that have become due otherwise
than by such declaration of acceleration and any interest, including Additional
Interest, if any, thereon at the rate borne by the Securities,
(iii) to the extent permitted by applicable law, interest upon
overdue interest at a rate of 2-3/8% per annum, and
(iv) all sums paid or advanced by the Trustee or any Agent hereunder
and the reasonable compensation, expenses, disbursements and advances of each of
the Trustee and such Agents and their respective agents and counsel;
(2) all Events of Default, other than the nonpayment of the principal of
and interest, including Additional Interest, if any, on, Securities which have
become due solely by such declaration of acceleration, have been cured or waived
as provided in Section 5.13; and
(3) such rescission and annulment would not conflict with any judgment
or decree issued in appropriate judicial proceedings regarding the payment by
the Trustee to the Holders of the amounts referred to in 5.2(1).
No rescission or annulment referred to above shall affect any subsequent
default or impair any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if:
(1) default is made in the payment of any interest (including Additional
Interest, if any), on any Security when it becomes due and payable and such
default continues for a period of 30 days, or
(2) default is made in the payment of the principal on any Security at
the Maturity thereof,
the Company will, upon written demand of the Trustee, pay to the Trustee, for
the benefit of the Holders of such Securities the whole amount then due and
payable on such Securities for principal and interest (including Additional
Interest, if any) and interest on any overdue principal and, to the extent
permitted by applicable law, on any overdue interest (including Additional
Interest, if any), at
48
a rate of 2-3/8% per annum, and in addition thereto, such further amount as
shall be sufficient to cover the reasonable costs and expenses of collection,
including the reasonable compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel.
If the Company fails to pay such amounts forthwith upon such demand, the
Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4 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 the
creditors of either, the Trustee (irrespective of whether the principal of, and
any interest on, 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 overdue principal
or interest) shall be entitled and empowered, by intervention in such proceeding
or otherwise,
(1) to file a proof of claim for the whole amount of principal and
interest (including Additional Interest, if any) owing and unpaid in respect of
the Securities and take such other actions, including participating as a member,
voting or otherwise, of any official committee of creditors appointed in such
matter, and to file such other papers or documents, in each of the foregoing
cases, as may be necessary or advisable, and to take any and all actions
authorized under the Trust Indenture Act, 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) and of the
Holders of Securities allowed in such judicial proceeding, and
(2) to collect and receive any money or other property payable or
deliverable on any such claim and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or other similar official
in any such judicial proceeding is hereby authorized by each Holder of
Securities 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 of
Securities to pay to the Trustee any amount due to 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 6.7.
49
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
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 of a Security in any such proceeding;
provided, however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member of a
creditors' or other similar committee.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may
be prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such proceeding instituted by the Trustee shall be brought in its own name as
trustee of an express trust, and any recovery of judgment shall, after provision
for the payment of the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel, be for the ratable benefit of
the Holders of the Securities in respect of which judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money or other property collected or to be applied by the Trustee
pursuant to this Article V shall be applied in the following order, at the date
or dates fixed by the Trustee and, in case of the distribution of such money or
other property on account of principal or interest, upon presentation of the
Securities and the notation thereon of the payment if only partially paid and
upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: To the payment of the amounts then due and unpaid for principal of
or accrued and unpaid interest (including Additional Interest, if any) on, the
Securities in respect of which or for the benefit of which such money has been
collected, ratably, without preference or priority of any kind, according to the
amounts due and payable on such Securities for principal, and accrued and unpaid
interest (including Additional Interest, if any), respectively;
THIRD: To such other Person or Persons, if any, to the extent entitled
thereto; and
FOURTH: Any remaining amounts shall be repaid to the Company.
The Trustee shall notify the Company in writing of the payment date or
dates fixed by the Trustee pursuant to this Section.
SECTION 5.7 Limitation on Suits.
Subject to Section 5.8 below, no Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless:
50
(1) such Holder has previously given written notice to the Trustee of an
Event of Default and such Event of Default is continuing at the time of such
institution;
(2) the Holders of not less than 25% in aggregate principal amount of the
Outstanding Securities shall have made written request to the Trustee to
institute proceedings in respect of such Event of Default in its own name as
Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee, and if requested,
shall have provided to the Trustee, security or indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its actual receipt by a Responsible
Officer of such notice under Section 5.7(1), request under 5.7(2) and offer of
security or indemnity (or if requested, actual receipt of security or indemnity)
under Section 5.7(3) has failed to institute any such proceeding; and
(5) no direction inconsistent with such written request has been given to
the Trustee during such 60 day period by the Holders of a majority in aggregate
principal amount of the Outstanding Securities,
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest and
to Convert.
Notwithstanding any other provision in this Indenture, the Holder of any
Security shall have the right, which is absolute and unconditional, to receive
payment of the principal of and interest (including Additional Interest, if any)
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption or repurchase, on the Redemption Date, Repurchase
Date or Fundamental Change Repurchase Date, as the case may be), and to convert
such Security in accordance with Article XII, and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders of
Securities shall be restored severally and respectively to their former
positions hereunder and thereafter all rights and remedies of the Trustee and
such Holders shall continue as though no such proceeding had been instituted.
51
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities in the last paragraph of Section
3.6, no right or remedy herein conferred upon or reserved to the Trustee or to
the Holders of Securities is intended to be exclusive of any other right or
remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or (subject to the
limitations contained in this Indenture) by the Holders of Securities as the
case may be.
SECTION 5.12 Control by Holders of Securities.
Subject to Section 6.3, the Holders of a majority in aggregate principal
amount of the Outstanding Securities shall have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or with
this Indenture, and
(2) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction, and
(3) the Trustee need not take any action that might involve it in personal
liability or be unjustly prejudicial to the Holders of Securities not consenting
or that it in good faith believes would otherwise be contrary to applicable law.
SECTION 5.13 Waiver of Past Defaults.
The Holders, either (i) through the written consent of not less than a
majority in aggregate principal amount of the Outstanding Securities or (ii) by
the adoption of a resolution, at a meeting of Holders of the Outstanding
Securities at which a quorum is present, by the Holders of at least 66-2/3% in
aggregate principal amount of the Outstanding Securities represented at such
meeting, may on behalf of the Holders of all the Securities waive any past
default hereunder and its consequences, except a default (A) in the payment of
the principal of or interest (including Additional Interest, if any) on any
Security, or (B) in respect of a covenant or provision hereof which under
Article VIII cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
52
Upon any such waiver, such default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee or otherwise, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; provided, however, the provisions of this Section 5.14 shall not
apply, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding in the aggregate more than 10% in aggregate
principal amount of the Outstanding Securities, or to any suit instituted by any
Holder of any Security for the enforcement of the payment of the principal of or
interest (including Additional Interest, if any) on any Security on or after the
respective Stated Maturity or Maturities or such other dates when due as
expressed herein or in such Security (or, in the case of redemption or
repurchase, on or after the Redemption Date, Repurchase Date or Fundamental
Change Repurchase Date, as the case may be) or for the enforcement of the right
to convert any Security in accordance with Article XII.
SECTION 5.15 Waiver of Stay, Usury or Extension 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, usury or extension law wherever
enacted, now or at any time hereafter in force, that 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 by reason of any such law
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 VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(1) Except during the continuance of an Event of Default,
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture with respect to the
Securities, and no implied covenants or obligations shall be read into this
Indenture against the Trustee; and
(ii) 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
53
opinions furnished to the Trustee and conforming to the requirements of this
Indenture, but in the case of any such certificates or opinions which by any
provision hereof are specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine whether or not
they substantially conform to the requirements of this Indenture, but not to
confirm or investigate the accuracy of mathematical calculations or otherwise
verify or investigate the facts stated therein or the contents thereof.
(2) In case an Event of Default has occurred and is continuing, the
Trustee shall exercise such of the rights and powers vested in it by this
Indenture, and use the same degree of care and skill in their exercise, as a
prudent person would exercise or use under the circumstances in the conduct of
his own affairs.
(3) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own willful misconduct, except that
(i) this paragraph (3) shall not be construed to limit the effect of
paragraph (1) of this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(iii) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in aggregate principal amount of the
Outstanding Securities relating to the time, method and place of conducting any
proceeding for any remedy available to the Trustee, or exercising any trust or
power conferred upon the Trustee, under this Indenture; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder, or in the exercise of any of its
rights or powers, if a Responsible Officer of the Trustee shall not have
actually received security or indemnity satisfactory to the Trustee against any
such risk, claim, loss, liability, damage, cost or expense.
(4) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section 6.1.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder as to which a
Responsible Officer of the Trustee has actually received written notice, the
Trustee shall give to all Holders of Securities, in the manner provided in
Section 1.6, notice of such default, unless such default shall have been cured
or waived; provided, however, that, except in the case of a default in the
payment of the principal of or interest on any Security, the Trustee shall be
protected in withholding such notice if and so long as the board of directors,
the executive committee or a trust committee of directors or
54
any Responsible Officer of the Trustee in good faith determines that the
withholding of such notice is in the interest of the Holders; and provided,
further, that in the case of any default of the character specified in Section
5.1(4), no such notice to Holders of Securities shall be given until at least 60
days after the occurrence thereof or, if applicable, the cure period specified
therein. For the purpose of this Section, the term "default" means any event
which is, or after notice or lapse of time or both would become, an Event of
Default.
SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(1) the Trustee may conclusively rely, and shall be protected in acting or
refraining from acting, upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, coupon, other evidence of indebtedness or
other paper or document, in each case whether in original or facsimile form
(collectively, the "Documents") believed by it to be genuine and to have been
signed or presented by the proper party or parties, and the Trustee need not
investigate any fact or matter stated in such Documents;
(2) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order (except that a
Company Order shall be required for authentication and delivery of any Security
as provided in Section 3.3) and any resolution of the Board of Directors shall
be sufficiently evidenced by a Board Resolution;
(3) 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 the one specifically prescribed) shall be entitled to receive and may, in the
absence of bad faith on its part, request and rely upon an Officers' Certificate
or Opinion of Counsel;
(4) the Trustee may consult with counsel of its selection and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken, suffered or omitted
by it hereunder in good faith and in reliance thereon;
(5) the Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request or direction of any of
the Holders of Securities pursuant to this Indenture, unless such Holders shall
have offered, and, if requested by the Trustee, delivered to the Trustee
security or indemnity reasonably satisfactory to the Trustee against the risks,
claims, losses, liabilities, damages, costs and expenses which might be incurred
by it in compliance with such request or direction;
(6) 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, coupon, 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
55
investigation, it shall be entitled to examine the books, records and premises
of the Company, personally or by agent or attorney at the expense of the Company
and shall incur no liability by reason of such inquiry or investigation;
(7) 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 and shall not be responsible for the supervision of officers or
employees of any of such agents or attorneys;
(8) upon the request of the Trustee, the Company shall 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 shall 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;
(9) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture;
(10) the Trustee shall not be deemed to have notice or actual knowledge 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 or Event of Default is actually received by a Responsible Officer
of the Trustee at the Corporate Trust Office of the Trustee and such notice
references the Securities and this Indenture;
(11) 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 each Agent and each other agent, custodian and other Person
employed to act hereunder; and without limiting the foregoing, the Trustee shall
be entitled to the rights and protections afforded to the Trustee pursuant to
this Article in acting as a Paying Agent, Conversion Agent or Security Registrar
hereunder; and
(12) neither the Trustee or any Agent, nor any agent of any such Person,
will have any responsibility for any action taken or not taken by the
Depositary.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the Trustee's
certificates of authentication) shall be taken as the statements of the Company,
and neither the Trustee nor any Agent, assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture, of the Securities or of the Common Stock issuable
upon the conversion of the Securities. Neither the Trustee nor any Agent, nor
any agent of the Trustee or any Agent, shall be accountable for the use or
application by the Company of Securities or the proceeds thereof.
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SECTION 6.5 May Hold Securities, Act as Trustee under Other Indentures.
The Trustee, the Securities Registrar, any Authenticating Agent, any
Paying Agent, any Conversion Agent, any other Agent, or any other agent of the
Company, the Trustee, in its individual or any other capacity, or any Agent, or
any of their respective Affiliates, may become the owner or pledgee of
Securities and may otherwise deal with the Company or any of its Affiliates with
the same rights it would have if it were not Trustee, Securities Registrar,
Authenticating Agent, Paying Agent, Conversion Agent or other Agent, or any such
other agent or Affiliate.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated from
other funds except to the extent required by law. The Trustee shall be under no
liability for interest on any money received by it hereunder except as otherwise
agreed in writing with the Company.
SECTION 6.7 Compensation and Reimbursement.
The Company agrees:
(1) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for its
acceptance of this Indenture and for all services rendered by it hereunder in
its various capacities (which compensation shall not be limited by any provision
of law in regard to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances
incurred or made by the Trustee (including costs and expenses of enforcing this
Indenture and defending itself against any claim (whether asserted by the
Company, any Holder of Securities or any other Person) or liability in
connection with the exercise of any of its powers or duties hereunder) in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be attributable to its
own negligence or willful misconduct; and
(3) to fully indemnify each of the Trustee, any Agent and any predecessor
of the same (and each of their respective directors, officers, employees and
agents) for, and to hold it harmless against, any loss, liability claim, damage,
cost or expense incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this
trust, including the costs, expenses and attorneys' fees and expenses of
defending itself against any claim or liability in connection with the exercise
or performance of any of its powers or duties hereunder.
The Trustee shall have prior to the Securities a lien on and claim to all
money or other property held, collected or controlled by the Trustee to secure
the Company's payment obligations in
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Section 6.7 and the performance by the Company of its other obligations to the
Trustee, in each of its capacities, under this Indenture, except that held in
trust to pay principal and interest (including Additional Interest, if any) on
the Securities.
Without limiting any rights available to the Trustee under applicable law,
when the Trustee incurs expenses or renders services in connection with an Event
of Default specified in Section 5.1(6) or Section 5.1(7), the expenses
(including the charges and expenses of its counsel) and the compensation for the
services are intended to constitute expenses of the administration under any
applicable Federal or state bankruptcy, insolvency or other similar law.
The provisions of this Section shall survive the termination or
satisfaction and discharge of this Indenture or the payment in full of the
Securities or the earlier resignation or removal of the Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such, having (or
be part of a holding company group with) a combined capital and surplus of at
least U.S.$50,000,000, subject to supervision or examination by federal or state
authority, and in good standing. The Trustee or an Affiliate of the Trustee
shall maintain an established place of business in The City of New York. If such
corporation publishes reports of condition at least annually, pursuant to law or
to the requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such corporation
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. The Trustee shall not be an obligor
upon the Securities or an Affiliate of any obligor thereon. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article and a successor shall be appointed
pursuant to Section 6.9.
SECTION 6.9 Resignation and Removal; Appointment of Successor.
(1) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective until the
acceptance of appointment by the successor Trustee in accordance with the
applicable requirements of Section 6.10.
(2) The Trustee may resign at any time by giving written notice thereof to
the Company. If the instrument of acceptance by a successor Trustee required by
Section 6.10 shall not have been delivered to the Trustee within 30 days after
the giving of such notice of resignation, the resigning Trustee may, at the
expense of the Company, petition any court of competent jurisdiction for the
appointment of a successor Trustee.
