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EXECUTION COPY
Exhibit 10.10A
WILLIAMS-SONOMA, INC.
ISSUER
AND
BANKERS TRUST COMPANY
TRUSTEE
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INDENTURE
Dated as of April 15, 1996
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U.S. $40,000,000
5 1/4% CONVERTIBLE SUBORDINATED NOTES
DUE APRIL 15, 2003
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TABLE OF CONTENTS
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RECITALS ......................................................................... 1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.............................................................. 1
SECTION 1.2 Compliance Certificates and Opinions;
Form of Documents Delivered to Trustee................................... 9
SECTION 1.3 Acts of Holders of Securities............................................ 10
SECTION 1.4 Notices, Etc............................................................. 12
SECTION 1.5 Notice to Holders of Securities; Waiver.................................. 13
SECTION 1.6 Effect of Headings and Table of Contents................................. 13
SECTION 1.7 Successors and Assigns................................................... 13
SECTION 1.8 Separability Clause...................................................... 13
SECTION 1.9 Benefits of Indenture.................................................... 13
SECTION 1.10 Governing Law............................................................ 14
SECTION 1.11 Legal Holidays........................................................... 14
SECTION 1.12 Conflict with Trust Indenture Act........................................ 14
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.......................................................... 14
SECTION 2.2 Form of Face of Security................................................. 16
SECTION 2.3 Form of Reverse of Security.............................................. 20
SECTION 2.4 Form of Trustee's Certificate of Authentication.......................... 26
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms.......................................................... 26
SECTION 3.2 Denominations............................................................ 27
SECTION 3.3 Execution, Authentication, Delivery and Dating........................... 27
SECTION 3.4 Temporary Securities..................................................... 28
SECTION 3.5 Registration, Registration of Transfer
and Exchange; Restrictions on Transfer................................... 28
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities.......................... 33
SECTION 3.7 Payment of Interest, Interest Rights Preserved........................... 33
SECTION 3.8 Persons Deemed Owners.................................................... 35
SECTION 3.9 Cancellation............................................................. 35
SECTION 3.10 Computation of Interest.................................................. 35
SECTION 3.11 CUSIP Numbers............................................................ 35
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.................................. 36
SECTION 4.2 Application of Trust Money............................................... 37
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default........................................................ 37
SECTION 5.2 Acceleration of Maturity; Rescission
and Annulment............................................................ 38
SECTION 5.3 Collection of Indebtedness and Suits
for Enforcement by Trustee............................................... 39
SECTION 5.4 Trustee May File Proofs of Claim......................................... 40
SECTION 5.5 Trustee May Enforce Claims Without
Possession of Securities................................................. 41
SECTION 5.6 Application of Money Collected........................................... 41
SECTION 5.7 Limitation on Suits...................................................... 41
SECTION 5.8 Unconditional Right of Holders to Receive
Principal and Interest and to Convert.................................... 42
SECTION 5.9 Restoration of Rights and Remedies....................................... 42
SECTION 5.10 Rights and Remedies Cumulative........................................... 43
SECTION 5.11 Delay or Omission Not Waiver............................................. 43
SECTION 5.12 Control by Holders of Securities......................................... 43
SECTION 5.13 Waiver of Past Defaults.................................................. 43
SECTION 5.14 Undertaking for Costs.................................................... 44
SECTION 5.15 Waiver of Stay or Extension Laws......................................... 44
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities...................................... 44
SECTION 6.2 Notice of Defaults....................................................... 45
SECTION 6.3 Certain Rights of Trustee................................................ 46
SECTION 6.4 Not Responsible for Recitals or
Issuance of Securities................................................... 47
SECTION 6.5 May Hold Securities, Act as Trustee Under
Other Indentures......................................................... 47
SECTION 6.6 Money Held in Trust...................................................... 47
SECTION 6.7 Compensation and Indemnification of
Trustee and Its Prior Claims............................................. 47
SECTION 6.8 Corporate Trustee Required; Eligibility.................................. 48
SECTION 6.9 Resignation and Removal; Appointment of Successor........................ 48
SECTION 6.10 Acceptance of Appointment by Successor................................... 49
SECTION 6.11 Appointment of Co-Trustee or Separate Trustee............................ 50
SECTION 6.12 Merger, Conversion, Consolidation or Succession to
Business................................................................. 51
SECTION 6.13 Authenticating Agent..................................................... 51
SECTION 6.14 Disqualification; Conflicting Interests.................................. 52
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and
Addresses of Holders..................................................... 52
SECTION 7.2 Preservation of Information; Communications
to Holders............................................................... 53
SECTION 7.3 Reports by the Company................................................... 53
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on
Certain Terms............................................................ 53
SECTION 8.2 Successor Substituted.................................................... 54
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent
of Holders of Securities................................................. 54
SECTION 9.2 Supplemental Indentures with Consent of
Holders of Securities.................................................... 55
SECTION 9.3 Trustee Protected........................................................ 56
SECTION 9.4 Execution of Supplemental Indentures..................................... 56
SECTION 9.5 Effect of Supplemental Indentures........................................ 57
SECTION 9.6 Reference in Securities to Supplemental Indentures....................... 57
SECTION 9.7 Notice of Supplemental Indentures........................................ 57
ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
SECTION 10.1 Purposes for Which Meetings May Be Called................................ 57
SECTION 10.2 Call, Notice and Place of Meetings....................................... 57
SECTION 10.3 Persons Entitled to Vote at Meetings..................................... 58
SECTION 10.4 Quorum; Action........................................................... 58
SECTION 10.5 Determination of Voting Rights; Conduct
and Adjournment of Meetings.............................................. 59
SECTION 10.6 Counting Votes and Recording Action of Meetings.......................... 59
ARTICLE XI
COVENANTS
SECTION 11.1 Payment of Principal and Interest........................................ 60
SECTION 11.2 Maintenance of Offices or Agencies....................................... 60
SECTION 11.3 Money for Security Payments To Be Held in Trust.......................... 61
SECTION 11.4 Corporate Existence...................................................... 62
SECTION 11.5 Maintenance of Properties................................................ 62
SECTION 11.6 Compliance with Laws..................................................... 62
SECTION 11.7 Payment of Taxes and Other Claims........................................ 63
SECTION 11.8 Delivery of Certain Information.......................................... 63
SECTION 11.9 Statement by Officers as to Default...................................... 63
SECTION 11.10 Resale of Certain Securities............................................. 64
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 11.11 Waiver of Certain Covenants.............................................. 64
SECTION 11.12 Registration Rights...................................................... 64
SECTION 11.13 Book-Entry System........................................................ 65
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.1 Right of Redemption...................................................... 65
SECTION 12.2 Applicability of Article................................................. 65
SECTION 12.3 Election to Redeem; Notice to Trustee.................................... 66
SECTION 12.4 Notice of Redemption..................................................... 66
SECTION 12.5 Deposit of Redemption Price.............................................. 66
SECTION 12.6 Securities Payable on Redemption Date.................................... 67
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1 Conversion Privilege and Conversion Rate................................. 67
SECTION 13.2 Exercise of Conversion Privilege......................................... 68
SECTION 13.3 Fractions of Common Shares............................................... 69
SECTION 13.4 Adjustment of Conversion Rate............................................ 69
SECTION 13.5 Notice of Adjustments of Conversion Rate................................. 73
SECTION 13.6 Notice of Certain Corporate Action....................................... 73
SECTION 13.7 Company to Reserve Common Shares......................................... 74
SECTION 13.8 Taxes on Conversions..................................................... 74
SECTION 13.9 Covenant as to Common Shares............................................. 75
SECTION 13.10 Cancellation of Converted Securities..................................... 75
SECTION 13.11 Provision in Case of Consolidation,
Merger or Conveyance of Assets........................................... 75
SECTION 13.12 Responsibility of Trustee for Conversion Provisions...................... 76
ARTICLE XIV
SUBORDINATION
SECTION 14.1 Securities Subordinate to Senior Debt.................................... 76
SECTION 14.2 Payment Over of Proceeds Upon Dissolution, Etc........................... 76
SECTION 14.3 No Payment When Senior Debt in Default................................... 78
SECTION 14.4 Payment Permitted If No Default.......................................... 78
SECTION 14.5 Subrogation to Rights of Holders of Senior Debt.......................... 78
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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SECTION 14.6 Provisions Solely to Define Relative Rights.............................. 79
SECTION 14.7 Trustee to Effectuate Subordination...................................... 79
SECTION 14.8 No Waiver of Subordination Provisions.................................... 79
SECTION 14.9 Notice to Trustee........................................................ 80
SECTION 14.10 Reliance on Judicial Order or Certificate
of Liquidating Agent..................................................... 80
SECTION 14.11 Trustee Not Fiduciary for Holders of Senior Debt......................... 81
SECTION 14.12 Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights......................................... 81
SECTION 14.13 Article Applicable to Paying Agents...................................... 81
SECTION 14.14 Subsidiaries............................................................. 81
SECTION 14.15 Rescission............................................................... 81
SECTION 14.16 Payment.................................................................. 81
ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 15.1 Right to Require Repurchase.............................................. 82
SECTION 15.2 Notices; Method of Exercising Repurchase Right, Etc...................... 82
SECTION 15.3 Certain Definitions...................................................... 85
Note: This table of contents shall not, for any purpose, be deemed to be a
part of the Indenture.
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INDENTURE, dated as of April 15, 1996, between WILLIAMS-SONOMA, INC., a
California corporation (herein called the "Company"), and BANKERS TRUST COMPANY,
a New York banking corporation, as Trustee hereunder (herein called the
"Trustee").
RECITALS
The Company has duly authorized the creation of an issue of its 5 1/4%
Convertible Subordinated Notes due April 15, 2003 (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 I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 Definitions.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) Unless the context otherwise requires, any reference to an
"Article" or a "Section," or to an "Annex," refers to an Article or
Section of, or an Annex attached to, this Indenture, as the case may
be;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States prevailing at the time of
any relevant computation hereunder; and
(4) 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; provided, however
that where such words are used in any form of Security, form of notice
or form of certificate, such words shall refer only to the
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particular form of Security, form of notice or form of certificate, as
the case may be, in which such words are contained.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 1.3.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 3.5.
"Applicable Procedures" has the meaning specified in Section 3.5.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.13 to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper, in an official language of
the country of publication or in the English language, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors," when used with reference to the Company, means
the board of directors of the Company, or any committee of the board of
directors of the Company, empowered to act for the Company, as the case may be,
with respect to this Indenture.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
"Business Day" means, with respect to any particular place of payment,
place of conversion or any other place, as the case may be, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any such day on which
banking institutions in The City of New York, New York or in such particular
place are authorized or obligated by law or executive order to close. If any day
on which any delivery, request, surrender, payment or other action is required
or permitted hereunder to be taken by or on behalf of a Holder is not a Business
Day in any place where such action is permitted hereunder to be taken, then such
actions may be taken at such or any other permitted place on the next succeeding
Business Day at such place with the same force and effect as if taken at the
same time on such day that is not a business day at such place.
"CEDEL" means Cedel Bank Societe Anonyme.
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"Change in Control" has the meaning specified in Section 15.3.
"Closing Price Per Share" means, with respect to the Common Shares of
the Company, for any day, the reported last sales price regular way per share on
such day 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 (i) on
the principal (as determined by the Company's Board of Directors) national
securities exchange on which the Common Shares are listed or admitted to trading
or (ii) if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or (iii) if the Common Shares are not
listed or admitted to trading on any national securities exchange or quoted on
such National Market, 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.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Commission" means the U.S. 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 applicable law, then
the body performing such duties at such time.
"Common Shares" includes any stock of any class of the Company which
has no preference in respect of dividends or of amounts payable in the event of
any voluntary or involuntary liquidation, dissolution or winding up of the
Company and which is not subject to redemption by the Company. However, subject
to the provisions of Section 13.12, shares issuable on conversion of Securities
shall include only shares of the class designated as Common Shares of the
Company at the date of this instrument or shares of any class or classes
resulting from any reclassification or reclassifications thereof and which have
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which are not subject to redemption by the Company; provided, however, that
if at any time there shall be more than one such resulting class, the shares of
each such class then so issuable shall be substantially in the proportion which
the total number of shares of such class resulting from all such
reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor corporation shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor corporation.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any one of its Chairman of the Board, its
Chief Executive Officer, its President, or any Vice President, and by any one of
its Chief Financial Officer, Treasurer, any Assistant Treasurer, its Secretary
or any Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 13.11.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article XIII.
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"Conversion Price" and "Conversion Rate" have the meanings specified in
Section 13.1 hereof, as adjusted in accordance with Section 13.4.
"Conversion Securities" means the securities delivered on conversion of
Securities (or any securities successor thereto), together with any securities
successor thereto to those so delivered on conversions.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered (which at the date of this Indenture is located at 4 Albany Street,
New York, New York 10006), Attention: Corporate Market Services.
"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depository" means, with respect to the Securities issued in whole or
in part in the form of one or more Global Securities, the clearing agency
registered under the Exchange Act, specified for that purpose as contemplated by
Section 2.1 or any successor clearing agency registered under the Exchange Act
as contemplated by Section 2.1.
"Dollar" or "U.S.$" means a dollar or other equivalent unit in such
coin or currency of the United States as at the time shall be legal tender for
the payment of public and private debts.
"DTC" means The Depository Trust Company.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including any successor or amendatory statutes.
"Euroclear" means the Euroclear System.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934
(including any successor act thereto), as it may be amended from time to time,
and (unless the context otherwise requires) includes the rules and regulations
of the Commission promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.3(g).
"Global Security" means any of the Restricted Global Security and the
Regulation S Global Security.
"Holder" means, with respect to any Security, a Person in whose name
such Security is registered in the Security Register.
"IAI Letter" has the meaning specified in Section 2.1.
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"Indebtedness" means obligations (other than nonrecourse obligations)
of, or guaranteed or assumed by, the Company for borrowed money, including
obligations evidenced by bonds, debentures, notes or other similar instruments
and reimbursement and cash collateralization of letters of credit, bankers'
acceptances, interest rate hedge and currency hedge agreements.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
including, for all purposes of this instrument and any such supplemental
indenture, the Annexes attached to this instrument.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Institutional Accredited Investor" means an institutional accredited
investor within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation D
under the Securities Act.
"Liquidated Damages" has the meaning specified in Section 11.12.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article XV or otherwise.
"Non-Conversion Period" has the meaning specified in Section 2.3.
"Non-Electing Share" has the meaning specified in Section 13.11.
"Officer," when used with reference to the Company, means the Chairman
of the Board, the Chief Executive Officer, the President, the Chief Financial
Officer, the Treasurer, the Controller, an Assistant Treasurer, an Assistant
Controller, the Secretary, an Assistant Secretary or any Vice President of the
Company.
