1
Exhibit 4(c)
POGO PRODUCING COMPANY
TO
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
Trustee
___________________
INDENTURE
Dated as of March 23, 1994
___________________
5 1/2% Convertible Subordinated Notes due 2004
___________________________________________
2
Pogo Producing Company
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of March 23, 1994
Trust Indenture
Act Section Indenture Section
- --------------- -----------------
310(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(2). . . . . . . . . . . . . . . . . . . . . . . . . 609
(a)(3). . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(a)(5). . . . . . . . . . . . . . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . . . . . . . . . . . . 610
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 701
. . . . . . . . . . . . . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 702
313(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(b)(1). . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b)(2). . . . . . . . . . . . . . . . . . . . . . . . . 703
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 703
314(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 704
(a)(4). . . . . . . . . . . . . . . . . . . . . . . . . 102
1005
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c)(1). . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(2). . . . . . . . . . . . . . . . . . . . . . . . . 102
(c)(3). . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . . . . . . . . . . . . . . . 102
1005
- 1 -
3
315(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . . . . . . . . . . . . . . . 514
316(a) (last sentence) . . . . . . . . . . . . . . . . . . 101
(a)(1)(A) . . . . . . . . . . . . . . . . . . . . . . . 512
(a)(1)(B) . . . . . . . . . . . . . . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 104
317(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
(b) . . . . . . . . . . . . . . . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 107
____________________
Note: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
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4
TABLE OF CONTENTS
Page
----
PARTIES. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Section 101. Definitions. . . . . . . . . . . . . . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . . . . . . . . 2
Authenticating Agent . . . . . . . . . . . . . . . . . . . 2
Board of Directors . . . . . . . . . . . . . . . . . . . . 2
Board Resolution . . . . . . . . . . . . . . . . . . . . . 2
Business Day . . . . . . . . . . . . . . . . . . . . . . . 2
Closing Price . . . . . . . . . . . . . . . . . . . . . . 2
Common Stock . . . . . . . . . . . . . . . . . . . . . . . 3
Commission . . . . . . . . . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order . . . . . . . . . . . . . 3
Consolidated Net Tangible Assets . . . . . . . . . . . . . 3
Corporate Trust Office . . . . . . . . . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . . . . . . . . 3
Defaulted Interest . . . . . . . . . . . . . . . . . . . . 4
Event of Default . . . . . . . . . . . . . . . . . . . . . 4
Exchange Act . . . . . . . . . . . . . . . . . . . . . . . 4
Holder . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . . . . . . . . 4
Issue Date . . . . . . . . . . . . . . . . . . . . . . . . 4
Maturity . . . . . . . . . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . . . . . . . . 4
Opinion of Counsel . . . . . . . . . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . . . . . . . . 4
Paying Agent . . . . . . . . . . . . . . . . . . . . . . . 5
Person . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Predecessor Security . . . . . . . . . . . . . . . . . . . 5
Redemption Price . . . . . . . . . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . . . . . . . . 5
Repurchase Date . . . . . . . . . . . . . . . . . . . . . 6
Repurchase Event . . . . . . . . . . . . . . . . . . . . . 6
Repurchase Price . . . . . . . . . . . . . . . . . . . . . 6
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5
Responsible Officer . . . . . . . . . . . . . . . . . . . 6
Securities . . . . . . . . . . . . . . . . . . . . . . . . 6
Security . . . . . . . . . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar . . . . . . . . . 6
Senior Indebtedness . . . . . . . . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . . . . . . . . 7
Subsidiary . . . . . . . . . . . . . . . . . . . . . . . . 7
Trading Day . . . . . . . . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . . . . . . . . 7
Vice President . . . . . . . . . . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and Opinions . . . . . . . . . . . 7
Section 103. Form of Documents Delivered to Trustee . . . . . . . . . . 8
Section 104. Acts of Holders. . . . . . . . . . . . . . . . . . . . . . 9
Section 105. Notices, Etc., to Trustee and Company . . . . . . . . . . 9
Section 106. Notice to Holders; Waiver. . . . . . . . . . . . . . . . . 10
Section 107. Conflict with Trust Indenture Act. . . . . . . . . . . . . 10
Section 108. Effect of Headings and Table of Contents . . . . . . . . . 10
Section 109. Successors and Assigns . . . . . . . . . . . . . . . . . . 11
Section 110. Separability Clause. . . . . . . . . . . . . . . . . . . . 11
Section 111. Benefits of Indenture. . . . . . . . . . . . . . . . . . . 11
Section 112. Governing Law. . . . . . . . . . . . . . . . . . . . . . . 11
Section 113. Legal Holidays . . . . . . . . . . . . . . . . . . . . . . 11
Section 114. Rules by Trustee, Paying Agent and Registrar . . . . . . . 11
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Section 201. Forms Generally. . . . . . . . . . . . . . . . . . . . . . 12
Section 202. Form of Face of Security . . . . . . . . . . . . . . . . . 12
Section 203. Form of Reverse of Security. . . . . . . . . . . . . . . . 13
Section 204. Form of Trustee's Certificate of Authentication . . . . . 18
Section 205. Form of Election to Convert. . . . . . . . . . . . . . . . 18
Section 206. Form of Assignment . . . . . . . . . . . . . . . . . . . . 19
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
Section 301. Title and Terms. . . . . . . . . . . . . . . . . . . . . . 19
Section 302. Denominations. . . . . . . . . . . . . . . . . . . . . . . 20
Section 303. Execution, Authentication, Delivery and Dating . . . . . . 20
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6
Section 304. Temporary Securities . . . . . . . . . . . . . . . . . . . 21
Section 305. Registration, Registration of Transfer and Exchange . . . 21
Section 306. Mutilated, Destroyed, Lost and Stolen Securities . . . . . 22
Section 307. Payment of Interest; Interest Rights Preserved . . . . . . 23
Section 308. Persons Deemed Owners. . . . . . . . . . . . . . . . . . . 25
Section 309. Cancellation . . . . . . . . . . . . . . . . . . . . . . . 25
Section 310. Computation of Interest. . . . . . . . . . . . . . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . . . . . . . . . . . . . 26
Section 401. Satisfaction and Discharge of Indenture . . . . . . . . . 26
Section 402. Application of Trust Money . . . . . . . . . . . . . . . . 27
Section 403. Reinstatement. . . . . . . . . . . . . . . . . . . . . . . 27
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
Section 501. Events of Default. . . . . . . . . . . . . . . . . . . . . 28
Section 502. Acceleration of Maturity; Rescission and Annulment . . . . 30
Section 503. Collection of Indebtedness and Suits for Enforcement
by Trustee . . . . . . . . . . . . . . . . . . . . . . 31
Section 504. Trustee May File Proofs of Claim . . . . . . . . . . . . . 31
Section 505. Trustee May Enforce Claims Without Possession of
Securities . . . . . . . . . . . . . . . . . . . . . . 32
Section 506. Application of Money Collected . . . . . . . . . . . . . . 32
Section 507. Limitation on Suits. . . . . . . . . . . . . . . . . . . . 33
Section 508. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert . . . . . . . . . 34
Section 509. Restoration of Rights and Remedies . . . . . . . . . . . . 34
Section 510. Rights and Remedies Cumulative . . . . . . . . . . . . . . 34
Section 511. Delay or Omission Not Waiver . . . . . . . . . . . . . . . 34
Section 512. Control by Holders . . . . . . . . . . . . . . . . . . . . 35
Section 513. Waiver of Past Defaults. . . . . . . . . . . . . . . . . . 35
Section 514. Undertaking for Costs. . . . . . . . . . . . . . . . . . . 36
Section 515. Waiver of Stay or Extension Laws . . . . . . . . . . . . . 36
ARTICLE SIX
THE TRUSTEE. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
Section 601. Certain Duties and Responsibilities . . . . . . . . . . . 36
Section 602. Notice of Defaults . . . . . . . . . . . . . . . . . . . . 37
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7
Section 603. Certain Rights of Trustee. . . . . . . . . . . . . . . . . 37
Section 604. Not Responsible for Recitals or Issuance of Securities . . 38
Section 605. May Hold Securities. . . . . . . . . . . . . . . . . . . . 38
Section 606. Money Held in Trust. . . . . . . . . . . . . . . . . . . . 38
Section 607. Compensation and Reimbursement . . . . . . . . . . . . . . 38
Section 608. Disqualification; Conflicting Interests . . . . . . . . . 39
Section 609. Corporate Trustee Required; Eligibility . . . . . . . . . 39
Section 610. Resignation and Removal; Appointment of Successor. . . . . 40
Section 611. Acceptance of Appointment by Successor . . . . . . . . . . 41
Section 612. Merger, Conversion, Consolidation or Succession to
Business . . . . . . . . . . . . . . . . . . . . . . . 41
Section 613. Preferential Collection of Claims Against Company . . . . 42
Section 614. Appointment of Authenticating Agent . . . . . . . . . . . 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY . . . . . . . . . . . 44
Section 701. Company to Furnish Trustee Names and Addresses
of Holders . . . . . . . . . . . . . . . . . . . . . . 44
Section 702. Preservation of Information; Communications To Holders . . 44
Section 703. Reports by Trustee . . . . . . . . . . . . . . . . . . . . 44
Section 704. Reports by Company . . . . . . . . . . . . . . . . . . . . 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE . . . . . . . . . . 45
Section 801. Company May Consolidate, Etc., Only on Certain Terms . . . 45
Section 802. Successor Legal Entity Substituted . . . . . . . . . . . . 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . . . . . . . . . . . . . 46
Section 901. Supplemental Indentures Without Consent of Holders . . . . 46
Section 902. Supplemental Indentures With Consent of Holders . . . . . 47
Section 903. Execution of Supplemental Indentures . . . . . . . . . . . 48
Section 904. Effect of Supplemental Indentures . . . . . . . . . . . . 48
Section 905. Conformity with Trust Indenture Act . . . . . . . . . . . 48
Section 906. Reference in Securities to Supplemental Indentures . . . . 48
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
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8
Section 1001. Payment of Principal, Premium and Interest . . . . . . . 49
Section 1002. Maintenance of Office or Agency . . . . . . . . . . . . . 49
Section 1003. Money for Security Payments to Be Held in Trust . . . . . 49
Section 1004. Existence . . . . . . . . . . . . . . . . . . . . . . . . 51
Section 1005. Statement by Officers as to Default . . . . . . . . . . . 51
Section 1006. Waiver of Certain Covenants . . . . . . . . . . . . . . . 51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 52
Section 1101. Right of Redemption . . . . . . . . . . . . . . . . . . . 52
Section 1102. Applicability of Article. . . . . . . . . . . . . . . . . 52
Section 1103. Election to Redeem; Notice to Trustee . . . . . . . . . . 52
Section 1104. Selection by Trustee of Securities to Be Redeemed . . . . 52
Section 1105. Notice of Redemption. . . . . . . . . . . . . . . . . . . 53
Section 1106. Deposit of Redemption Price . . . . . . . . . . . . . . . 53
Section 1107. Securities Payable on Redemption Date . . . . . . . . . . 54
Section 1108. Securities Redeemed in Part . . . . . . . . . . . . . . . 54
ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE. . . . . . . . . . . . . . . . . . . . . . . 55
Section 1201. Right to Require Repurchase.. . . . . . . . . . . . . . . 55
Section 1202. Notice; Method of Exercising Repurchase Right . . . . . . 55
Section 1203. Deposit of Repurchase Price . . . . . . . . . . . . . . . 56
Section 1204. Securities Not Repurchased on Repurchase Date . . . . . . 56
Section 1205. Securities Repurchased in Part. . . . . . . . . . . . . . 56
Section 1206. "Change in Control" and "Repurchase Event" Defined . . . 57
ARTICLE THIRTEEN
CONVERSION OF SECURITIES . . . . . . . . . . . . . . . . . . . . . . . . 58
Section 1301. Right of Conversion . . . . . . . . . . . . . . . . . . . 58
Section 1302. Issuance of Common Stock; Time of Conversion. . . . . . . 59
Section 1303. No Adjustments in Respect of Interest or Dividends. . . . 60
Section 1304. Adjustment of Conversion Price. . . . . . . . . . . . . . 60
Section 1305. No Fractional Shares. . . . . . . . . . . . . . . . . . . 64
Section 1306. Reclassification, Consolidation, Merger or Sale of
Assets. . . . . . . . . . . . . . . . . . . . . . . . 64
Section 1307. Prior Notice of Certain Events. . . . . . . . . . . . . . 66
Section 1308. Shares to be Reserved; Accounting Treatment of
Consideration . . . . . . . . . . . . . . . . . . . . 66
Section 1309. Registration and Listing of Shares . . . . . . . . . . . 67
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9
Section 1310. Taxes and Charges . . . . . . . . . . . . . . . . . . . . 67
Section 1311. Trustee and Conversion Agents Not Liable . . . . . . . . 68
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . . . . . . . . . . . . . 68
Section 1401. Securities Subordinate to Senior Indebtedness . . . . . . 68
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc. . . . . . 68
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . . . . . . . 70
Section 1404. No Payment When Senior Indebtedness in Default. . . . . . 70
Section 1405. Acknowledgment of Reliance. . . . . . . . . . . . . . . . 71
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness . 71
Section 1407. Provisions Solely to Define Relative Rights . . . . . . . 71
Section 1408. Trustee to Effectuate Subordination . . . . . . . . . . . 72
Section 1409. No Waiver of Subordination Provisions. . . . . . . . . . 72
Section 1410. Notice to Trustee . . . . . . . . . . . . . . . . . . . . 72
Section 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent . . . . . . . . . . . . . . . . . . . . . . . . 73
Section 1412. Trustee Not Fiduciary for Holders of Senior
Indebtedness . . . . . . . . . . . . . . . . . . . . . 74
Section 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights . . . . . . . . . . . 74
Section 1414. Article Applicable to Paying Agents . . . . . . . . . . . 74
Section 1415. Certain Conversions Deemed Payment . . . . . . . . . . . 74
- vi -
10
INDENTURE, dated as of March 23, 1994, between POGO PRODUCING
COMPANY, a corporation duly organized and validly existing under the laws of
the State of Delaware (herein called the "Company"), having its principal
office at 5 Greenway Plaza, Suite 2700, Houston, Texas 77046, and SHAWMUT BANK
CONNECTICUT, NATIONAL ASSOCIATION, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of its
5 1/2% Convertible Subordinated Notes due 2004 (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 executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, 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.