(3) The Trustee may be removed at any time by an Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities, delivered
to the Trustee and the Company. If the instrument of acceptance by a successor
Trustee required by Section 6.10 shall not have been delivered to the Trustee
within 30 days after the giving of such notice of removal, the removed
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Trustee may, at the expense of the Company, petition any court of competent
jurisdiction for the appointment of a successor Trustee.
(4) If at any time:
(i) the Trustee shall cease to be eligible under Section 6.8 and
shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(ii) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of its property
shall be appointed or any public officer shall take charge or control of the
Trustee or of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case (i) the Company may remove the Trustee, or (ii) subject
to Section 5.14, any Holder of a Security who has been a bona fide Holder of a
Security for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the removal
of the Trustee and the appointment of a successor Trustee.
(5) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any cause, the
Company shall promptly appoint a successor Trustee and shall comply with the
applicable requirements of this Section and Section 6.10. If, within one year
after such resignation, removal or incapability, or the occurrence of such
vacancy, a successor Trustee shall be appointed by Act of the Holders of a
majority in aggregate principal amount of the Outstanding Securities delivered
to the Company and the retiring Trustee, the successor Trustee so appointed
shall, forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of Section 6.10, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner required by this Section and Section
6.10, any Holder of a Security who has been a bona fide Holder of a Security for
at least six months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(6) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
SECTION 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge and
deliver to the Company and to the retiring Trustee an instrument accepting such
appointment, and thereupon the resignation or removal of the retiring Trustee
shall become effective and such successor Trustee, without any further act, deed
or conveyance, shall become vested with all the rights, powers, trusts and
duties of the retiring Trustee; but, on the request of the Company or the
successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to
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such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder. Upon request of any
such successor Trustee, the Company shall execute any and all instruments to
more fully and with more certainty vest in and confirm to such successor Trustee
all such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
SECTION 6.11 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with
which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee (including the trust created by this Indenture), shall
be the successor of the Trustee hereunder, provided such corporation shall be
otherwise eligible under this Article, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any
Securities shall have been authenticated, but not delivered, by the Trustee then
in office, any successor by merger, conversion or consolidation to such
authenticating Trustee may adopt such authentication and deliver the Securities
so authenticated with the same effect as if such successor Trustee had itself
authenticated such Securities.
SECTION 6.12 Authenticating Agents.
The Trustee may, upon notice to the Company, appoint an "Authenticating
Agent" or Agents reasonably acceptable to the Company with respect to the
Securities, which Authenticating Agent shall be authorized to act on behalf of
the Trustee to authenticate Securities issued upon exchange or substitution
pursuant to this Indenture.
Securities authenticated by an Authenticating Agent shall be entitled to
the benefits of this Indenture and shall be valid and obligatory for all
purposes as if authenticated by the Trustee hereunder, and every reference in
this Indenture to the authentication and delivery of Securities by the Trustee
or the Trustee's certificate of authentication shall be deemed to include
authentication and delivery on behalf of the Trustee by an Authenticating Agent
and a certificate of authentication executed on behalf of the Trustee by an
Authenticating Agent. Each Authenticating Agent shall be subject to acceptance
not to be unreasonably withheld by the Company and shall at all times be a
corporation organized and doing business under the laws of the United States of
America, any State thereof or the District of Columbia, authorized under such
laws to act as Authenticating Agent and subject to supervision or examination by
government or other fiscal authority. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section
6.12, such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section 6.12.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to
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all or substantially all the corporate agency or corporate trust business of an
Authenticating Agent (including the authenticating agency contemplated by this
Indenture), shall continue to be an Authenticating Agent, provided such
corporation shall be otherwise eligible under this Section 6.12, without the
execution or filing of any paper or any further act on the part of the Trustee
or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon actual receipt by a Responsible
Officer of the Trustee of such a notice of resignation or upon such a
termination, or in case at any time such Authenticating Agent shall cease to be
eligible in accordance with the provisions of this Section 6.12, the Trustee may
appoint a successor Authenticating Agent which shall be subject to acceptance
not to be unreasonably withheld by the Company. Any successor Authenticating
Agent upon acceptance of its appointment hereunder shall become vested with all
the rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor Authenticating
Agent shall be appointed unless eligible under the provisions of this Section
6.12.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section 6.12.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
WELLS FARGO BANK, NATIONAL ASSOCIATION
as Trustee
By: ___________________________________
As Authenticating Agent
By: ___________________________________
Authorized Signatory
SECTION 6.13 Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act after and Event of Default has occurred and
is continuing, the Trustee shall either eliminate such interest or resign, to
the extent and in the manner provided by, and subject to the provisions of, the
Trust Indenture Act and this Indenture.
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SECTION 6.14 Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the Company (or
any other obligor upon the Securities), the Trustee shall be subject to the
provisions of the Trust Indenture Act regarding the collection of claims against
the Company (or any such other obligor).
ARTICLE VII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 7.1 Company May Consolidate, Etc. Only on Certain Terms.
The Company shall not consolidate with or merge into any other Person or
convey, transfer, sell or lease all its properties and assets substantially as
an entirety to any Person, and the Company shall not permit any Person to
consolidate with or merge into the Company unless:
(1) the Person formed by such consolidation or into or with which the
Company is merged or the Person to which the properties and assets of the
Company are so conveyed, transferred, sold or leased shall be a corporation
organized and validly existing under the laws of the United States of America,
any State thereof or the District of Columbia and, if other than the Company,
shall expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form reasonably satisfactory to the Trustee, the
due and punctual payment of the principal of and interest (including Additional
Interest, if any) on all of the Securities as applicable, and the performance or
observance of every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Article XII;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event that, after notice or lapse of time or both, would become
an Event of Default, shall have occurred and be continuing; and
(3) the Company has delivered to the Trustee an Officers' Certificate and
an Opinion of Counsel, each stating that such consolidation, merger, conveyance,
transfer, sale or lease and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to such
transaction have been complied with, together with any documents required under
Section 8.3.
SECTION 7.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company into
any other Person or any conveyance, transfer, sale or lease of all or
substantially all the properties and assets of the Company in accordance with
Section 7.1, the successor Person formed by such consolidation or into or with
which the Company is merged or to which such conveyance, transfer, sale 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 Person had been named as the Company herein, and thereafter, except in
the case of a lease, the predecessor Person shall be relieved of all obligations
and covenants under this Indenture and the Securities.
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ARTICLE VIII
SUPPLEMENTAL INDENTURES
SECTION 8.1 Supplemental Indentures Without Consent of Holders of Securities.
Without the consent of any Holders of Securities the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
reasonably satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants and obligations of the Company
herein and in the Securities as permitted by Article VII of this Indenture; or
(2) to add to the covenants of the Company and Events of Default for the
benefit of the Holders of Securities or to surrender any right or power herein
conferred upon the Company; or
(3) to provide collateral for the Securities; or
(4) to make provision with respect to the conversion rights of Holders of
Securities pursuant to Section 12.11 or to make provision with respect to the
repurchase rights of Holders of Securities pursuant to Section 14.1; or
(5) to make any changes or modifications to this Indenture necessary in
connection with the registration of any Registrable Securities under the
Securities Act as contemplated by the Registration Rights Agreement, provided
such action pursuant to this clause (5) shall not adversely affect the interests
of the Holders of Securities; or
(6) to comply with the requirements of the Trust Indenture Act or the
rules and regulations of the Commission thereunder in order to effect or
maintain the qualification of this Indenture under the Trust Indenture Act, as
contemplated by this Indenture or otherwise; or
(7) to evidence and provide for the acceptance of appointment hereunder by
a successor Trustee;
(8) to provide for a Guaranty of the Company's obligations under the
Indenture and the Securities by Subsidiaries in compliance with Section 10.8; or
(9) to cure any ambiguity, to correct or supplement any provision herein
that may be inconsistent with any other provision herein or that is otherwise
defective, or to make any other provisions with respect to matters or questions
arising under this Indenture as the Company, provided such action pursuant to
this clause (9) shall not adversely affect the interests of the Holders of
Securities in any material respect; provided, however, that any amendment to
conform this Indenture to the description of the Securities in the Offering
Memorandum, dated June 15, 2005 issued by the Company in connection with the
private placement of the Securities shall not be deemed to adversely affect the
interests of the Holders of Securities in any material respect.
63
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon actual
receipt by a Responsible Officer of the Trustee of the documents described in
Section 8.3 hereof, the Trustee is hereby authorized to join with the Company in
the execution of any supplemental indenture authorized or permitted by the terms
of this Indenture and to make any further appropriate agreements and
stipulations that may be therein contained.
SECTION 8.2 Supplemental Indentures with Consent of Holders of Securities.
With either (i) the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Company and the Trustee, or (ii) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least 66 2/3% in aggregate
principal amount of the Outstanding Securities represented at such meeting, the
Company, when authorized by a Board Resolution, and the Trustee may enter into
an indenture or indentures supplemental hereto, in form reasonably satisfactory
to the Trustee, for the purpose of adding any provisions to or changing in any
manner or eliminating any of the provisions of this Indenture or of modifying in
any manner the rights of the Holders of Securities under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent or affirmative vote of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any installment of
interest on, any Security, or reduce the aggregate principal amount of or the
rate of interest payable thereon, or reduce the amount payable upon a
redemption, or mandatory repurchase, or reduce the amount payable upon
acceleration of the Maturity of the Securities, or change the place or currency
of payment of the principal of or interest on any Security (including any
payment of Additional Interest, Redemption Price, Repurchase Price or
Fundamental Change Repurchase Price in respect of such Security) or impair the
right to institute suit for the enforcement of any payment in respect of any
Security on or after the Stated Maturity thereof (or, in the case of redemption
or any repurchase, on or after the Redemption Date, Repurchase Date or
Fundamental Change Repurchase Date, as the case may be) or, except as permitted
by Section 12.11, adversely affect the right of Holders to convert any Security
as provided in Article XII; or
(2) reduce the requirements of Section 9.4 for quorum or voting, or reduce
the percentage in aggregate principal amount of the Outstanding Securities the
consent of whose Holders is required for any such supplemental indenture or the
consent of whose Holders is required for any waiver of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences provided for in this Indenture; or
(3) modify the obligation of the Company to maintain an office or agency
in The City of New York, pursuant to Section 10.2; or
(4) modify any of the provisions of this Section or Section 5.13, except
to increase any percentage contained herein or therein or to provide that
certain other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Security affected thereby; or
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(5) modify the provisions of Article XIV in a manner adverse to the
Holders;
(6) modify the provisions of Sections 10.7 or 11.1 in a manner adverse to
the Holders; or
(7) release, amend or modify any Guaranty required by Section 10.8, other
than as permitted under Section 10.8.
It shall not be necessary for any Act of Holders of Securities under this
Section to approve the particular form of any proposed supplemental indenture,
but it shall be sufficient if such Act shall approve the substance thereof.
SECTION 8.3 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Sections 6.1 and 6.3) shall be fully protected in relying upon,
an Opinion of Counsel stating that the execution of such supplemental indenture
is authorized or permitted by this Indenture, and that such supplemental
indenture has been duly authorized, executed and delivered by the Company and
constitutes a valid and legally binding obligation of the Company enforceable
against the Company in accordance with its terms. The Trustee may, but shall not
be obligated to, enter into any such supplemental indenture which affects the
Trustee's own rights, duties or immunities under this Indenture or otherwise.
Every supplemental indenture executed pursuant to this Article shall conform to
the requirements of the Trust Indenture Act as then in effect.
SECTION 8.4 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
appertaining thereto shall be bound thereby.
SECTION 8.5 Reference in Securities to Supplemental Indentures.
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 Company and the
Trustee, 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 8.6 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 8.2, the Company
shall give notice to all Holders of Securities of such fact, setting forth in
general terms the substance of such supplemental indenture, in the
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manner provided in Section 1.6. Any failure of the Company to give such notice,
or any defect therein, shall not in any way impair or affect the validity of any
such supplemental indenture.
ARTICLE IX
MEETINGS OF HOLDERS OF SECURITIES
SECTION 9.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from time
to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities. SECTION 9.2
Call, Notice and Place of Meetings.
(1) The Trustee may at any time call a meeting of Holders of Securities
for any purpose specified in Section 9.1, to be held at such time and at such
place in The City of New York, as the Trustee shall determine. Notice of every
meeting of Holders of Securities, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 1.6, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(2) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in aggregate principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in Section 9.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have mailed the notice of such meeting within 21 days
after its actual receipt by a Responsible Officer of such request or shall not
thereafter proceed to cause the meeting to be held as provided herein, then the
Company or the Holders of Securities in the amount specified, as the case may
be, may determine the time and the place in The City of New York, for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in paragraph (1) of this Section.
SECTION 9.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities, a Person
shall be (i) a Holder of one or more Outstanding Securities, or (ii) a Person
appointed by an instrument in writing as proxy for a Holder or Holders of one or
more Outstanding Securities by such Holder or Holders. The only Persons who
shall be entitled to be present or to speak at any meeting of Holders shall be
the Persons entitled to vote at such meeting and their counsel, any
representatives or agents of the Trustee and its counsel and any representatives
of the Company and its counsel.
SECTION 9.4 Quorum; Action.
The presence of Persons entitled to vote a majority in aggregate principal
amount of the Outstanding Securities shall constitute a quorum. In the absence
of a quorum within 30 minutes of the time appointed for any such meeting, the
meeting shall, if convened at the request of Holders of
66
Securities, be dissolved. In any other case, the meeting may be adjourned for a
period of not less than 10 days as determined by the chairman of the meeting
prior to the adjournment of such meeting. In the absence of a quorum at any such
adjourned meeting, such adjourned meeting may be further adjourned for a period
not less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting (subject to repeated applications of this
sentence). Notice of the reconvening of any adjourned meeting shall be given by
the Company as provided in Section 9.2(1), except that such notice need be given
only once not less than five days prior to the date on which the meeting is
scheduled to be reconvened. Notice of the reconvening of an adjourned meeting
shall state expressly the percentage of the aggregate principal amount of the
Outstanding Securities that shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned for
a lack of a quorum, the Persons entitled to vote 25% in aggregate principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a quorum
is present as aforesaid, any resolution and all matters (except as limited by
the proviso to Section 8.2 and except to the extent Section 5.13 requires a
different vote) shall be effectively passed and decided if passed or decided by
either (i) the written consent of Holders of not less than a majority in
aggregate principal amount of Outstanding Securities, or (ii) the Persons
entitled to vote not less than 66 2/3% in aggregate principal amount of
Outstanding Securities represented and entitled to vote at such meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities whether or not present or represented at the meeting. The
Trustee shall, pursuant to a Company Order setting forth the action taken, in
the name and at the expense of the Company, notify all the Holders of Securities
of any such resolutions or decisions pursuant to Section 1.6.
SECTION 9.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.
(1) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 1.4 and the appointment of any proxy shall be
proved in the manner specified in Section 1.4 or by having the signature of the
Person executing the proxy guaranteed by any bank, broker or other eligible
institution participating in a recognized medallion signature guarantee program.
Neither the Trustee nor any of its agents shall be liable, and the Company shall
indemnify the Trustee and each such agent, for any action taken or omitted to be
taken by it in good faith in connection with any such meeting.
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(2) The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as provided in
Section 9.2(2), in which case the Company or the Holders of Securities calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in aggregate
principal amount of the Outstanding Securities represented at the meeting.
(3) At any meeting, each Holder of a Security or proxy shall be entitled
to one vote for each U.S.$1,000 aggregate principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security or proxy.