"Officers' Certificate," when used with reference to the Company, means
a written certificate signed by any one of the Chairman of the Board, the Chief
Executive Officer, the President, the Chief Financial Officer or any Vice
President of the Company and by any one of the Treasurer, the Controller, an
Assistant Treasurer, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee; provided, however, that,
for purposes of Section 11.9, an "Officers' Certificate" means a written
certificate signed by the principal executive, financial or accounting officer
of the Company and any one of the other Officers referred to above and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of independent counsel
selected by the Company, which counsel shall be reasonably 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 canceled by the Trustee or
delivered to the Trustee for cancellation;
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(ii) Securities for the payment or redemption of which money
in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
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 Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in conclusively relying upon any such determination as to the presence of a
quorum or upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually 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 such other
obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, company, partnership, joint
venture, association, joint-stock company, trust, estate, unincorporated
organization or other legal entity 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 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
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"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.
"Registration Rights Agreement" has the meaning specified in Section
11.12.
"Regular Record Date" for interest payable in respect of any Security
on any Interest Payment Date means the April 1 or October 1 (whether or not a
Business Day) next preceding the relevant Interest Payment Date.
"Regulation S" means Regulation S under the Securities Act (including
any successor regulation thereto), as it may be amended from time to time.
"Regulation S Global Security" has the meaning specified in Section
2.1.
"Repurchase Date" has the meaning specified in Section 15.1.
"Repurchase Price" has the meaning specified in Section 15.1.
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer of the Trustee within the Corporate Trust Office including any
Vice President, Managing Director, Assistant Vice President, Secretary,
Assistant Secretary or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also, with respect to a particular matter, any other officer to whom such matter
is referred because of such officer's knowledge and familiarity with the
particular subject.
"Restricted Global Security" has the meaning specified in Section 2.1.
"Restricted Period" has the meaning specified in Section 2.1.
"Restricted Securities" has the meaning specified in Section 2.1.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 11.8.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals."
"Securities Act" means the Securities Act of 1933 (including any
successor act thereto), as it may be amended from time to time, and (unless the
context otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
"Securities Payment" has the meaning specified in Section 14.2.
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"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of and interest on, and all other
amounts (including, without limitation, collection expenses, attorney's fees and
late charges) owing with respect to, the following, whether direct or indirect,
absolute or contingent, secured or unsecured, due or to become due, outstanding
at the date of execution of this Indenture or thereafter incurred or created:
(a) indebtedness of the Company for money borrowed or evidenced by a note or
similar instrument or written agreement given in connection with the acquisition
of any businesses, properties or assets, including securities, (b) indebtedness
of the Company to banks, insurance companies or other financial institutions
evidenced by notes or other written obligations (including bank overdrafts), (c)
indebtedness of the Company evidenced by notes, debentures, bonds or other
securities issued under the provisions of an indenture or similar instrument,
(d) indebtedness of others of the kinds described in the preceding clauses (a),
(b) and (c) that the Company has assumed, guaranteed or otherwise assured the
payment thereof, directly or indirectly, (e) obligations of the Company as
lessee under leases required to be capitalized on the balance sheet of the
lessee under United States generally accepted accounting principles and/or (f)
deferrals, renewals, extensions and refundings of, or bonds, debentures, notes
or other evidences of indebtedness issued in exchange for, or amendments,
modifications or supplements to, or covenants and other obligations of the
Company in connection with, the indebtedness described in the preceding clauses
(a) through (e) whether or not there is any notice to or consent of the Holders
of Securities; except (i) indebtedness and advances among the Company and its
direct and indirect Subsidiaries, and (ii) any particular indebtedness,
deferral, renewal, extension or refunding, if it is expressly stated in the
governing terms or in the assumption thereof that the indebtedness involved is
not Senior Debt.
"Shelf Registration Statement" has the meaning specified in Section
11.12.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"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 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 Days" means (i) if the Common Shares are listed or admitted
for trading on any national securities exchange, days on which such national
securities exchange is open for business or (ii) if the Common Shares are not
listed or admitted for trading on any national securities exchange, days on
which trades may be made on the Nasdaq National Market or any similar system of
automated dissemination of quotations of securities prices on which the Common
Shares are quoted or (iii) if the Common Shares are not listed or admitted to
trading on any national securities exchange or quoted on such National Market or
similar system, days on which
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16
the Common Shares are traded regular way in the over-the-counter market and for
which a closing bid and a closing asked price for the Common Shares are
available.
"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 United States Trust Indenture Act of
1939 (including any successor act thereto), as it may be amended from time to
time, and (unless the context otherwise requires) includes the rules and
regulations of the Commission thereunder.
"U.S. Depository" means DTC until a successor U.S. Depository shall
have become such pursuant to the applicable provisions of this Indenture, and
thereafter "U.S. Depository" shall mean such successor U.S. Depository.
"United States person" means a citizen or resident of the United
States, a domestic partnership, a domestic corporation or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source.
"Unrestricted Securities" has the meaning specified in Section 2.1.
"Vice President," when used with respect to the Company, means any Vice
President, whether or not designated by a number or a word or words added before
or after the title "Vice President."
"Western Europe" means Austria, Belgium, Denmark, France, Germany,
Ireland, Italy, Luxembourg, the Netherlands, Norway, Portugal, Spain, Sweden,
Switzerland and the United Kingdom.
SECTION 1.2 Compliance Certificates and Opinions;
Form of Documents Delivered to Trustee.
(a) 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.
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;
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17
(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 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.
(b) 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, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to the matters upon which such 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, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.3 Acts of Holders of Securities.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders of Securities may be embodied in and evidenced by (1) one or
more instruments of substantially similar tenor signed by such Holders in person
or by agent or proxy duly appointed in writing, (2) the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article X or (3) a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders of Securities signing such instrument or instruments and so
voting at such meeting. Proof of execution of any such instrument or of a
writing appointing any such agent or proxy, or of the holding by any Person of a
Security, shall be sufficient for any purpose of this Indenture and
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18
(subject to Section 6.1) conclusive in favor of the Trustee and the Company if
made in the manner provided in this Section. The record of any meeting of
Holders of Securities shall be proved in the manner provided in Section 10.6.
(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 acknowledgements 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.
(c) The ownership of Securities shall be proven 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.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 1.5.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
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by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action (whereupon the record date
previously set shall automatically and without any action by any Person be
canceled and of no effect), nor shall anything in this paragraph be construed to
render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the applicable Expiration Date to be given to the Company in writing and to
each Holder of Securities in the manner set forth in Section 1.5.
(g) With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 1.5, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto that
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.4 Notices, Etc.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of Holders of Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder of Securities or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee and received at
its Corporate Trust Office, Attention: Corporate Market Services, or
(2) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing, mailed, first-class postage
prepaid, or telexed or telecopied and confirmed by mail, first-class
postage prepaid, or delivered by hand or overnight courier, addressed
to the Company at 3250 Van Ness Avenue, San Francisco, California
94109, telephone no.: (415) 421-7900; telecopy no.: (415) 616-8359,
Attention: Chief Financial Officer, or at any other address previously
furnished in writing to the Trustee by the Company.
Except for a notice to the Trustee, which is deemed given only when
received, if a notice or communication is mailed in the manner provided above,
it is duly given, whether or not the addressee receives it.
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20
Any request, demand, authorization, direction, notice, consent,
election or waiver required or permitted under this Indenture shall be in the
English language, except that any published notice may be in an official
language of the country of publication.
SECTION 1.5 Notice to Holders of Securities; Waiver.
Except as otherwise provided herein, 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 registered
address as recorded in the Security Register. 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
Holder 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.
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 1.6 Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of Contents are
for convenience only and shall not affect the construction hereof.
SECTION 1.7 Successors and Assigns.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
SECTION 1.8 Separability Clause.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.9 Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder, the holders of Senior Debt of the Company and the Holders of
Securities and, solely with respect to this Article I and Sections 11.8, 13.8,
and 13.9, the holders of Conversion Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.
This Article I and Sections 11.8, 13.8 and 13.9 shall not be amended or
modified, and neither compliance by the Company with, nor any default by it
under, such Article or any such
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21
Sections, shall be waived, in any manner that adversely affects the interest of
any holder of a Conversion Security at the time outstanding without such
Holder's consent.
SECTION 1.10 Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED
STATES OF AMERICA.
SECTION 1.11 Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on which a
Holder of a Security has a right to convert his Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of interest or principal or delivery for conversion of such
Security need not be made on or by such day, but may be made on or by the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date, Redemption Date, Repurchase Date, or at the Stated
Maturity or by such last day for conversion, as the case may be; provided,
however, that in the case that payment is made on such succeeding Business Day,
no interest shall accrue on the amount so payable for the period from and after
such Interest Payment Date, Redemption Date, Repurchase Date, Stated Maturity or
last day for conversion, as the case may be.
SECTION 1.12 Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture (or would be required to be a part of and govern this
Indenture if this Indenture were required to be qualified under the Trust
Indenture Act), the latter 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.
ARTICLE II
SECURITY FORMS
SECTION 2.1 Forms Generally.
The Securities 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 Depository thereof, the Internal Revenue Code of 1986, as
amended (the "Code"), and regulations thereunder, or as may, consistently
herewith, be determined by the Officers executing such Securities, as evidenced
by their execution thereof. The Company shall approve the form of the Securities
and any notation, legend or endorsement on the Securities.
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The definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods on steel engraved borders 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 thereof.
In certain cases described elsewhere herein, the legends set forth in
the first four paragraphs of Section 2.2 may be omitted from Securities issued
hereunder.
Securities offered and sold in their initial distribution in reliance
on Regulation S shall be initially represented by one or more Regulation S
Global Notes issued in fully registered form without interest coupons,
substantially in the form of Security set forth in Sections 2.2 and 2.3, with
such applicable legends as are provided for in Section 2.2. Such Regulation S
Global Security shall be registered in the name of the U.S. Depository or its
nominee and deposited with the Trustee, at its New York office, as custodian for
the U.S. Depository, duly executed by the Company and authenticated by the
Trustee as hereinafter provided, for credit to the respective accounts at the
U.S. Depository of the depositories for Morgan Guaranty Trust Company of New
York, Brussels office, as operator of Euroclear, or CEDEL. Until such time as
the Restricted Period shall have terminated, investors may hold beneficial
interests in such global Notes only through Euroclear and CEDEL, unless delivery
of such beneficial interest shall be made through the Restricted Global Note in
accordance with the certification requirements discussed below in Section
3.5(b)(3). After such time as the Restricted Period shall have terminated, such
certification requirements shall no longer be required for such transfers. As
used herein, the term "Restricted Period" means the period up to (but not
including) the 40th day following the later of (i) the day that Goldman, Sachs &
Co., as initial purchaser of the Securities, advises the Company and the Trustee
of the day on which the Securities are first offered to persons other than
distributors (as defined in Regulation S) in reliance on Regulation S and (ii)
April 15, 1996. The Regulation S Global Security following the Restricted Period
and all other Securities that are not Restricted Securities shall collectively
be referred to herein as the "Unrestricted Securities."
Securities offered and sold in their initial distribution in reliance
on Rule 144A shall be issued in the form of one or more Global Securities
(collectively, the "Restricted Global Security") in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 2.2 and 2.3, with such applicable legends as are provided for in
Section 2.2, except as otherwise permitted herein. Such Global Security shall be
registered in the name of the U.S. Depository or its nominee and deposited with
the Trustee, at its New York office, as custodian for the U.S. Depository, duly
executed by the Company and authenticated by the Trustee as hereinafter
provided. The aggregate principal amount of the Restricted Global Security may
be increased or decreased from time to time by adjustments made on the records
of the Trustee, as custodian for the U.S. Depository, in connection with a
corresponding decrease or increase in the aggregate principal amount of the
Regulation S Global Security, as hereinafter provided. The Restricted Global
Security and all other Securities evidencing the debt, or any portion of the
debt, initially evidenced by such Global Security, other than Securities
transferred or exchanged upon certification as provided in Section 3.5(b)(2) or
(4), shall collectively be referred to herein as the "Restricted Securities."
The Securities will be issued only in registered form. The Securities
will be issued in minimum denominations of $1,000, as provided in Section 3.2,
except that Securities offered other than in reliance on Regulation S or to
Qualified Institutional Buyers will be issued only in definitive certificated
form and will be issued initially in minimum denominations of $250,000
-15-
23
and integral multiples of $1,000 in excess thereof. Such Securities (i.e.,
Securities sold to Institutional Accredited Investors) will also be considered
to be Restricted Securities hereunder, and will be subject to restrictions on
transfer in accordance with a form of Letter for Institutional Accredited
Investors (the "IAI Letter"), that such investors will be required to sign, the
form of which is attached hereto as Annex D.
SECTION 2.2 Form of Face of Security.
[INCLUDE IF SECURITY IS A REGULATION S GLOBAL SECURITY -- THIS SECURITY
IS A REGULATION S GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE REFERRED
TO HEREINAFTER. EXCEPT IN THE CIRCUMSTANCES DESCRIBED IN SECTION 3.5(b) OF THE
INDENTURE, NO TRANSFER OR EXCHANGE OF AN INTEREST IN THIS REGULATION S GLOBAL
SECURITY MAY BE MADE FOR AN INTEREST IN THE RESTRICTED GLOBAL SECURITY DURING
THE RESTRICTED PERIOD.]
[INCLUDE IF SECURITY IS A RESTRICTED SECURITY -- THIS SECURITY (OR ITS
PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION EXEMPT FROM REGISTRATION
UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND THIS SECURITY AND ANY COMMON SHARES ISSUABLE UPON ITS CONVERSION MAY
NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN
APPLICABLE EXEMPTION THEREFROM. SECURITIES MAY ONLY BE SOLD IN ACCORDANCE WITH
THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE
TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED
THAT THE SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF WILLIAMS- SONOMA,
INC. THAT (A) THIS SECURITY AND ANY COMMON SHARES ISSUABLE UPON ITS CONVERSION
MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON WHO THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE REQUIREMENTS OF
RULE 144A, (II) IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH REGULATION S UNDER
THE SECURITIES ACT, (III) UNLESS PREVIOUSLY AGREED WITH THE COMPANY, TO AN
INSTITUTIONAL ACCREDITED INVESTOR IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, (IV) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF
AVAILABLE), OR (V) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE
SECURITIES ACT AND IN EACH OF CASES (I) THROUGH (V) IN ACCORDANCE WITH ANY
APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER JURISDICTIONS OF THE UNITED
STATES, AND THAT (B) THE HOLDER WILL, AND EACH SUBSEQUENT HOLDER IS REQUIRED TO,
NOTIFY ANY PURCHASER OF THIS SECURITY FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN (A) ABOVE.