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 ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. 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 other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, or defined by
Commission rule under the Trust Indenture Act, have the meanings assigned
to them therein;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted accounting
principles;
11
(4) the words "Article" and "Section" refer to an Article and
Section, respectively, of this Indenture; and
(5) 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.
Certain terms, used principally in Article Twelve, are defined in
that Article.
"Act", when used with respect to any Holder, has the meaning
specified in Section 104.
"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.
"Authenticating Agent" means any Person authorized by the Trustee
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 copy of a resolution 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, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in New York, New York,
Hartford, Connecticut or Houston, Texas are authorized or obligated by law or
executive order to close.
"Closing Price" for any Trading Day means the last reported sale
price (or, if none on any day, the mean between the bid and asked quotations on
such day) of the securities in question for such date, in either case on the
New York Stock Exchange or, if the securities are not listed or admitted to
trading on such exchange, on the principal national securities exchange on
which such securities are listed or admitted to trading or, if not listed or
admitted to trading on any national securities exchange, on the National
Association of Securities Dealers Automated Quotations National Market System,
or if the securities are not listed or admitted to trading on any national
securities exchange or quoted
- 2 -
12
on such National Market System, the average of the closing bid and asked
prices in the over-the-counter market as furnished by any New York Stock
Exchange member firm selected by the Company for such purpose.
"Common Stock" initially means the class designated as Common
Stock, par value $1.00 per share, of the Company as of the date hereof.
"Commission" means the Securities and Exchange Commission, as from
time to time constituted, created under the Securities Exchange Act of 1934,
or, if at any time after the execution of this instrument 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.
"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, and in each case shall include any
other obligor upon the Securities.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman of the Board, its
President or a Vice President, and by its Treasurer, an Assistant Treasurer,
its Secretary or an Assistant Secretary, and delivered to the Trustee.
"Consolidated Net Tangible Assets" means the total of all assets
included in a consolidated balance sheet of the Company and its Subsidiaries,
prepared in accordance with generally accepted accounting principles (and as of
a date not more than 90 days prior to the date as of which Consolidated Net
Tangible Assets are to be determined), less the sum of the following items each
as included in such balance sheet:
(i) all current liabilities;
(ii) all depreciation, depletion, valuation and other reserves;
(iii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles; and
(iv) minority interests in the equity of Subsidiaries.
"Corporate Trust Office" means the principal office of the Trustee
at 777 Main Street, Hartford, Connecticut 06115, at which its corporate trust
business shall be administered.
"Corporation" means a corporation, partnership, association,
company, joint-stock company or business trust.
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"Defaulted Interest" has the meaning specified in Section
307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended.
"Holder" means a Person in whose name a Security is registered in
the Security Register.
"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.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means March 23, 1994.
"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 or otherwise.
"Officers' Certificate" means a certificate signed by the
principal executive officer and the principal financial officer or principal
accounting officer, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may
be counsel for the Company, and who shall be acceptable to the Trustee.
"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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption 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 in accordance with the terms of this
Indenture; provided that, if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this Indenture or
provision therefor satisfactory to the Trustee has been made; and
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(iii) Securities 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 bona fide purchaser in whose hands such
Securities are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Securities 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 of such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which the Trustee knows to be so owned 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 of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay
the principal of (and premium, if any) or interest on any Securities on behalf
of the Company.
"Person" means any individual, Corporation or government or any
agency or political subdivision thereof.
"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 306 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.
"Purchase Agreement" has the meaning specified in Section 301.
"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.
"Regular Record Date" for the interest payable on any Interest
Payment Date means the 1st of March or 1st of September (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 1201.
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"Repurchase Event" has the meaning specified in Section 1206.
"Repurchase Price" has the meaning specified in Section 1201.
"Responsible Officer", when used with respect to the Trustee,
means any person in the Corporate Trust Administration Department of the
Trustee familiar with corporate trust matters.
"Securities" has the meaning set forth in the recitals of this
Indenture.
"Security" means any of the Securities.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if any, and
unpaid interest (including, without limitation, any interest accruing
subsequent to the commencement of a case or other proceeding under any
bankruptcy or other similar law with respect to the Company) on, and other
obligations in respect of, the following, whether outstanding at the date
hereof or thereafter incurred or created: (a) indebtedness of the Company for
money borrowed (including purchase-money obligations) evidenced by notes or
other written obligations, (b) indebtedness of the Company evidenced by notes,
debentures, bonds or other securities issued under the provisions of an
indenture or similar instrument, (c) indebtedness secured by any mortgage,
pledge, lien or other encumbrance existing on property which is owned or held
by the Company subject to such mortgage, pledge or encumbrance, whether or not
indebtedness secured thereby shall have been assumed by the Company, (d)
obligations of the Company as lessee under capitalized leases and under leases
of property made as part of any sale and leaseback transactions, (e)
obligations of the Company in respect of letters of credit issued for its
account and "swaps" of interest rates, commodity prices or foreign currencies
(and other interest rate, commodity price or foreign currency hedging
agreements) to which the Company is a party, (f) indebtedness of others of any
of the kinds described in the preceding clauses (a) through (e) assumed or
guaranteed by the Company and (g) renewals, extensions and refundings of, and
indebtedness and obligations of a successor Person issued in exchange for or in
replacement of, indebtedness or obligations of the kinds described in the
preceding clauses (a) through (f); provided, however, that the following shall
not constitute Senior Indebtedness: (i) any indebtedness or obligation which
by its terms refers explicitly to the Securities and states that such
indebtedness or obligation shall not be senior in right of payment thereto,
(ii) any indebtedness or obligation of the Company in respect of the Securities
and (iii) any indebtedness or obligation of the Company to any Subsidiary.
Notwithstanding the foregoing, all indebtedness and obligations of the Company
in respect of each of the following shall rank equally with the Securities and
shall not constitute "Senior Indebtedness" hereunder: (x) the 8% Convertible
Subordinated Debentures due 2005 and (y) the 10.25% Convertible Subordinated
Notes due 1999.
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"Special Record Date" for the payment of any Defaulted Interest
means a date fixed by the Trustee pursuant to Section 307.
"Stated Maturity", when used with respect to 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.
"Subsidiary" means a Corporation more than 50% of the outstanding
voting stock or other voting or managing ownership interest of which is owned,
directly or indirectly, by the Company or by one or more other Subsidiaries, or
by the Company and one or more other Subsidiaries. For the purposes of this
definition, "voting stock" means stock which ordinarily has voting power for
the election of directors, whether at all times or only so long as no senior
class of stock has such voting power by reason of any contingency.
"Trading Day", with respect to any stock exchange or securities
market, means any Monday, Tuesday, Wednesday, Thursday or Friday on which such
stock exchange or securities market is open for business.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in
force at the date as of which this instrument was executed, except as provided
in Section 905; provided, however, that in the event the Trust Indenture Act is
amended after such date, Trust Indenture Act means, to the extent required by
any such amendment, the Trust Indenture Act as so amended.
"Vice President", when used with respect to the Company or the
Trustee, means any vice president, whether or not designated by a number or a
word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, 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.
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Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture 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.
Section 103. Form of Documents Delivered to 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 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 certificate or opinion of an officer of the Company 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 his certificate or opinion is based are erroneous. Any such certificate
or 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 stating that the information with respect to such factual
matters is in the possession of the Company, 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver
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or other action provided by this Indenture to be given or taken by Holders may
be embodied in and evidenced by one or more instruments of substantially
similar tenor signed by such Holders in person or by agent duly appointed in
writing; and, except as herein otherwise expressly provided, such action shall
become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose of
this Indenture and (subject to Section 601) conclusive in favor of the Trustee
and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to 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. The fact and date of the execution of any such instrument or
writing, or the authority of the Person executing the same, may also be proved
in any other manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security
Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, whether or not notation of such action is made
upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice, waiver or
Act of Holders 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 or by the Company shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if made, given, furnished or filed in writing to or with the Trustee at
its Corporate Trust Office, Attention: Corporate Trust Administration
Department, or
(2) the Company by the Trustee or by any Holder shall be sufficient
for every purpose hereunder (unless otherwise herein expressly provided)
if in writing
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and mailed, first-class postage prepaid, to the Company addressed to it at
the address of its principal office specified in the first paragraph of
this instrument or at any other address previously furnished in writing to
the Trustee by the Company. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received by the
addressee.
Section 106. Notice to Holders; Waiver.
Where this Indenture provides for notice to Holders of any event,
such notice shall be sufficiently given (unless otherwise herein expressly
provided) if in writing and mailed, first-class postage prepaid, to each Holder
affected by such event, at his address as it appears in the Security Register,
not later than the latest date, and not earlier than the earliest date,
prescribed for the giving of such notice. In any case where notice to Holders
is given by mail, neither the failure to mail such notice, nor any defect in
any notice so mailed, to any particular Holder shall affect the sufficiency of
such notice with respect to other Holders. 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
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. If
the Company mails a notice or communication to the Holders, it shall mail a
copy to the Trustee and each Registrar, Paying Agent or co-registrar. If a
notice or communication is mailed in the manner provided above, it is duly
given, whether or not received by the addressee.
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 as shall be made with the approval of the Trustee
shall constitute a sufficient notification for every purpose hereunder.
Section 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture by
any of the provisions of the Trust Indenture Act, such required provision 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 latter
provision shall be deemed to apply to this Indenture as so modified or to be
excluded, as the case may be.
Section 108. 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.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
Section 110. Separability Clause.
In case any provision in this Indenture or in the Securities shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
Section 111. 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 hereunder, the holders of Senior Indebtedness and the Holders of
Securities, any benefit or any legal or equitable right, remedy or claim under
this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without regard
to the principles of conflicts of law.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date or
Stated Maturity of any Security or the last date on which a Holder has the
right to convert his Securities shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) or conversion of the
Securities need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, or on such
last day for conversion, provided that no interest shall accrue for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be.
Section 114. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a meeting
of Holders. The Registrar and Paying Agent may make reasonable rules for their
functions.
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificates of authentication
shall be in substantially the forms 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 or as
may, consistently herewith, be determined by the officers executing such
Securities, as evidenced by their execution of the Securities.
The definitive Securities shall be printed, lithographed or
engraved or produced by any combination of these methods or may be produced in
any other manner permitted by the rules of any securities exchange on which the
Securities may be listed, all as determined by the officers executing such
Securities, as evidenced by their execution of such Securities.
Section 202. Form of Face of Security.
POGO PRODUCING COMPANY
5 1/2% Convertible Subordinated
Note due 2004
No. _________________ $______________
POGO PRODUCING COMPANY, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor Person under the Indenture hereinafter referred to), for value
received, hereby promises to pay to ________________, or registered assigns,
the principal sum of ________________________ ___________________ Dollars on
March 15, 2004, and to pay interest thereon from March 23, 1994 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on March 15 and September 15, in each year,
commencing September 15, 1994, at the rate of 5 1/2% per annum until the
principal hereof is paid or made available for payment. Interest on the
Securities shall be computed on the basis of a 360-day year consisting 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 such 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 March 1st or September 1st (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date. Any such
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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 Trustee, notice whereof shall be
given to Holders of Securities not less than 10 days prior to such Special
Record Date, or be paid at any time in any other lawful manner not inconsistent
with the requirements of any securities exchange on which the Securities may be
listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture. Payment of the principal of (and premium, if
any) and interest on this Security will be made at the office or agency of the
Company maintained for that purpose in New York, New York, in such coin or
currency of the United States of America as at the time of payment is legal
tender for payment of public and private debts. The Company, however, may pay
principal and interest by check payable in such money. At the option of the
Company, payment of interest may be made by check mailed on or before the due
date to the address of the Person entitled thereto as such address shall appear
in the Security Register.