(4) Any meeting of Holders of Securities duly called pursuant to Section
9.2 at which a quorum is present may be adjourned from time to time by Persons
entitled to vote a majority in aggregate principal amount of the Outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 9.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the aggregate principal amounts at Stated Maturity and serial numbers of the
Outstanding Securities held or represented by them. The permanent chairman of
the meeting shall appoint two inspectors of votes who shall count all votes cast
at the meeting for or against any resolution and who shall make and file with
the secretary of the meeting their verified written reports in duplicate of all
votes cast at the meeting. A record, at least in duplicate, of the proceedings
of each meeting of Holders of Securities shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more Persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was given as provided in
Section 9.2 and, if applicable, Section 9.4. Each copy shall be signed and
verified by the affidavits of the permanent chairman and secretary of the
meeting and one such copy shall be delivered to the Company and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE X
COVENANTS
SECTION 10.1 Payment of Principal and Interest.
The Company covenants and agrees that it will duly and punctually pay the
principal of and interest (including Additional Interest, if any) on 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 or
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its nominee, no later than 10:30 a.m. (New York City time) on the date of the
Stated Maturity of any Security or no later than 10:30 a.m. (New York City time)
on the due date for any installment of interest (subject to the requirements of
Section 3.7 with respect to Defaulted Interest), all payments so due, which
payments shall be in immediately available funds on the date of such Stated
Maturity or due date, as the case may be.
SECTION 10.2 Maintenance of Offices or Agencies.
The Company will maintain in The City of New York an office or agency
where the Securities may be surrendered for registration of transfer or exchange
or for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company will give prompt written notice to
the Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. 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 office or agency of the Company
in The City of New York located at the address specified in the last paragraph
of this Section 10.2.
The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents for any or all of
such purposes; provided, however, that until all of the Securities have been
delivered to the Trustee for cancellation, or moneys sufficient to pay the
principal of and interest on the Securities have been made available for payment
and either paid or returned to the Company pursuant to the provisions of Section
10.3, the Company will maintain in The City of New York, an office or agency
where Securities may be presented or surrendered for payment and conversion,
which shall initially be at the office or agency of the Company, located at the
address specified in the last paragraph of this Section 10.2, where Securities
may be surrendered for registration of transfer or exchange and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The Company will give prompt written notice to the
Trustee, and notice to the Holders in accordance with Section 1.6, of the
appointment or termination of any such agents and of the location, and any
change in the location, in each case, in The City of New York, of any such
office or agency.
The Company hereby initially designates the Trustee as Paying Agent,
Security Registrar and Conversion Agent, and the office or agency of the Company
in The City of New York, located at Wells Fargo Corporate Trust, c/o DTC, 1st
Floor, TADS Department, 55 Water Street, New York, New York 10041, attention:
Corporate Trust Department, as one such office or agency of the Company for each
of the aforesaid purposes.
SECTION 10.3 Money for Security Payments to Be Held in Trust.
If the Company shall act as its own Paying Agent, it will, on or before
each due date of the principal of or interest (including Additional Interest, if
any) on any of the Securities, segregate and hold in trust for the benefit of
the Persons entitled thereto a sum sufficient to pay the principal or interest
(including Additional Interest, if any) so becoming due until such sums shall be
paid to such
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Persons or otherwise disposed of as herein provided and the Company will
promptly notify the Trustee of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it will, no
later than 10:30 a.m. (New York City time) on each due date of the principal of
or interest (including Additional Interest, if any) on any Securities, deposit
with the Trustee a sum in funds immediately payable on the payment date
sufficient to pay the principal or interest (including Additional Interest, if
any) so becoming due, such sum to be held for the benefit of the Persons
entitled to such principal or interest (including Additional Interest, if any),
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee of any failure so to act.
The Company will cause each Paying Agent other than the Trustee to execute
and deliver to the Trustee an instrument in which such Paying Agent shall agree
with the Trustee, subject to the provisions of this Section, that such Paying
Agent will:
(1) hold all sums held by it for the payment of the principal of or
interest (including Additional Interest, if any) on Securities for the benefit
of the Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee notice of any default by the Company (or any other
obligor upon the Securities) in the making of any payment of principal or
interest (including Additional Interest, if any); and
(3) at any time during the continuance of any such default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so held by
such Paying Agent.
The Company may at any time, for the purpose of obtaining the satisfaction
and discharge of this Indenture or for any other purpose, pay, or by Company
Order direct any Paying Agent to pay, to the Trustee all sums held in trust by
the Company or such Paying Agent, such sums to be held by the Trustee upon the
same trusts as those upon which such sums were held by the Company or such
Paying Agent; and, upon such payment by any Paying Agent to the Trustee, such
Paying Agent shall be released from all further liability with respect to such
money.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest (including
Additional Interest, if any) on any Security and remaining unclaimed for two
years after such principal or interest (including Additional Interest, if any)
has become due and payable shall be paid to the Company on Company Request, or
(if then held by the Company) shall be discharged from such trust; and the
Holder of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, and all liability of the Trustee or
such Paying Agent with respect to such trust money, and all liability of the
Company as trustee thereof, shall thereupon cease.
SECTION 10.4 Existence.
Subject to Article VII, the Company will do or cause to be done all things
necessary to preserve and keep in full force and effect its existence, rights
(charter and statutory) and franchises; provided, however, that the Company
shall not be required to preserve any such right or franchise if
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the Company shall determine that the preservation thereof is no longer desirable
in the conduct of the business of the Company and its Subsidiaries, taken as a
whole, and that the loss thereof is not disadvantageous in any material respect
to the Holders.
SECTION 10.5 Payment of Taxes and Other Claims.
The Company will pay or discharge, or cause to be paid or discharged,
before the same may become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, (ii) all
claims for labor, materials and supplies which, if unpaid, might by law become a
lien or charge upon the property of the Company or any Subsidiary, and (iii) all
stamp and other duties, if any, which may be imposed by the United States or any
political subdivision thereof or therein in connection with the issuance,
transfer, exchange or conversion of any Securities or with respect to this
Indenture; provided, however, that, in the case of clauses (i) and (ii), the
Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim (A) if the failure to do so
will not, in the aggregate, have a material adverse impact on the Company and
its Subsidiaries, taken as a whole, or (B) if the amount, applicability or
validity is being contested in good faith by appropriate proceedings.
SECTION 10.6 Statement by Officers as to Default.
The Company shall deliver to the Trustee, within 120 days after the end of
each fiscal year of the Company ending after the date hereof, 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.
The Company will deliver to the Trustee, forthwith upon becoming aware of
any default or any Event of Default under the Indenture, an Officers'
Certificate specifying with particularity the details of such default or Event
of Default and further stating what action the Company has taken, is taking or
proposes to take with respect thereto. For the purpose of this Section, the term
"default" means any event which is, or after notice or lapse of time or both
would become, an Event of Default.
Any notice required to be given under this Section 10.6 shall be delivered
to the Trustee at its Corporate Trust Office.
SECTION 10.7 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 of a Restricted Security or the
holder of 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 of Restricted Securities or such holder of shares of
Common Stock issued upon conversion of Restricted Securities, or to a
prospective purchaser of any such security designated by any such Holder or
holder, as the case may be, to the
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extent required to permit compliance by such Holder or holder with Rule 144A
under the Securities Act (or any successor provision thereto) in connection with
the resale of any such security; provided, however, that the Company shall not
be required to furnish such information in connection with any request made on
or after the date which is two years from the later of (i) the Issue Date, (ii)
the date such a security (or any such predecessor security) was last acquired
from the Company, (iii) the date such a security (or any such predecessor
security) was last acquired from an "affiliate" of the Company within the
meaning of Rule 144 under the Securities Act (or any successor provision
thereto) or (iv) the date on which such a security can be sold without a
registration statement under Rule 144(k) of the Securities Act, or an successor
rule thereto. "Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
SECTION 10.8 Contingent Subsidiary Guarantees of the Securities.
The Company will not permit any of its Subsidiaries that is not already a
guarantor of the Securities (on terms at least as favorable to Holders of the
Securities as with respect to holders of any Debt Securities Incurred or to be
Incurred by such Subsidiary as would otherwise be required by this Section 10.8)
to Incur any Debt Securities, unless, prior to or concurrently therewith, the
Company, the Trustee and such Subsidiary execute and deliver, in compliance with
Article VIII, an indenture supplement hereto providing for a full and
unconditional Guaranty by that Subsidiary on a basis such that the Subsidiary's
Guaranty of the Securities shall stand in substantially the same relative
ranking in right of payment to its obligations with respect to such Debt
Securities; provided, however, that this Section 10.8 shall not apply to any
Subsidiary of the Company the Equity Interests of which are less than 90%-owned
by the Company, directly or indirectly, with respect to Debt Securities that it
Incurs as the issuer thereof or the primary obligor thereon. If no Event of
Default has occurred and be continuing under this Indenture, this Section 10.8
will terminate and be of no further force or effect upon the earlier to occur of
(i) the time the Company's general, senior, unsecured indebtedness (with respect
to which no Person other than the Company is directly or contingently liable
for, or has otherwise Guaranteed, payment) is rated Investment Grade (a "Ratings
Event"), or (ii) January 1, 2013.
The obligations of the Guarantors under their Guaranties of the Securities
will be joint and several, and full and unconditional; however, such obligations
shall be limited to the maximum amount that will not result in the obligations
of any Guarantor under its Guaranty constituting a fraudulent conveyance or
fraudulent transfer under federal or state law, after giving effect to (1) all
other contingent and fixed liabilities of the Guarantor; and (2) any collections
from or payments made by or on behalf of any other Guarantors in respect of the
obligations of the Guarantor under its Guaranty.
If no Event of Default has occurred and be continuing under this
Indenture, a Guarantor will be unconditionally released and discharged from its
Guaranty:
(1) upon any sale, exchange or other transfer to any Person that is not an
Affiliate of the Company of all of the Company's direct or indirect Equity
Interests in the Guarantor;
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(2) upon the merger of the Guarantor into the Company or any other
Guarantor or the liquidation and dissolution of the Guarantor;
(3) upon the release, repayment or other retirement of all Debt Securities
Incurred by the Guarantor, except its Guaranty of the Securities and, in the
case of any Guarantor whose Equity Interests are less than 90%-owned by the
Company, directly or indirectly, except for any Debt Securities that it has
Incurred as the issuer thereof or the primary obligor thereon; or
(4) at the earlier to occur of a Ratings Event or January 1, 2013.
SECTION 10.9 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 10.4 (other than with respect to the
existence of the Company (subject to Article VII)), and 10.5, inclusive, if
before the time for such compliance the Holders shall, through (i) the written
consent of not less than a majority in aggregate principal amount of the
Outstanding Securities or (ii) the adoption of a resolution at a meeting of
Holders of the Outstanding Securities at which a quorum is present by the
Holders of not less than 66-2/3% in aggregate principal amount of the
Outstanding Securities represented at such meeting, either waive such compliance
in such instance or generally waive compliance with such covenant or condition,
but no such waiver shall extend to or affect such covenant or condition except
to the extent so expressly waived, and, until such waiver shall become
effective, the obligations of the Company and the duties of the Trustee or any
Paying or Conversion Agent in respect of any such covenant or condition shall
remain in full force and effect.
SECTION 10.10 Additional Interest.
If Additional Interest is payable under the Registration Rights Agreement,
the Company shall deliver to the Trustee an Officers' Certificate to that effect
stating (i) the amount of Additional Interest that is payable and (ii) the date
on which Additional Interest is due and payable, as specified in the
Registration Rights Agreement. Unless and until a Responsible Officer of the
Trustee actually receives at the Corporate Trust Office such a certificate, the
Trustee may assume without inquiry that no Additional Interest is due or
payable. If Additional Interest has been paid by the Company directly to the
persons entitled to it, the Company shall deliver to the Trustee a certificate
setting forth the particulars of such payment.
ARTICLE XI
REDEMPTION OF SECURITIES
SECTION 11.1 Right of Redemption.
Prior to July 6, 2012, the Securities shall not be redeemable. On or after
July 6, 2012 the Company may redeem the Securities for cash in whole, or from
time to time in part (which must be equal to U.S.$1,000 or any integral multiple
thereof), at a Redemption Price equal to U.S.$1,000 per U.S.$1,000 aggregate
principal amount of the Securities being redeemed, plus accrued and unpaid
interest (including Additional Interest, if any) to, but excluding, the
Redemption Date. Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1)
and 5.8) there is a reference, in any context, to the
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principal of any Security as of any time, such reference shall be deemed to
include reference to the Redemption Price payable in respect of such Security to
the extent that such Redemption Price is, was or would be so payable at such
time, and express mention of the Redemption Price in any provision of this
Indenture shall not be construed as excluding the Redemption Price in those
provisions of this Indenture when such express mention is not made.
Interest installments on Securities whose Stated Maturity is on or prior
to a Redemption Date will be payable to the Holders of such Securities, or one
or more Predecessor Securities, of record at the close of business on the
relevant Record Dates.
Securities or portions of the Securities called for redemption shall be
convertible by the Holder in accordance with the provisions of Article XII until
the close of business on the Business Day prior to the Redemption Date.
SECTION 11.2 Applicability of Article.
Redemption of Securities at the election of the Company or otherwise, as
permitted or required by any provision of the Securities or this Indenture,
shall be made in accordance with such provision and this Article XI.
SECTION 11.3 Election to Redeem; Notice to Trustee.
If the Company elects to redeem Securities pursuant to Section 11.1, it
shall notify the Trustee in writing of the Redemption Date and the principal
amount of Securities to be redeemed and whether it requests the Trustee to give
notice of such redemption.
The Company shall give each notice to the Trustee provided for in this
Section 11.3 at least ten Business Days (unless the Trustee consents to a
shorter period) before the date of giving notice of a redemption pursuant to
Section 11.l. Such notice shall be accompanied by an Officers' Certificate to
the effect that such redemption will comply with this Indenture.
SECTION 11.4 Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within five Business
Days after the actual receipt by a Responsible Officer of the Trustee the notice
described in Section 11.3, from the Outstanding Securities not previously called
for redemption, on a pro rata basis, by lot or by such other method as the
Trustee may deem fair and appropriate.
If any Security selected for partial redemption is converted in part
before termination of the conversion right with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as Outstanding for the purpose of such selection. The Trustee shall
notify the Company in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the aggregate
principal amount thereof to be redeemed.
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For all purposes of this Indenture, unless the context otherwise requires,
all provisions relating to the redemption of Securities shall relate, in the
case of any Securities redeemed or to be redeemed only in part, to the portion
of the aggregate principal amount of such Securities which has been or is to be
redeemed.
SECTION 11.5 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section 1.6
to the Holders of Securities to be redeemed not less than 30 nor more than 60
days prior to the Redemption Date, and such notice shall be irrevocable.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and accrued but unpaid interest, if any
(including Additional Interest, if any), to, but excluding, the Redemption Date,
(3) if less than all Outstanding Securities are to be redeemed, the
aggregate principal amount of Securities to be redeemed and the aggregate
principal amount of Securities which will be outstanding after such partial
redemption,
(4) that on the Redemption Date the Redemption Price, and accrued but
unpaid interest, if any (including Additional Interest, if any), to, but
excluding, the Redemption Date, will become due and payable upon each such
Security to be redeemed, and that interest thereon shall cease to accrue on and
after said date,
(5) the Conversion Rate, the date on which the right to convert the
Securities to be redeemed will terminate and the places where such Securities
may be surrendered for conversion,
(6) the place or places where such Securities are to be surrendered for
payment of the Redemption Price and accrued interest, if any (including
Additional Interest, if any), to, but excluding, the Redemption Date, and
(7) that no representation is made as to the correctness or accuracy of
the CUSIP number that is listed in such notice or printed on the Securities.