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CONVERSION OF THIS SECURITY IS SUBJECT TO CERTIFICATION AND OTHER
REQUIREMENTS, AND ANY SECURITIES ISSUED ON SUCH CONVERSION WILL BE SUBJECT TO
THE TRANSFER RESTRICTIONS REFERRED TO ABOVE.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY -- THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITORY OR A NOMINEE THEREOF. THIS SECURITY MAY
NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED, AND NO TRANSFER
OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY
PERSON OTHER THAN SUCH DEPOSITORY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED
CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[INCLUDE IF SECURITY IS A GLOBAL SECURITY AND THE DEPOSITORY TRUST
COMPANY IS THE U.S. DEPOSITORY -- UNLESS THIS CERTIFICATE IS PRESENTED BY AN
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY ("DTC"), A NEW YORK
CORPORATION, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE
OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO.
OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF CEDE &
CO. (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER
USE THEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS
THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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WILLIAMS-SONOMA, INC.
5 1/4% CONVERTIBLE SUBORDINATED NOTES
DUE APRIL 15, 2003
No. _________ U.S.$
CUSIP No.: ___________________
Common Code: _________________
ISIN: ________________________
WILLIAMS-SONOMA, INC., a California corporation (herein called the
"Company," which term includes any successor Person under the Indenture referred
to on the reverse hereof), for value received, hereby promises to pay to
_______________, or registered assigns, the principal sum of _____________ U.S.
Dollars, [or such other amount (not to exceed forty million dollars
($40,000,000) when taken together with all of the Company's 5 1/4% Convertible
Subordinated Notes due April 15, 2003 issued and outstanding in definitive
certificated form or in the form of another Global Security) as may from time to
time represent the principal amount of the Company's 5 1/4% Convertible
Subordinated Notes due April 15, 2003 in respect of which beneficial interests
are held through the U.S. Depositary in the form of a [Restricted] [Regulation
S] Global Security,] -- [omit from Non-Global Securities] on April 15, 2003, and
to pay interest thereon from April 15, 1996 or from the most recent Interest
Payment Date (as defined below) to which interest has been paid or duly provided
for, semi-annually in arrears on April 15 and October 15 in each year,
commencing on October 15, 1996, and at Maturity at the rate of 5 1/4% per annum,
until the principal hereof is paid or made available for payment, provided that
any amount of such principal or interest that is overdue shall bear interest at
the rate of 5 1/4% per annum (to the extent that payment of such interest shall
be legally enforceable), from the date such amount is due until it is paid or
made available for payment, and such interest on any overdue amount shall be
payable on demand. 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 April 1 or October 1 (whether or not a
Business Day), as the case may be, next preceding such Interest Payment Date.
Any such interest not so punctually paid or duly provided for will forthwith
cease to be payable to the Holder on such Regular Record Date and may either be
paid to the Person in whose name this Security (or one or more Predecessor
Securities) is registered at the close of business on a Special Record Date for
the payment of such Defaulted Interest to be fixed by the Trustee, notice
thereof 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 interest on this Security will be made
in immediately available funds and 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, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York or, at the option of
the Holder and subject to any fiscal or other laws and regulations, at any other
office or agency maintained by the Company for such purpose; provided, however,
that upon written application (including wire payment instructions) by the
Holder to the Security Registrar
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not later than the 10th day immediately preceding the relevant Regular Record
Date, such Holder may receive payment by wire transfer to a U.S. Dollar account
(such transfers to be made only to Holders of an aggregate principal amount in
excess of U.S. $2,000,000) maintained by the payee with a bank in The City of
New York; and, provided, further, that, subject to the preceding proviso,
payment of interest may, at the option of the Company, be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Security Register; and, provided, further, that payment of principal of, or
interest on this Security and payment of any Liquidated Damages (as defined on
the reverse hereof) may be made at an office or agency of the Corporate Trust
Office of the Trustee in The City of New York, if (but only if) payment of the
full amount of such principal, interest or Liquidated Damages, as the case may
be, at all offices outside the United States maintained for such purpose by the
Company in accordance with the Indenture is illegal or effectively precluded
because of exchange controls or other similar restrictions on the full payment
or receipt of such amounts in United States Dollars, as determined by the
Company. Unless such designation is revoked, any such designation made by the
Holder with respect to this Security will remain in effect with respect to
future payments with respect to this Security payable to the Holder. The Company
will pay any administrative costs imposed by banks in connection with making any
such payments upon application of such Holder for reimbursement. If this
Security is a Global Security, then, notwithstanding the second sentence of this
paragraph, each such payment will be made in accordance with the procedures of
the U.S. Depository as then in effect.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof by the manual signature of one of
its authorized signatories, 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 Security to be duly
executed under its corporate seal.
WILLIAMS-SONOMA, INC.
[Corporate Seal]
By
----------------------------
Title:
Attest:
- ----------------------
Title:
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TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: BANKERS TRUST COMPANY, as
Trustee
By:
------------------------------
Authorized Signatory
SECTION 2.3 Form of Reverse of Security.
This Security is one of a duly authorized issue of securities of the
Company designated as its "5 1/4% Convertible Subordinated Notes due April 15,
2003" (herein called the "Securities"), limited in aggregate principal amount to
U.S.$40,000,000, issued and to be issued under an Indenture, dated as of April
15, 1996 (herein called the ("Indenture") between the Company and Bankers Trust
Company, as Trustee (herein called the "Trustee," which term includes any
successor trustee under the Indenture), to which the 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 Debt of the Company and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
No sinking fund is provided for in the Securities. The Securities may
not be redeemed at the option of the Company prior to April 15, 1998.
Thereafter, the Securities may be redeemed at the option of the Company, in
whole or in part, at the Redemption Prices set forth below; provided, that the
Company may redeem the Securities from April 15, 1998 to April 14, 2000 only if
the last reported sale price of the Common Shares for each of the 30 consecutive
Trading Days ending on the Trading Day prior to the date of the notice of
redemption shall have equalled or exceeded 140% of the Conversion Price then in
effect.
The Redemption Prices (expressed as a percentage of principal amount)
are as follows for the 12-month period beginning on April 15 of the following
years:
Redemption
Year Price
---- -----
1998 103.75
1999 103.00
2000 102.25
2001 101.50
2002 100.75
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date.
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Notice of redemption (which notice shall be irrevocable) will be given
by first-class mail to Holders of Securities at their registered addresses as
recorded in the Security Register. Notice will be given not more than 60 nor
less than 30 days prior to the Redemption Date, as provided in the Indenture.
In any case where the due date for the payment of the principal of or
interest, including Liquidated Damages, on any Security or the last day on which
a Holder of a Security has a right to convert his Security shall be at any place
of payment or place of conversion, as the case may be, a day on which banking
institutions at such place of payment or place of conversion are authorized or
obligated by law or executive order to close, then payment of principal or
interest, including Liquidated Damages, or delivery for conversion of such
Security need not be made on or by such date at such place but may be made on or
by the next succeeding day at such place which is not a day on which banking
institutions are authorized or obligated by law or executive order to close,
with the same force and effect as if made on the date for such payment or the
date fixed for redemption or repurchase, or at the Stated Maturity or by such
last day for conversion, and no interest shall accrue for the period after such
date.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at his option, at any time after July
15, 1996 (the "Non-Conversion Period") and prior to the close of business on
April 15, 2003, or in case this Security is called for redemption or the Holder
hereof has exercised its right to require the Company to repurchase this
Security, then in respect of this Security until and including, but (unless the
Company defaults in making the payment due upon redemption or repurchase, as the
case may be) not after, the close of business on the Redemption Date or the
Repurchase Date, as the case may be, to convert this Security into newly issued
fully paid and nonassessable Common Shares of the Company at an initial
Conversion Rate equal to 38.3142 Common Shares per U.S.$1,000 principal amount
of Securities (or at the current adjusted Conversion Rate if an adjustment has
been made as provided in the Indenture) by surrender of this Security, and also
a duly executed conversion notice, substantially in the form provided in Annex A
of the Indenture (including the tax certification contained in such notice), to
the Company, subject to any laws or regulations applicable thereto and subject
to the right of the Company to terminate the appointment of the Conversion Agent
(as defined below), at the principal corporate trust office of the Trustee in
The City of New York or at such other offices or agencies outside the United
States that the Company may designate (each a "Conversion Agent"). No payment or
adjustment is to be made on conversion for cash dividends on the Common Shares
issued on conversion or, if the date of conversion is not an Interest Payment
Date, interest accrued hereon from the Interest Payment Date next preceding the
date of conversion. No fractions of shares or scrip representing fractions of
shares will be issued on conversion, but instead of any fractional interest
(calculated to the nearest 1/100th of a share) the Company shall pay a cash
adjustment as provided in the Indenture, or alternatively the Company shall
round up the conversion transaction to the next higher whole share. In addition,
the Indenture provides that in case of certain consolidations or mergers to
which the Company is a party or the sale or transfer of all or substantially all
of the assets of the Company, the Indenture shall be amended, without the
consent of any Holders of Securities, so that this Security, if then
Outstanding, will be convertible thereafter, during the period this Security
shall be convertible as specified above, only into the kind and amount of
securities, cash and other property receivable upon consolidation, merger, sale
or transfer by a holder of the number of Common Shares of the Company into which
this Security might have been converted immediately prior to such consolidation,
merger, sale or transfer (assuming such holder of Common Shares failed to
exercise any rights of election and received per share the kind and
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amount received per share by a plurality of Non-Electing Shares). Adjustments in
the Conversion Rate of less than one percent of such price will not be required,
but any adjustment that would otherwise be required to be made will be carried
forward and taken into account in the computation of any subsequent adjustment.
Notwithstanding any provision hereof, no securities will be delivered
on conversion of this Security or any portion hereof unless the certification
and other requirements described in the Indenture are satisfied.
Subject to certain limitations in the Indenture, at any time when the
Company is not subject to Section 13 or 15(d) of the United States Securities
Exchange Act of 1934, as amended, upon the request of a Holder of a Restricted
Security or the holder of Common Shares issued upon conversion thereof, the
Company will promptly furnish or cause to he furnished Rule 144A Information (as
defined below) to such Holder of Restricted Securities or such holder of Common
Shares issued upon conversion of Restricted Securities, or to a prospective
purchaser of any such security designated by any such Holder or holder, as the
case may be, to the extent required to permit compliance by any such holder with
Rule 144A under the Securities Act of 1933, as amended (the "Securities Act").
"Rule 144A Information" shall be such information as is specified pursuant to
Rule 144A(d)(4) under the Securities Act (or any successor provision thereto).
The Holder of this Security and the Common Shares of the Company
issuable upon conversion thereof is entitled to the benefits of a Registration
Rights Agreement (subject to the provisions thereof), dated as of April 10,
1996, between the Company and Goldman, Sachs & Co. (the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, the Company has
agreed for the benefit of the Holders from time to time of the Securities and
the Common Shares issuable upon conversion thereof that it will, at its expense,
(a) within 90 days after the date of issuance of the original Securities, file a
shelf registration statement (the "Shelf Registration Statement") with the
Commission with respect to resales of the Securities and the Common Shares
issuable upon conversion thereof, (b) use its best efforts to cause such Shelf
Registration Statement to be declared effective by the Commission within 90 days
after the date on which the Shelf Registration Statement is filed, and (c) use
its best efforts to maintain such Shelf Registration Statement continuously
effective under the Securities Act, until the third anniversary of the date of
the effectiveness of the Shelf Registration Statement or such earlier date as is
provided in the Registration Rights Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 90th day following the filing of such
Shelf Registration Statement, such Shelf Registration Statement is not declared
effective (each, a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on this Security from and including the day following such
Registration Default to but excluding the day on which such Registration Default
has been cured. Liquidated Damages will be paid semi-annually in arrears, with
the first semi-annual payment due on the first interest payment date in respect
of the Securities following the date on which such Liquidated Damages begin to
accrue, and will accrue at a rate per annum equal to an additional one-quarter
of one percent (0.25%) of the principal amount of the Securities to and
including the 90th day following such Registration Default and at a rate per
annum equal to one-half of one percent (0.50%) thereof from and after the 91st
day following such Registration Default. In the event that the Shelf
Registration Statement ceases to be effective prior to the third annual
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anniversary of the initial effective date of the Shelf Registration Statement or
such earlier date as is provided in the Registration Rights Agreement for a
period in excess of 60 days, whether or not consecutive, during any 12-month
period, then the interest rate borne by the Securities shall increase by an
additional one-half of one percent (0.50%) per annum from the 61st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective to but excluding the day on which the Shelf Registration Statement
again becomes effective.
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security such mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in the preceding paragraph to the extent
that, in such context, Liquidated Damages are, were or would be payable in
respect of such Security and express mention of the payment of Liquidated
Damages (if applicable) in any provisions of this Security shall not be
construed as excluding Liquidated Damages in those provisions of this Security
where such express mention is not made.
The Holder of this Security, by its acceptance thereof, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Securities and the Common Shares issuable upon conversion thereof.
If a Change in Control occurs, the Holder of this Security shall have
the right, at the Holder's option in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that is an integral multiple of $1,000) for cash at
a Repurchase Price equal to 100% of the principal amount thereof plus interest
accrued to the Repurchase Date. At the option of the Company, the Repurchase
Price may be paid in cash or, except as otherwise provided in the Indenture, by
delivery of Common Shares having a fair market value equal to the Repurchase
Price; provided that payment may not be made in Common Shares unless at the time
of payment such stock is listed on a national securities exchange or quoted on
the Nasdaq National Market. For purposes of this paragraph, the fair market
value of shares of Common Shares shall be determined by the Company and shall be
equal to 95% of the average of the Closing Prices Per Share for the five
consecutive Trading Days ending on and including the third Trading Day
immediately preceding the Repurchase Date. Whenever in this Security there is a
reference, in any context, to the principal of any Security as of any time, such
reference shall be deemed to include reference to the Repurchase Price payable
in respect of such Security to the extent that such Repurchase Price is, was or
would be so payable at such time, and express mention of the Repurchase Price in
any provision of this Security shall not be construed as excluding the
Repurchase Price in those provisions of this Security when such express mention
is not made.