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. The Indenture
includes limitations on the right of the Holder to institute a proceeding,
judicial or otherwise, with respect to the Indenture, for the appointment of a
receiver or trustee, or for any other remedy under the Indenture.
Unless the certificate of authentication hereon has been executed
by the Trustee referred to on the reverse hereof by manual signature, this
Security shall not be entitled to any benefit under the Indenture or be valid
or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be
duly executed under its corporate seal.
Dated:
POGO PRODUCING COMPANY
By:___________________________
Attest:
______________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities of
the Company
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designated as its 5 1/2% Convertible Subordinated Notes due 2004 (herein called
the "Securities"), limited in aggregate principal amount to $75,000,000
(subject to increase to up to $86,250,000 aggregate principal amount), issued
and to be issued under an Indenture, dated as of March 23, 1994 (herein called
the "Indenture"), between the Company and Shawmut Bank Connecticut, 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, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Subject to the provisions of the Indenture, the Holder hereof has
the right, at his option, at any time prior to maturity, to convert the
principal amount of this Security (or any portion of the principal amount
hereof which is an integral multiple of $1,000) into fully paid and
nonassessable shares of Common Stock of the Company at the conversion price of
$22.188 of principal amount of this Security per share of Common Stock, subject
to such adjustment, if any, of the conversion price and the securities or other
property issuable upon conversion as may be required by the provisions of the
Indenture (except that, in case this Security (or any portion hereof) shall be
called for redemption before maturity, such right shall terminate at the close
of business on the Business Day immediately preceding the Redemption Date for
this Security (or such portion hereof), unless in any such case the Company
shall default in payment due upon such redemption), but only upon surrender of
this Security for the purpose of such conversion to the Company at the
designated office or agency of the Company in New York, New York or any other
office or agency designated by the Company for such purpose pursuant to the
provisions of the Indenture, accompanied by written notice that the Holder
elects to convert this Security or any portion hereof and specifying the name
or names (with address or addresses) in which a certificate or certificates for
shares of Common Stock are to be issued and (if so required by the Company or
the Trustee) by a written instrument or instruments of transfer in form
satisfactory to the Company and the Trustee duly executed by the registered
Holder or his duly authorized legal representative and transfer tax stamps or
funds therefor, if required pursuant to the provisions of the Indenture and, in
case such surrender shall be made during the period from the close of business
on any Regular Record Date to the opening of business on the next succeeding
Interest Payment Date (unless this Security or the portion thereof being
converted has been called for redemption), also accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on such
Interest Payment Date on the principal amount of this Security then being
converted. Subject to the aforesaid requirement with respect to payment in the
event of conversion after the close of business on a Regular Record Date, no
adjustment is to be made on conversion for interest accrued hereon or for
dividends on shares of Common Stock issued on conversion; provided, however,
that upon a call for redemption by the Company, accrued and unpaid interest to
the Redemption Date shall be payable with respect to Notes converted after the
redemption call and prior to the Redemption Date. No fractional shares are
issuable upon any conversion, but in lieu thereof the Company shall pay
therefor in cash
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as provided in the Indenture.
The Securities are subject to redemption upon not less than 30 nor
more than 60 days' notice by first-class mail, postage prepaid, at any time on
or after March 15, 1998, as a whole or in part, at the election of the Company,
at the following Redemption Prices (expressed as percentages of the principal
amount): if redeemed during the 12-month period beginning March 15 of the
years indicated,
Year Redemption Price Year Redemption Price
---- ---------------- ---- ----------------
1998 . . . . . 103.30% 2001 . . . . . 101.65%
1999 . . . . . 102.75% 2002 . . . . . 101.10%
2000 . . . . . 102.20% 2003 . . . . . 100.55%
; provided, however, that in the case of any such redemption, the Redemption
Price shall include accrued and unpaid interest to the Redemption Date, but
interest installments 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.
In the event of redemption or conversion of this Security in part
only, a new Security or Securities for the unredeemed or unconverted portion
hereof will be issued in the name of the Holder hereof upon the cancellation
hereof.
Under certain circumstances involving a Change in Control (as
defined in the Indenture), the Company may be required to offer to purchase the
Securities at a purchase price equal to 100% of the principal amount thereof,
together with accrued and unpaid interest to the Repurchase Date.
The indebtedness evidenced by the Securities is, to the extent and
in the manner provided in the Indenture, expressly subordinate and subject in
right of payment to the prior payment in full of any Senior Indebtedness of the
Company or provision for such payment, whether outstanding at the date of the
Indenture or thereafter incurred, and this Security is issued subject to the
provisions of the Indenture with respect thereto. Each Holder of this
Security, by his acceptance hereof, agrees to and shall be bound by such
provisions of the Indenture and authorizes and directs the Trustee in his
behalf to take such action as may be necessary or appropriate to effectuate
such subordination and appoints the Trustee his attorney-in-fact for any and
all such purposes.
If an Event of Default, as defined in the Indenture, shall occur
and be continuing, the principal of all the Securities may be declared due and
payable in the manner and with the effect provided in the Indenture.
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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 the consent
of the Holders of at least a majority in aggregate principal amount of the
Securities at the time Outstanding. The Indenture also contains provisions
permitting the Holders of at least a majority 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 exchange
herefor or in lieu hereof, whether or not notation of such consent or waiver is
made upon this Security.
The Indenture provides that no Holder of any Security may enforce
any remedy under the Indenture except in the case of failure of the Trustee to
act after notice of default and after request by the Holders of 25% in
aggregate principal amount of the Outstanding Securities and the offer and, if
requested, provision to the Trustee of reasonable indemnity satisfactory to the
Trustee; provided, however, that such provision shall not prevent the Holder
hereof from enforcing payment of the principal of (and premium, if any) or
interest on this Security after the same shall have become due.
Initially, the Trustee will act as Paying Agent, Security
Registrar and as the agent where notices and demands to or upon the Company in
respect of the Notes may be served. The Company may appoint and change any
Paying Agent, Security Registrar or agent for notices without notice, other
than notice to the Trustee. The Company or one of its subsidiaries may act as
Paying Agent, Security Registrar or agent for notices.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, subject to the subordination
provisions, to pay the principal of (and premium, if any) and interest on this
Security at the times, place 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 in the
Security Register, upon surrender of this Security for registration of transfer
at the office or agency of the Company in New York, New York, duly endorsed by,
or accompanied by a written instrument of transfer in form satisfactory to the
Company and the Security Registrar and duly executed by the Holder hereof 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.
The Securities are issuable only in registered form without coupons in
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denominations of $1,000 and any integral multiple thereof. 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 a different
authorized denomination, as requested by the Holder surrendering the same.
No service charge shall be made to the Holder for any such
registration of transfer or exchange, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name this Security is registered as the owner
hereof for all purposes, whether or not this Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
This Security and the rights of the Holder hereof shall be
governed by and construed in accordance with the laws of the State of New York
without regard to principles of conflicts of laws.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Article Twelve of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security purchased
by the Company pursuant to Article Twelve of the Indenture, state the amount
(in integral multiples of $1,000): $___________
Date: ____________ Your Signature: ___________________
(Sign exactly as your
name appears on the
other side of this
Security)
Your Social Security or
Tax Identification Number: ____________________________________________________
Signature Guarantee: __________________________________________________________
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The
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Securities Transfer Agents Medallion Program (STAMP); (2) The New
York Stock Exchange Medallion Signature Program (MSP); or (3) The
Stock Exchange Medallion Program (SEMP).
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By____________________________
Authorized Signatory
Section 205. Form of Election to Convert.
To Pogo Producing Company:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below designated,
into shares of Common Stock of Pogo Producing Company in accordance with the
terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon conversion, together with any check in
payment for fractional shares, be issued in the name of and delivered to the
undersigned, unless a different name has been indicated in the assignment
below. If shares are to be issued in the name of a Person other than the
undersigned, the undersigned will pay all transfer taxes payable with respect
thereto.
Dated:
Portion of Security to be converted
($1,000 or an integral multiple thereof):
$_______________ ___________________________
Signature (for conversion only)
Please Print or Type Name and
Address, Including Zip Code,
and Social Security or Other
Identifying Number:
_________________________
_________________________
_________________________
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Section 206. Form of Assignment.
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, hereby irrevocably constituting and
appointing ______________________________ attorney to transfer the said
Security on the books of the Company, with full power of substitution in the
premises.
Date: _____________________ ________________________________
Signature(s)
Note: The signature(s) to this
assignment must correspond
with the name as it appears
upon the face of the within
Security in every particular,
without alteration, or
enlargement or any change
whatever.
_________________________
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The Securities Transfer Agents Medallion
Program (STAMP); (2) The New York Stock Exchange Medallion
Signature Program (MSP); or (3) The Stock Exchange Medallion
Program (SEMP).
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to the sum of (a)
$75,000,000 and (b) such aggregate principal amount (which may not exceed
$11,250,000 aggregate principal amount) of Securities, if any, as shall be
purchased by the "Underwriters" at the "Second Closing Time" (both as defined
in the Purchase Agreement) pursuant to and in accordance with the terms and
provisions of the Purchase Agreement, dated March 16, 1994, between the Company
and Merrill Lynch & Co., Merrill Lynch, Pierce, Fenner & Smith Incorporated,
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Goldman, Sachs & Co. and PaineWebber Incorporated, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108, 1205 or 1301.
The Securities shall be known and designated as the "5 1/2%
Convertible Subordinated Notes due 2004" of the Company. Their Stated Maturity
shall be March 15, 2004 and they shall bear interest at the rate of 5 1/2% per
annum, from March 23, 1994 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semiannually on March 15 and September 15, commencing September 15, 1994, until
the principal thereof is paid or made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in New York,
New York, maintained for such purpose and at any other office or agency
maintained by the Company for such purpose; provided, however, that at the
option of the Company payment of interest may be made by check mailed on or
before the due date to the address of the Person entitled thereto as such
address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article Eleven.
The Securities shall be subject to repurchase at the option of the
Holders as provided in Article Twelve.
The Securities shall be convertible as provided in Article Thirteen.
The Securities shall be subordinated in right of payment to Senior
Indebtedness as provided in Article Fourteen.
Section 302. Denominations.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by its
Chairman of the Board, its President or one of its Vice Presidents, under its
corporate seal reproduced thereon attested by its Secretary or one of its
Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the 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
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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 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 deliver such Securities as in
this Indenture provided and not otherwise.
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, 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 304. Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 305. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust Office
of the Trustee a register (the register maintained in such office and in any
other office or agency designated pursuant to Section 1002 being herein
sometimes collectively 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
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Trustee is hereby appointed "Security Registrar" for the purpose of
registering Securities and transfers of Securities as herein provided.
Upon surrender for registration of transfer of any Security at an
office or agency of the Company designated pursuant to Section 1002 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.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denominations and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
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.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Trustee)
be duly endorsed, or be 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.
No service charge shall be made to the Holder for any registration
of transfer or exchange of Securities, 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 304, 906, 1108, 1205 or
1301 not involving any transfer.
Neither the Company nor the Trustee nor any agent of either shall
be required (i) to issue, register the transfer of or exchange any Security
during a period beginning at the opening of business 15 days before the day of
the mailing of a notice of redemption of Securities selected for redemption
under Section 1104 and ending at the close of business on the day of such
mailing or (ii) to register the transfer of or exchange any Security so
selected for redemption in whole or in part, except the unredeemed portion of
any Security being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security
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of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
If there shall be delivered to the Company and the Trustee (i)
evidence to their satisfaction of the destruction, loss or theft of any
Security and (ii) such security or indemnity as may be required by them to save
each of them and any agent of either of them harmless, then, in the absence of
actual notice to the Company or the Trustee that such Security has been
acquired by a bona fide purchaser, the Company shall execute and upon a Company
Request the Trustee shall authenticate and deliver, in lieu of any such
destroyed, lost or stolen Security, a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion
may, instead of issuing a new Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
reasonable expenses (including the expenses of the Trustee) connected
therewith.
Every new Security issued pursuant to this Section 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 shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to
the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
Section 307. Payment of Interest; Interest Rights Preserved.