In case of a partial redemption, the notice shall specify the serial and
CUSIP numbers (if any) and the portions thereof called for redemption and that
transfers and exchanges may occur on or prior to the Redemption Date.
Notice of redemption of Securities to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request in
accordance with Section 11.3, by the Trustee in the name of and at the expense
of the Company; provided that, in the event the Trustee is to give such notice,
the Company has delivered to the Trustee all the information to be included in
such notice including information required by this Section 11.5.
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SECTION 11.6 Deposit of Redemption Price.
Prior to 10:30 a.m. (New York City time) on the Redemption Date, the
Company shall deposit with the Trustee (or, if the Company is acting as its own
Paying Agent, segregate and hold in trust as provided in Section 10.3) an amount
of money (which shall be in immediately available funds on such Redemption Date)
sufficient to pay the Redemption Price of, and (except if the Redemption Date
shall be an Interest Payment Date) accrued interest (including Additional
Interest, if any) to, but excluding, the Redemption Date on, all the Securities
which are to be redeemed on that date other than any Securities called for
redemption on that date which have been converted prior to the date of such
deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or so segregated and held in trust for the redemption of such
Security shall (subject to any right of the Holder of such Security or any
Predecessor Security to receive interest as provided in the last paragraph of
Section 3.7) be paid to the Company or, if then held by the Company, shall be
discharged from such trust.
SECTION 11.7 Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the Securities so to
be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price therein specified and from and after such date (unless the
Company shall default in the payment of the Redemption Price, including accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
Security for redemption in accordance with said notice, such Security shall be
paid by the Company at the Redemption Price together with accrued and unpaid
interest (including Additional Interest, if any) to, but excluding, the
Redemption Date, provided, however, that installments of interest on Securities
whose Stated Maturity is on or prior to the Redemption Date shall be payable to
the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Date according to their terms and the
provisions of Section 3.7.
If any Security called for redemption shall not be so paid on the
Redemption Date, the aggregate principal amount of and, to the extent permitted
by applicable law, accrued interest (including Additional Interest, if any) on
such Security shall, until paid, bear interest from the Redemption Date at a
rate of 2-3/8% per annum and such Security shall remain convertible until the
Redemption Price of such Security (or portion thereof, as the case may be) shall
have been paid or duly provided for.
Any Security that is to be redeemed only in part shall be surrendered at
the Corporate Trust Office or an office or agency of the Company designated for
that purpose pursuant to Section 10.2 (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and,
upon its actual receipt by a Responsible Officer of a Company Order to such
effect, the Trustee shall authenticate and make available for delivery 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
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amount equal to and in exchange for the unredeemed portion of the principal of
the Security so surrendered.
SECTION 11.8 Conversion Arrangement on Call for Redemption.
In connection with any redemption of Securities, the Company may arrange
for the purchase and conversion of any Securities by an agreement with one or
more investment bankers or other purchasers (the "Purchasers") to purchase such
Securities by paying to the Trustee in trust for the Holders, before 10:30 a.m.
(New York City time) on the Redemption Date, an amount not less than the
applicable Redemption Price, together with interest accrued to, but excluding,
the Redemption Date of such Securities. Notwithstanding anything to the contrary
contained in this Article XI, the obligation of the Company to pay the
Redemption Price, together with interest accrued to, but excluding, the
Redemption Date shall be deemed to be satisfied and discharged to the extent
such amount is so paid by such Purchasers. If such an agreement is entered into
(a copy of which shall be filed with the Trustee prior to the close of business
on the Business Day immediately prior to the Redemption Date), any Securities
called for redemption that are not duly surrendered for conversion by the
Holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, and consistent with any agreement or agreements with
such Purchasers, to be acquired by such Purchasers from such Holders and
(notwithstanding anything to the contrary contained in Article XII) surrendered
by such Purchasers for conversion, all as of immediately prior to the close of
business on the Redemption Date (and the right to convert any such Securities
shall be extended through such time), subject to payment of the above amount as
aforesaid. At the direction of the Company, pursuant to a written Company Order,
the Trustee shall hold and dispose of any such amount paid to it by the
Purchasers to the Holders in the same manner as it would money deposited with it
by the Company for the redemption of Securities. Without the Trustee's prior
written consent expressly authorizing a change, no arrangement between the
Company and such Purchasers for the purchase and conversion of any Securities
shall increase or otherwise affect any of the powers, duties, responsibilities
or obligations of the Trustee as set forth in this Indenture, and the Company
agrees to indemnify the Trustee from, and hold it harmless against, any loss,
liability or expense arising out of or in connection with any such arrangement
for the purchase and conversion of any Securities between the Company and such
Purchasers, including the costs and expenses, including reasonable legal fees,
incurred by the Trustee in the defense of any claim or liability arising out of
or in connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations under this Indenture.
ARTICLE XII
CONVERSION OF THE SECURITIES
SECTION 12.1 Conversion Privilege.
(1) Subject to the provisions of this Article XII, a Holder of a
Security may convert such Security into cash and Common Stock, if any, equal to
the Conversion Value on or prior to July 1, 2025, if any of the following
conditions is satisfied:
(i) prior to July 1, 2023, during any fiscal quarter (the "Quarter")
commencing after the Issue Date, if the Common Stock Price for at least 20
Trading Days in the period of 30
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consecutive Trading Days ending on the last Trading Day of the
Quarter immediately preceding such Quarter (appropriately adjusted to take into
account the occurrence, during such 30 consecutive Trading Day period, of any
event requiring adjustment of the Conversion Price under this Indenture) is more
than 120% of the Conversion Price on such 30th Trading Day;
(ii) on or after July 1, 2023, at all times on or after any date
thereafter on which the Common Stock Price is more than 120% of the then current
Conversion Price of the Securities;
(iii) during the five consecutive Business Day period after any five
consecutive Trading Day period in which the average of the Trading Prices per
U.S.$1,000 principal amount of Securities, as determined following a request by
a Holder in accordance with the procedures described below in Section 12.1(6),
for such five Trading Day period was less than 95% of the product of the average
of the Common Stock Price for such five Trading Day period and the then-current
Conversion Rate;
(iv) such Security has been called for redemption by the Company
pursuant to Section 11.1 and the redemption has not yet occurred, so long as the
Holder surrenders such Security for conversion prior to the close of business on
the date that is two Business Days prior to the applicable Redemption Date, even
if the Security is not otherwise convertible at such time;
(v) (A) a distribution to all or substantially all holders of
Common Stock of rights, warrants or options entitling them (for a period
commencing no earlier than the date of distribution and expiring not more than
60 days after the date of distribution) to subscribe for or purchase shares of
Common Stock at a price less than the average Common Stock Price for the 10
Trading Days immediately preceding the date such distribution was first publicly
announced; or
(B) a distribution to all or substantially all holders of Common
Stock of cash or other assets, evidences of Company indebtedness, rights or
warrants to purchase or subscribe for Capital Stock or other securities of the
Company, where the fair market value of such distribution per share of Common
Stock (as determined by the Board of Directors, whose determination shall be
conclusive evidence of such fair market value) exceeds 10% of the Common Stock
Price on the Trading Day immediately preceding the date such distribution was
first publicly announced;
provided that the Holder shall have no right to convert any Security pursuant to
this Section 12.1(1)(v) if the Holder of a Security otherwise participates in
the distribution described in this Section 12.1(1)(v) on an as-converted basis
solely into Common Stock at the then applicable Conversion Price without
conversion of such Holder's Securities; or
(vi) if the Company is party to a Fundamental Change or a
consolidation, merger, share exchange, sale of all or substantially all of its
properties and assets or other similar transaction, in each case pursuant to
which the Common Stock is subject to conversion into cash, securities or other
property from and after the effective date of such transaction until and
including the date that is 30 days after the effective date of such transaction.
(2) If a Holder elects to convert its Securities in connection with a
corporate transaction that occurs on or prior to July 1, 2012, which constitutes
a Fundamental Change (other than relating
78
to the composition of the Company's Board of Directors as described in clause
(i) of the definition of Fundamental Change in Section 14.3(2)) and 10% or more
of the fair market value of the consideration for the Common Stock (as
determined by the Board of Directors, whose determination shall be conclusive
evidence of such fair market value) in the corporate transaction consists of (i)
cash (not including cash payments for fractional shares and cash payments
pursuant to dissenters' appraisal rights), (ii) other property or (iii)
securities that are not traded or scheduled to be traded immediately following
such transaction on a U.S. national securities exchange or the Nasdaq National
Market (a "Non-Stock Fundamental Change"), then the Conversion Rate of the
Securities being converted by such Holder at that time shall be increased so
that such Holder will be entitled to receive, in addition to the cash and Common
Stock such Holder is otherwise entitled to receive, a number of additional
shares of Common Stock (the "Additional Shares") determined in the manner set
forth below; provided that if the Share Price in such transaction is equal to or
greater than U.S.$175.00 or less than U.S.$24.40 (subject in each case to
adjustment as described below), no increase in the Conversion Rate shall be
made; and provided further that in no event will the Conversion Rate exceed
39.447 per U.S.$1,000 principal amount of Securities, subject to adjustments in
the same manner as the Conversion Price as set forth in this Indenture. For the
avoidance of doubt, the adjustment provided for in this Section 12.1(2) shall
only be made with respect to the Securities being converted in connection with
such Fundamental Change prior to July 1, 2012 and shall not be effective as to
any Securities not so converted.
The increase in the Conversion Rate expressed as a number of Additional
Shares per U.S.$1,000 principal amount of Securities will be determined by the
Company by reference to the table attached as Schedule A hereto, based on the
date the corporate transaction becomes effective (the "Effective Date") and the
share price paid per share of Common Stock in the corporate transaction (the
"Share Price"); provided that if holders of the Common Stock receive only cash
in such corporate transaction, the Share Price shall be the cash amount paid per
share. Otherwise, the Share Price will be the average of the Common Stock Price
on the five Trading Days prior to but not including the Effective Date of the
Non-Stock Fundamental Change; provided further that if the Share Price is
between two Share Price amounts in the table or the Effective Date is between
two Effective Dates in the table, the Company shall determine the number of
Additional Shares by a straight-line interpolation between the number of
Additional Shares set forth for the higher and lower Share Price amounts and the
two dates, as applicable, based on a 365-day year.
The Share Prices set forth in the first row of the table (i.e., column
headers) in Schedule A hereto will be adjusted as of any date on which the
Conversion Price of the Securities is adjusted pursuant to the Indenture. The
adjusted Share Prices will equal the Share Prices applicable immediately prior
to such adjustment, multiplied by a fraction, the numerator of which is the
Conversion Price immediately prior to the adjustment giving rise to the Common
Stock Price adjustment and the denominator of which is the Conversion Price as
so adjusted. The number of Additional Shares will be adjusted in the same manner
as the Conversion Price as set forth in this Indenture.
(3) Notwithstanding the foregoing, and in lieu of adjusting the Conversion
Rate as set forth in Section 12.1(2), in the case of a Non-Stock Fundamental
Change constituting a Public Acquirer Fundamental Change, the Company may elect
that, from and after the Effective Date of such Public Acquirer Fundamental
Change, the right to convert a Security will be changed into a
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right to convert a Security into a number of shares of Acquirer Common Stock at
the Conversion Rate specified below. At any time prior to the twentieth day
immediately preceding the proposed Effective Date of the Public Acquirer
Fundamental Change, the Company may irrevocably elect to adjust the terms of the
Holder's conversion privilege set forth in Section 12.14 such that following
such adjustment Acquirer Common Stock shall be deemed to be the Common Stock and
the Conversion Rate on and following the Effective Date of such transaction
described in this Section 12.1(3) shall be the product of:
(i) the Conversion Rate in effect immediately prior to the
Effective Date of such Fundamental Change, times
(ii) the average of the quotients obtained, for each Trading Day in
the 10 consecutive Trading Day period commencing on the Trading Day next
succeeding the Effective Date of such Public Acquirer Fundamental Change (the
"Valuation Period"), of:
(A) the Acquisition Value of our Common Stock on each such
Trading Day in the Valuation Period, divided by
(B) the Closing Sale Price of the Acquirer Common Stock on
each such Trading Day in the Valuation Period.
(4) In the case of the foregoing Sections 12.1(1)(v)(A) and
12.1(1)(v)(B), the Company shall cause a notice of such distribution to be filed
with the Trustee and the Conversion Agent and to be mailed to each Holder of
Securities no later than 20 days prior to the Ex-Dividend Date for such
distribution. Once the Company has given such notice, Holders may surrender
their Securities for conversion at any time thereafter until the earlier of the
close of business on the Business Day prior to the Ex-Dividend Date or the
Company's announcement that such distribution will not take place. The
"Ex-Dividend Date" for any such distribution means the date immediately prior to
the commencement of "ex-dividend" trading for such distribution on the New York
Stock Exchange or such other United States national securities exchange or The
Nasdaq Stock Market or similar system of automated dissemination of quotations
of securities prices on which the Common Stock is then listed or quoted.
(5) For each Quarter of the Company commencing after the Issue Date and
prior to July 1, 2023, the Conversion Agent, on behalf of the Company, will
determine, on the first Business Day following the last Trading Day of the prior
Quarter, whether the Securities are convertible pursuant to clause (i) of
Section 12.1(1), and, if so, will notify the Trustee and the Company in writing.
From July 1, 2023, the Conversion Agent will determine, on behalf of the
Company, on a daily basis, whether the Securities are convertible pursuant to
clause (ii) of Section 12.1(1) and, if so, will notify the Trustee and the
Company in writing.
(6) The Trustee shall have no obligation to determine the Trading Price
of the Securities and whether the Securities are convertible pursuant to clause
(iii) of Section 12.1(1) unless the Company has requested such determination;
and the Company shall have no obligation to make such request unless a Holder of
the Securities provides the Company with reasonable evidence that the Trading
Price per U.S.$1,000 principal amount of Securities is reasonably likely to be
less than 95%
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of the product of the Common Stock Price and the Conversion Rate then in effect
per U.S.$1,000 principal amount of Securities. At such time, the Company shall
instruct the Trustee to determine the Trading Price of the Securities beginning
on the next Trading Day and on each successive Trading Day for 10 consecutive
Trading Days to determine whether the Trading Prices for the Securities for each
Trading Day in any five consecutive Trading Day period within such 10 Trading
Day period is less than 95% of the product of (A) the average of the Common
Stock Price for such five Trading Day Period and (B) the then current Conversion
Rate, and to notify the Company accordingly.
(7) A Holder may convert a portion of a Security equal to U.S.$1,000 or
any integral multiple thereof. Provisions of this Indenture that apply to
conversion of all of a Security also apply to conversion of a portion of a
Security.