The indebtedness evidenced by this Security is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all amounts then or thereafter to become
due on all Senior Debt of the Company, and this Security is issued subject to
such provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee its attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable to the extent, in the manner
and with the effect provided in the
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Indenture. Upon payment (i) of the amount of principal so declared due and
payable and (ii) of interest on any overdue principal and overdue interest, all
of the Company's obligations in respect of the payment of the principal of and
interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with either (a) the written consent of
the Holders of a majority in principal amount of the Securities at the time
outstanding, or (b) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present by the Holders of
66-2/3% in aggregate principal amount of the Outstanding Securities represented
at such meeting. The Indenture also contains provisions permitting the Holders
of specified percentages in 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 in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default and offered the Trustee indemnity satisfactory to it and
the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities Outstanding a direction inconsistent with such request
and shall have failed to institute any such proceedings for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or interest hereon (including any Liquidated
Damages) on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of and interest (including
Liquidated Damages) on this Security at the times, places and rate, and in the
coin or currency, herein prescribed or to convert this Security as provided in
the Indenture.
The Securities are issuable only in fully registered form, without
exception, and, except as provided in Section 2.1 of the Indenture, in
denominations of $1,000 and any integral multiples of $1,000 in excess thereof.
As provided in the Indenture and subject to certain limitations and satisfaction
of certain requirements therein set forth, Securities are exchangeable for a
like aggregate principal amount of securities of the same or a different
authorized denomination, as requested by the Holder surrendering the same.
As provided in the Indenture and subject to certain limitations and
satisfaction of certain requirements therein set forth, the transfer of this
Security is registrable on the Security Register upon surrender of this Security
for registration of transfer at the office or agency of the Company
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as may be designated by it for such purpose in the Borough of Manhattan, The
City of New York, duly endorsed by, or accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed by, the Holder 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.
No service charge shall be made for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to recover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation 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 such Security is registered, as the owner thereof for
all purposes, whether or not such Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.1 of the Indenture, the undersigned
hereby elects to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it
or _______________________ an amount in cash or, at the Company's election,
Common Stock valued as set forth in the Indenture, equal to 100% of the
principal amount hereof, plus interest accrued to the Repurchase Date, as
provided in the Indenture.
Dated:
------------------------
------------------------------
Signature
------------------------------
Signature Guaranteed
Principal amount to be repurchased:
-------------------
Remaining principal amount following such repurchase:
------
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NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SECTION 2.4 Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: BANKERS TRUST COMPANY, as Trustee
By:
Authorized Signatory
ARTICLE III
THE SECURITIES
SECTION 3.1 Title and Terms.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to U.S.$40,000,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5,
3.6, 9.5, or 13.2.
The Securities shall be known and designated as the "5 1/4% Convertible
Subordinated Notes due April 15, 2003" of the Company. Their Stated Maturity
shall be April 15, 2003 and they shall bear interest at the rate of 5 1/4% per
annum from April 15, 1996 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually in arrears on April 15 and October 15 of each year, commencing
October 15, 1996, and at Maturity, until the principal thereof is paid or made
available for payment, provided that any amount of such principal or interest
that is overdue shall bear interest at the rate of 5 1/4% per annum (to the
extent that payment of such interest shall be legally enforceable), from the
date such amount is due until it is paid or made available for payment, and such
interest on any overdue amount shall be payable on demand.
The principal of and interest on the Securities shall be payable in
immediately available funds and 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, at the Corporate Trust Office of the Trustee in the Borough of
Manhattan, The City of New York or, at the option of the Holder and subject to
any fiscal or other laws and regulations applicable thereto, at any other office
of the Trustee or any Paying Agent outside The City of New York; provided,
however, that upon application (including wire payment instructions) by the
Holder to the Trustee not later than the relevant Regular Record Date, such
Holder may receive payment by wire transfer to a U.S. Dollar account (such
transfers to be made only to Holders of an aggregate principal amount in excess
of U.S. $2,000,000) maintained by the payee with a bank in The City of New York,
New York; and provided, further, that, subject to the preceding proviso, payment
of interest may, at the option of the Company, be made by check mailed to the
address of the Person entitled thereto
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as such address shall appear in the Security Register. Unless such designation
is revoked, any such designation made by such Holder with respect to such
Security will remain in effect with respect to any future payments with respect
to such Security payable to such Holder. The Company will pay any administrative
costs imposed by banks in connection with making such payments, upon application
by the relevant Holder. Notwithstanding the second sentence of this paragraph,
each payment of principal and interest in respect of a Global Security will be
made in accordance with the procedures of the U.S. Depository as then in effect.
The Securities shall be redeemable at the Company's option, in whole or
in part, under the circumstances and at the Redemption Prices specified in the
form of Securities set forth in Sections 2.2 and 2.3.
The Securities shall be convertible as provided in Article XIII.
The Securities shall be subordinated in right of payment to Senior Debt
of the Company as provided in Article XIV.
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article XV.
SECTION 3.2 Denominations.
The Securities shall be issuable only in registered form without
coupons and, except as provided in Section 2.1, only in denominations of $1,000
and any integral multiple of $1,000 in excess thereof.
SECTION 3.3 Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by any one of
its Chairman of the Board, its Chief Executive Officer, its President, or any
one of its Vice Presidents, under a facsimile of its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. Any such
signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise. In connection with
any Company Order for authentication, a compliance certificate and Opinion of
Counsel pursuant to Section 1.2 shall not be required.
Each Security shall be dated the date of its authentication.
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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 or the Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon such Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.4 Temporary Securities.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, 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 11.2, 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 make
available for delivery 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 3.5 Registration, Registration of Transfer and Exchange; Restrictions on
Transfer.
(a) 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 11.2 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 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 11.2 for such purpose, and subject to the other provisions
of this Section 3.5, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, 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, and subject to the other provisions of
this Section 3.5, 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, and subject to the other
provisions of this Section 3.5, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
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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 subject to the other provisions of this Section 3.5, 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 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 3.4, 13.2 or 15.2(f) not involving any transfer
and subject to Section 13.9.
(b) Notwithstanding any other provisions of this Indenture or the
Securities (but subject to Section 2.1), transfers of a Global Security, in
whole or in part, transfers and exchanges of interests therein of the kinds
described in clauses (2), (3), (4) and (5) below and exchanges of interests in
Global Securities, and transfers or exchanges of other Securities as described
in clause (6) below, shall be made only in accordance with this Section 3.5(b).
Transfers and exchanges subject to this Section 3.5 shall also be subject to the
other provisions of this Indenture that are not inconsistent with this Section
3.5.
(1) Limitation on Transfers of a Global Security. A Global
Security may not be transferred, in whole or in part, to any Person
other than the U.S. Depository or a nominee thereof, and no such
transfer to any such other Person may be registered; provided that this
clause (1) shall not prohibit any transfer of a Security that is issued
in exchange for a Global Security but is not itself a Global Security.
No transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this Section
3.5(b)(1) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with
the other provisions of this Section 3.5(b).
(2) Restricted Global Security to Regulation S Global
Security. If the holder of a beneficial interest in the Restricted
Global Security wishes at any time to transfer such interest to a
Person who wishes to take delivery thereof in the form of a beneficial
interest in the Regulation S Global Security, such transfer may be
effected, subject to the rules and procedures of the U.S. Depository,
Euroclear and CEDEL, in each case to the extent applicable (the
"Applicable Procedures"), only in accordance with this Section
3.5(b)(2). Upon receipt by the Trustee, as Security Registrar, at its
office in The City of New York of (A) written instructions given in
accordance with the Applicable Procedures from an Agent Member
directing the Trustee to credit or cause to be credited to a specified
Agent Member's account a beneficial interest in the Regulation S Global
Security in a principal amount equal to that of the beneficial interest
in the Restricted Global Security to be so transferred, (B) a written
order given in accordance with the Applicable Procedures containing
information regarding the account of the Agent Member (and, if
applicable, the Euroclear or CEDEL account, as the case may be) to be
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credited with, and the account of the Agent Member to be debited for,
such beneficial interest and (C) a certificate in substantially the
form set forth in Annex B given by the holder of such beneficial
interest, the Trustee, as Security Registrar, shall instruct the U.S.
Depository to reduce the principal amount of the Restricted Global
Security, and to increase the principal amount of the Regulation S
Global Security, by the principal amount of the beneficial interest in
the Restricted Global Security to be so transferred, and to credit or
cause to be credited to the account of the Person specified in such
instructions (which during the Restricted Period shall be the Agent
Member for Euroclear or CEDEL or both, as the case may be) a beneficial
interest in the Regulation S Global Security having a principal amount
equal to the amount by which the principal amount of the Restricted
Global Security was reduced upon such transfer.
(3) Regulation S Global Security to Restricted Global
Security. If during the Restricted Period the holder of a beneficial
interest in the Regulation S Global Security wishes to transfer such
interest to a Person who wishes to take delivery thereof in the form of
a beneficial interest in the Restricted Global Security, such transfer
may be effected, subject to the Applicable Procedures, only in
accordance with this Section 3.5(b)(3). Upon receipt by the Trustee, as
Security Registrar, at its office in The City of New York of (A)
written instructions given in accordance with the Applicable Procedures
from an Agent Member directing the Trustee to credit or cause to be
credited to a specified Agent Member's account a beneficial interest in
the Restricted Global Security in a principal amount equal to that of
the beneficial interest in the Regulation S Global Security to be so
transferred, (B) a written order given in accordance with the
Applicable Procedures containing information regarding the account of
the Agent Member to be credited with, and the account of the Agent
Member (and, if applicable, the Euroclear or CEDEL account, as the case
may be) to be debited for, such beneficial interest and (C) a
certificate in substantially the form set forth in Annex C given by the
holder of such beneficial interest, the Trustee, as Security Registrar,
shall instruct the U.S. Depository to reduce the principal amount of
the Regulation S Global Security and to increase the principal amount
of the Restricted Global Security, by the principal amount of the
beneficial interest in the Regulation S Global Security to be so
transferred, and to credit or cause to be credited to the account of
the Person specified in such instructions a beneficial interest in the
Restricted Global Security having a principal amount equal to the
amount by which the principal amount of the Regulation S Global
Security, as the case may be, was reduced upon such transfer.
(4) Exchanges. In the event that a Restricted Global Security
or any portion thereof is exchanged for a Regulation S Global Security
or Securities other than Global Securities, such other Securities may
in turn be exchanged (on transfer or otherwise) for Securities that are
not Global Securities or for beneficial interests in a Global Security
(if any is then outstanding) only in accordance with such procedures,
which shall be substantially consistent with the provisions of clauses
(1) through (3) above and (5) below (including the certification
requirements intended to insure that transfers and exchanges of
beneficial interests in a Global Security comply with Rule 144A, Rule
144 or Regulation S, as the case may be) and any Applicable Procedures,
as may be from time to time adopted by the Company and the Trustee.
(5) Interests in Regulation S Global Security to be Held
Through Euroclear or CEDEL. Until the termination of the Restricted
Period, interests in the Regulation S
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Global Security may be held only through Agent Members acting for and
on behalf of Euroclear and CEDEL, provided that this Clause (5) shall
not prohibit any transfer in accordance with Section 3.5(b)(3) hereof.
(6) Securities originally issued to Institutional Accredited
Investors. Securities may be issued other than in reliance on Rule 144A
or Regulation S, and such Securities will be issued only in definitive
certificated form and, initially, only in minimum denominations of
$250,000 and integral multiples of $1,000 in excess thereof. Such
Securities (i.e., Securities sold to Institutional Accredited
Investors) will be considered to be Restricted Securities hereunder,
and will be subject to restrictions on transfer in accordance with the
IAI Letter. The IAI Letter permits transfers to be made only: (i)
pursuant to Rule 144A, (ii) pursuant to Regulation S, (iii) pursuant to
Rule 144 (if available) or (iv) pursuant to an effective registration
statement under the Securities Act. Therefore, transfers of Securities
by an Institutional Accredited Investor may not be made to another
Institutional Accredited Investor in reliance upon an exemption from
securities registration under the Securities Act (for example in a
purported private transaction), except as provided in the preceding
sentence. In case a Security held by an Institutional Accredited
Investor is to be transferred in a transaction in which the purchaser
wishes to receive an interest in a Global Security, clauses (4) and (5)
above shall be applicable. Furthermore, in case a Security held by an
Institutional Accredited Investor is to be transferred (whether during
or after the Restricted Period) in a transaction exempt (i) pursuant to
Rule 144A, then the transferor shall deliver a certificate
substantially in the form of Annex C hereto, or (ii) pursuant to
Regulation S, then the transferor shall deliver a certificate
substantially in the form of Annex B hereto, in each case with such
changes in the second paragraph thereof as are appropriate to reflect
the facts and circumstances, including that the Holder will be
transferring a Security in the form of a definitive registered
certificate. (However, a transfer or exchange that does not involve any
change in beneficial ownership shall not be considered to be a transfer
that triggers these certification requirements.) The Company may vary
these procedures or impose other reasonable procedures to ensure
compliance with the agreement of such Holder contained in its IAI
Letter.
(c) Each Restricted Security and Global Security issued hereunder
shall, upon issuance, bear the legends required by Section 2.2 to be applied to
such a Security and such required legends shall not be removed from such
Security except as provided in the next sentence or paragraph (d) of this
Section 3.5. The legend required for a Restricted Security may be removed from a
Security if there is delivered to the Company such satisfactory evidence, which
may include an opinion of independent counsel licensed to practice law in the
State of New York, as may be reasonably required by the Company that neither
such legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the written direction of the Company, shall
authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear such
legend. If such a legend required for a Restricted Security has been removed
from a Security as provided above, no other Security issued in exchange for all
or any part of such Security shall bear such legend, unless the Company has
reasonable cause to believe that such other Security is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
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(d) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the U.S. Depository or a nominee
thereof and delivered to such U.S. Depository or a nominee thereof or
custodian therefor, and each such Global Security shall constitute a
single Security for all purposes of this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than the U.S. Depository or a nominee thereof unless (A) the U.S.
Depository (i) has notified the Company that it is unwilling or unable
to continue as U.S. Depository for such Global Security or (ii) has
ceased to be a clearing agency registered under the Exchange Act, (B)
in the case of a Global Security held for an account of Euroclear or
CEDEL, Euroclear or CEDEL, as the case may be, (i) is closed for
business for a continuous period of 14 days (other than by reason of
statutory or other holidays) or (ii) announces an intention permanently
to cease business or does in fact do so, (C) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (D) a request for certificates has been made upon 60 days'
prior written notice given to the Trustee in accordance with the U.S.
Depository's customary procedures and a copy of such notice has been
received by the Company from the Trustee. Any Global Security exchanged
pursuant to clause (A) or (B) above shall be so exchanged in whole and
not in part and any Global Security exchanged pursuant to clause (C) or
(D) above may be exchanged in whole or from time to time in part as
directed by the U.S. Depository. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security,
provided that any such Security so issued that is registered in the
name of a Person other than the U.S. Depository or a nominee thereof
shall not be a Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the U.S. Depository shall
designate and shall bear any legends required hereunder. Any Global
Security to be exchanged in whole shall be surrendered by the U.S.