Interest on any Security which 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 on any Security which 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:
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(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 notify the
Trustee in writing of the amount of Defaulted Interest proposed to be paid
on each Security and the date of the proposed payment, 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. Thereupon the Trustee
shall fix a Special Record Date for the payment of such Defaulted Interest
which 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
receipt by the Trustee of the notice of the proposed payment. The Trustee
shall promptly notify the Company of such Special Record Date and, in the
name and at the expense of the Company, shall cause notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor to
be mailed, first-class postage prepaid, to each Holder at his address as
it appears in the 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 on which the Securities may be listed, and upon such
notice as may be required by such exchange, 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.
Subject to the foregoing provisions of this Section, 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.
In the case of any Security which is converted after any Regular
Record Date and on or prior to the next succeeding Interest Payment Date (other
than any Security whose Maturity is prior to such Interest Payment Date),
interest whose Stated Maturity is on such Interest Payment Date shall be
payable on such Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for) shall be paid to
the Person in whose name that Security (or one or more
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Predecessor Securities) is registered at the close of business on such Regular
Record Date. Upon a call for redemption by the Company, accrued and unpaid
interest to the Redemption Date shall be payable with respect to Securities
converted after the notice of redemption has been mailed and prior to the
Redemption Date. Except as otherwise expressly provided in this paragraph, in
the case of any Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Security shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of and principal of (and
premium, if any) and (subject to Section 307) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
Section 309. Cancellation.
All Securities surrendered for payment, redemption, registration of
transfer or exchange or conversion shall, if surrendered to any Person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled
by it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. No Securities shall be
authenticated in lieu of or in exchange for any Securities cancelled as
provided in this Section, except as expressly permitted by this Indenture. All
cancelled Securities held by the Trustee shall be disposed of as directed by a
Company Order. The Company shall, within 120 days of a request therefor by the
Trustee, deliver a Company Order directing the destruction of cancelled
Securities. If the Company fails to respond to such a request within such
120-day period, the Trustee may destroy any or all cancelled Securities, in
which case the Trustee shall deliver a certificate as to such destruction to
the Company.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of a
360-day year consisting of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as to
any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on demand of and at
the expense of the Company, shall execute proper instruments acknowledging
satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 306 and
(ii) 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 1003) have been delivered to the Trustee for
cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the giving of
notice of redemption by the Trustee in the name, and at the
expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited with the
Trustee as trust funds in trust for the purpose an amount
sufficient to pay and discharge the entire indebtedness on such
Securities not theretofore delivered to the Trustee for cancellation,
for principal (and premium, if any) and 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
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(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, the
obligations of the Company to the Trustee under Section 607, the obligations of
the Trustee to any Authenticating Agent under Section 614 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of clause (1) of
this Section, the obligations of the Trustee under Section 402 and the last
paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of Section 1003,
all money deposited with the Trustee pursuant to Section 401 shall be held in
trust and applied by it, in accordance with the provisions of the Securities
and this Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and interest for whose payment such money has been deposited with the
Trustee. All moneys deposited with the Trustee pursuant to Section 401 (and
held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.
Section 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
deposited with respect to Securities of any series in accordance with Section
401 by reason of any legal proceeding or by reason of any order or judgment of
any court or governmental authority enjoining, restraining or otherwise
prohibiting such application, the Company's obligations under this Indenture
with respect to the Securities of such series and the Securities of such series
shall be revived and reinstated as though no deposit had occurred pursuant to
Section 401 until such time as the Trustee or Paying Agent is permitted to
apply all such money in accordance with Section 401; provided, however, that if
the Company has made any payment of principal of (or premium, if any) or
interest on any Securities because of the reinstatement of its obligations, the
Company shall be subrogated to the rights of the Holders of such Securities to
receive such payment from the money held by the Trustee or Paying Agent.
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ARTICLE FIVE
REMEDIES
Section 501. 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 occasioned by the provisions of Article Fourteen or 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 any interest upon any Security when it
becomes due and payable, whether or not such payment is prohibited by the
provisions of Article Fourteen, and continuance of such default for a
period of 30 days; or
(2) default in the payment of the principal of (or premium, if any,
on) any Security at its Maturity, whether or not such payment is prohibited
by the provisions of Article Fourteen; or
(3) default in the payment of the Repurchase Price in respect of any
Security on the Repurchase Date and continuance of such default for more
than 10 days thereafter in accordance with the provisions of Article
Twelve, whether or not such payment is prohibited by the provisions of
Article Fourteen; or
(4) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty, a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default or
breach for a period of 60 days after there has been given, 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 a written notice specifying such default or breach
and requiring it to be remedied and stating that such notice is a "Notice
of Default" hereunder; or
(5) default under any bond, debenture, note or other evidence of
indebtedness for money borrowed or under any mortgage, indenture or other
instrument under which there may be issued or by which there may be secured
or evidenced any indebtedness for money borrowed by the Company or under
any guarantee of payment by the Company of indebtedness for money borrowed,
whether such indebtedness or guarantee now exists or shall hereafter be
created, which default extends beyond any period of grace provided with
respect thereto and which default relates to (a) the obligation to pay the
principal of or interest on any such
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indebtedness or guarantee or (b) an obligation other than the obligation to
pay the principal of or interest on any such indebtedness, if the effect of
such event of default is to cause the acceleration of a principal amount of
such indebtedness and such other indebtedness or guarantee shall not have
been paid within ten days after there has been given 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 a written
notice specifying such event of default and stating that such notice is a
"Notice of Default" hereunder; provided, however, that no default under
this Section 501(5) shall exist if all such defaults do not relate to such
indebtedness or such guarantees with an aggregate principal amount in
excess of 5% of Consolidated Net Tangible Assets; and provided further,
that if any such event of default has been cured or waived and any
acceleration with respect thereto rescinded, or if such other indebtedness
has been repaid or otherwise discharged, the Event of Default arising under
this Section 501(5) by virtue thereof shall not be deemed to have occurred
and any acceleration under this Section 501(5) pursuant to Section 502
hereof shall ipso facto be rescinded so long as such rescission does not
conflict with any judgment or decree;
(6) the entry by a court having jurisdiction in the premises of (a)
a decree or order for relief in respect of the Company 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 a bankrupt or insolvent, or approving as properly
filed a petition seeking reorganization, arrangement, adjustment or
composition of or in respect of the Company under any applicable federal or
state law, or appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the Company or of any
substantial part of its property, 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; or
(7) the commencement by the Company 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 it to the entry
of a decree or order for relief in respect of the Company 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 it, or the filing
by it of a petition or answer or consent seeking reorganization or relief
under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of its property, or the
making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally as
they become due, or the taking of corporate action by the Company in
furtherance of any
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such action.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and 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 all
the Securities and the interest accrued thereon to be due and payable
immediately, by a notice in writing to the Company (and to the Trustee if given
by Holders) and upon any such declaration such principal and interest shall
become immediately due and payable.
At any time after such a 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 provided, the Holders of a
majority in aggregate principal amount of the Outstanding Securities, by
written notice to the Company and the Trustee, may rescind and annul such
declaration and its consequences if
(1) the Company has paid or deposited with the Trustee
a sum sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on) any Securities
which have become due otherwise than by such declaration of
acceleration and interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate borne by the Securities, and
(D) all sums paid or advanced or liabilities incurred by the
Trustee hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the principal
of Securities which have become due solely by such declaration of
acceleration, have been cured or waived as provided in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any Security
when such interest 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 of (or premium,
if any, on) any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal (and premium, if any) and interest, and, to the extent
that payment of such interest shall be legally enforceable, interest on any
overdue principal (and premium, if any) and on any overdue interest, at the
rate borne by the Securities, and, in addition thereto, such further amount as
shall be sufficient to cover the 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 by such appropriate judicial proceedings as the Trustee, being advised
by counsel, 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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment, composition
or other judicial proceeding relative to the Company or any other obligor upon
the Securities or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of the Securities
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
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and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of principal (and
premium, if any) and interest owing and unpaid in respect of the
Securities, subject to the provisions of Article Fourteen, and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel) and of the Holders allowed in such judicial proceeding,
subject to the provisions of Article Fourteen, and
(ii) subject to the provisions of Article Fourteen, to collect and
receive any moneys or other property payable or deliverable on any such
claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder to make such payments to the Trustee and, in the event that the
Trustee shall consent to the making of such payments directly to the Holders,
to pay to the Trustee any amount due it for the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel,
and any other amounts due the Trustee under Section 607.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof or to authorize the Trustee to
vote in respect of the claim of any Holder in any such proceeding.
Section 505. 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
such judgment has been recovered. In any such proceeding brought by the
Trustee, the Trustee shall be deemed to represent all Holders without the
necessity of joining any Holders as parties.
Section 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the Trustee
pursuant to this Article shall be applied in the following order, at the date
or dates fixed by the Trustee and, in the case of the distribution of such
money on account of principal (or premium, if
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any) 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 costs and expenses in connection with
the collection of such money and to the payment of all amounts due the
Trustee under Section 607; and
SECOND: To the payment of the amounts then due and unpaid for
principal of (and premium, if any) and interest 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 premium, if
any) and interest, respectively.
Section 507. Limitation on Suits.
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
(1) such Holder has previously given written notice to the Trustee of
a continuing Event of Default;
(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 offer and, if requested, provide to the
Trustee indemnity 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 receipt of such notice, request
and offer and, if requested, provision of indemnity 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 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 Holders,
or to obtain or to seek to obtain priority or preference over any other Holders
or to enforce any right under this Indenture, except in the manner herein
provided and for the equal and ratable benefit of all the
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Holders.
Section 508. Unconditional Right of Holders to Receive Principal, Premium 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,
subject to the subordination provisions in Article Fourteen, to receive payment
of the principal of (and premium, if any) and (subject to Section 307) interest
on such Security on the respective Stated Maturities expressed in such Security
(or, in the case of redemption, on the Redemption Date) and to institute suit
for the enforcement of any such payment, and such rights shall not be impaired
without the consent of such Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder 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
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
Section 510. 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 306, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders 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 511. 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 an acquiescence therein. Every right and remedy given by this
Article or by law to the Trustee or to the Holders may be exercised from time
to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in aggregate principal amount of the
Outstanding Securities shall have the right to direct in writing 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,
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee shall have
the right to decline to follow any such direction if the Trustee in good
faith shall determine that the action so directed would involve the Trustee
in personal liability or would be unduly prejudicial to Holders not joining
in such direction.
This Section 512 shall be in lieu of Section 316(a)(1)(A) of the
Trust Indenture Act and said Section 316(a)(1)(A) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate principal
amount of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of (or premium, if any) or
interest on any Security, or
(2) in respect of a covenant or provision hereof which under Article
Nine cannot be modified or amended without the consent of the Holder of
each Outstanding Security affected.
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. This
Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust Indenture Act
and said Section 316(a)(1)(B) is hereby expressly excluded from this Indenture,
as permitted by the Trust Indenture Act.
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Section 514. 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, 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, 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; but the
provisions of this Section shall not apply to any suit instituted by the
Company, to any suit instituted by the Trustee, to any suit instituted by any
Holder, or group of Holders, holding more than 10% in aggregate principal
amount of the Outstanding Securities, or to any suit instituted by any Holder
for the enforcement of the payment of the principal of (or premium, if any) or
interest on any Security on or after the respective Stated Maturities expressed
in such Security (or, in the case of redemption, on or after the Redemption
Date) or for the enforcement of the right to convert any Security in accordance
with Article Thirteen. This Section 514 shall be in lieu of Section 315(e) of
the Trust Indenture Act and said Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
Section 515. Waiver of Stay 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 or extension law wherever
enacted, now or at any time hereafter in force, which may affect the covenants
or the performance of this Indenture; and the Company (to the extent that it
may lawfully do so) hereby expressly waives all benefit or advantage of any
such law and covenants that it will not hinder, delay or impede the execution
of any power herein granted to the Trustee, but will suffer and permit the
execution of every such power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as provided
by the Trust Indenture Act. Notwithstanding the foregoing, 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 it shall have
reasonable grounds for believing that repayment of such funds or adequate
indemnity against such risk or liability is not reasonably assured to it.
Whether or not
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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.
Section 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default hereunder
as and to the extent provided by the Trust Indenture Act; provided, however,
that in the case of any default of the character specified in Section 501(4),
no such notice to Holders shall be given until at least 30 days after the
occurrence thereof. 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 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document believed by it to be genuine and to have been signed or presented
by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall
be sufficiently evidenced by a Company Request or Company Order and any
resolution of the Board of Directors may be sufficiently evidenced by a
Board Resolution;
(c) whenever in the administration of this Indenture the Trustee
shall deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee (unless
other evidence be herein specifically prescribed) may, in the absence of
bad faith on its part, rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written 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;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders pursuant to this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity
satisfactory to the Trustee against the costs, expenses and liabilities
which might be incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order,
bond, debenture, note, other evidence of indebtedness or other paper or
document, but the Trustee, in its discretion, may make such further inquiry
or investigation into such facts or matters as it may see fit, and, if the
Trustee shall determine to make such further inquiry or investigation, it
shall be entitled to examine the books, records and premises of the Company
personally or by agent or attorney; and
(g) 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.