If a Security is called for redemption pursuant to Section 11.1, in order
to convert such Security if such Security is then convertible pursuant to the
terms of the Indenture, the Holder must deliver the Security to the Conversion
Agent (or, if the Security is held in book-entry form, complete and deliver to
the Depositary appropriate instructions in accordance with the Applicable
Procedures) at any time prior to the close of business on the day that is one
Business Day prior to the applicable Redemption Date (unless the Company shall
default in paying the Redemption Price when due, in which case the conversion
right shall terminate on the date such default is cured and such Security is
redeemed). A Security in respect of which a Holder has delivered a Repurchase
Notice pursuant to Article XIII or a similar notice pursuant to Section 14.2
exercising the option of such Holder to require the Company to repurchase such
Security may be converted only if such Repurchase Notice or Fundamental Change
Company Notice, as the case may be, is withdrawn by a written notice of
withdrawal delivered to the Paying Agent prior to the close of business on the
Business Day prior to the Repurchase Date or the Fundamental Change Repurchase
Date, as the case may be, in accordance with Article XIII or Article XIV.
(8) A Holder of Securities is not entitled to any rights of a holder of
Common Stock until such Holder has converted its Securities into Common Stock.
SECTION 12.2 Conversion Procedure.
(1) To convert a Security, a Holder must (i) if the Security is in
definitive form, complete and manually sign the irrevocable conversion notice on
the back of the Security and deliver such notice to the Conversion Agent, (ii)
if the Security is in definitive form, surrender the Security to the Conversion
Agent, (iii) if the Security is in definitive form, furnish appropriate
endorsements and transfer documents if required by the Security Registrar or the
Conversion Agent, (iv) pay any transfer or other tax, if required by Section
12.3 and (v) if the Security is held in book-entry form, complete and deliver to
the Depositary appropriate instructions pursuant to the Applicable Procedures.
The later of (x) the date on which the Holder satisfies all of the foregoing
requirements and (y) the Determination Date is the "Conversion Date." As
promptly as practicable after the Conversion Date and in any event within three
Business Days thereof, the Company shall deliver to the Holder through the
Conversion Agent cash and shares of Common Stock in the amounts calculated in
accordance with Section 12.14.
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(2) The Person in whose name the Security is registered shall be deemed to
be a stockholder of record on the Conversion Date; provided that no surrender of
a Security on any date when the stock transfer books of the Company shall be
closed shall be effective to constitute the Person or Persons entitled to
receive the shares of Common Stock upon such conversion as the record holder or
holders of such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such shares of
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; provided, further that such conversion shall be at the Conversion
Price in effect on the date that such Security shall have been surrendered for
conversion, as if the stock transfer books of the Company had not been closed.
Upon conversion of a Security, such Person shall no longer be a Holder of such
Security.
(3) No payment or adjustment will be made for accrued but unpaid interest
(including Additional Interest, if any) on a converted Security or for dividends
or distributions on shares of Common Stock issued upon conversion of a Security.
The Company shall not adjust the Conversion Price to account for the accrued but
unpaid interest. Notwithstanding the foregoing, if Securities are converted
after the close of business on a Regular Record Date and prior to the opening of
business on the next Interest Payment Date, including the date of maturity,
Holders of such Securities at the close of business on such Regular Record Date
shall receive the accrued but unpaid interest (including Additional Interest, if
any) payable on such Securities on the corresponding Interest Payment Date
notwithstanding the conversion. In such event, such Security, when surrendered
for conversion, must be accompanied by delivery of a check payable to the
Conversion Agent in an amount equal to the accrued but unpaid interest
(including Additional Interest, if any) payable on such Interest Payment Date on
the portion so converted. If such payment does not accompany such Security, the
Security shall not be converted; provided that no such check shall be required
if such Security has been called for redemption on a Redemption Date within the
period between the close of business on such record date and the opening of
business on such Interest Payment Date, or if such Security is surrendered for
conversion on the Interest Payment Date. If the Company defaults in the payment
of interest (including Additional Interest, if any) payable on the Interest
Payment Date, the Conversion Agent shall promptly repay such funds to the
Holder.
(4) Upon surrender of a Security that is converted in part, the Company
shall execute, and the Trustee shall, upon receipt of a Company Order,
authenticate and deliver to the Holder, a new Security equal in principal amount
to the unconverted portion of the Security surrendered.
SECTION 12.3 Taxes on Conversion.
If a Holder converts a Security, the Company shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of shares of Common
Stock upon such conversion. However, the Holder shall pay any tax which is due
because the Holder requests the shares to be issued in a name other than the
Holder's name. The Conversion Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the Holder's
name until the Conversion Agent receives a sum sufficient to pay any tax which
will be due because the shares are to be issued in a name other than the
Holder's name. Nothing herein shall preclude any tax withholding required by law
or regulations.
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SECTION 12.4 Company to Provide Stock.
The Company shall, prior to issuance of any Securities hereunder, and from
time to time as may be necessary, reserve, out of its authorized but unissued
Common Stock, a sufficient number of shares of Common Stock to permit the
conversion of all outstanding Securities into shares of Common Stock. The
certificates representing the shares of Common Stock issued upon conversion of
Restricted Securities shall bear a legend substantially in the form set forth in
Section 2.2 of the Form of Security.
The Company covenants that all shares of Common Stock delivered upon
conversion of the Securities shall be newly issued shares or treasury shares,
shall be duly authorized, validly issued, fully paid and non-assessable and
shall be free from preemptive rights and free of any lien or adverse claim.
The Company will comply with all federal and state securities laws
regulating the offer and delivery of shares of Common Stock upon conversion of
Securities, if any, and will list or cause to have quoted such shares of Common
Stock on each national securities exchange or in the over-the-counter market or
such other market on which the Common Stock is then listed or quoted.
SECTION 12.5 Adjustment of Conversion Price.
The Conversion Price shall be adjusted (without duplication) from time to
time by the Company as follows:
(1) In case the Company shall (i) pay a dividend or other distribution in
shares of Common Stock to all or substantially all holders of Common Stock, (ii)
subdivide its outstanding Common Stock into a greater number of shares or (iii)
combine its outstanding Common Stock into a smaller number of shares, the
Conversion Price shall be adjusted so that the Holder of any Security thereafter
surrendered for conversion shall be entitled to receive the number of shares of
Common Stock which it would have owned or been entitled to receive had such
Security been converted immediately prior to the happening of such event. For
the purposes of calculating the Conversion Price adjustment pursuant to this
Section 12.5(1), Holders of a Security shall be treated as if they had the right
to convert the Security solely into Common Stock at the then applicable
Conversion Price. An adjustment made pursuant to this Section 12.5(1) shall
become effective immediately after the record date in the case of a dividend or
distribution and shall become effective immediately after the effective date in
the case of subdivision, combination or reclassification.
(2) In case the Company shall issue to all or substantially all holders of
Common Stock rights, warrants or options entitling such holders (for a period
commencing no earlier than the date of distribution and expiring not more than
60 days after the date of distribution) to subscribe for or purchase shares of
Common Stock (or securities convertible into Common Stock) at a price per share
less than the average Common Stock Price for the 10 Trading Days immediately
preceding the date the distribution of such rights, warrants or options was
first publicly announced by the Company, the Conversion Price shall be decreased
so that the Conversion Price shall equal the price determined by multiplying the
Conversion Price in effect immediately prior to the record date for such issue
by a fraction,
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(i) the numerator of which shall be the number of shares of Common
Stock outstanding on such date of public announcement, plus the number of shares
which the aggregate subscription or purchase price for the total number of
shares of Common Stock offered by the rights, warrants or options so issued (or
the aggregate conversion price of the convertible securities offered by such
rights, warrants or options) would purchase at such average Common Stock Price,
and
(ii) the denominator of which shall be the number of shares of
Common Stock outstanding on such date of public announcement plus the number of
additional shares of Common Stock offered by such rights, warrants or options
(or into which the convertible securities so offered by such rights, warrants or
options are convertible),
provided that no adjustment will be made if Holders of the Securities are
entitled to participate in the distribution on substantially the same terms as
holders of the Common Stock as if such Holders had converted their Securities
solely into Common Stock immediately prior to such distribution at the then
applicable Conversion Price. Such adjustment shall be made successively whenever
any such rights, warrants or options are issued, and shall become effective
immediately after such record date. If at the end of the period during which
such rights, warrants or options are exercisable not all rights, warrants or
options shall have been exercised, the adjusted Conversion Price shall be
immediately readjusted to what it would have been upon application of the
foregoing adjustment substituting the number of additional shares of Common
Stock actually issued (or the number of shares of Common Stock issuable upon
conversion of convertible securities actually issued) for the total number of
shares of Common Stock offered (or convertible securities offered).
(3) In case the Company shall distribute to all or substantially all
holders of Common Stock any shares of Capital Stock of the Company (other than
Common Stock) or evidences of its indebtedness, other securities or other
assets, or shall distribute to all holders of Common Stock, rights (other than
the rights distributed pursuant to the Rights Plan to the extent that such
rights have been distributed to the holders of the Securities as described
below), warrants or options to subscribe for or purchase any of its securities
(excluding (i) those rights, options and warrants referred to in Section
12.5(2); (ii) those dividends, distributions, subdivisions and combinations
referred to in Section 12.5(1); and (iii) those dividends and distributions paid
in cash referred to in Section 12.5(5)), then in each such case the Conversion
Price shall be decreased so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the date of such
distribution by a fraction,
(i) the numerator of which shall be the Market Price on the record
date for the determination of holders of Common Stock entitled to receive such
distribution less the fair market value on such record date (as determined by
the Board of Directors, whose determination shall be conclusive evidence of such
fair market value) of the portion of the Capital Stock or evidences of
indebtedness, securities or assets so distributed or of such rights, warrants or
options, in each case applicable to one share of Common Stock, and
(ii) the denominator of which shall be the Market Price on such
record date,
such adjustment to become effective immediately after the record date for such
distribution; provided that if the numerator of the foregoing fraction is less
than $1.00 (including a negative
84
amount), then in lieu of the foregoing adjustment, adequate provision shall be
made so that each Holder shall have the right to receive upon conversion, in
addition to the cash and Common Stock issuable upon such conversion, the
distribution such Holder would have received had such Holder converted its
Security solely into Common Stock at the then applicable Conversion Price
immediately prior to the record date for such distribution; provided that no
adjustment will be made if Holders of the Securities are entitled to participate
in the distribution on substantially the same terms as holders of the Common
Stock as if such Holders had converted their Securities solely into Common Stock
immediately prior to such distribution at the then applicable Conversion Price;
Notwithstanding the foregoing, if the distribution by the Company to all
or substantially all holders of its Common Stock consists of Capital Stock of,
or similar Equity Interests in, a Subsidiary or other business unit of the
Company (unless such Capital Stock or similar Equity Interests are distributed
to holders in such distribution as if such holders had converted their
Securities into Common Stock), the Conversion Price shall be decreased so that
the same shall be equal to the rate determined by multiplying the Conversion
Price in effect on the record date with respect to such distribution by a
fraction:
(i) the numerator of which shall be the average Common Stock Price
over the Spinoff Valuation Period; and
(ii) the denominator of which shall be the sum of (x) the average
Common Stock Price over the ten (10) consecutive Trading Day period (the
"Spinoff Valuation Period") commencing on and including the fifth Trading Day
after the date on which "ex-dividend trading" commences for such dividend or
distribution on the Nasdaq National Market or the New York Stock Exchange or
such other quotation system or national or regional exchange or market on which
the Common Stock is then listed or quoted plus (y) the average fair market value
(as determined by the Board of Directors and described in a resolution of the
Board of Directors, which determination shall equal the average closing sale
price where such closing sale price is available) over the Spinoff Valuation
Period of the portion of the assets so distributed applicable to one share of
Common Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such record date; provided that the Company may in lieu of
the foregoing adjustment make adequate provision so that each Holder shall have
the right to receive upon conversion the amount of the distribution such Holder
would have received had such Holder converted its Security on the record date
with respect to such distribution. If any dividend or distribution of the type
described in this Section 12.5(3) is declared but not so paid or made, such
adjustment to the Conversion Price shall be reversed. In any case in which this
paragraph is applicable, Section 12.5(1), Section 12.5(2) and the first
paragraph of this Section 12.5(3) shall not be applicable.
To the extent that the Company has a share rights plan ("Rights Plan") in
effect upon conversion of Securities, the Holders of the Securities will
receive, in addition to the Principal Amount and the Net Shares, the rights
under the Rights Plan, unless the rights have separated from the Common Stock at
the time of the conversion, and, as a result, upon conversion of the Securities,
the Holder of the Securities would not be entitled to receive the rights, then
in such case the Conversion Price will be adjusted as described in this Section
12.5(3).
85
(4) In case the Company or any Subsidiary of the Company makes a payment
in respect of a tender or exchange offer to holders of Common Stock where the
cash and other consideration included in the payment per share exceeds the
Common Stock Price on the last Trading Day prior to the Offer Expiration Time,
the Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the Offer Expiration Time by a fraction,
(i) the numerator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the last time
(the "Offer Expiration Time") tenders or exchanges may be made pursuant to such
tender or exchange offer (as it may be amended) multiplied by the Common Stock
Price on the Trading Day next succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration payable to
holders of Common Stock based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares of Common Stock validly
tendered or exchanged and not withdrawn as of the Offer 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 Offer Expiration Time and the
Common Stock Price on the Trading Day next succeeding the Offer Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. If the Company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price that would then be in effect if such tender or
exchange offer had not been made.
(5) In case the Company shall declare a cash dividend or cash
distribution to all or substantially all of the holders of Common Stock, the
Conversion Price shall be decreased so that the Conversion Price shall equal the
price determined by multiplying the Conversion Price in effect immediately prior
to the record date for such dividend or distribution by a fraction,
(i) the numerator of which shall be the average of the Common Stock
Price for the three consecutive Trading Days ending on the Trading Day
immediately preceding the record date for such dividend or distribution (the
"Pre-Dividend Sale Price"), minus the full amount of the dividend or
distribution to the extent payable in cash applicable to one share of Common
Stock, and
(ii) the denominator of which shall be the Pre-Dividend Sale Price,
such adjustment to become effective immediately after the record date for such
dividend or distribution; provided that if the numerator of the foregoing
fraction is less than U.S.$1.00 (including a negative amount), then in lieu of
the foregoing adjustment, adequate provision shall be made so that each Holder
shall have the right to receive upon conversion, in addition to the cash and
Common Stock issuable upon such conversion, the amount of cash such Holder would
have received
86
had such Holder converted its Security solely into Common Stock at the then
applicable Conversion Price immediately prior to the record date for such cash
dividend or cash distribution. If such cash dividend or cash distribution is not
so paid or made, the Conversion Price shall again be adjusted to be the
Conversion Price that would then be in effect if such dividend or distribution
had not been declared.
(6) In case of a tender or exchange offer made by a Person other than
the Company or any Subsidiary of the Company for an amount that increases the
offeror's ownership of Common Stock to more than twenty-five percent (25%) of
the Common Stock outstanding and shall involve the payment by such Person of
consideration per share of Common Stock having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive,
and described in a resolution of the Board of Directors) that as of the Offer
Expiration Time exceeds the Common Stock Price on the Trading Day next
succeeding the Offer Expiration Time, and in which, as of the Offer Expiration
Time the Board of Directors is not recommending rejection of the offer, the
Conversion Price shall be decreased so that the same shall equal the price
determined by multiplying the Conversion Price in effect immediately prior to
the Offer Expiration Time by a fraction,
(i) the numerator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the Offer
Expiration Time multiplied by the Common Stock Price on the Trading Day next
succeeding the Offer Expiration Time, and
(ii) the denominator of which shall be the sum of (x) the fair
market value (determined as aforesaid) of the aggregate consideration payable to
holders of Common Stock based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Offer Expiration Time (the shares deemed
so accepted up to any such maximum being referred to as the "Accepted Purchased
Shares") and (y) the product of the number of shares of Common Stock outstanding
(less any Accepted Purchased Shares) at the Offer Expiration Time and the Common
Stock Price on the Trading Day next succeeding the Offer Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Offer Expiration Time. If such Person is obligated to
purchase shares pursuant to any such tender or exchange offer, but such Person
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Price shall again be adjusted
to be the Conversion Price that would then be in effect if such tender or
exchange offer had not been made. Notwithstanding the foregoing, the adjustment
described in this Section 12.5(6) shall not be made if, as of the Offer
Expiration Time, the offering documents with respect to such offer disclose a
plan or intention to cause the Company to engage in any transaction described in
Article VII.