Depository to the Trustee, as Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the U.S. Depository or its nominee with respect to such
Global Security, the principal amount thereof shall be reduced, by an
amount equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Security issuable on such exchange to or
upon the written order of the U.S. Depository or an authorized
representative thereof.
(4) In the event of the occurrence of any of the events
specified in clause (2) above, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form, without interest coupons.
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(5) Neither any members of, or participants in, the U.S.
Depository ("Agent Members") nor any other Persons on whose behalf
Agent Members may act (including Euroclear and CEDEL and account
holders and participants therein) shall have any rights under this
Indenture with respect to any Global Security, or under any Global
Security, and the U.S. Depository or such nominee, as the case may be,
may be treated by the Company, the Trustee and any agent of the Company
or the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing
herein shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the U.S. Depository or such
nominee, as the case may be, or impair, as between the U.S. Depository,
its Agent Members and any other person on whose behalf an Agent Member
may act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Security.
SECTION 3.6 Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security 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 notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, 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.
A Holder shall bear the cost to the Company of replacing a mutilated,
destroyed, stolen or lost Security. Upon the issuance of any new Security under
this Section, the Company also may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all 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.
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SECTION 3.7 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:
(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 of Securities at such Holder's address as it appears in the
Security Register, not less than 10 days prior to such Special Record Date.
Notice of the proposed payment of such Defaulted Interest and the Special Record
Date therefor having been so mailed, such Defaulted Interest shall be paid to
the Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in any other
lawful manner not inconsistent with the requirements of any securities exchange
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 and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
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
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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 such
Security (or one or more Predecessor Securities) is registered at the close of
business on such Regular Record Date. Except as otherwise expressly provided in
the immediately preceding sentence, 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 3.8 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 shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Sections 3.5 and 3.7) 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 3.9 Cancellation.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered shall be canceled promptly by the Trustee. 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 canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 3.9 except as expressly
permitted by this Indenture. All canceled Securities and any certificates in
connection therewith shall be held by the Trustee in accordance with its
customary practices until destroyed by the Trustee; provided, however, that the
Trustee shall not be required to destroy such Securities. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
SECTION 3.10 Computation of Interest.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.11 CUSIP Numbers.
The Company in issuing the Securities may use "CUSIP" and "CINS"
numbers (if then generally in use), and the Trustee shall use CUSIP numbers or
CINS numbers, as the case may be, in notices of redemption, repurchase or
exchange as a convenience to the Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption,
repurchase or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities.
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ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 Satisfaction and Discharge of Indenture.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, or replacement of Securities
herein expressly provided for and any right to receive the payment of principal
of, or interest on, such Securities or Liquidated Damages under the ninth
paragraph on the reverse of the form of Securities set forth in Section 2.3),
and the Trustee, 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 3.6 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 11.3) have been delivered to the Trustee
for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation (other than Securities referred to in clauses (i) and
(ii) of clause (1)(A) above)
(i) have become due and payable, or
(ii) will have 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 clause (i), (ii) or (iii) above, has deposited
or caused to be deposited with the Trustee as trust funds (immediately available
to the Holders in the case of clause (i)) 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
interest to the date of such deposit (in the case of Securities which have
become due and payable) or to the Stated Maturity or Redemption Date, as the
case may be;
(2) the Company has paid or caused to be paid all other sums payable
hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel, each stating that all conditions precedent herein
provided for relating to the satisfaction and discharge of this Indenture have
been complied with, and that any consents required under any document evidencing
and/or securing Senior Debt have been obtained and are in full force and effect.
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Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section
4.1, the obligations of the Trustee under Section 4.2 and the last paragraph of
Section 11.3 shall survive. Funds held in trust pursuant to this Section are not
subject to the provisions of Article XIV.
SECTION 4.2 Application of Trust Money.
Subject to the provisions of the last paragraph of Section 11.3, all
money deposited with the Trustee pursuant to Section 4.1 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 interest for
whose payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 4.1 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
ARTICLE V
REMEDIES
SECTION 5.1 Events of Default.
"Event of Default," whenever 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 XIV 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 (including any Liquidated
Damages) upon any Security when it becomes due and payable, whether or not such
payment is prohibited pursuant to Article XIV hereof, and continuance of such
default for a period of 30 days; or
(2) default in the payment of the principal or Redemption Price of any
Security at its Maturity, whether or not such payment is prohibited pursuant to
Article XIV hereof; or
(3) default in the Company's obligation to provide notice of a Change
in Control as provided by Section 15.2; or
(4) default in the performance, or breach, of any covenant of the
Company in this Indenture (other than a covenant a default in whose performance
or whose breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 120 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
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(5) Indebtedness of the Company for borrowed money in an outstanding
principal amount in excess of $5,000,000 in the aggregate, whether such
Indebtedness now exists or shall hereafter be created, is not paid at final
maturity (either upon its stated maturity or upon acceleration thereof) and such
default in payment or acceleration has not been cured or rescinded within a
period of 90 days after there shall have 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 principal amount of the Outstanding Securities a
written notice specifying such default and requiring the Company to cause such
indebtedness to be discharged or cause such acceleration to be rescinded or
annulled and stating that such notice is a "Notice of Default" hereunder;
provided, however, that the Trustee shall have no obligation, either express or
implied, to give any notice, make any demand, make any collection, initiate any
judicial proceeding, file any proofs of claim or take any action as a result of
an Event of Default described in this clause (5), unless and until the Trustee
has received written notice of such Event of Default from the Company, a Holder
of a Security or a holder of Indebtedness of the Company;
(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 the Bankruptcy Code or 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 the Bankruptcy Code or 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 other 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.
SECTION 5.2 Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default specified in
Section 5.1(1), (2), (6) and (7)) occurs and is continuing, then and in every
such case the Trustee shall, at the written request of the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities, or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall directly, by notice in writing to the Company, declare the
principal of all the Securities to be due and payable immediately, and upon any
such declaration such principal and any accrued interest and any unpaid
Liquidated Damages thereon shall become immediately due and payable. If an Event
of Default specified in Section 5.1(1) or (2) occurs and is continuing,
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the Holder of any Outstanding Security may, by notice in writing to the Company
(with a copy to the Trustee), declare the principal of such Security to be due
and payable immediately, and upon any such declaration such principal and
(subject to Section 3.7) any accrued interest and Liquidated Damages thereon
shall become immediately due and payable. If an Event of Default specified in
Sections 5.1(6) and (7) occurs and is continuing, the principal and any accrued
interest, together with any Liquidated Damages thereon, on all of the Securities
then Outstanding shall ipso facto become due and payable immediately without any
declaration or other Act on the part of the Trustee or any Holder.
At any time after such declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as hereinafter in this Article V provided, the Holders of a majority
in 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 and any Liquidated Damages thereon on
all Securities,
(B) the principal of any Securities which have become due
otherwise than by such declaration of acceleration and any 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 a rate of 5 1/4% per annum, and
(D) all sums paid or advanced 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 non-payment of the principal
of, and any interest on, Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in Section
5.13.
No such rescission or annulment shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest 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 any Security at
the Maturity thereof,
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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 interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at a rate of 5 1/4% per annum, 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 of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4 Trustee May File Proofs of Claim.
(a) 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 either of
their creditors, the Trustee (irrespective of whether the principal of, and any
interest on, the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(1) to file and prove a claim for the whole amount of
principal and interest owing and unpaid in respect of the Securities 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 and each predecessor
Trustee, its agents and counsel) and of the Holders of Securities allowed in
such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same,
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder of Securities by his acceptance thereof to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders of Securities, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, and each predecessor Trustee, its agents and counsel and any
other amounts due the Trustee under Section 6.7.
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Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a Security
any plan of reorganization, arrangement, adjustment, or composition affecting
the Securities or the rights of any Holder thereof or to authorize the Trustee
to vote in respect of the claim of any Holder of a Security in any such
proceeding; provided, however, that the Trustee may, on behalf of such Holders,
vote for the election of a trustee in bankruptcy or similar official and be a
member of a creditors' or other similar committee.
(b) If, as of the third day prior to the bar date for filing proofs of
claim in connection with any bankruptcy, reorganization or similar judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other obligor, the Trustee has failed to
file such proofs of claim under subparagraph (a) of this Section for any and all
amounts owing and unpaid in respect of the Securities, the holders of Senior
Debt shall be entitled and empowered to file proofs of claim on behalf of the
Trustee in accordance with sub- paragraph (a) of this Section.
SECTION 5.5 Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, and each predecessor Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which judgment has been recovered.
SECTION 5.6 Application of Money Collected.
Any money collected by the Trustee pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities and the notation thereon of the payment if
only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 6.7;
SECOND: Subject to Article XIV, to the payment of the amounts then due
and unpaid for principal of and interest (including Liquidated Damages,
if any) on the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal and interest, respectively; and
THIRD: Subject to Article XIV, any remaining amounts shall be repaid to
the Company.
SECTION 5.7 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:
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(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 have offered to the Trustee indemnity
satisfactory to it 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 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 of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of the Holders, each representing
less than a majority in aggregate principal amount of the Outstanding
Securities, the Trustee in its sole discretion may determine what action, if
any, shall be taken, notwithstanding any other provisions of this Indenture, and
shall have no liability to any person for such action or inaction.
SECTION 5.8 Unconditional Right of Holders to Receive Principal and Interest and
to Convert.
Notwithstanding any other provision in this Indenture, but subject to
the provisions of Article XIV, the Holder of any Security shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
(subject to Section 3.7) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption or
repurchase, on the Redemption Date or Repurchase Date, as the case may be), and
to convert such Security in accordance with Article XIII, provided, that such
Holder delivers the conversion notice required by Section 13.2, and to institute
suit for the enforcement of any such payment and right to convert, and such
rights shall not be impaired without the consent of such Holder.
SECTION 5.9 Restoration of Rights and Remedies.
If the Trustee or any Holder of a Security has instituted any
proceeding to enforce any right or remedy under this Indenture and such
proceeding has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every such
case, subject to any determination in such proceeding, the Company, the Trustee
and the Holders of Securities shall be restored severally and respectively to
their former positions
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hereunder and thereafter all rights and remedies of the Trustee and such Holders
shall continue as though no such proceeding had been instituted.
SECTION 5.10 Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities is intended to be exclusive of any other right
or remedy, and every right and remedy shall, to the extent permitted by law, be
cumulative and in addition to every other right and remedy given hereunder or
now or hereafter existing at law or in equity or otherwise. The assertion or
employment of any right or remedy hereunder, or otherwise, shall not prevent the
concurrent assertion or employment of any other appropriate right or remedy.
SECTION 5.11 Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
SECTION 5.12 Control by Holders of Securities.
The Holders of a majority in principal amount of the Outstanding
Securities shall, subject to Section 6.3(e), have the right to direct the time,
method and place of conducting any proceeding for any remedy available to the
Trustee or exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of law or
with this Indenture, and
(2) the Trustee shall not be obligated to follow any direction which
may involve it in personal liability or which may be unduly prejudicial to
Holders not joining therein, and
(3) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction or this Indenture.
SECTION 5.13 Waiver of Past Defaults.
The Holders, either (a) through the written consent of not less than a
majority in principal amount of the Outstanding Securities, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least 66-2/3% in aggregate
principal amount of the Outstanding Securities represented at such meeting, 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
interest on any Security, or (2) in respect of a covenant or provision hereof
which under Article IX cannot be modified or amended without the consent of the
Holders of each Outstanding Security affected.
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Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any Security by
his acceptance thereof shall be deemed to have agreed, that any court may in its
discretion require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken,
suffered or omitted by it as Trustee, the filing by any party litigant in such
suit of an undertaking to pay the costs of such suit, and that such court may in
its discretion assess reasonable costs, including reasonable attorneys' fees and
expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; but
the provisions of this Section 5.14 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 in the aggregate more than 10% in
aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder of any Security for the enforcement of the payment of
the principal of or interest on any Security on or after the respective Stated
Maturity or Maturities expressed in such Security (or, in the case of redemption
or repurchase, on or after the Redemption Date or the Repurchase Date, as the
case may be) or for the enforcement of the right to convert any Security in
accordance with Article XIII.
SECTION 5.15 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 VI
THE TRUSTEE
SECTION 6.1 Certain Duties and Responsibilities.
(a) If an Event of Default has occurred and is continuing, the Trustee
shall exercise the rights and powers vested in it by this Indenture and use the
same degree of care and skill in their exercise as a prudent person would
exercise or use under the circumstances in the conduct of such person's own
affairs.
(b) Except during the continuance of an Event of Default,
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(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no implied
covenants or obligations shall be read into this Indenture against the Trustee;
and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of the
opinions expressed therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture; but in the case of
any such certificates or opinions which by any provision hereof are specifically
required to be furnished to the Trustee, the Trustee shall be under a duty to
examine the same to determine whether or not they conform to the requirements of
this Indenture.
(c) No provision of this Indenture shall be construed to relieve the
Trustee from liability for its own negligent action, its own negligent failure
to act, or its own wilful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved that the
Trustee was negligent in ascertaining the pertinent facts;
(3) the Trustee shall not be liable with respect to any action
taken or omitted to be taken by it in good faith in accordance with the
direction of the Holders of a majority in principal amount of the Outstanding
Securities relating to the time, method and place of conducting any proceeding
for any remedy available to the Trustee, or exercising any trust or power
conferred upon the Trustee, under this Indenture; and
(4) 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 indemnity satisfactory to it against such risk or
liability is not assured to it.
(d) Whether or not therein expressly so provided, every provision of
this Indenture relating to the conduct or affecting the liability of or
affording protection to the Trustee shall be subject to the provisions of this
Section.
SECTION 6.2 Notice of Defaults.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall give to all Holders of Securities, in the manner provided in
Section 1.5, notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character specified in
Section 5.1(4), no such notice to Holders of Securities shall be given until at
least 30 days after the occurrence of such default. 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.
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SECTION 6.3 Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, Officers' Certificate, other
certificate, statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, 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 of the Company shall 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,
conclusively rely upon an Officers' Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel (at the expense of the
Company) and the advice of such counsel or any Opinion of Counsel shall be full
and complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance thereon;
(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 or direction of
any of the Holders of Securities pursuant to this Indenture, unless such Holders
shall have offered to the Trustee security or indemnity satisfactory to it
against the costs, expenses and liabilities which might be incurred by it in
compliance with such request or direction;
(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;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents, attorneys,
custodians or nominees and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent, attorney, custodian or
nominee appointed with due care by it hereunder;
(h) the Trustee shall not be deemed to have notice of any Event of
Default under Section 5.1 unless a Responsible Officer of the Trustee shall have
actual knowledge thereof; and
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(i) in the event that the Trustee is also acting as authenticating
agent, conversion agent, payment agent or securities registrar hereunder, the
rights and protections afforded to the Trustee pursuant to this Article VI shall
also be afforded to the Trustee in such capacities.