Section 604. 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 the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture, or of any supplemental indenture or of the Securities. The Trustee
shall not be accountable for the use or application by the Company of
Securities or the proceeds thereof.
Section 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 608 and 613, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
Section 606. 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 with the Company.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable compensation
for all services rendered by it hereunder (which compensation shall not be
limited by any
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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 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 negligence or bad
faith; and
(3) to indemnify the Trustee, its agents, employees, officers,
directors and shareholders for, and to hold each of them harmless against,
any loss, liability or expense incurred without negligence or bad faith on
its part, arising out of or in connection with the acceptance or
administration of this trust, including the costs 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.
As security for the performance of the obligations of the Company
under this Section the Trustee shall have a lien prior to the Securities upon
all property and funds held or collected by the Trustee as such, except funds
held in trust for the payment of principal of, premium, if any, or interest on
particular Securities.
When the Trustee incurs expenses or renders services after an Event
of Default specified in Section 501(6) or (7) occurs, the expenses (including
the reasonable charges and expenses of its agents, attorneys and counsel) and
the compensation for services shall be preferred over the status of the Holders
in any reorganization or similar proceeding and are intended to constitute
expenses of administration under any reorganization, bankruptcy or similar law.
Section 608. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest within
the meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
Section 609. 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, has
an office or agency in New York, New York, and has a combined capital and
surplus of at least $50,000,000 (or is a member or subsidiary of a bank holding
system with aggregate combined capital and surplus of at least $50,000,000).
If such corporation or other Person 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
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corporation shall be deemed to be its combined capital and surplus as set forth
in its most recent report of condition so published. If at any time the
Trustee shall cease to be eligible in accordance with the provisions of this
Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article. No obligor upon any Securities issued
under this Indenture or Person directly or indirectly controlling, controlled
by or under common control with such obligor shall serve as Trustee under this
Indenture.
Section 610. Resignation and Removal; Appointment of Successor.
(a) 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 under Section 611.
(b) The Trustee may resign at any time by giving written notice
thereof to the Company. If an instrument of acceptance by a successor Trustee
shall not have been delivered to the Trustee within 30 days after the giving of
such notice of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of
a majority in aggregate principal amount of the Outstanding Securities
specifying such removal, delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 608 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 609 and
shall fail to resign after written request therefor by the Company or
by any such bona fide Holder described in (d)(1) above, or
(3) 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 by a Board Resolution may remove the
Trustee, or (ii) subject to Section 514, any Holder 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.
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(e) 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, by a Board Resolution, shall promptly appoint a successor Trustee.
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,
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 and accepted appointment in the manner hereinafter
provided, any Holder 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.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee by mailing
written notice of such event by first-class mail, postage prepaid, to all
Holders as their names and addresses appear in the Security Register. Each
notice shall include the name of the successor Trustee and the address of its
Corporate Trust Office.
Section 611. 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 request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of its charges, execute and deliver an instrument transferring to 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 for more
fully and certainly vesting in and confirming 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 qualified and eligible under
this Article.
Section 612. 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 the corporate trust
business of the Trustee, shall be the successor of the
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Trustee hereunder, provided such corporation shall be otherwise qualified and
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 613. 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).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents which
shall be authorized to act on behalf of the Trustee to authenticate Securities
issued upon original issue and upon exchange, registration of transfer, partial
conversion or partial redemption or pursuant to Section 306, and Securities so
authenticated 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. Wherever reference is made in this Indenture to the authentication
and delivery of Securities by the Trustee or the Trustee's certificate of
authentication, such reference 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 acceptable to 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, having a combined
capital and surplus of not less than $50,000,000 (or being a member or
subsidiary of a bank holding system with aggregate combined capital and surplus
of at least $50,000,000) and subject to supervision or examination by federal
or state authority. If such Authenticating Agent 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 Authenticating Agent shall be deemed to be
its combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
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,
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or any corporation succeeding to the corporate agency or corporate trust
business of an Authenticating Agent, shall continue to be an Authenticating
Agent, provided such corporation shall be otherwise eligible under this
Section, 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 30 days'
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 30 days'
written notice thereof to such Authenticating Agent and to the Company. Upon
receiving such a notice of resignation or upon such a termination, or in case
at any time such Authenticating Agent shall cease to be eligible in accordance
with the provisions of this Section, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company and shall mail
written notice of such appointment by first- class mail, postage prepaid, to
all Holders as their names and addresses appear in the Security Register. 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.
The Trustee agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section, and the
Trustee shall be entitled to be reimbursed for such payments, subject to the
provisions of Section 607.
If an appointment is made pursuant to this Section, the Securities
may have endorsed thereon, in addition to the Trustee's certificate of
authentication, an alternate certificate of authentication in the following
form:
This is one of the Securities described in the within-mentioned
Indenture.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
As Trustee
By ___________________________
As Authenticating Agent
By ___________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not more than 15 days after each Regular Record
Date, a list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of such Regular Record Date, and
(b) 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;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
Section 702. Preservation of Information; Communications To Holders.
(a) 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 701 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 701 upon receipt of a new list so furnished.
(b) 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.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
Section 703. Reports by Trustee.
(a) 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. Reports so required to be transmitted at stated intervals of not more
than 12 months shall be transmitted no later than May 15 of each year,
commencing with the May 15 first following
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the issuance of the Securities.
(b) A copy of each such report shall, at the time of such
transmission to Holders, 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 of any delisting thereof.
Section 704. Reports by Company.
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 so required to be filed with the
Commission. In the event the Company is not subject to the requirements of
Section 13 or 15(d) of the Exchange Act, the Company shall file with the
Trustee (a) within 60 days after the end of each of the Company's first three
fiscal quarters in each fiscal year, a report containing unaudited financial
statements with respect to such fiscal quarter and (b) within 105 days after
the end of the Company's fiscal year, a report containing audited financial
statements with respect to such fiscal year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any other
Person or convey, transfer, lease or otherwise dispose of 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 or convey,
transfer, lease or otherwise dispose of its properties and assets substantially
as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer, lease or otherwise dispose of its properties
and assets substantially as an entirety to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer or otherwise, or which leases, the
properties and assets of the Company substantially as an entirety shall be
a Corporation or other legal entity, shall be organized and validly
existing under the laws of the United States of America, any state thereof
or the District of Columbia and shall expressly assume, by an indenture
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supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the principal
of (and premium, if any) and interest on all the Securities and the
performance 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 Section 1306;
(2) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have happened and be continuing; 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, lease or other disposition and, if a supplemental
indenture is required in connection with such transaction, such
supplemental indenture complies with this Article and that all conditions
precedent herein provided for relating to such transaction have been
complied with.
Section 802. Successor Legal Entity Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, lease or other disposition
of the properties and assets of the Company substantially as an entirety in
accordance with Section 801, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer,
lease or other disposition 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 and may liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, 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 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 of the Company herein
and in the
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Securities; or
(2) to add to the covenants of the Company for the benefit of the
Holders or to surrender any right or power herein conferred upon the
Company; or
(3) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Section 1306; or
(4) to cure any ambiguity, to correct or supplement any provision
herein which may be inconsistent with any other provision herein or to make
any other provisions with respect to matters or questions arising under
this Indenture, provided such action pursuant to this clause (4) shall not
adversely affect the interests of the Holders in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by a Board Resolution, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture
or of modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent 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 principal amount
thereof or the rate of interest thereon or any premium payable upon the
redemption thereof, or change the place of payment where, or the coin or
currency in which, any Security or any premium or the interest thereon is
payable, or impair the right to institute suit for the enforcement of any
such payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date), or adversely affect the right
to convert any Security as provided in Article Thirteen (except as
permitted by Section 901(3)), or
(2) reduce the percentage in 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 any of the provisions of this Section, Section 513 or
Section 1006, except to increase any such percentage or to provide that
certain other provisions of this Indenture cannot be modified or waived
without the consent of the
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Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders 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.
The Company may, but shall not be obligated to, fix a record date
for the purpose of determining the Holders entitled to consent to any indenture
supplemental hereto. If a record date is fixed, then those persons who were
Holders at such record date (or their duly designated proxies), and only those
persons, shall be entitled to consent to such supplemental Indenture or to
revoke any consent previously given, whether or not such persons continue to be
Holders after such record date. No such consent shall be valid or effective
for more than 90 days after such record date.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting any 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 Section 601) 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. 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.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this Article,
this Indenture shall be modified in accordance therewith, and such supplemental
indenture shall form a part of this Indenture for all purposes; and every
Holder of Securities theretofore or thereafter authenticated and delivered
hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act as then in effect.
Section 906. 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
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee
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in exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of (and
premium, if any) and interest on the Securities in accordance with the terms of
the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in New York, New York an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer or exchange, where Securities
may be surrendered for conversion and where notices and demands to or upon the
Company in respect of the Securities and this Indenture may be served. The
Company initially designates the office of the Trustee at Shawmut Bank, c/o
First Chicago, 14 Wall Street, 8th Floor -- Window No. 2, New York, New York
10005, as its office or agency for these purposes. The Company will give
prompt written notice to the Trustee of the location, and any change in the
location, of such office or agency. 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 Corporate Trust Office of the Trustee, and
the Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies (in or outside New York, New York) where the Securities may
be presented or surrendered for any or all such purposes and may from time to
time rescind such designations; provided, however, that no such designation or
rescission shall in any manner relieve the Company of its obligation to
maintain an office or agency in New York, New York for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent, it
will, on or before each due date of the principal of (and premium, if any) or
interest 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 (and
premium, if any) or interest so becoming due until such
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sums shall be paid to such Persons or otherwise disposed of as herein provided
and 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,
prior to each due date of the principal of (and premium, if any) or interest on
any Securities, deposit in immediately available funds with a Paying Agent a
sum sufficient to pay the principal (and premium, if any) or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal, premium or interest, and (unless such Paying Agent
is the Trustee) the Company will promptly notify the Trustee of its action or
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) comply with the provisions of the Trust Indenture Act applicable
to it as a Paying Agent; and
(2) at any time during the continuance of any default, upon the
written request of the Trustee, forthwith pay to the Trustee all sums so
held in trust 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 (and premium,
if any) or interest on any Security and remaining unclaimed for two years (or
such shorter period as required by applicable abandonment law with respect to
the Holder entitled to payment thereof) after such principal (and premium, if
any) or interest 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, unless an
applicable abandonment statute designates another Person, 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; provided,
however, that the Trustee or such Paying Agent, before being required to make
any such repayment, may at the expense of the Company cause to be published
once, in a newspaper published in the English language, customarily published
on each Business Day and of general circulation in New York, New York, notice
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that such money remains unclaimed and that, after a date specified therein,
which shall not be less than 30 days from the date of such publication, any
unclaimed balance of such money then remaining will be repaid to the Company.
Section 1004. Existence.
Subject to Article Eight, 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 a transaction that would result in the termination of the Company's
existence or any such right or franchise is permissible under Article Eight or
if the Board of Directors shall determine that the preservation thereof is no
longer desirable in the conduct of the business of the Company and that the
loss thereof is not disadvantageous in any material respect to the Holders.
Section 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days after the
end of each fiscal year of the Company, in each case ending after the date
hereof, an Officers' Certificate, stating that a review of the activities of
the Company during the preceding fiscal year has been made under the
supervision of the signing officers with a view to determining whether the
Company has kept, observed, performed and fulfilled its obligations under this
Indenture, and further stating, as to each such officer signing such
certificate, that to the best of his knowledge the Company is not in default in
the performance or observance of any of the terms, provisions and conditions
hereof or, if a default or Event of Default shall have occurred, describing all
such defaults or Events of Default of which he may have knowledge and that to
the best of his knowledge no event has occurred and remains in existence by
reason of which payments on account of the principal of or interest, if any, on
the Securities are prohibited or if such event has occurred, a description of
the event.
Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Section 1004, if before the time for such
compliance the Holders of at least a majority in aggregate principal amount of
the Outstanding Securities shall, by Act of such Holders, 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 in respect of any such covenant or condition shall remain in full force
and effect.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the Company, as a
whole or from time to time in part, at any time on or after March 15, 1998, at
the Redemption Prices specified in the form of Security hereinbefore set forth,
together with accrued interest to the Redemption Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 1101 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed and whether the Trustee is to give the notice of redemption.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed pursuant to
Section 1101, the particular Securities to be redeemed shall be selected not
more than 45 days prior to the Redemption Date by the Trustee, from the
Outstanding Securities not previously called for redemption, by such method
(including pro rata or by lot) as the Trustee shall deem fair and appropriate
and which may provide for the selection for redemption of portions (equal to
$1,000 or any integral multiple thereof) of the principal amount of Securities
of a denomination larger than $1,000.