(7) In any case in which this Section 12.5 shall require that an
adjustment be made immediately following a record date established for purposes
of this Section 12.5, the Company may elect to defer (but only until three
Business Days following the filing by the Company with the Trustee of the
certificate described in Section 12.9) issuing to the holder of any Security
converted after such record date the cash, shares of Common Stock and other
Capital Stock of the Company issuable upon such conversion over and above the
cash, shares of Common Stock and other Capital
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Stock of the Company issuable upon such conversion only on the basis of the
Conversion Price prior to adjustment; and, in lieu of the cash and shares the
issuance of which is so deferred, the Company shall issue or cause its transfer
agents to issue due bills or other appropriate evidence of the right to receive
such shares.
(8) Before taking any action which would cause an adjustment decreasing
the Conversion Price so that the shares of Common Stock issuable upon conversion
of the Securities would be issued for less than the par value of such Common
Stock, the Company will take all corporate action which may be necessary in
order that the Company may validly and legally issue fully paid and
non-assessable shares of such Common Stock at such adjusted Conversion Price.
SECTION 12.6 No Adjustment.
No adjustment in the Conversion Price shall be required unless the
adjustment would require an increase or decrease of at least 1% in the
Conversion Price as last adjusted; provided that any adjustments which by reason
of this Section 12.6 are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article XII shall be made to the nearest cent, with one-half cent rounded up, or
to the nearest one thousandth (0.001) of a share, with each one-half thousandth
(0.0005) of a share being rounded up, as the case may be.
No adjustment need be made upon the issuance of Common Stock under any
present or future employee benefits plan or program of the Company or in
connection with an acquisition made by the Company.
No adjustment need be made upon the issuance of Common Stock pursuant to
(i) the exercise of any options, warrants or rights to purchase such Common
Stock, (ii) the exchange of any exchangeable securities for such Common Stock or
(iii) the conversion of any convertible securities into such Common Stock, in
each case so long as such option, warrant, right to purchase, exchangeable
security or convertible security is outstanding at the Issue Date.
No adjustment need be made for a change in the par value or a change to no
par value of the Common Stock.
SECTION 12.7 Equivalent Adjustments.
If, as a result of an adjustment made pursuant to Section 12.5 above, the
Holder of any Security thereafter surrendered for conversion shall become
entitled to receive any shares of Capital Stock of the Company other than shares
of Common Stock, thereafter the Conversion Price of such other shares so
receivable upon conversion of any Securities shall be subject to adjustment from
time to time in a manner and on terms as nearly equivalent as practicable to the
provisions with respect to Common Stock contained in this Article XII.
SECTION 12.8 Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the Conversion
Price, in addition to those required by Section 12.5, as the Board of Directors
in its discretion shall determine to be
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advisable in order that any stock dividends, subdivisions of shares,
distributions of rights to purchase stock or other securities, or distributions
of securities convertible into or exchangeable for stock hereafter made by the
Company to its holders of Common Stock shall not be taxable to such holders.
SECTION 12.9 Notice of Adjustment.
Whenever the Conversion Price (or Conversion Rate) is adjusted, or Holders
become entitled to other securities or due bills, the Company shall promptly
mail to Holders a notice of the adjustment and file with the Trustee an
Officers' Certificate briefly stating the facts requiring the adjustment and the
manner of computing it. The certificate shall be conclusive evidence of the
correctness of such adjustment, absent manifest error, and the Trustee may
conclusively assume that, unless and until such certificate is received by it,
no such adjustment is required.
SECTION 12.10 Notice of Certain Transactions.
In case:
(1) the Company shall declare a dividend (or any other distribution) on
the Common Stock; or
(2) the Company shall authorize the granting, generally, to the holders of
Common Stock of rights, warrants or options to subscribe for or purchase any
share of any class or any other rights, warrants or options; or
(3) of any reclassification of the Common Stock of the Company (other than
a subdivision or combination of its outstanding Common Stock, or a change in par
value, or from par value to no par value, or from no par value to par value), or
of any consolidation, merger, or share exchange to which the Company is a party
and for which approval of any holders of Common Stock is required, or of the
sale or transfer of all or substantially all of the properties and assets of the
Company; or
(4) of the voluntary or involuntary dissolution, liquidation or winding-up
of the Company;
the Company shall cause to be filed with the Trustee and the Conversion Agent
and to be mailed to each Holder of Securities as promptly as possible but in any
event at least ten days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of
such dividend, distribution or rights, warrants or options, or, if a record is
not to be taken, the date as of which the holders of Common Stock of record to
be entitled to such dividend, distribution or rights are to be determined, or
(y) the date on which such reclassification, consolidation, merger, share
exchange, sale, transfer, dissolution, liquidation or winding-up is expected to
become effective or occur, and the date as of which it is expected that holders
of Common Stock of record shall be entitled to exchange their Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, share exchange, sale, transfer, dissolution, liquidation
or winding-up. Failure to give such notice, or any defect therein, shall not
affect the legality or validity of such dividend, distribution,
reclassification, consolidation, merger, sale, share exchange, transfer,
dissolution, liquidation or winding-up.
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SECTION 12.11 Effect of Reclassification, Consolidation, Merger, Share Exchange
or Sale on Conversion Privilege.
If any of the following shall occur, namely: (i) any reclassification or
change of outstanding shares of 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); (ii) any consolidation, combination,
merger or share exchange to which the Company is a party other than a merger in
which the Company is the resulting or surviving corporation and which does not
result in any reclassification of, or change (other than a change in name, or
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) in, outstanding shares of Common
Stock; or (iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company, then the Company, or such successor or
purchasing corporation, as the case may be, shall, as a condition precedent to
such reclassification, change, consolidation, merger, share exchange, sale or
conveyance, execute and deliver to the Trustee a supplemental indenture
providing that the Holder of each Security then outstanding shall have the right
to convert such Security into the kind and amount of cash, securities or other
property receivable upon such reclassification, change, consolidation, merger,
share exchange, sale or conveyance by a holder of the number of shares of Common
Stock equal to the Conversion Rate of such Security immediately prior to such
reclassification, change, consolidation, merger, share exchange, sale or
conveyance. Such supplemental indenture shall (a) provide for adjustments of the
Conversion Price which shall be as nearly equivalent as may be practicable to
the adjustments of the conversion privilege and Conversion Price provided for in
this Article XII, (b) set forth appropriate modifications to the means of
determining the Conversion Value and other settlement provisions specified in
Section 12.14 so as to be nearly equivalent to such provisions as may be
practicable (except for in the case of a Non-Stock Fundamental Change pursuant
to Section 12.1(2)) and (c) specify the Conversion Price immediately after such
transactions. If, in the case of any such consolidation, merger, share exchange,
sale or conveyance, the stock or other securities and property (including cash)
receivable thereupon by a holder of Common Stock includes shares of Capital
Stock or other securities and property of a corporation other than the successor
or purchasing corporation, as the case may be, in such consolidation, merger,
share exchange, 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. The provision of this Section 12.11 shall similarly apply to
successive consolidations, mergers, share exchanges, sales or conveyances.
Notwithstanding the foregoing, a distribution by the Company to all or
substantially all holders of Common Stock for which an adjustment to the
Conversion Price or provision for conversion of the Securities may be made
pursuant to Section 12.5 shall not be deemed to be a sale or conveyance of all
or substantially all of the properties and assets of the Company for purposes of
this Section 12.11.
In the event the Company shall execute a supplemental indenture pursuant
to this Section 12.11, the Company shall promptly file with the Trustee an
Opinion of Counsel stating that such supplemental indenture is authorized or
permitted by this Indenture and an Officers' Certificate briefly stating the
reasons therefor, the kind or amount of cash, securities or other property
receivable by Holders of the Securities upon the conversion of their Securities
after any such
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reclassification, change, consolidation, merger, share exchange, sale or
conveyance, any adjustment to be made with respect thereto and that all
conditions precedent have been complied with.
SECTION 12.12 Trustee's Disclaimer.
The Trustee has no duty to determine when an adjustment under this Article
XII should be made, how it should be made or what such adjustment should be
made, but may accept as conclusive evidence of the correctness of any such
adjustment, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 12.9. The Trustee shall not be accountable for and
makes no representation as to the validity or value of any securities or assets
issued upon conversion of Securities, and the Trustee shall not be responsible
for the Company's failure to comply with any provisions of this Article XII.
Each Conversion Agent (other than the Company or an Affiliate of the Company)
shall have the same protection under this Section 12.12 as the Trustee.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 12.11, but may accept as conclusive evidence of the
correctness thereof, and shall be protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 12.11.
SECTION 12.13 Voluntary Reduction.
The Company from time to time may reduce the Conversion Price by any
amount for any period of time if such period is at least 20 Trading Days or such
longer period as may be required by law and if the reduction is irrevocable
during such period; if the Board of Directors determines, in good faith, that
such decrease would be in the best interests of the Company; provided that in no
event may the Conversion Price be less than the par value of a share of Common
Stock. Any such determination by the Board of Directors shall be conclusive.
SECTION 12.14 Conversion Value of Securities Tendered.
(1) Holders tendering the Securities for conversion shall be entitled to
receive, upon conversion of such Securities, cash and shares of Common Stock,
the value of which (the "Conversion Value") shall be equal to the product of:
(i) (A) the aggregate principal amount of Securities to be converted
divided by 1,000 multiplied by (B) the then applicable Conversion Rate as such
rate may be adjusted in accordance with the terms of this Indenture; and
(ii) the average of the daily Volume-Weighted Average Price per
share of the Common Stock for each of the ten consecutive Trading Days
(appropriately adjusted to take into account the occurrence during such period
of stock splits, stock dividends and similar events) beginning on the second
Trading Day immediately following the day the Securities are tendered for
conversion (the "Ten Day Average Stock Price").
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(2) Subject to certain exceptions described below and under Sections
12.1(2) and 12.1(1)(v), the Company shall deliver the Conversion Value to
converting Holders as follows:
(i) an amount in cash (the "Principal Return") equal to the lesser
of (a) the Conversion Value of the Securities to be converted and (b) the
aggregate principal amount of the Securities to be converted;
(ii) if the Conversion Value of the Securities to be converted is
greater than the Principal Return, an amount in whole shares (the "Net Shares"),
determined as set forth below, equal to such aggregate Conversion Value less the
Principal Return (the "Net Share Amount"); and
(iii) an amount paid in cash, determined as set forth below, in lieu
of any fractional shares of Common Stock.
The number of Net Shares to be paid shall be determined by dividing the
Net Share Amount by the Ten Day Average Stock Price, and rounding down to the
nearest whole share. Holders of Securities will not receive fractional shares
upon conversion of Securities. In lieu of fractional shares, Holders will
receive cash for the value of the fractional shares, which cash payment shall be
based on the Ten Day Average Stock Price.
The Conversion Value, Principal Return, number of Net Shares, Net Share
Amount and the cash payment for fractional shares shall be determined by the
Company on the first Business Day (the "Determination Date") following the ten
consecutive Trading Day period beginning on the second Trading Day immediately
following the day the Securities are tendered for conversion.
(3) The Company shall pay the Principal Return and cash for fractional
shares and deliver the Net Shares, if any, as promptly as practicable after the
Conversion Date, but in no event later than three Business Days thereafter.
Except as provided in Section 12.2(3), delivery of the Principal Return, Net
Shares and cash in lieu of fractional shares shall be deemed to satisfy the
Company's obligation to pay the principal amount of a converted Security and
accrued but unpaid interest (including Additional Interest, if any) thereon. Any
accrued interest (including Additional Interest, if any) payable on a converted
Security shall be deemed paid in full rather than canceled, extinguished or
forfeited.
(4) Neither the Trustee nor the Conversion Agent has any duty to determine
or calculate the Conversion Value, Principal Return, number of Net Shares, the
Net Share Amount or any other computation required under this Article XII, all
of which shall be determined by the Company (or the Trustee, as the case may be)
in accordance with the provisions of this Indenture, and the Trustee and
Conversion Agent shall not be under any responsibility to determine the
correctness of any such determinations and/or calculations and may conclusively
rely on the correctness thereof. For purposes of this Section 12.4, in the event
that the Conversion Value, Ten Day Average Stock Price, Volume-Weighted Average
Price, Principal Return, number of Net Shares, the Net Share Amount or any other
computation required under this Section 12.4 is not calculable for all portions
of the period set forth in this Section 12.4 or the calculations do not produce
results consistent with the provisions of this Article XII (including, without
limitation, as a result of any reclassification, consolidation, merger, share
exchange, or sale contemplated by Section 12.11 of this Indenture), the
Company's
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Board of Directors shall in good faith determine the values and algorithms
necessary to calculate the Conversion Value, Ten Day Average Stock Price,
Volume-Weighted Average Price, Principal Return, number of Net Shares, the Net
Share Amount or other computation, as applicable.
SECTION 12.15 Simultaneous Adjustments.
In the event that this Article XII requires adjustments to the Conversion
Price under more than one of Sections 12.5(1) and (3), and the record dates for
the distributions giving rise to such adjustments shall occur on the same date,
then such adjustments shall be made by applying, first, the provisions of
Section 12.5(3), as applicable, and, second, the provisions of Section 12.5(1).
If more than one event requiring adjustment pursuant to Section 12.5 shall occur
before completing the determination of the Conversion Price for the first event
requiring such adjustment, then the Board of Directors (whose determination
shall, if made in good faith, be conclusive) shall make such adjustments to the
Conversion Price (and the calculation thereof) after giving effect to all such
events as shall preserve for Holders the Conversion Price protection provided in
Section 12.5.
ARTICLE XIII
REDEMPTION AND REPURCHASES
SECTION 13.1 Repurchase of Securities at Option of the Holder on Specified
Dates.
(1) At the option of the Holder, the Company shall repurchase on July 1,
2012, July 1, 2015 and July 1, 2020 (each, a "Repurchase Date") all or a portion
of the Securities held by such Holder for cash at a price per Security equal to
100% of the aggregate principal amount of the Security (the "Repurchase Price"),
together with accrued but unpaid interest (including Additional Interest, if
any) thereon, up to but not including the Repurchase Date.