SECTION 6.4 Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
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 6.5 May Hold Securities, Act as Trustee Under Other Indentures.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
Securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.6 Money Held in Trust.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed with the Company in writing.
SECTION 6.7 Compensation and Indemnification of Trustee and Its Prior Claims.
The Company covenants and agrees to pay to the Trustee from time to
time, and the Trustee shall be entitled to, reasonable compensation (which shall
not be limited by any provision of law in regard to the compensation of a
trustee of an express trust) and the Company covenants and agrees to pay or
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by or on behalf of it in accordance
with any of the provisions of this Indenture (including the reasonable
compensation and the expenses and disbursements of its counsel and of all agents
and other Persons not regularly in its employ), except to the extent that any
such expense, disbursement or advance is due to its negligence or bad faith. The
Company also covenants to indemnify the Trustee and its directors, officers,
employees and agents for, and to hold the Trustee and its directors, officers,
employees and agents harmless against, any loss, liability or expense incurred
by the Trustee or its directors, officers, employees and agents, arising out of
or in connection with the acceptance or administration of this Indenture or the
trusts hereunder or the performance of the Trustee's duties hereunder, including
the costs and expenses of defending the Trustee or its directors, officers,
employees and agents against or investigating any claim or liability in the
premises, except to the extent that any such loss, liability or expense was due
to the Trustee's negligence or bad faith. The obligations of the Company under
this Section 6.7 to compensate and indemnify the Trustee
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and its directors, officers, employees and agents and to pay or reimburse the
Trustee and its directors, officers, employees and agents for expenses,
disbursements and advances shall constitute additional indebtedness hereunder
and shall survive the satisfaction and discharge of this Indenture or the
earlier resignation and removal of the Trustee. The Trustee shall have a lien
prior to the Securities on all money or property held or collected by the
Trustee including, without limitation, all money or property held or collected
by the Trustee in trust to pay the principal of, or interest on, or any other
amounts on any Securities, and such lien shall survive the satisfaction and
discharge of the Indenture and any other termination of the Indenture including
any termination under any bankruptcy law. When the Trustee incurs expenses or
renders services in connection with an Event of Default specified in Sections
5.1(6) or (7), the Holders by their acceptance of the Securities hereby agree
that such expenses and the compensation for such services are intended to
constitute expenses of administration under Title 11 of the United States Code
or any other applicable Federal or state bankruptcy, insolvency or similar law.
"Trustee" for purposes of this Section 6.7 shall include any predecessor
Trustee, but the negligence or bad faith of any Trustee shall not affect the
indemnification of any other Trustee.
SECTION 6.8 Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall 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 exercise corporate trust powers, having a combined capital and surplus
of at least U.S.$50,000,000, subject to supervision or examination by Federal or
State authority, in good standing and having an established place of business in
The City of New York. If such corporation publishes reports of condition at
least annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined capital
and surplus of such corporation shall be deemed to be its combined capital and
surplus as set forth in its most recent report of condition so published. 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.
SECTION 6.9 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 in accordance with the
applicable requirements of Section 6.10.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor Trustee required
by this Section 6.9 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 an Act of the Holders of
a majority in principal amount of the Outstanding Securities, delivered to the
Trustee and the Company.
(d) If at any time:
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(1) the Trustee shall cease to be eligible under Section 6.8
and shall fail to resign after written request therefor by the Company or by any
Holder of a Security who has been a bona fide Holder of a Security for at least
six months, or
(2) 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 5.14, any Holder of a Security who has been
a bona fide Holder of a Security for at least six months may, on behalf of
himself and all others similarly situated, petition any court of competent
jurisdiction for the removal of the Trustee and the appointment of a successor
Trustee.
(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 and
shall comply with the applicable requirements of this Section 6.9. 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 principal amount of the Outstanding Securities delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall,
forthwith upon its acceptance of such appointment in accordance with the
applicable requirements of this Section 6.9, become the successor Trustee and
supersede the successor Trustee appointed by the Company. If no successor
Trustee shall have been so appointed by the Company or the Holders of Securities
and accepted appointment in the manner required by this Section 6.9, any Holder
of a Security who has been a bona fide Holder of a Security for at least six
months may, on behalf of himself and all others similarly situated, petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all Holders of
Securities in the manner provided in Section 1.5. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
Notwithstanding the replacement of the Trustee pursuant to this Section
6.9, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee.
The retiring Trustee shall not be liable for the acts or omissions of
any successor Trustee hereunder.
SECTION 6.10 Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver
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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 eligible under this Article.
Upon the acceptance of appointment by any successor Trustee, all fees,
charges and expenses of the retiring Trustee shall become immediately due and
payable upon the rendering of a statement thereof.
SECTION 6.11 Appointment of Co-Trustee or Separate Trustee.
(a) Notwithstanding any other provisions of this Indenture, at any
time, for the purpose of meeting any legal requirement of any jurisdiction in
which any part of the trust may at the time be located, the Trustee shall have
the power and may execute and deliver all instruments to appoint one or more
Persons reasonably acceptable to the Company to act as a co-trustee or
co-trustees, or separate trustee or separate trustees, and to vest in such
Person or Persons, in such capacity and for the benefit of the Security Holders,
such title to the Securities, or any part hereof, and, subject to the other
provisions of this Section, such powers, duties, obligations, rights and trusts
as the Trustee may consider necessary or desirable. No co-trustee or separate
trustee hereunder shall be required to meet the terms of eligibility as a
successor trustee under Section 6.9 and no notice to Security Holders of the
appointment of any co-trustee or separate trustee shall be required under
Section 6.9 hereof. All fees, charges and expenses of any co-trustee or separate
trustee appointed pursuant to this Section 6.11 shall be paid by the Company.
(b) Every separate trustee and co-trustee shall, to the extent
permitted by law, be appointed and act subject to the following provisions and
conditions:
(i) all rights, powers, duties and obligations conferred or
imposed upon the Trustee shall be conferred or imposed upon and
exercised or performed by the Trustee and such separate trustee or
co-trustee jointly (it being understood that such separate trustee or
co-trustee is not authorized to act separately without the Trustee
joining in such act), except to the extent that under any law of any
jurisdiction in which any particular act or acts are to be performed,
the Trustee shall be incompetent or unqualified to perform such act or
acts, in which event such rights, powers, duties and obligations,
(including the holding of title to the trust or any portion thereof in
any such jurisdiction) shall be exercised and performed singly by such
separate trust or co-trustee, but solely at the direction of the
Trustee;
(ii) the Trustee shall not be personally liable by reason of any
act or omission of any separate trustee or co-trustee (subject to the
provisions of Section 6.1 hereof);
(iii) the Trustee may at any time accept the resignation of or
remove any separate trustee or co-trustee.
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(c) Any notice, request or other writing given to the Trustee shall be
deemed to have been given to each of the separate trustees and co-trustees, as
effectively as if given to each of them. Every instrument appointing any
separate trustee or co-trustee shall refer to this Agreement and the conditions
of this Article VI. Each separate trustee and co-trustee, upon its acceptance of
the trusts conferred, shall be vested with the estates or property specified in
its instrument of appointment, either jointly with the Trustee or separately, as
may be provided therein, subject to all the provisions of this Indenture,
specifically including every provision of this Indenture relating to the conduct
of, affecting the liability of, or affording protection to, the Trustee. Every
such instrument shall be filed with the Trustee.
SECTION 6.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or
with which it may be consolidated, or any corporation resulting from any merger,
conversion or consolidation to which the Trustee shall be a party, or any
corporation succeeding to all or substantially all of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Securities shall have been authenticated,
but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.13 Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents acceptable to
the Company with respect to the Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange or
substitution pursuant to this Indenture. 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, and every reference
in this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall at all
times be a corporation organized and doing business under the laws of the United
States of America or any State thereof and authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
U.S.$50,000,000 or its equivalent in another currency or composite currencies
and subject to supervision or examination by government 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 6.13, 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 6.13, such Authenticating Agent shall resign
immediately in the manner and with the effect specified in this Section 6.13.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding
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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 6.13, without the execution or filing of
any paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof to such
Authenticating Agent and to the Company. Upon 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 6.13, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder, with
like effect as if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the provisions of
this Section 6.13.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.13, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: BANKERS TRUST COMPANY, as Trustee
By [Authenticating Agent or
authorized representative],
as Authenticating Agent
By:
-------------------------
Authorized Signatory
SECTION 6.14 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.
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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after the Regular Record Date,
a list, in such form as the Trustee may reasonably require, of the names and
addresses of the Holders of Securities as of such Regular Record Date, and
(b) at such other times as the Trustee may reasonably 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 7.2 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 7.1 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 pursuant to Section
7.1 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 for holders of securities issued under an indenture
qualified pursuant to 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 or the Code.
SECTION 7.3 Reports by the Company.
(a) The Company shall file with the Trustee, within 15 days after the
Company is required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by rules and regulations
prescribe) which the Company is required to file with the Commission pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is not subject
to Section 13 or 15(d) of the Exchange Act, it shall file with the Trustee upon
request the information required to be delivered pursuant to Rule 144A(d)(4)
under the Securities Act.
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(b) The Company shall file with the Trustee such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
requested from time to time by the Trustee.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not amalgamate or consolidate with or merge into any
other Person or, directly or indirectly, convey, transfer, sell or lease or
otherwise dispose of all or substantially all of its properties and assets to
any Person (other than a wholly owned subsidiary), and the Company shall not
permit any Person (other than a wholly owned Subsidiary of the Company) to
amalgamate or consolidate with or merge into the Company or convey, transfer,
sell or lease all or substantially all of its properties and assets to the
Company, unless:
(1) in case the Company shall consolidate with or merge into another
Person or convey, transfer, sell or lease all or substantially all of its
properties and assets to any Person, the Person formed by such amalgamation or
consolidation or into which the Company is merged or the Person which acquires
by conveyance, transfer or sale, or which leases, all or substantially all of
the properties and assets of the Company shall be a corporation, partnership or
trust, 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 supplemental hereto, executed and delivered to
the Trustee, the due and punctual payment of the principal of and interest
(including Liquidated Damages payable, if any, pursuant to Section 11.12) on all
of the Securities, as applicable, and the performance or observance of every
covenant of this Indenture on the part of the Company to be performed or
observed and shall have provided for conversion rights in accordance with
Section 13.12;
(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, sale or lease and, if a supplemental indenture is required
in connection with such transaction, such supplemental indenture comply with
this Article and that all conditions precedent herein provided for relating to
such transaction have been complied with.
SECTION 8.2 Successor Substituted.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, sale or lease of all or the
properties and assets of the Company in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the
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Company herein, and thereafter the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 Supplemental Indentures Without Consent of Holders of Securities.
Without the consent of any Holders of Securities, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, for any of the
following purposes:
(1) to evidence the succession of another Person to the Company and the
assumption by any such successor of the covenants and obligations of the Company
herein and in the Securities as permitted by this Indenture; or
(2) to add to the covenants of the Company for the benefit of the
Holders of Securities, or to surrender any right or power herein conferred upon
the Company; or
(3) to secure the Securities; or
(4) to modify the restrictions on, and procedures for, resale and other
transfers of the Securities to the extent required by any change in applicable
law or regulation (or the interpretation thereof) or in practice relating to the
resale or transfer of restricted securities generally; or
(5) to make provision with respect to the conversion rights of Holders
of Securities pursuant to Section 13.12; or
(6) to accommodate the issuance, if any, of Securities in book-entry or
definitive form and matters related thereto which do not adversely affect the
interest of the Holders of Securities; or
(7) to comply with any requirements of the Commission in order to
effect and maintain the qualification of this Indenture under the Trust
Indenture Act; or
(8) to cure any ambiguity, to correct or supplement any provision
herein, which may be inconsistent with any other provision herein or which is
otherwise defective, or to make any other provisions with respect to matters or
questions arising under this Indenture as the Company and the Trustee may deem
necessary or desirable, provided, such action pursuant to this clause (8) shall
not adversely affect the interests of the Holders of Securities in any material
respect.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 9.4 hereof, the Trustee shall
join with the Company in the
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execution of any supplemental indenture authorized or permitted by the terms of
this Indenture and any further appropriate agreements and stipulations which may
be therein contained.
SECTION 9.2 Supplemental Indentures with Consent of Holders of Securities.
With either (a) the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Company and the Trustee, or (b) by the adoption
of a resolution, at a meeting of Holders of the Outstanding Securities at which
a quorum is present, by the Holders of 66-2/3% in aggregate principal amount of
the Outstanding Securities represented at such meeting (subject to Section 9.4),
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 of
Securities under this Indenture; provided, however, that no such supplemental
indenture shall, without the consent or affirmative vote of the Holder of each
Outstanding Security affected thereby,
(1) change the Stated Maturity of the principal of, or any installment
of interest on, any Security, or reduce the principal amount thereof or the rate
of interest payable thereon or any premium payable upon redemption or mandatory
repurchase thereof, or change the coin or currency in which any Security 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 or repurchase, on or after the Redemption Date or
Repurchase Date, as the case may be) or, except as permitted by Section 13.12,
adversely affect the right to convert any Security as provided in Article XIII,
or modify the provisions of this Indenture with respect to the subordination of
the Securities in a manner adverse to the Holders of Securities, or
(2) reduce the requirements of Section 10.4 for quorum or voting, or
reduce the percentage in aggregate principal amount of the Outstanding
Securities the consent of whose Holders is required for any such supplemental
indenture or the consent of whose Holders is required for any waiver provided
for in this Indenture, or
(3) modify the obligation of the Company to maintain an office or
agency in The City of New York pursuant to Section 11.2, or
(4) modify any of the provisions of this Section, Section 5.13 or
Section 11.11, except to increase any percentage contained herein or therein or
to provide that certain other provisions of this Indenture cannot be modified or
waived without the consent of the Holder of each Outstanding Security affected
thereby, or
(5) modify any of the provisions of Sections 11.6, 11.8, 11.10 or
11.12, or
(6) modify any provisions of Article XIII, XIV or XV in a manner
adverse to the Holders.
It shall not be necessary for any Act of Holders of Securities under
this Section to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
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SECTION 9.3 Trustee Protected.
If, in the opinion of the Trustee hereunder, any document required to
be executed pursuant to the terms of Section 9.2 hereof adversely affects any
right, duty, immunity or indemnity with respect to it under this Indenture, the
Trustee in its discretion may decline to execute such document.