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 shall be
treated by the Trustee as Outstanding for the purpose of such selection.
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The Trustee shall promptly notify the Company and each Security
Registrar in writing of the Securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount thereof
to be redeemed.
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 principal amount of such Securities which has been or is to be
redeemed.
Section 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail, postage
prepaid, mailed not less than 30 nor more than 60 days prior to the Redemption
Date, to each Holder of Securities to be redeemed, at his address appearing in
the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be redeemed,
the identification (and, in the case of partial redemption, the principal
amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price will become due
and payable upon each such Security to be redeemed and that interest
thereon will cease to accrue on and after said date;
(5) the conversion price, the date on which the right to convert
the principal of the Securities to be redeemed will terminate and the
place or places where such Securities may be surrendered for conversion; and
(6) the place or places where such Securities are to be surrendered
for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at Company Request, by the
Trustee in the name and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and
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hold in trust as provided in Section 1003) an amount of money in immediately
available funds sufficient to pay the Redemption Price of, and (except if the
Redemption Date shall be an Interest Payment Date) accrued interest 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 with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to the right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 307) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
Section 1107. 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 and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, such Security
shall be paid by the Company at the Redemption Price, together with accrued
interest to the Redemption Date; provided, however, that installments of
interest 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 at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 307.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal (and premium, if any) shall,
until paid, bear interest from the Redemption Date at the rate borne by the
Security.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE
Section 1201. Right to Require Repurchase.
In the event that there shall occur a Change in Control (as defined
in Section 1206) which constitutes a Repurchase Event (as defined in Section
1206), then each Holder shall have the right, at such Holder's option to
require the Company to purchase, and upon the exercise of such right, the
Company shall, subject to the provisions of Article Fourteen, purchase all or
any part of such Holder's Securities on a date (the "Repurchase Date") selected
by the Company that is not more than 75 days after the date the Company gives
notice of the Repurchase Event as contemplated in Section 1202(a) at a price
(the "Repurchase Price") equal to 100% of the principal amount thereof,
together with accrued and unpaid interest to the Repurchase Date.
Section 1202. Notice; Method of Exercising Repurchase Right.
(a) On or before the 15th day after the Repurchase Event, the
Company, or at Company Request, the Trustee (in the name and at the expense of
the Company), shall give notice of the occurrence of the Repurchase Event and
of the repurchase right set forth herein arising as a result thereof by
first-class mail, postage prepaid, to each Holder of the Securities at such
Holder's address appearing in the Security Register. The Company shall also
deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the event constituting the Repurchase Event and the date
thereof,
(2) the Repurchase Date,
(3) the date by which the repurchase right must be exercised,
(4) the Repurchase Price, and
(5) the instructions a Holder must follow to exercise a
repurchase right.
No failure of the Company to give the foregoing notice shall limit
any Holder's right to exercise a repurchase right. The Trustee shall have no
affirmative obligation to determine if there shall have occurred a Repurchase
Event.
(b) To exercise a repurchase right, a Holder shall deliver to the
Company
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(or an agent designated by the Company for such purpose in the notice referred
to in (a) above) and to the Trustee on or before the close of business on the
Business Day immediately preceding the Repurchase Date (i) written notice of
the Holder's exercise of such right, which notice shall set forth the name of
the Holder, the principal amount of the Security or Securities (or portion of a
Security) to be repurchased, and a statement that an election to exercise the
repurchased right is being made thereby, and (ii) the Security or Securities
with respect to which the repurchase right is being exercised, duly endorsed
for transfer to the Company. Such written notice shall be irrevocable. If the
Repurchase Date falls between any Regular Record Date and the next succeeding
Interest Payment Date, Securities to be repurchased must be accompanied by
payment from the Holder of an amount equal to the interest thereon which the
registered Holder thereof is to receive on such Interest Payment Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, then subject to Article Fourteen, the Company
shall on or promptly following the Repurchase Date pay or cause to be paid in
cash to the Holder thereof the Repurchase Price of the Security or Securities
as to which the repurchase right had been exercised. In the event that a
repurchase right is exercised with respect to less than the entire principal
amount of a surrendered Security, the Company shall execute and deliver to the
Trustee and the Trustee shall authenticate for issuance in the name of the
Holder a new Security or Securities in the aggregate principal amount of the
unrepurchased portion of such surrendered security.
Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase Date and subject to Article Fourteen,
the Company shall deposit with the Trustee or with a Paying Agent (or, if the
Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 1003) an amount of money, in immediately available funds,
sufficient to pay the Repurchase Price of the Securities which are to be repaid
on or promptly following the Repurchase Date.
Section 1204. Securities Not Repurchased on Repurchase Date.
If any Security surrendered for repurchase shall not be paid by the
10th day following the Repurchase Date, the principal shall, until paid, bear
interest to the extent permitted by applicable law from the eleventh day
following the Repurchase Date at a rate per annum borne by such Security.
Section 1205. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall be
surrendered at any office or agency of the Company designated for that purpose
pursuant to Section 1002 (with, if the Company or the Trustee so requires, due
endorsement by, or written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the
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Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of any
authorized denomination as requested by such Holder, in aggregate principal
amount equal to and in exchange for the repurchased portion of the principal of
the Security so surrendered.
Section 1206. "Change in Control" and "Repurchase Event" Defined.
(a) For purposes of this Article, "Change in Control" means any of
the following events that occurs after the Issue Date of the Securities and so
long as any Securities are Outstanding:
(1) the Company's assets are sold or otherwise disposed of
substantially as an entirety to any Person or related group of
Persons in any one transaction or a series of related transactions;
(2) there shall be consummated any consolidation or merger of
the Company (A) in which the Company is not the continuing or
surviving corporation (other than a consolidation or merger with a
wholly-owned Subsidiary of the Company in which all shares of Common
Stock outstanding immediately prior to the effectiveness thereof are
changed into or exchanged for the same number of shares of common
stock of such Subsidiary) or (B) pursuant to which the Common Stock is
converted into cash, securities or other property, in each case other
than a consolidation or merger of the Company in which the holders of
the Common Stock immediately prior to the consolidation or merger
have, directly or indirectly, at least a majority of the common stock
of the continuing or surviving Corporation immediately after such
consolidation or merger; or
(3) any Person, or any Persons acting together which would
constitute a "group" for purposes of Section 13(d) of the Exchange Act
(a "Group") (other than the Company, any Subsidiary, any employee
stock purchase plan, stock option plan or other stock incentive plan
or program, retirement plan or automatic dividend reinvestment plan or
any substantially similar plan of the Company or any Subsidiary or any
Person holding securities of the Company for or pursuant to the terms
of any such employee benefit plan, which may file or become obligated
to file a report under or in response to Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report) under the Exchange
Act), together with any Affiliates thereof, shall acquire beneficial
ownership (as defined in Rule 13d-3 of the Exchange Act) of at least
50% of the total voting power of all classes of capital stock of the
Company entitled to vote generally in the election of directors of the
Company.
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(b) A Change in Control as described in Section 1206(a) shall
constitute a "Repurchase Event" giving rise to a repurchase right on the part
of each Holder of a Security unless:
(1) the Current Market Price of the Common Stock on the date the
Change in Control shall have occurred is at least equal to 105% of the
conversion price in effect immediately preceding the time of such
Change in Control, or
(2) all of the consideration (excluding cash payments for
fractional shares) in the transaction giving rise to such Change in
Control to the holders of Common Stock consists of shares of common
stock that are, or immediately upon issuance will be, listed on a
national securities exchange or quoted in the NASDAQ National Market
System, and as a result of such transaction the Securities become
convertible solely into such shares of common stock, or
(3) the consideration in the transaction giving rise to such
Change in Control to the holders of Common Stock consists of cash,
securities that are, or immediately upon issuance will be, listed on a
national securities exchange or quoted in the NASDAQ National Market
System, or a combination of cash and such securities and the aggregate
fair market value of such consideration (which, in the case of each
such security, shall be equal to the average of the daily Closing
Prices of each such security during the 10 consecutive Trading Days
commencing with the sixth Trading Day following consummation of such
transaction) to be received by a holder of Common Stock with respect
to one share of Common Stock is at least 105% of the conversion price
in effect on the date immediately preceding the closing date of such
transaction.
For purposes of this definition, "Current Market Price" on any date
means the average daily Closing Prices for the 5 consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the date in question.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Right of Conversion.
The Holder of any Security or Securities shall have the right at any
time prior to maturity, at his option, to convert, subject to the terms and
provisions of this Article
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Thirteen, the principal of any such Security or Securities (or any portion of
the principal thereof which is $1,000 or an integral multiple of $1,000) into
fully paid and nonassessable shares of Common Stock of the Company at the
conversion price of $22.188 of principal amount of Securities per share of
Common Stock or, in case an adjustment therein has taken place pursuant to the
provisions of Section 1304, then at the price as so adjusted (except that with
respect to any Security or Securities, or any such portion, which shall be
called for redemption, such right shall terminate, except as provided in the
last paragraph of Section 1302, at the close of business on the Business Day
immediately preceding the Redemption Date for such Security or Securities or
portion unless the Company shall default in payment due upon redemption
thereof). Such right shall be exercised by the surrender of the Security or
Securities, the principal of which is so to be converted, to the Company at any
time during usual business hours at any office or agency to be maintained by it
in accordance with the provisions of Section 1002, accompanied by written
notice that the Holder elects to convert such Security or Securities or any
portion thereof and specifying the name or names (with address) in which a
certificate or certificates for Common Stock are to be issued and (if so
required by the Company or the Trustee) by a written instrument or instruments
of transfer in form satisfactory to the Company and the Trustee, duly executed
by the Holder or his attorney, duly authorized in writing and transfer tax
stamps or funds therefor, if required pursuant to Section 1310. For
convenience, the conversion of all or a portion, as the case may be, of the
principal of any Security into the Common Stock of the Company is hereinafter
sometimes referred to as the conversion of such Security. All Securities
surrendered for conversion shall, if surrendered to the Company or any
conversion agent, be delivered to the Trustee for cancellation and cancelled by
it or, if surrendered to the Trustee, shall be cancelled by it; and, subject to
the next succeeding sentence, no Securities shall be issued in lieu thereof.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal
to the unconverted portion of the principal amount of such Security.
Section 1302. Issuance of Common Stock; Time of Conversion.
As promptly as practicable after the surrender, as herein provided,
of any Security or Securities for conversion, the Company shall deliver or
cause to be delivered at any office or agency to be maintained by it in
accordance with the provisions of Section 1002 to or upon the written order of
the Holder of the Security or Securities so surrendered a certificate or
certificates representing the number of fully paid and nonassessable shares of
Common Stock of the Company into which such Security or Securities (or portion
thereof) may be converted in accordance with the provisions of this Article
Thirteen. Subject to the following provisions of this paragraph and of Section
1304, such conversion shall be deemed to have been made immediately prior to
the close of business on the date that such Security or Securities shall have
been surrendered in satisfactory form for conversion, so that the rights of the
Holder as a Holder shall cease with respect to such Security or Securities (or
the portion thereof being converted) at such time, and the Person or Persons
entitled to
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receive the shares of Common Stock deliverable upon conversion of such Security
or Securities shall be treated for all purposes as having become the record
holder or holders of such shares of Common Stock at such time, and such
conversion shall be at the conversion price in effect at such time; provided,
however, that no such surrender 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 deliverable 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 immediately prior to the close of business on
the next succeeding day on which such stock transfer books are open, and such
conversion shall be deemed to have been made at, and shall be made at the
conversion rate in effect at, such time on such next succeeding day.
If the last day for the exercise of the conversion right shall not
be a Business Day, then such conversion right may be exercised on the next
succeeding Business Day.
Section 1303. No Adjustments in Respect of Interest or Dividends.
Securities surrendered for conversion during the period from the
close of business on any Regular Record Date to the opening of business on the
next succeeding Interest Payment Date shall (except in the case of Securities
or portions thereof which have been called for redemption) be accompanied by
payment in New York Clearing House funds or other funds acceptable to the
Company of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Securities being surrendered for conversion.
Upon a call for redemption by the Company, accrued and unpaid interest to the
Redemption Date shall be payable with respect to Securities converted after the
redemption notice has been mailed and prior to the Redemption Date. Except as
provided in this Section 1303 and subject to the last paragraph of Section 307,
no payment or adjustment shall be made upon any conversion on account of any
interest accrued on the Securities surrendered for conversion or on account of
any dividends on the shares of Common Stock issued upon conversion.