Securities shall be repurchased pursuant to this Section 13.1 at the
option of the Holder thereof upon:
(i) delivery to the Company and the Paying Agent by the Holder of
a written notice (a "Repurchase Notice") at any time from the opening of
business on the date that is 30 Business Days prior to the Repurchase Date until
the close of business on such Repurchase Date stating:
(A) if the Security which the Holder will deliver to be
repurchased is a Security in definitive form, the certificate number of such
Security, or if such Security is a Global Security, the notice must comply with
the Applicable Procedures;
(B) the portion of the principal amount of the Security which
the Holder will deliver to be repurchased, which portion must be in a principal
amount of U.S.$1,000 or any integral multiple thereof; and
(C) that such Security shall be repurchased as of the
Repurchase Date pursuant to the terms and conditions specified in this
Indenture; and
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(ii) delivery or book-entry transfer of such Security to the Paying
Agent prior to, on or after the Repurchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Repurchase Price therefor, together
with accrued but unpaid interest (including Additional Interest, if any);
provided that the Repurchase Price, together with accrued but unpaid interest
(including Additional Interest, if any) thereon, shall be so paid pursuant to
this Section 13.1 only if the Security so delivered to the Paying Agent shall
conform in all respects to the description thereof in the related Repurchase
Notice.
The Company shall repurchase from the Holder thereof, pursuant to this
Section 13.1, a portion of a Security if the principal amount of such portion is
U.S.$1,000 or an integral multiple of U.S.$1,000. Provisions of this Indenture
that apply to the repurchase of all of a Security also apply to the repurchase
of a portion of a Security.
Any repurchase by the Company contemplated pursuant to the provisions of
this Section 13.1 shall be consummated by the delivery to the Paying Agent of
the Repurchase Price, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, to be received by the Holder promptly
following the later of the Repurchase Date and the time of delivery or
book-entry transfer of the Security to the Paying Agent in accordance with this
Section 13.1.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Repurchase Notice contemplated by this Section 13.1(1)
shall have the right to withdraw such Repurchase Notice at any time prior to the
close of business on the Repurchase Date by delivery of a written notice of
withdrawal to the Paying Agent at the principal office of the Paying Agent in
accordance with Section 13.2.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Repurchase Notice or written notice of withdrawal thereof.
(2) Company Repurchase Notice. In connection with any repurchase of
Securities pursuant to this Section 13.1, the Company shall give written notice
of the Repurchase Date to the Holders (the "Company Repurchase Notice"). The
Company Repurchase Notice shall be sent by first-class mail to the Trustee and
to each Holder not less than 30 Business Days prior to any Repurchase Date. Each
Company Repurchase Notice shall include a form of Repurchase Notice to be
completed by a Holder and shall state:
(i) the Repurchase Price, the Conversion Price and accrued, but
unpaid interest, if any (including Additional Interest, if any) to, but
excluding, the Repurchase Date;
(ii) the name and address of the Paying Agent and the Conversion
Agent;
(iii) that Securities as to which a Repurchase Notice has been given
may be converted only if (x) the applicable Repurchase Notice has been withdrawn
in accordance with the terms of this Indenture and (y) the Securities may be
converted pursuant to Article XII of the Indenture;
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(iv) that Securities must be surrendered to the Paying Agent to
collect payment of the Repurchase Price and accrued but unpaid interest
(including Additional Interest, if any);
(v) that the Repurchase Price for any Securities as to which a
Repurchase Notice has been given and not withdrawn, together with accrued but
unpaid interest (including Additional Interest, if any) payable with respect
thereto, shall be paid promptly following the later of the Repurchase Date and
the time of surrender of such Securities as described in clause (iv);
(vi) the procedures the Holder must follow under this Section 13.1;
(vii) the conversion rights of the Securities;
(viii) that, unless the Company defaults in making payment of such
Repurchase Price, interest (including Additional Interest, if any) on Securities
covered by any Repurchase Notice will cease to accrue on and after the
Repurchase Date;
(ix) the CUSIP number of the Securities; and
(x) the procedures for withdrawing a Repurchase Notice (as specified
in Section 13.2).
At the Company's request, which shall be made at least three Business Days
prior to the date by which the Company Repurchase Notice is to be given to the
Holders in accordance with this Section 13.1, and at the Company's expense, the
Trustee shall give the Company Repurchase Notice in the Company's name; provided
that, in all cases, the text of the Company Repurchase Notice shall be prepared
by the Company.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
Applicable Procedures that apply to the repurchase of Global Securities.
SECTION 13.2 Effect of Repurchase Notice.
Upon receipt by the Paying Agent of a Repurchase Notice, the Holder of the
Security in respect of which such Repurchase Notice was given shall (unless such
Repurchase Notice is withdrawn as specified in the following two paragraphs)
thereafter be entitled to receive solely the Repurchase Price, together with
accrued but unpaid interest (including Additional Interest, if any) thereon, to
but not including the Repurchase Date with respect to such Security. Such
Repurchase Price, together with accrued but unpaid interest (including
Additional Interest, if any) thereon, to but not including the Repurchase Date
shall be paid to such Holder, subject to receipt of funds by the Paying Agent,
promptly following the later of (x) the Repurchase Date with respect to such
Security (provided that the conditions in Section 13.1 have been satisfied) and
(y) the time of delivery or book-entry transfer of such Security to the Paying
Agent by the Holder thereof in the manner required by Section 13.1. Securities
in respect of which a Repurchase Notice has been given by the Holder thereof may
not be converted pursuant to Article XII hereof on or after the date of the
delivery of such Repurchase Notice unless such Repurchase Notice has first been
validly withdrawn as specified in the following two paragraphs.
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A Repurchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Repurchase Notice at any time prior to the close of business on the Business Day
prior to the Repurchase Date specifying:
(i) if the Security with respect to which such notice of withdrawal
is being submitted is a Security in definitive form, the certificate number of
such Security, or if such Security is a Global Security, the notice must comply
with the Applicable Procedures;
(ii) the principal amount of the Security with respect to which such
notice of withdrawal is being submitted; and
(iii) the principal amount, if any, of such Security which remains
subject to the original Repurchase Notice and which has been or will be
delivered for repurchase by the Company.
There shall be no repurchase of any Securities pursuant to Section 13.1 if
an Event of Default (other than a default in the payment of the Repurchase
Price) has occurred prior to, on or after, as the case may be, the giving by the
Holders of such Securities of the required Repurchase Notice and such Event of
Default is continuing. The Paying Agent will promptly return to the respective
Holders thereof any Securities (x) with respect to which a Repurchase 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
Repurchase Price) in which case, upon such return, the Repurchase Notice with
respect thereto shall be deemed to have been withdrawn.
SECTION 13.3 Deposit of Repurchase Price.
Prior to 10:30 a.m. (New York City time) on the Business Day immediately
following the Repurchase Date the Company shall deposit with the Trustee or with
the Paying Agent (or, if the Company or a Subsidiary thereof or an Affiliate of
either of them is acting as the Paying Agent, shall segregate and hold in trust)
an amount of money (in immediately available funds if deposited on such Business
Day) sufficient to pay the aggregate Repurchase Price together with accrued but
unpaid interest (including Additional Interest, if any) thereon, to but not
including the Repurchase Date of all the Securities or portions thereof which
are to be repurchased as of the Repurchase Date.
SECTION 13.4 Securities Repurchased in Part.
Any Security in definitive form that is to be repurchased 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, one or more new Securities in definitive
form, 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 in definitive form so surrendered which is not
repurchased.
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SECTION 13.5 Covenant to Comply with Securities Laws upon Repurchase of
Securities.
When complying with the provisions of Section 13.1 hereof (so long as such
offer or repurchase 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 repurchase), the Company
shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1 under
the Exchange Act, (ii) file the related Schedule TO (or any successor schedule,
form or report) under the Exchange Act and (iii) otherwise comply in all
material respects with all federal and state securities laws so as to permit the
rights and obligations under Section 13.1 to be exercised in the time and in the
manner specified in Section 13.1.
If any of the provisions of this Article XIII are inconsistent with
applicable law, such law shall govern.
SECTION 13.6 Repayment to the Company.
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 13.3 exceeds the aggregate Repurchase Price of the
Securities or portions thereof which the Company is obligated to repurchase as
of the Repurchase Date together with accrued but unpaid interest (including
Additional Interest, if any) thereon, then, unless otherwise agreed in writing
with the Company, promptly after the Business Day following the Repurchase Date
the Trustee shall return any such excess to the Company together with interest,
if any, thereon.
ARTICLE XIV
REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER
SECTION 14.1 Right to Require Repurchase Upon a Fundamental Change.
In the event that a Fundamental Change (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, to require
the Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Securities not theretofore converted or called
for redemption, or any portion of the aggregate principal amount thereof that is
equal to U.S.$1,000 or any integral multiple of U.S.$1,000 in excess thereof
(provided that no single Security may be repurchased in part unless the portion
of the aggregate principal amount of such Security to be Outstanding after such
repurchase is equal to U.S.$1,000 or integral multiples of U.S.$1,000 in excess
thereof), on the date (the "Fundamental Change Repurchase Date") that is 30
Business Days after the date of the Fundamental Change Company Notice (as
defined in Section 14.2) at a purchase price equal to 100% of the aggregate
principal amount of the Securities to be repurchased plus interest accrued but
unpaid to, but excluding, the Fundamental Change Repurchase Date (the
"Fundamental Change Repurchase Price"); provided, however, that installments of
interest on Securities whose Stated Maturity is on or prior to the Fundamental
Change Repurchase Date shall be payable to the Holders of such Securities, or
one or more Predecessor Securities, registered as such on the relevant Record
Date according to their terms and the provisions of Section 3.7. Such right to
require the repurchase of the Securities shall not continue after a discharge of
the Company from its obligations with respect to the Securities in accordance
with Article IV, unless a Fundamental Change shall have occurred prior to such
discharge.
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Whenever in this Indenture (including Sections 2.2, 3.1, 5.1(1) and 5.8) there
is a reference, in any context, to the principal of any Security as of any time,
such reference shall be deemed to include reference to the Fundamental Change
Repurchase Price payable in respect of such Security to the extent that such
Fundamental Change Repurchase Price is, was or would be so payable at such time,
and express mention of the Fundamental Change Repurchase Price in any provision
of this Indenture shall not be construed as excluding the Fundamental Change
Repurchase Price in those provisions of this Indenture when such express mention
is not made.
SECTION 14.2 Notices; Method of Exercising Repurchase Right, Etc.
(1) Unless the Company shall have theretofore called for redemption all
of the Outstanding Securities, on or before the 30th day after the occurrence of
a Fundamental Change, the Company or, at the request in a Company Order and
expense of the Company on or before the 15th day after such occurrence, the
Trustee, shall give to all Holders of Securities, in the manner provided in
Section 1.6, notice (the "Fundamental Change Company Notice") of the occurrence
of the Fundamental Change and of the repurchase right set forth herein arising
as a result thereof. The Company shall also deliver a copy of such Fundamental
Change Company Notice to the Trustee. If such notice is to be given by the
Trustee, the Company shall deliver, on or before the fifth day after such
occurrence, a Company Order requesting the Trustee to give such notice and
setting forth all the information to be included in such notice including the
information set forth below.
Each Fundamental Change Company Notice shall state:
(i) the Fundamental Change Repurchase Date,
(ii) the date by which the repurchase right must be exercised,
(iii) the Fundamental Change Repurchase Price,
(iv) a description of the procedure that a Holder must follow to
exercise a repurchase right, and the place or places where such Securities are
to be surrendered for payment of the Fundamental Change Repurchase Price and
accrued interest (including Additional Interest, if any), if any to the
Fundamental Change Repurchase Date,
(v) that on the Fundamental Change Repurchase Date the Fundamental
Change Repurchase Price, and accrued interest, if any (including Additional
Interest, if any), to, but excluding, the Fundamental Change Repurchase Date
will become due and payable upon each such Security designated by the Holder to
be repurchased, and that interest thereon shall cease to accrue on and after
said date,
(vi) the Conversion Rate then in effect, the date on which the right
to convert the aggregate principal amount of the Securities to be repurchased
will terminate and the place or places where such Securities may be surrendered
for conversion, and
(vii) the place or places that the Security certificate with the
Election of Holder to Require Repurchase as specified in Section 2.2 shall be
delivered.
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No failure of the Company to give the foregoing notices or defect therein
shall limit any Holder's right to exercise a repurchase right or affect the
validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article XIV
are inconsistent with applicable law, such law shall govern.
(2) To exercise a repurchase right, a Holder shall deliver to the Trustee
on or before the close of business on the Business Day prior to the Fundamental
Change Repurchase Date (i) written notice of the Holder's exercise of such
right, which notice shall set forth the name of the Holder, the aggregate
principal amount of the Securities to be repurchased (and, if any Security is to
repurchased in part, the serial number thereof, the portion of the aggregate
principal amount thereof to be repurchased and the name of the Person in which
the portion thereof to remain Outstanding after such repurchase is to be
registered) and a statement that an election to exercise the repurchase right is
being made thereby, and (ii) the Securities with respect to which the repurchase
right is being exercised. Such written notice shall be irrevocable, except that
the right of the Holder to convert the Securities with respect to which the
repurchase right is being exercised shall continue until the close of business
on the Business Day immediately preceding the Fundamental Change Repurchase
Date.
(3) In the event a repurchase right shall be exercised in accordance with
the terms hereof, the Company shall pay or cause to be paid to the Trustee
before 10:30 a.m. (New York City time) on the Fundamental Change Repurchase Date
the Fundamental Change Repurchase Price in cash, as provided above, for payment
to the Holder on the Fundamental Change Repurchase Date, together with accrued
and unpaid interest (including Additional Interest, if any) to, but excluding,
the Fundamental Change Repurchase Date, payable with respect to the Securities
as to which the repurchase right has been exercised; provided, however, that
installments of interest that mature on or prior to the Fundamental Change
Repurchase Date shall be payable in cash to the Holders of such Securities, or
one or more Predecessor Securities, registered as such at the close of business
on the relevant Regular Record Date.
(4) If any Security (or portion thereof) surrendered for repurchase shall
not be so paid on the Fundamental Change Repurchase Date, the aggregate
principal amount of such Security (or portion thereof, as the case may be),
shall, until paid, bear interest to the extent permitted by applicable law from
the Fundamental Change Repurchase Date at the rate of 2-3/8% per annum, and each
Security shall remain convertible into Common Stock until the principal of such
Security (or portion thereof, as the case may be) shall have been paid or duly
provided for.
(5) Any Security that is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and upon its actual
receipt by a Responsible Officer of a Company Order to such effect, the Trustee
shall authenticate and make available for delivery to the Holder of such
Security pursuant to such Company Order without service charge, a new Security
or Securities, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
99
(6) All Securities delivered for repurchase shall be delivered to the
Trustee to be canceled at the direction of the Trustee, which shall dispose of
the same as provided in Section 3.9.
(7) To the extent that the aggregate amount of cash deposited by the
Company pursuant to Section 14.2(3) exceeds the aggregate Fundamental Change
Repurchase Price of the Securities or portions thereof which the Company is
obligated to repurchase as of the Fundamental Change Repurchase Date together
with accrued but unpaid interest (including Additional Interest, if any)
thereon, then, unless otherwise agreed in writing with the Company, promptly
after the Business Day following the Fundamental Change Repurchase Date the
Trustee shall return any such excess to the Company together with interest, if
any, thereon.
(8) When complying with the provisions of Section 14.1 hereof (so long
as such offer or repurchase 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 repurchase), the
Company shall (i) comply in all material respects with Rule 13e-4 and Rule 14e-1
under the Exchange Act, (ii) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act and (iii) otherwise comply in
all material respects with all federal and state securities laws so as to permit
the rights and obligations under Section 14.1 to be exercised in the time and in
the manner specified in Section 14.1.