SECTION 9.4 Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by, any
supplemental indenture permitted by this Article or the modifications thereby of
the trusts created by this Indenture, the Trustee shall be entitled to receive,
and (subject to Section 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and an Officers' Certificate to the
effect that all conditions precedent have been satisfied. 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 9.5 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 9.6 Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.7 Notice of Supplemental Indentures.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice to all Holders of Securities, in the manner provided in
Section 1.5, of such fact, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not in any way impair or affect the validity of any such
supplemental indenture.
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ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
SECTION 10.1 Purposes for Which Meetings May Be Called.
A meeting of Holders of Securities may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Securities.
SECTION 10.2 Call, Notice and Place of Meetings.
(a) The Trustee may at any time call a meeting of Holders of Securities
for any purpose specified in Section 10.1, to be held at such time and at such
place in The City of New York as the Trustee shall determine. Notice of every
meeting of Holders of Securities, setting forth the time and the place of such
meeting and in general terms the action proposed to be taken at such meeting,
shall be given, in the manner provided in Section 1.5, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities for any purpose specified in Section 10.1, by written request setting
forth in reasonable detail the action proposed to be taken at the meeting, and
the Trustee shall not have made the first publication of the notice of such
meeting within 21 days after receipt of such request or shall not thereafter
proceed to cause the meeting to be held as provided herein, then the Company or
the Holders of Securities in the amount specified, as the case may be, may
determine the time and the place in The City of New York for such meeting and
may call such meeting for such purposes by giving notice thereof as provided in
paragraph (a) of this Section.
SECTION 10.3 Persons Entitled to Vote at Meetings.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (a) a Holder of one or more Outstanding Securities, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. The only Persons
who shall be entitled to be present or to speak at any meeting of Holders shall
be the Persons entitled to vote at such meeting and their counsel, any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.4 Quorum; Action.
The Persons entitled to vote a majority in principal amount of the
Outstanding Securities shall constitute a quorum. In the absence of a quorum
within 30 minutes of the time appointed for any such meeting, the meeting shall,
if convened at the request of Holders of Securities, be dissolved. In any other
case, the meeting may be adjourned for a period of not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
meeting. In the absence of a quorum at any such adjourned meeting, such
adjourned meeting may be further
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adjourned for a period not less than 10 days as determined by the chairman of
the meeting prior to the adjournment of such adjourned meeting (subject to
repeated applications of this sentence). Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 10.2(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage of the principal amount
of the Outstanding Securities which shall constitute a quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to Section 9.2) shall be effectively passed and decided
if passed or decided by the Persons entitled to vote not less than 66 2/3% in
aggregate principal amount of Outstanding Securities represented and voting at
such meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, whether or not present or represented at the meeting.
SECTION 10.5 Determination of Voting Rights; Conduct and Adjournment of
Meetings.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Securities in regard to proof of the holding of Securities and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Securities shall be proved in
the manner specified in Section 1.3 and the appointment of any proxy shall be
proved in the manner specified in Section 1.3. Such regulations may provide that
written instruments appointing proxies, regular on their face, may be presumed
valid and genuine without the proof specified in Section 10.3 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as provided in
Section 10.2(b), in which case the Company or the Holders of Securities calling
the meeting, as the case may be, shall in like manner appoint a temporary
chairman. A permanent chairman and a permanent secretary of the meeting shall be
elected by vote of the Persons entitled to vote a majority in principal amount
of the Outstanding Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each U.S.$1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security challenged as not Outstanding and ruled
by the chairman of the meeting to be not Outstanding. The chairman of the
meeting shall have no right to vote, except as a Holder of a Security or proxy.
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(d) Any meeting of Holders of Securities duly called pursuant to
Section 10.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
SECTION 10.6 Counting Votes and Recording Action of Meetings.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was given as provided in Section 10.2 and, if
applicable, Section 10.4. Each copy shall be signed and verified by the
affidavits of the permanent chairman and secretary of the meeting and one such
copy shall be delivered to the Company and another to the Trustee to be
preserved by the Trustee, the latter to have attached thereto the ballots voted
at the meeting. Any record so signed and verified shall be conclusive evidence
of the matters therein stated.
ARTICLE XI
COVENANTS
SECTION 11.1 Payment of Principal and Interest.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 11.2 Maintenance of Offices or Agencies.
The Company hereby appoints the Corporate Trust Office of the Trustee
as its agent in The City of New York where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where conversion notices, certificates and other items
required to be delivered to effect conversion may be delivered and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served.
The Company hereby appoints the principal corporate trust office of the
Trustee as Paying Agent for the payment of principal of and interest on the
Securities and as Conversion Agent for the Conversion of any of the Securities
in accordance with Article XIII, and appoints the office of the Trustee as
transfer agent where Securities may be surrendered for registration of transfer
or exchange.
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The Company may at any time and from time to time vary or terminate the
appointment of any such agent or appoint any additional agents with or without
cause for any or all of such purposes; provided, however, that until all of the
Securities have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 11.3, the Company will maintain (i) in the Borough of
Manhattan, The City of 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, and (ii) subject to any laws or
regulations applicable thereto, in any city in a Western European country, an
office or agency where Securities may be presented and surrendered for payment
and where Securities may be presented for registration of transfer or exchange
or conversion thereof. The Company will give prompt written notice to the
Trustee, and will give notice to Holders of Securities in the manner specified
in Section 1.5, of the appointment or termination of any such agents and of the
location and any change in the location of any 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,
presentations and surrenders may be made and notices and demands may be served
on and Securities may be surrendered for conversion to the Corporate Trust
Office of the Trustee, and the Company hereby appoints the same as its agent to
receive such respective presentations, surrenders, notices and demands.
SECTION 11.3 Money for Security Payments To Be Held in Trust.
If the Company at any time shall act as its own Paying Agent, it will,
on or before each due date of the principal of 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 or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and the Company will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to or on each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal or interest so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such principal or interest, and (unless such Paying Agent is the
Trustee) the Company will promptly notify the Trustee of any failure so to act.
The Company will cause each Paying Agent other than the Trustee or
affiliate of the Trustee to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(1) hold all sums held by it for the payment of the principal
of or interest on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the securities) in the making of any
payment of principal or interest; and
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(3) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held 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 or interest on
(together with any Liquidated Damages in respect thereof) any Security and
remaining unclaimed for two years after such principal or interest (together
with any Liquidated Damages in respect thereof) 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 a general unsecured creditor, look only to the Company for
payment thereof, and all liability of the Trustee or such Paying Agent with
respect to such trust money, and all liability of the Company as trustee
thereof, shall thereupon cease; provided, however, that the Trustee or such
Paying Agent, before making any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, notice 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, and provided, further, that any such publication
shall not relieve the Trustee or any Paying Agent of their obligation to pay any
amounts to the Company in the manner provided in this Section 11.3.
SECTION 11.4 Corporate Existence.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Board of Directors of the Company 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 11.5 Maintenance of Properties.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made (subject, however, to any limitations on
expenditures in any document evidencing and/or securing Senior Debt) all
necessary repairs, renewals, replacements, betterments and improvements thereof,
all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted
at all times; provided, however, that nothing in this Section 11.5 shall prevent
the Company from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company,
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desirable in the conduct of its business or the business of any Subsidiary and
not disadvantageous in any material respect to the Holders.
SECTION 11.6 Compliance with Laws.
The Company will comply, and cause each Subsidiary to comply, with the
requirements of all applicable laws, ordinances, rules, regulations, and
requirements of any governmental authority (including, without limitation, ERISA
and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
where the failure to comply would not have a material adverse effect upon the
Company and its Subsidiaries taken as a whole.
SECTION 11.7 Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (1) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (2)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
SECTION 11.8 Delivery of Certain Information.
The Company will use its best efforts to be, at all times, prior to
April 15, 1999, subject to the reporting requirements of Section 13 or 15(d) of
the Exchange Act or is exempt from such requirements pursuant to Rule 12g3-2(b)
under the Exchange Act. At any time when the Company is not subject to Section
13 or 15(d) of the Exchange Act or is exempt therefrom, upon the request of a
Holder of a Restricted Security or the holder of Common Shares issued upon
conversion thereof, the Company will promptly furnish or cause to be furnished
Rule 144A Information (as defined below) to such Holder of Restricted Securities
or such holder of Common Shares issued upon conversion of Restricted Securities,
or to a prospective purchaser of such security designated by any such Holder or
holder, as the case may be, to the extent required to permit compliance by such
holder with Rule 144A under the Securities Act (or any successor provision
thereto) in connection with the resale of such Security by such Holder;
provided, however, that the Company shall not be required to furnish such
information in connection with any request made on or after the date which is
three years from the later of (i) the date such a security (or any predecessor
security) was acquired from the Company or (ii) the date such a security (or any
predecessor security) was last acquired from the Company or an "affiliate" of
the Company within the meaning of Rule 144 under the Securities Act (or any
successor provision thereto); and provided, further, that the Company shall not
be required to furnish such information at any time to a prospective purchaser
located outside the United States who is not a "U.S. Person" within the meaning
of Regulation S under the Securities Act if such Security may then be sold to
such prospective purchaser in accordance with Rule 904 under the Securities Act
(or any successor provision thereto). "Rule 144A Information" shall be such
information as is specified pursuant to Rule 144A(d)(4) under the Securities Act
(or any successor provision thereto).
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SECTION 11.9 Statement by Officers as to Default.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating that a
review of the activities of the Company and its Subsidiaries during the
preceding fiscal year has been made under the supervision of the Officers
signing such certificate, with a view to determining whether any default exists
in the performance and observance of any of the terms, provisions and conditions
of this Indenture and whether the Company has observed, performed and fulfilled
its obligations under this Indenture. If the Officers signing the Certificate
know of such a default, the Officers' Certificate shall describe such default
and its status with particularity. The Company shall also promptly notify the
Trustee if the Company's fiscal year is changed so that the end thereof is on
any date other than the then current fiscal year end date.
The Company will also deliver to the Trustee, forthwith upon any
Officer becoming aware of any Event of Default, an Officers' Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto.
Any notice required to be given under this Section 11.9 shall be
delivered to the Trustee at its Corporate Trust Office and need not comply with
Section 1.4.
SECTION 11.10 Resale of Certain Securities.
During the period beginning on April 15, 1996 and ending on April 15,
1999, the Company will not, and will not permit any of its "affiliates" (as
defined under Rule 144 under the Securities Act or any successor provision
thereto) to, resell (x) any Securities which constitute "restricted securities"
under Rule 144 or (y) any securities into which such Securities have been
converted under this Indenture, which constitute "restricted securities" under
Rule 144 that in either case have been reacquired by any of them. The Trustee
shall have no responsibility in respect of the Company's performance of its
agreement in the preceding sentence.
SECTION 11.11 Waiver of Certain Covenants.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 11.5 or 11.6 if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities (or such lesser amount as shall have acted at a meeting
pursuant to the provisions of this Indenture) shall 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.
SECTION 11.12 Registration Rights.
The holders of the Securities and the Common Shares issuable upon
conversion thereof are entitled to the benefits of a Registration Rights
Agreement, dated as of April 10, 1996, between the Company and Goldman, Sachs &
Co. (the "Registration Rights Agreement"). Pursuant to the Registration Rights
Agreement, the Company has agreed for the benefit of the
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holders from time to time of the Securities and the Common Shares issuable upon
conversion thereof that it will, at its expense, (i) within 90 days after the
date of issuance of the original Securities, file a shelf registration statement
(the "Shelf Registration Statement") with the Commission with respect to resales
of the Securities and the Common Shares issuable upon conversion thereof, (ii)
use its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission within 90 days after the date on which the Shelf
Registration Statement is filed and (iii) use its best efforts to maintain such
Shelf Registration Statement continuously effective under the Securities Act
until the third annual anniversary of the date of the effectiveness of the Shelf
Registration Statement or such earlier date as is provided in the Registration
Rights Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to the 90th day following the filing of such
Shelf Registration Statement, such Shelf Registration Statement is not declared
effective (each, a "Registration Default"), additional interest ("Liquidated
Damages") will accrue on the Securities from and including the day following
such Registration Default to but excluding the day on which such Registration
Default has been cured. Liquidated Damages will be paid semi-annually in
arrears, with the first semi-annual payment due on the first Interest Payment
Date in respect of the Securities following the date on which such Liquidated
Damages begin to accrue, and will accrue at a rate per annum equal to an
additional one-quarter of one percent (0.25%) of the principal amount of the
Securities to and including the 90th day following such Registration Default and
at a rate per annum equal to one-half of one percent (0.50%) thereof from and
after the 91st day following such Registration Default. In the event that the
Shelf Registration Statement ceases to be effective prior to the third annual
anniversary of the initial effective date of the Shelf Registration Statement or
such earlier date as is provided in the Registration Rights Agreement for a
period in excess of 60 days, whether or not consecutive, during any 12-month
period, then the interest rate borne by the Securities shall increase by an
additional one-half of one percent (0.50%) per annum on the 61st day of the
applicable 12-month period such Shelf Registration Statement ceases to be
effective to but excluding the day on which the Shelf Registration Statement
again becomes effective.
Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages provided for in this Section to the extent that, in such
context, Liquidated Damages are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
Liquidated Damages (if applicable) in any provisions hereof shall not be
construed as excluding Liquidated Damages in those provisions hereof where such
express mention is not made.
SECTION 11.13 Book-Entry System.
If the Securities cease to trade in the U.S. Depository's book-entry
settlement system, the Company covenants and agrees that it shall use reasonable
efforts to make such other book-entry arrangements that it determines are
reasonable for the Securities.
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ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.1 Right of Redemption.
The Securities shall be redeemable at the Company's option, in whole or
in part, under the circumstances and at the Redemption Prices specified in the
form of Securities set forth in Sections 2.2 and 2.3.
SECTION 12.2 Applicability of Article.
Redemption of Securities at the election of the Company, as permitted
or required by any provision of the Securities or this Indenture, shall be made
in accordance with such provision and this Article XII.
SECTION 12.3 Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant to
Section 12.1 shall be evidenced by a Board Resolution. In the case of any
redemption at the election of the Company of all of the Securities, the Company
shall, at least 60 days prior to the Redemption Date fixed by the Company
(unless a shorter notice shall be satisfactory to the Trustee), notify the
Trustee in writing of such Redemption Date. If the Securities are to be redeemed
pursuant to an election of the Company which is subject to a condition specified
in the forms of Securities set forth in Section 2.2, the Company shall furnish
the Trustee with (a) an Officers' Certificate stating that the Company is
entitled to effect such redemption and setting forth a statement of facts
demonstrating the same and (b) an Opinion of Counsel to the effect that the
Company is entitled to effect such redemption, and such redemption is not
otherwise in violation of any provisions of Senior Debt.