Section 1304. Adjustment of Conversion Price.
The conversion price, and consequently the number of shares of
Common Stock into which a Security is convertible, shall be subject to
adjustment from time to time as follows:
(a) In case the Company shall (i) pay a dividend on Common Stock or
make a distribution on its Common Stock that is paid or made (1) in shares
of any class of capital stock of the Company or (2) in rights to purchase
any stock or other securities if such rights are not separable from the
Common Stock except upon the occurrence of a contingency, (ii) subdivide
its outstanding shares of Common Stock
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into a greater number of shares or (iii) combine its outstanding shares of
Common Stock into a smaller number of shares, then in each such case the
conversion price in effect immediately prior thereto shall be adjusted
retroactively as provided below so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock and other shares and rights to purchase
stock or other securities (or, in the event of the redemption of any such
shares or rights, any cash, property or securities paid in respect of such
redemption) which such Holder would have owned or have been entitled to
receive after the happening of any of the events described above had such
Security been converted immediately prior to the happening of such event.
An adjustment made pursuant to this Subsection (a) 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 a subdivision or combination.
(b) In case the Company shall issue rights or warrants to all
holders of its Common Stock entitling them (for a period expiring within 45
days after the date fixed for determination mentioned below) to subscribe
for or purchase shares of Common Stock at a price per share less than the
current market price per share (determined as provided in paragraph (d) of
this Section) of the Common Stock on the date fixed for the determination
of stockholders entitled to receive such rights or warrants, then the
conversion price in effect at the opening of business on the day following
the date fixed for such determination shall be decreased by multiplying
such conversion price by a fraction of which the denominator shall be the
number of shares of Common Stock outstanding at the close of business on
the date fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, and the numerator shall be
the number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock which the aggregate of the offering price of the total number
of shares of Common Stock so offered for subscription or purchase would
purchase at such current market price, such reduction to become effective
immediately after the opening of business on the day following the date
fixed for such determination; provided, however, in the event that all the
shares of Common Stock offered for subscription or purchase are not
delivered upon the exercise of such rights or warrants, upon the expiration
of such rights or warrants the conversion price shall be readjusted to the
conversion price which would have been in effect had the numerator and the
denominator of the foregoing fraction and the resulting adjustment been
made based upon the number of shares of Common Stock actually delivered
upon the exercise of such rights or warrants rather than upon the number of
shares of Common Stock offered for subscription or purchase. For the
purposes of this paragraph (b), the number of shares of Common Stock at any
time outstanding shall not include shares held in the treasury of the
Company.
(c) In case the Company shall, by dividend or otherwise, distribute
to substantially all holders of its Common Stock evidences of its
indebtedness, cash
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(excluding quarterly cash dividends paid or to be paid on a regular basis),
other assets or rights or warrants to subscribe for or purchase any
securities (excluding those referred to in paragraphs (a) and (b) above),
then in each such case, the conversion price shall be adjusted
retroactively so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the close
of business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
denominator shall be the current market price per share (determined as
provided in paragraph (d) of this Section) of the Common Stock on the date
fixed for such determination and the numerator shall be such current market
price per share of the Common Stock less the amount of cash and the then
fair market value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board Resolution filed
with the Trustee) of the portion of the assets, rights, warrants or
evidences of indebtedness 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 the date fixed for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under paragraphs (b) and (c)
of this Section, the current market price per share of Common Stock on any
date shall be deemed to be the average of the daily closing prices for the
30 consecutive trading days commencing with the 45th trading day before the
day in question. The closing price for each day shall be the last reported
sales price regular way or, in case no such reported sale takes place on
such day, the average of the reported closing bid and asked prices regular
way, in either case on the composite tape of the principal national
securities exchange upon which the Common Stock is listed or on the NASDAQ
National Market System (based on the aggregate dollar value of all
securities listed or admitted to trading) or, if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted
on the NASDAQ National Market System, the average of the closing bid and
asked prices in the over-the-counter market as furnished by any New York
Stock Exchange member firm selected from time to time by the Company for
that purpose, or, if such prices are not available, the fair market value
set by, or in a manner established by, the Board of Directors of the
Company in good faith. "Trading day" shall mean a day on which the
national securities exchange or the NASDAQ National Market System used to
determine the closing price is open for the transaction of business or the
reporting of trades or, if the closing price is not so determined, a day on
which the New York Stock Exchange is open for the transaction of business.
(e) No adjustment in the conversion price shall be required unless
such adjustment would require an increase or decrease of at least 1% in
such price; provided, however, that the Company may make any such
adjustment at its election; and provided, further, that any adjustments
which by reason of this paragraph (e) are not required to be made shall be
carried forward and taken into account in any subsequent adjustment. All
calculations under this Article Thirteen shall be made to the nearest cent
or
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to the nearest one-hundredth of a share, as the case may be.
(f) Whenever the conversion price is adjusted as provided in any
provision of this Article Thirteen:
(i) the Company shall compute the adjusted conversion price in
accordance with paragraph (d) and shall prepare a certificate signed
by the principal financial officer of the Company setting forth the
adjusted conversion price and showing in reasonable detail the facts
and calculations upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee and at each
office or agency maintained for the purpose of conversion of
Securities; and
(ii) a notice stating that the conversion price has been
adjusted and setting forth the adjusted conversion price shall
forthwith be required, and as soon as practicable after it is
required, such notice shall be mailed by the Company to all Holders at
their last addresses as they shall appear in the Security Register.
(g) In the event that at any time, as a result of any adjustment made
pursuant to this Article Thirteen, the Holder of any Security thereafter
surrendered for conversion shall become entitled to receive any shares of
the Company other than shares of Common Stock or to receive any other
securities, the number of such other shares or securities so receivable
upon conversion of any Security shall be subject to adjustment from time to
time in a manner and on terms as nearly equivalent as practicable to the
provisions contained in this Article Thirteen with respect to the Common
Stock.
(h) The Company from time to time may, by Board Resolution delivered
to the Trustee, decrease the conversion price by any amount for any period
of time if the period is at least 20 days and if the decrease is
irrevocable during the period. Whenever the conversion price is so
decreased, the Company shall mail to the Holders a notice of the decrease
at least 15 days before the date the decreased conversion price takes
effect, and such notice shall state the decreased conversion price and the
period it will be in effect.
(i) The Company may make such decreases in the conversion price, in
addition to those required or allowed by this Article Thirteen, as shall be
determined by it, as evidenced by a Board Resolution delivered to the
Trustee, to be advisable in order to avoid or diminish any income tax to
holders of Common Stock resulting from any dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock
or from any event treated as such for income tax purposes.
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(j) In any case in which this Section 1304 provides that an
adjustment shall become effective immediately after a record date for an
event, the Company may defer until the occurrence of such event (i) issuing
to the holder of any Security converted after such record date and before
the occurrence of such event the additional shares of Common Stock issuable
upon such conversion by reason of the adjustment required by such event
over and above the Common Stock issuable upon such conversion before giving
effect to such adjustment and (ii) paying to such holder any amount in cash
in lieu of any fraction pursuant to Section 1305.
Section 1305. No Fractional Shares.
No fractional shares or scrip representing fractional shares of
Common Stock shall be issued upon conversion of Securities. If more than one
Security shall be surrendered for conversion at one time by the same Holder,
the number of full shares issuable upon conversion thereof shall be computed on
the basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall pay a cash
adjustment in respect of such fraction in an amount equal to the same fraction
of the closing price per share of Common Stock as quoted on the composite tape
of the principal national securities exchange upon which the Common Stock is
listed or the NASDAQ National Market System or, in case no such reported sale
takes place on such day, the average of the reported closing bid and asked
prices regular way, in either case on the NASDAQ National Market System or, if
the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on the NASDAQ National Market System, the average
of the closing bid and asked prices in the over-the-counter market as furnished
by any New York Stock Exchange member firm selected from time to time by the
Company for that purpose, or, if such prices are not available, the fair market
value set by, or in a manner established by, the Board of Directors of the
Company in good faith, all of the above to be determined as of the close of
business on the day of conversion.
Section 1306. Reclassification, Consolidation, Merger or Sale of Assets.
In case of any reclassification of the Common Stock, any
consolidation of the Company with, or merger of the Company into, any other
Person, any merger of another Person into the Company (other than a merger
which does not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the Company), any sale or
other disposition of the assets of the Company substantially as an entirety or
any compulsory share exchange pursuant to which share exchange the Common Stock
is converted into other securities, cash or other property, then the Holder of
each Security then outstanding shall have the right thereafter, during the
period such Security shall be convertible, pursuant to Section 1301, to convert
such Security only into the kind and amount of securities, cash and other
property receivable upon such reclassification, consolidation, merger, sale,
other disposition or share exchange by a holder of the number
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of shares of Common Stock of the Company into which such Security might have
been converted immediately prior to such reclassification, consolidation,
merger, sale, other disposition or share exchange assuming such holder of
Common Stock (i) is not a Person with which the Company consolidated or into
which the Company merged or which merged into the Company, to which such sale
or other disposition was made or a party to such share exchange, as the case
may be ("constituent Person"), or an Affiliate of a constituent Person and (ii)
failed to exercise his rights of election, if any, as to the kind or amount of
securities, cash and other property receivable upon such reclassification,
consolidation, merger, sale, other disposition or share exchange (provided
that if the kind or amount of securities, cash and other property receivable
upon such reclassification, consolidation, merger, sale, other disposition or
share exchange is not the same for each share of Common Stock held immediately
prior to such reclassification, consolidation, merger, sale, other disposition
or share exchange by others than a constituent Person or an Affiliate thereof
and in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purpose of this Article the kind and
amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, other disposition or share
exchange by each non-electing share shall be deemed to be the kind and amount
so receivable per share by a plurality of the non-electing shares). The
Company or the Person formed by such consolidation or resulting from such
merger or which acquires such assets or which acquires the Company's shares, as
the case may be, shall execute and deliver to the Trustee a supplemental
indenture to establish such right. Such supplemental indenture shall provide
for adjustments which, for events subsequent to the effective date of such
supplemental indenture, shall be as nearly equivalent as may be practicable to
the adjustments provided for in this Article. The above provisions of this
Section shall similarly apply to successive reclassifications, consolidations,
mergers, sales, other dispositions or share exchanges.
Notice of the execution of such a supplemental indenture shall be
given by the Company to each Holder by mailing such notice to his last address
appearing on the Security Register.
Neither the Trustee nor any conversion agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or securities or cash or property receivable by Holders of Securities
upon the conversion of their Securities after any such reclassification,
change, consolidation, merger, sale or other disposition or to any such
adjustment, but, subject to the provisions of Section 601, may accept as
conclusive evidence of the correctness of any such provisions, and shall be
protected in relying upon, an Opinion of Counsel with respect thereto, which
the Company shall cause to be furnished to the Trustee upon request.
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Section 1307. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock other than (1) a dividend payable in
shares of Common Stock or (2) a quarterly cash dividend paid or to be paid
on a regular basis or (ii) declare or authorize a redemption or repurchase
of in excess of 10% of the then outstanding shares of Common Stock; or
(b) the Company shall authorize the granting to the holders of its
Common Stock of rights or warrants to subscribe for or purchase any shares
of stock of any class or of any other rights or warrants; or
(c) 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 or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or other disposition of the assets of the Company
substantially as an entirety or of any compulsory share exchange whereby
the Common Stock is converted into other securities, cash or other
property; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed to
each Holder of Securities at his last address appearing on the Security
Register, as promptly as possible but in any event at least 15 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
granting of rights or warrants or, if a record is not to be taken, the date as
of which the holders of Common Stock of record to be entitled to such dividend,
distribution, rights or warrants are to be determined, or (y) the date on which
such reclassification, consolidation, merger, sale, other disposition, share
exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities or other property deliverable upon such reclassification,
consolidation, merger, sale, other disposition, share exchange, dissolution,
liquidation or winding up.
Section 1308. Shares to be Reserved; Accounting Treatment of Consideration.
The Company covenants that it will at all times reserve and keep
available out of its authorized but unissued Common Stock, free from preemptive
rights solely for the
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purpose of issue upon conversion of Securities as herein provided, such number
of shares of Common Stock as shall then be issuable upon the conversion of all
outstanding Securities. The Company covenants that all shares of Common Stock
which shall be so issuable shall, when issued, be duly and validly issued and
fully paid and nonassessable.
The Company covenants that, upon conversion of Securities as herein
provided, there will be credited to the Common Stock capital account from the
consideration for which the shares of Common Stock issuable upon such
conversion are issued an amount per share of Common Stock so issued as
determined by the Board of Directors, which amount shall not be less than the
amount required by law and by the Company's certificate of incorporation, as
amended, as in effect on the date of such conversion. For the purposes of this
covenant the principal amount of the Securities converted, less any cash paid
in respect of fractional share interests upon such conversion, shall be deemed
to be the amount of consideration for which the shares of Common Stock issuable
upon such conversion are issued.