SECTION 14.3 Certain Definitions.
For purposes of this Article XIV,
(1) the term "beneficial owner" shall be determined in accordance with
Rule 13d-3, as in effect on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to the Exchange Act;
(2) a "Fundamental Change" shall be deemed to have occurred, at any time
after the original issuance of the Securities, if any of the following occurs:
(i) during any period of two consecutive years, individuals who at
the beginning of such 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 stockholders 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 was
previously so approved) cease for any reason to constitute a majority of the
Board of Directors then in office; or
(ii) any Person acquires beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction or
series of transactions, of shares of capital stock of the Company entitling such
person to exercise 50% or more of the total voting power of all shares of
capital stock of the Company entitled to vote generally in the elections of
directors, other than any such acquisition by the Company, any Subsidiary or any
employee benefit plan of the Company; or
(iii) the Company merges or consolidates with or into any other
Person, any merger or consolidation of another Person into the Company, or any
conveyance, sale, transfer, lease or other disposal of all or substantially all
of the properties and assets of the Company to another
100
Person (other than (a) any such transaction (x) involving a merger or
consolidation that does not result in any reclassification, conversion, exchange
or cancellation of outstanding shares of Capital Stock of the Company (other
than any reclassification, conversion, exchange or cancellation of outstanding
shares of Capital Stock of the Company solely for shares of publicly traded
common stock listed on the New York Stock Exchange or on an established national
securities exchange or automated over-the-counter trading market in the United
States, but disregarding any cash payments for fractional shares or pursuant to
dissenters' appraisal rights) and (y) pursuant to which the holders of 50% or
more of the total voting power of all shares of the Company's Capital Stock
entitled to vote generally in the election of directors immediately prior to
such transaction have the entitlement to exercise, directly or indirectly, more
than 50% of the total voting power of all shares of Capital Stock entitled to
vote generally in the election of directors of the continuing or surviving
corporation immediately after such transaction or (b) any transaction which is
effected solely to change the jurisdiction of incorporation of the Company and
results in a reclassification, conversion or exchange of outstanding shares of
Common Stock into solely shares of common stock); or
(iv) the Common Stock into which the Securities are convertible
ceases to be listed on the New York Stock Exchange and is not listed on an
established national securities exchange or automated over-the-counter trading
market in the United States; or
(v) the stockholders of the Company pass a resolution approving a
plan of liquidation, dissolution or winding up; and
(3) for purposes of Section 14.3(2)(i), the term "person" shall include
any syndicate or group which would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act, as in effect on the date of the original execution
of this Indenture.
ARTICLE XV
HOLDERS LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 15.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(1) semi-annually, not more than 15 days after the Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities as of such Regular Record Date, and
(2) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished; provided, however, that no such list need be furnished so long as
the Trustee is acting as Security Registrar.
SECTION 15.2 Preservation of Information.
(1) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders contained in the most recent
list furnished to the Trustee as provided in Section 15.1 and the names and
addresses of Holders received by the Trustee in its capacity as
101
Security Registrar. The Trustee may destroy any list, if any, furnished to it as
provided in Section 15.1 upon receipt of a new list so furnished.
(2) After this Indenture has been qualified under the Trust Indenture Act,
the rights of Holders to communicate with other Holders with respect to their
rights under this Indenture or under the Securities, and the corresponding
rights, and duties of the Trustee, shall be as provided by the Trust Indenture
Act.
(3) Every Holder of Securities, by receiving and holding the same, agrees
with the Company and the Trustee that neither the Company, the Trustee or any
Agent, nor any agent of any of them, shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act, regardless of the source from which such information
has derived, and neither the Trustee or any Agent, nor any agent of any of them,
shall be held accountable by reason of any mailing or transmission of any
material pursuant to a request made under this Article XV.
SECTION 15.3 Reports by Trustee.
(1) After this Indenture has been qualified under the Trust Indenture Act,
the Trustee shall transmit to Holders such reports concerning the Trustee and
its actions under this Indenture as may be required pursuant to the Trust
Indenture Act at the times and in the manner provided pursuant thereto.
(2) After this Indenture has been qualified under the Trust Indenture Act,
a copy of each such report shall, at the time of such transmission to Holders,
if required by applicable law, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the Company.
The Company will notify the Trustee when the Securities are listed on any stock
exchange and any delisting thereof.
SECTION 15.4 Reports by Company.
After this Indenture has been qualified under the Trust Indenture Act, the
Company shall file with the Trustee and the Commission, and transmit to Holders,
such information, documents and other reports, and such summaries thereof, as
may be required pursuant to the Trust Indenture Act at the times and in the
manner provided pursuant to such Act; provided that any such information,
documents or reports required to be filed with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act shall be filed with the Trustee within
15 days after the same is filed with the Commission.
Delivery of such reports, information and documents to the Trustee is for
informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its obligations hereunder (as to which the Trustee is
entitled to conclusively rely exclusively on Officers' Certificates).
102
ARTICLE XVI
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 16.1 Indenture and Securities Solely Corporate Obligations.
No recourse for the payment of the principal of or interest on any
Security and no recourse under or upon any obligation, covenant or agreement of
the Company in this Indenture or in any supplemental indenture or in any
Security, or because of the creation of any indebtedness represented thereby,
shall be had against any incorporator, stockholder, employee, agent, officer, or
director or subsidiary, as such, past, present or future, of the Company or of
any successor corporation, either directly or through the Company or any
successor corporation, whether by virtue of any constitution, statute or rule of
law, or by the enforcement of any assessment or penalty or otherwise; it being
expressly understood that all such liability is hereby waived and released by
each Holder as a condition of, and as a consideration for, the execution of this
Indenture and the issue of the Securities.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
103
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed all as of the day and year first above written.
OIL STATES INTERNATIONAL, INC.
By: /s/ CINDY B. TAYLOR
-----------------------------------
Name: Cindy B. Taylor
Title: Senior Vice President and
Chief Financial Officer
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Trustee
By: /s/ MELISSA A. SCOTT
-----------------------------------
Name: Melissa A. Scott
Title: Vice President
[Signature page to the Indenture]
SCHEDULE A
SHARE PRICE
--------------------------------------------------------------------------------
EFFECTIVE DATE $25.40 $27.10 $28.90 $30.60 $32.40 $34.10 $35.90 $71.70 $175.00*
- -------------- ------ ------ ------ ------ ------ ------ ------ ------ --------
June 21, 2005 0.00 7.45 6.61 5.82 5.22 4.64 4.21 0.84 0.00
July 1, 2006 0.00 7.41 6.52 5.70 5.08 4.48 4.05 0.75 0.00
July 1, 2007 0.00 7.32 6.39 5.53 4.89 4.27 3.81 0.65 0.00
July 1, 2008 0.00 7.14 6.19 5.25 4.62 3.98 3.51 0.53 0.00
July 1, 2009 0.00 6.96 5.94 4.95 4.28 3.62 3.14 0.41 0.00
July 1, 2010 0.00 6.64 5.42 4.45 3.68 3.05 2.57 0.27 0.00
July 1, 2011 0.00 6.13 4.71 3.61 2.77 2.10 1.65 0.12 0.00
July 1, 2012 0.00 5.61 3.42 1.43 0.00 0.00 0.00 0.00 0.00
SCHEDULE A-1
ANNEX A -- Form of Restricted Securities Certificate
RESTRICTED SECURITIES CERTIFICATE (For transfers pursuant to Section
3.5(2)(ii) and (iii) of the Indenture)
WELLS FARGO BANK, NATIONAL ASSOCIATION
505 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Corporate Trust Department
Re: 2 3/8% CONTINGENT CONVERTIBLE SENIOR NOTES DUE 2025 OF OIL STATES
INTERNATIONAL, INC. (THE "SECURITIES")
Reference is made to the Indenture, dated as of June 21, 2005 (the
"Indenture"), from OIL STATES INTERNATIONAL, INC. (the "Company") to WELLS FARGO
BANK, NATIONAL ASSOCIATION, as Trustee. Terms used herein and defined in the
Indenture or Rule 144 under the U.S. Securities Act of 1933 (the "Securities
Act") are used herein as so defined.
This certificate relates to U.S.$________ aggregate principal amount
of Securities, which are evidenced by the following certificate(s) (the
"Specified Securities"):
CUSIP No. [_____________]
CERTIFICATE No(s). ________
The person in whose name this certificate is executed below (the
"Undersigned") hereby certifies that either (i) it is the sole beneficial owner
of the Specified Securities or (ii) it is acting on behalf of all the beneficial
owners of the Specified Securities and is duly authorized by them to do so. Such
beneficial owner or owners are referred to herein collectively as the "Owner".
If the Specified Securities are represented by a Global Security, they are held
through the Depositary or an Agent Member in the name of the Undersigned, as or
on behalf of the Owner. If the Specified Securities are not represented by a
Global Security, they are registered in the name of the Undersigned, as or on
behalf of the Owner.
The Owner has requested that the Specified Securities be transferred
to a person (the "Transferee") who will take delivery in the form of a
Restricted Security or a beneficial interest therein. In connection with such
transfer, the Owner hereby certifies that, unless such transfer is being
effected pursuant to an effective registration statement under the Securities
Act, it is being effected in accordance with Rule 144A, or pursuant to another
exemption from registration under the Securities Act (if available) or Rule 144
under the Securities Act and all applicable securities laws of the states of the
United States and other jurisdictions. Accordingly, the Owner hereby further
certifies as:
ANNEX A-1
(1) RULE 144A TRANSFERS. If the transfer is being effected in accordance
with Rule 144A:
(A) the Specified Securities are being transferred to a person that
the Owner and any person acting on its behalf reasonably believe is a "qualified
institutional buyer" within the meaning of Rule 144A, acquiring for its own
account or for the account of a qualified institutional buyer; and
(B) the Owner and any person acting on its behalf have taken
reasonable steps to ensure that the Transferee is aware that the Owner may be
relying on Rule 144A in connection with the transfer; and
(2) RULE 144 TRANSFERS. If the transfer is being effected pursuant to
Rule 144:
(A) the transfer is occurring after a holding period of at least one
year (computed in accordance with paragraph (d) of Rule 144) has elapsed since
the date the Specified Securities were acquired from the Company or from an
affiliate (as such term is defined in Rule 144) of the Company, whichever is
later, and is being effected in accordance with the applicable amount, manner of
sale and notice requirements of paragraphs (e), (f) and (h) of Rule 144; or
(B) the transfer is occurring after a period of at least two years
has elapsed since the date the Specified Securities were acquired from the
Company or from an affiliate (as such term is defined in Rule 144) of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company.
(3) TRANSFERS PURSUANT TO OTHER SECURITY ACT EXEMPTIONS. If the transfer
is being effected pursuant to a Securities Act exemption other than ones set
forth in (1) and (2) above, there shall be delivered to the Company an opinion
of counsel with respect to such transfer.
This certificate and the statements contained herein are made for
your benefit and the benefit of the Company and the Initial Purchaser.
Dated: ___________
Print the name of the Undersigned, as such term is defined in the
third paragraph of this certificate.)
By: _________________________________
Name: _______________________________
Title: ______________________________
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
ANNEX A-2
ANNEX B -- Form of Unrestricted Securities Certificate
UNRESTRICTED SECURITIES CERTIFICATE
(For removal of Restricted Securities Legend pursuant to Section 3.5(3))
WELLS FARGO BANK, NATIONAL ASSOCIATION
505 Main Street, Suite 301
Fort Worth, Texas 76102
Attention: Corporate Trust Department
RE: 2 3/8% CONTINGENT CONVERTIBLE SENIOR NOTES DUE 2025 OF OIL STATES
INTERNATIONAL, INC. (THE "SECURITIES")
Reference is made to the Indenture, dated as of June 21, 2005
(the "Indenture"), from OIL STATES INTERNATIONAL, INC. (the "Company") to WELLS
FARGO BANK, NATIONAL ASSOCIATION, as Trustee. Terms used herein and defined in
the Indenture or in Rule 144 under the U.S. Securities Act of 1933 (the
"Securities Act") are used herein as so defined.
This certificate relates to U.S.$_______________ aggregate
principal amount of Securities, which are evidenced by the following
certificate(s) (the "Specified Securities"):
CUSIP No. [________]
CERTIFICATE No(s). _________________
The person in whose name this certificate is executed below
(the "Undersigned") hereby certifies that either (i) it is the sole beneficial
owner of the Specified Securities or (ii) it is acting on behalf of all the
beneficial owners of the Specified Securities and is duly authorized by them to
do so. Such beneficial owner or owners are referred to herein collectively as
the "Owner." If the Specified Securities are represented by a Global Security,
they are held through the Depositary or an Agent Member in the name of the
Undersigned, as or on behalf of the Owner. If the Specified Securities are not
represented by a Global Security, they are registered in the name of the
Undersigned, as or on behalf of the Owner.
The Owner has requested that the Specified Securities be
exchanged for Securities bearing no Restricted Securities Legend pursuant to
Section 3.5(3) of the Indenture. In connection with such exchange, the Owner
hereby certifies that the exchange is occurring after a period of at least two
years has elapsed since the date the Specified Securities were acquired from the
Company or from an "affiliate" (as such term is defined in Rule 144) of the
Company, whichever is later, and the Owner is not, and during the preceding
three months has not been, an affiliate of the Company. The Owner also
acknowledges that any future transfers of the Specified Securities must comply
with all applicable securities laws of the states of the United States and other
jurisdictions.
ANNEX B-1
This certificate and the statements contained herein are made
for your benefit and the benefit of the Company and the Initial Purchaser.
Dated: ______________
(Print the name of the Undersigned, as such term is defined in the second
paragraph of this certificate.)
By: _________________________________
Name: _______________________________
Title: ______________________________
(If the Undersigned is a corporation, partnership or fiduciary, the title of the
person signing on behalf of the Undersigned must be stated.)
ANNEX B-2
ANNEX C -- Form of Surrender Certificate
In connection with the certification contemplated by Section
12.2 relating to compliance with certain restrictions relating to transfers of
Restricted Securities, such certification shall be provided substantially in the
form of the following certificate, with only such changes thereto as shall be
approved by the Company and RBC Capital Markets Corporation.
CERTIFICATE
OIL STATES INTERNATIONAL, INC.
2 3/8% CONTINGENT CONVERTIBLE SENIOR NOTES DUE 2025
This is to certify that as of the date hereof with respect to
U.S.$______ aggregate principal amount of the above-captioned securities
surrendered on the date hereof (the "Surrendered Securities") for registration
of transfer, or for conversion or repurchase where the securities issuable upon
such conversion or repurchase are to be registered in a name other than that of
the undersigned Holder (each such transaction being a "transfer"), the
undersigned Holder (as defined in the Indenture) certifies that the transfer of
Surrendered Securities associated with such transfer complies with the
restrictive legend set forth on the face of the Surrendered Securities for the
reason checked below:
_________ The transfer of the Surrendered Securities complies with Rule 144A
under the United States Securities Act of 1933, as amended (the
"Securities Act"); or
_________ The transfer of the Surrendered Securities complies with Rule 144
under the Securities Act; or
_________ The transfer of the Surrendered Securities has been made pursuant to
an exemption from registration under the Securities Act and an
opinion of counsel has been delivered to the Company with respect to
such transfer.
[Name of Holder]
Dated: _______________________________
*To be dated the date of surrender
ANNEX C-1