Section 1309. Registration and Listing of Shares.
The Company covenants that if any shares of Common Stock required to
be reserved for purposes of conversion of Securities hereunder require
registration with or approval of any governmental authority under any federal
or state law before such shares may be issued upon conversion, the Company will
in good faith and as expeditiously as possible endeavor to cause such shares to
be duly registered or approved, as the case may be. The Company further
covenants that so long as the Common Stock of the Company is listed on any
national securities exchange or on the NASDAQ National Market System, the
Company will, if permitted by the rules thereof, list and keep listed thereon,
upon official notice of issuance, all shares of Common Stock issuable upon
conversion of Securities.
Section 1310. Taxes and Charges.
The issuance of certificates for shares of Common Stock upon the
conversion of Securities shall be made without charge to the converting Holder
of Securities for such certificates or for any tax in respect of the issuance
of such certificates or the securities represented thereby, and such
certificates shall be issued in the respective names of, or in such names as
may be directed by, the Holders of the Securities converted; provided, however,
that the Company shall not be required to pay any tax which may be payable in
respect of any transfer involved in the issuance and delivery of any such
certificate in a name other than that of the Holder of the Security converted,
and the Company shall not be required to issue or deliver such certificates
unless or until the Person or Persons requesting the issuance thereof shall
have paid to the Company the amount of such tax or shall have established to
the satisfaction of the Company that such tax has been paid.
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Section 1311. Trustee and Conversion Agents Not Liable.
Neither the Trustee nor any conversion agent shall at any time be
under any duty or responsibility to any Holder of Securities to determine
whether any facts exist which may require any adjustment of the conversion
rate, or with respect to the nature or extent of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same. Neither the Trustee nor
any conversion agent shall be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock or of any securities or
cash or other property which may at any time be issued or delivered upon the
conversion of any Security, or makes any representation with respect thereto.
Neither the Trustee nor any conversion agent shall be responsible for any
failure of the Company to make any cash payment or to issue, transfer or
deliver any shares of Common Stock or stock certificates or other securities or
property upon the surrender of any Security for the purpose of conversion, or,
subject to Section 601, with any of the covenants of the Company contained in
this Article Thirteen.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a Security by
his acceptance thereof likewise covenants and agrees that, to the extent and in
the manner hereinafter set forth in this Article, the indebtedness represented
by the Securities and the payment of the principal of (and premium, if any) and
interest on each and all of the Securities are hereby expressly made
subordinate and subject in right of payment to the prior payment in full of all
Senior Indebtedness.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company in the event of (a)
any insolvency or bankruptcy case or proceeding, or any receivership,
liquidation, reorganization or other similar case or proceeding in connection
therewith, relative to the Company or to its creditors, as such, or to its
assets, or (b) any liquidation, dissolution or other winding up of the Company,
whether voluntary or involuntary and whether or not involving insolvency or
bankruptcy, or (c) any assignment for the benefit of creditors or any other
marshalling of assets and liabilities of the Company, then and in any such
event the holders of Senior Indebtedness shall be entitled to receive payment
in full of all amounts due or to become due on or in respect of all Senior
Indebtedness, or provision shall be made for such payment in money or money's
worth, before the Holders of the Securities are entitled to receive any payment
on account of principal of (or premium, if any) or interest on the Securities,
and
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to that end the holders of Senior Indebtedness shall be entitled to receive,
for application to the payment thereof, any payment or distribution of any
kind or character, whether in cash, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of the
payment of any other indebtedness of the Company being subordinated to the
payment of the Securities, which may be payable or deliverable in respect of
the Securities in any such case, proceeding, dissolution, liquidation or other
winding up or event. In furtherance of the foregoing, but not by way of
limitation thereof, in the event of any case or proceeding described in clause
(a) above with the result that the Company is excused from the obligation to
pay all or any part of the interest otherwise payable in respect of any Senior
Indebtedness during the period subsequent to the commencement of any such case
or proceeding, all or such part, as the case may be, of such interest shall be
payable out of, and to that extent shall diminish and be at the expense of,
reorganization dividends or other distributions in respect of the Notes.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, property or securities, including any such payment or
distribution which may be payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities, before all Senior Indebtedness is paid in full or payment thereof
provided for, and if such fact shall then have been made known to the Trustee,
or, as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Indebtedness remaining unpaid, to the extent
necessary to pay all Senior Indebtedness in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior
Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment the
payment of which is subordinated at least to the extent provided in this
Article with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however, that (i)
such Senior Indebtedness is assumed by the new corporation, if any, resulting
from any such reorganization or readjustment, and (ii) the rights of the
holders of the Senior Indebtedness are not, without the consent of such
holders, altered by such reorganization or readjustment. The consolidation of
the Company with, or the merger of the Company into, another Person or the
liquidation or dissolution of the Company following the conveyance or other
disposition of its properties and assets substantially as an entirety to
another Person upon the terms and conditions set forth in Article Eight shall
not be deemed a dissolution, winding up, liquidation, reorganization,
assignment for the benefit of creditors or marshalling of assets and
liabilities of the Company for the purposes of this Section if the Person
formed by such consolidation or into which the Company is merged or the Person
which acquires by conveyance or other
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disposition such properties and assets substantially as an entirety, as the
case may be, shall, as a part of such consolidation, merger, conveyance or
other disposition, comply with the conditions set forth in Article Eight.
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior
Indebtedness outstanding at the time such Securities so become due and payable
shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all such Senior Indebtedness, or provision shall be
made for such payment in money or money's worth, before the Holders of the
Securities are entitled to receive any payment (including any payment which may
be payable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) by the Company on account
of the principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Securities prohibited by
the foregoing provisions of this Section, and if such facts shall then have
been made known to the Trustee or, as the case may be, such Holder, then and in
such event such payment shall be paid over and delivered forthwith to the
Company for the benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any default in the
payment of principal (or premium, if any) or interest on any Senior
Indebtedness, or in the payment of any commitment or other fees in respect
thereof, or in the event that any event of default with respect to any Senior
Indebtedness shall have occurred and be continuing permitting the holders of
such Senior Indebtedness (or a trustee on behalf of the holders thereof) to
declare such Senior Indebtedness due and payable prior to the date on which it
would otherwise have become due and payable, unless and until such event of
default shall have been cured or waived or shall have ceased to exist and such
acceleration shall have been rescinded or annulled, or (b) in the event any
judicial proceeding shall be pending with respect to any such default in
payment or event of default; then no payment (including any payment which may
be payable by reason of the payment of any other indebtedness of the Company
being subordinated to the payment of the Securities) shall be made by the
Company on account of principal of (or premium, if any) or interest on the
Securities or on account of the purchase or other acquisition of Securities.
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In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Security prohibited by the
foregoing provisions of this Section, and if such fact shall then have been
made known to the Trustee or, as the case may be, such Holder, then and in such
event such payment shall be paid over and delivered forthwith to the Company
for the benefit of the holders of Senior Indebtedness.
The provisions of this Section shall not apply to any payment with
respect to which Section 1402 would be applicable.
Section 1405. Acknowledgment of Reliance.
Each Holder of Notes by his acceptance thereof acknowledges and
agrees that the subordination provisions included herein are, and are intended
to be, an inducement and a consideration to each holder of any Senior
Indebtedness, whether such Senior Indebtedness was created or acquired before
or after the issuance of Notes, to acquire and/or continue to hold such Senior
Indebtedness, and such holder of Senior Indebtedness shall be deemed
conclusively to have relied on such subordination provisions in acquiring
and/or continuing to hold such Senior Indebtedness.
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Indebtedness pursuant to the
provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders of
the Senior Indebtedness of any cash, property or securities to which the
Holders of the Securities or the Trustee would be entitled except for the
provisions of this Article, and no payments over pursuant to the provisions of
this Article to the Company or to the holders of Senior Indebtedness by Holders
of the Securities or the Trustee shall, as between the Company, its creditors
other than holders of Senior Indebtedness and the Holders of the Securities, be
deemed to be a payment or distribution by the Company to or on account of the
Securities.
Section 1407. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of the Securities, on
the one hand, and the holders of Senior Indebtedness, on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, and which, subject to the rights under
this Article of the holders of Senior Indebtedness, is intended to rank equally
with all other general
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obligations of the Company, to pay to the Holders of the Securities the
principal of (and premium, if any) and interest on the Securities as and when
the same shall become due and payable in accordance with their terms, or (b)
affect the relative rights against the Company of the Holders of the Securities
and creditors of the Company other than the holders of Senior Indebtedness, or
(c) prevent the Trustee or the Holder of any Security from exercising all
remedies otherwise permitted by applicable law upon default under this
Indenture, subject to the rights, if any, under this Article of the holders of
Senior Indebtedness to receive cash, property or securities otherwise payable
or deliverable to the Trustee or such Holder.
Section 1408. Trustee to Effectuate Subordination.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Indebtedness
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act in good faith by any such holder, or by any
noncompliance by the Company with the terms, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Indebtedness, do any one or more of the following: (i) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness, or otherwise amend or supplement in any manner
Senior Indebtedness or any instrument evidencing the same or any agreement
under which Senior Indebtedness is outstanding; (ii) sell, exchange, release or
otherwise deal with any property pledged, mortgaged or otherwise securing
Senior Indebtedness; (iii) release any Person liable in any manner for the
collection of Senior Indebtedness; and (iv) exercise or refrain from exercising
any rights against the Company and any other Person.
Section 1410. Notice to Trustee.
The Company shall give prompt written notice to the Trustee of any
fact known to the Company which would prohibit the making of any payment to or
by the Trustee in respect of the Securities. Failure to give such notice shall
not affect the subordination of the Securities to Senior Indebtedness.
Notwithstanding the provisions of this Article or any other provision of this
Indenture, the Trustee shall not be charged with knowledge of the existence of
any facts which would prohibit the making of any payment to or by the
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Trustee in respect of the Securities, unless and until a Responsible Officer of
the Trustee shall have received written notice thereof from the Company or a
holder of Senior Indebtedness or from any trustee therefor; and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 601, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received, at least
three Business Days prior to the date upon which by the terms hereof any such
money may become payable for any purpose (including without limitation, the
payment of the principal of, and premium, if any, or interest on any Security),
the notice with respect to such money provided for in this Section, then,
anything herein contained to the contrary notwithstanding, the Trustee shall
have full power and authority to receive such money and to apply the same to
the purpose for which such money was received and shall not be affected by any
notice to the contrary which may be received by it within three Business Days
prior to such date.
Subject to the provisions of Section 601, the Trustee shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a holder
of Senior Indebtedness (or a trustee on behalf of any such holder). In the
event that the Trustee determines in good faith that further evidence is
required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
Section 1411. Reliance on Judicial Order or Certificate of Liquidating
Agent.
Upon any payment or distribution of assets of the Company referred
to in this Article, the Trustee, subject to the provisions of Section 601, and
the Holders of the Securities shall be entitled to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, liquidating trustee, custodian, receiver, assignee for the benefit
of creditors, agent or other Person making such payment or distribution,
delivered to the Trustee or to the Holders of Securities, for the purpose of
ascertaining the Persons entitled to participate in such payment or
distribution, the holders of Senior Indebtedness and other indebtedness of the
Company, the amount thereof or payable
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thereon, the amount or amounts paid or distributed thereon and all other
facts pursuant thereto or to this Article.
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness and shall not be liable to any such holders if
it shall in good faith mistakenly pay over or distribute to Holders of
Securities or to the Company or to any other Person cash, property or
securities to which any holders of Senior Indebtedness shall be entitled by
virtue of this Article or otherwise.
Section 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior
Indebtedness which may at any time be held by it, to the same extent as any
other holder of Senior Indebtedness, and nothing in this Indenture shall
deprive the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to,
the Trustee or any predecessor Trustee under or pursuant to Section 607.
Section 1414. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee shall
have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 1413 shall not apply to the Company or
any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
Section 1415. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and delivery
of junior securities upon conversion of Securities in accordance with Article
Thirteen shall not be deemed to constitute a payment or distribution on account
of the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of
the principal of such Security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the Company
and (b) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the
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same extent as, or to a greater extent than, the Securities are so subordinated
as provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among
the Company, its creditors, other than holders of Senior Indebtedness and the
Holders of the Securities, the right, which is absolute and unconditional, of
the Holder of any Security to convert such Security in accordance with Article
Thirteen.
* * * *
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.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed, all as of the day and year first above written.
POGO PRODUCING COMPANY
By /s/ D. STEPHEN SLACK
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By /s/ P. DE LA CANAL
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