SECTION 12.4 Notice of Redemption.
Notice of redemption shall be given in the manner provided in Section
1.5 to the Holders of Securities to be redeemed. Notice shall be given at least
once not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and the amount of accrued interest,
if any,
(3) that on the Redemption Date the Redemption Price, and
accrued interest, if any, will become due and payable, and that
interest thereon shall cease to accrue on and after said date,
(4) the Conversion Date, the date on which the right to
convert the Securities will terminate and the places where the
Securities may be surrendered for conversion, and
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(5) the place or places where the Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any.
Notice of redemption of Securities to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name of and at the expense of the Company, and such notice, when
given to the Holders, shall be irrevocable.
SECTION 12.5 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 Paying Agent,
segregate and hold in trust as provided in Section 11.3) an amount of money
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 a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.7) be paid to the Company on Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 12.6 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 herein 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, the Holder of such
Security shall be paid 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 3.7.
If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal shall, until paid, bear interest
from the Redemption Date at the rate of interest borne by the Security.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1 Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or any integral multiple of $1,000 in excess
thereof, may be converted at any time after the Non-
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Conversion Period (as such term is defined in Section 2.3 hereof) at the
principal amount thereof, or of such portion thereof, into fully paid and
nonassessable Common Shares of the Company (calculated as to each conversion to
the nearest 1/100 of a share) at the Conversion Rate, determined as hereinafter
provided, in effect at the time of conversion. Such conversion right shall
expire at the close of business on April 15, 2003; subject, in the case of
conversion of a Global Security, to any applicable book-entry procedures of the
Depository for such conversion. In case a Security or portion thereof is called
for redemption at the election of the Company or is delivered for repurchase at
the option of the Holder, such conversion right in respect of the Security or
portion thereof so called shall expire at the close of business on the
Redemption Date or the Repurchase Date, unless the Company defaults in making
the payment due upon redemption or the repurchase, as the case may be (subject
as aforesaid to any applicable book-entry procedures).
The rate at which Common Shares shall be delivered upon conversion
(herein called the "Conversion Rate") shall be initially 38.3142 Common Shares
for each U.S.$1,000 principal amount of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in this Article 13. The price at which
Common Shares shall be delivered upon conversion (herein called the "Conversion
Price") shall at any time be equal to U.S. $1,000 divided by the then applicable
Conversion Rate (and rounded to the nearest cent).
SECTION 13.2 Exercise of Conversion Privilege.
In order to exercise the conversion privilege with respect to any
Security or portion thereof, the Holder of any Security to be converted or any
other person acting on its behalf shall surrender such Security, duly endorsed
or assigned to the Company or in blank at any office or agency of the Company
maintained for that purpose pursuant to Section 11.2, accompanied by a duly
signed conversion notice substantially in the form set forth in Annex A stating
that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Alternatively, if such security is represented by a Global Security,
conversion may be effected by written order given to the Trustee in accordance
with the applicable procedures of the U.S. Depository then in effect. Each
Security surrendered for conversion (in whole or in part) during the period from
the close of business on any Regular Record Date next preceding any Interest
Payment Date to the opening of business on such Interest Payment Date shall
(except in the case of any Security or portion thereof which has been called for
redemption on a Redemption Date or repurchase on a Repurchase Date occurring
within such period) 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 such Security
(or part thereof as the case may be) being surrendered for conversion. The
interest so payable on such Interest Payment Date in respect of such Security
(or portion thereof, as the case may be) surrendered for conversion shall be
paid to the Holder of such Security as of such Regular Record Date. Interest
payable in respect of any Security surrendered for conversion on or after an
Interest Payment Date shall be paid to the Holder of such Security as of the
next preceding Regular Record Date, notwithstanding the exercise of the right of
conversion. Except as provided in this paragraph and subject to the last
paragraph of Section 3.7, no cash payment or adjustment shall be made on account
of any cash dividends on the Common Shares issued upon conversion or, if the
date of conversion is not an Interest Payment Date, on account of any interest
accrued from the Interest Payment Date next preceding the conversion date, in
respect of any Security (or part thereof, as the case may be) surrendered for
conversion.
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Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Shares issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Shares at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver, out of its authorized but previously unissued Shares of
Common Stock, at the office of such Conversion Agent a certificate or
certificates for the number of full shares of newly issued Common Shares
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 13.3.
All Common Shares delivered upon such conversion of Restricted
Securities shall bear a restrictive legend substantially in the form of the
legend required to be set forth on the Restricted Securities pursuant to Section
2.2 and shall be subject to the restrictions on transfer provided in such
legend. Neither the Trustee nor any agent maintained for the purpose of such
conversion shall have any responsibility for the inclusion or content of any
such restrictive legend on such Common Shares; provided, however, that the
Trustee or any agent maintained for the purpose of such conversion shall have
provided, to the Company or to the Company's transfer agent for such Common
Shares, prior to or concurrently with a request to the Company to deliver to
such agent maintained for the purpose of such conversion certificates for such
Common Shares, written notice that the Securities delivered for conversion are
Restricted Securities.
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.
If Common Shares to be issued upon conversion of a Security, or
Securities to be issued upon conversion of a Security in part only, are to be
registered in a name other than that of the Holder of such Security, the
Security Registrar shall, prior to the conversion of such Security, record in
the Security Register the transfer of that portion of the Security to be so
converted in the name of the person in whose name such Common Shares or
Securities are to be registered.
SECTION 13.3 Fractions of Common Shares.
No fractional Common Shares or scrip certificates in respect thereof
shall be issued upon conversion of any Security or Securities. If more than one
Security shall be surrendered for conversion at one time by the same Holder, the
number of full shares which shall be issuable upon conversion thereof shall be
computed on the basis of the aggregate principal amount of the Securities so
surrendered. Instead of any fractional Common Shares which would otherwise be
issuable upon conversion of any Security or Securities, the Company shall pay a
cash adjustment in respect of such fraction (calculated to the nearest 1/100 of
a share) in an amount in Dollars equal to the same fraction of the current
market price per Common Share (calculated in accordance with Section 13.4(8)
below) at the close of business on the day of conversion, or alternatively the
Company shall round up the conversion transaction to the next higher whole
share.
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SECTION 13.4 Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from time to time
as follows:
(1) In case at any time after the date hereof, the Company shall pay or
make a dividend or other distribution on all or any portion of its Common Shares
or shall pay or make a dividend or other distribution on any other class of
capital stock of the Company which dividend or distribution includes Common
Shares, the Conversion Rate in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the number of
Common Shares outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of shares and
the total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. For the purposes of
this paragraph (1), the number of Common Shares at any time outstanding shall
not include shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates, if any, issued in lieu of fractions
of Common Shares.
(2) In case at any time after the date hereof, the Company shall pay or
make a dividend or other distribution on all of its Common Shares consisting of,
or shall otherwise issue to all holders of its Common Shares, rights, warrants
or options (not being available on an equivalent basis to Holders of the
Securities upon conversion) entitling the holders of its Common Shares to
subscribe for or purchase Common Shares at a price per share less than the
current market price per share (determined as provided in paragraph (8) of this
Section 13.4) of the Common Shares on the date fixed for the determination of
shareholders entitled to receive such rights, warrants or options (other than
pursuant to a dividend reinvestment plan), the Conversion Rate in effect at the
opening of business on the day following the date fixed for such determination
shall be increased by dividing such Conversion Rate by a fraction of which the
numerator shall be the number of Common Shares outstanding at the close of
business on the date fixed for such determination plus the number of Common
Shares which the aggregate of the offering price of the total number of Common
Shares so offered for subscription or purchase would purchase at such current
market price and the denominator shall be the number of Common Shares
outstanding at the close of business on the date fixed for such determination
plus the number of Common Shares so offered for subscription or purchase, such
increase to become effective immediately after the opening of business on the
day following the date fixed for such determination. For the purposes of this
paragraph (2), the number of Common Shares at any time outstanding shall not
include shares held in the treasury of the Company but will include shares
issuable in respect of scrip certificates, if any, issued in lieu of fractions
of Common Shares. The Company will not issue any rights or warrants in respect
of Common Shares held in the treasury of the Company (or, if rights or warrants
are issued in respect of all of the Common Shares of the Company, will not
exercise any such rights or warrants in respect of Common Shares held in the
treasury of the Company).
(3) In case at any time after the date hereof, all or any portion of
the Common Shares outstanding shall be subdivided into a greater number of
Common Shares, the Conversion Rate in effect at the opening of business on the
day following the day upon which such subdivision becomes effective shall be
proportionately increased, and, conversely in case at any time after the date
hereof, all or any portion of the Common Shares outstanding shall each be
combined into
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a smaller number of Common Shares, the Conversion Rate in effect at the opening
of business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(4) In case at any time after the date hereof, the Company shall, by
dividend or otherwise, distribute to all holders of its Common Shares evidences
of its indebtedness or assets (including securities, but excluding any rights,
warrants or options referred to in paragraph (2) of this Section 13.4, any
dividend or distribution paid exclusively in cash and any dividend or
distribution referred to in paragraph (1) of this Section 13.4), the Conversion
Rate shall be increased so that the same shall equal the rate determined by
dividing the Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of shareholders entitled to
receive such distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in paragraph (8) of this
Section 13.4) of the Common Shares on the date fixed for such determination less
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 or evidences of indebtedness so
distributed applicable to one Common Share and the denominator shall be such
current market price per share of the Common Shares, such adjustment to become
effective immediately prior to the opening of business on the day following the
date fixed for the determination of shareholders entitled to receive such
distribution.
(5) In case at any time after the date hereof, the Company shall, by
dividend or otherwise, make a distribution to all holders of its Common Shares
consisting exclusively of cash (excluding any cash that is distributed upon a
merger or consolidation or a sale or transfer of all or substantially all of the
assets of the Company to which Section 13.11 applies or as part of a
distribution referred to in paragraph (4) of this Section 13.4) in an aggregate
amount that, combined together with (I) the aggregate amount of any other
distributions to all holders of its Common Shares made exclusively in cash
within the 12 months preceding the date of payment of such distribution and in
respect of which no adjustment pursuant to this paragraph (5) has been made and
(II) the aggregate of any cash plus the 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 consideration payable in respect of
any tender offer by the Company or any of its Subsidiaries for all or any
portion of the Common Shares concluded within the 12 months preceding the date
of payment of such distribution and in respect of which no adjustment pursuant
to paragraph (6) of this Section 13.4 has been made, exceeds 10% of the product
of the current market price per share of the Common Shares on the date for the
determination of holders of Common Shares entitled to receive such distribution
times the number of Common Shares outstanding on such date, then, and in each
such case, immediately after the close of business on such date for
determination, the Conversion Rate shall be increased so that the same shall
equal the rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for determination of the
shareholders entitled to receive such distribution by a fraction (i) the
numerator of which shall be equal to the current market price per share
(determined as provided in paragraph (8) of this Section 13.4) of the Common
Shares on the date fixed for such determination less an amount equal to the
quotient of (x) the excess of such combined amount over such 10% and (y) the
number of Common Shares outstanding on such date for determination and (ii) the
denominator of which shall be equal to the current market
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price per share (determined as provided in paragraph (8) of this Section 13.4)
of the Common Shares on such date for determination.
(6) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Shares shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares (as defined
below)) of an aggregate consideration having a 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) that combined together with (I)
the aggregate of the cash plus the fair market value (as determined by the Board
of Directors, whose determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender or exchange offer, of
consideration payable in respect of any other tender or exchange offer, by the
Company or any Subsidiary for all or any portion of the Common Shares expiring
within the 12 months preceding the expiration of such tender or exchange offer
and in respect of which no adjustment, pursuant to this paragraph (6) has been
made and (II) the aggregate amount of any distributions to all holders of the
Company's Common Shares made exclusively in cash within 12 months preceding the
expiration of such tender or exchange offer and in respect of which no
adjustment pursuant to paragraph (5) of this Section 13.4 has been made, exceeds
10% of the product of the current market price per share of the Common Shares
(determined as provided in paragraph (8) of this Section 13.4) as of the last
time (the "Expiration Time") tenders or exchanges could have been made pursuant
to such tender or exchange offer (as it may be amended) times the number of
Common Shares outstanding (including any tendered or exchanged shares) on the
Expiration Time, then, and in each such case, immediately prior to the opening
of business on the day after the date of the Expiration Time, the Conversion
Rate shall be adjusted so that the same shall equal the rate determined by
dividing the Conversion Rate immediately prior to the close of business on the
date of the Expiration Time by a fraction (i) the numerator of which shall be
equal to (A) the product of (I) the current market price per share of the Common
Shares (determined as provided in paragraph (8) of this Section 13.4) on the
date of the Expiration Time and (II) the number of shares of Common Shares
outstanding (including any tendered or exchanged shares) on the date of the
Expiration Time less (B) the amount of cash plus the fair market value
(determined as aforesaid) of the aggregate consideration payable to shareholders
based on the acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares, and (ii) the denominator of which shall be equal to
the product of (A) the current market price per share of the Common Shares
(determined as provided in paragraph (8) of this Section 13.4) as of the
Expiration Time and (B) the number of Common Shares outstanding (including any
tendered or exchanged shares) as of the Expiration Time less the number of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Shares into securities other than
Common Shares (other than any reclassification upon a consolidation or merger to
which Section 13.11 applies) shall be deemed to involve (a) a distribution of
such securities other than Common Shares to all holders of Common Shares (and
the effective date of such reclassification shall be deemed to be "the date
fixed for the determination of shareholders entitled to receive such
distribution" and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 13.4), and (b) a subdivision or combination, as
the case may be, of the number of Common Shares outstanding immediately prior to
such reclassification into the number of Common Shares
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outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective,"
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section 13.4).
(8) For the purpose of any computation under paragraphs (2), (4), (5)
or (6) of this Section 13.4, the current market price per share of Common Shares
on any date shall be deemed to be the average of the daily Closing Prices Per
Share for the five consecutive Trading Days selected by the Company commencing
not more than 20 Trading Days before, and ending not later than, the earlier of
the day in question and the day before the "ex" date with respect to the
issuance or distribution requiring such computation. For purposes of this
paragraph, the term "'ex' date," when used with respect to any issuance or
distribution, means the first date on which the Common Shares trades regular way
on the applicable securities exchange or in the applicable securities market
without the right to receive such issuance or distribution.
(9) No adjustment in the Conversion Rate shall be required unless such
adjustment (plus any adjustments not previously made by reason of this paragraph
(9)) would require an increase or decrease of at least one percent in such rate;
provided, however, that any adjustments which by reason of this paragraph (9)
are not required to be made shall be carried forward and taken into account in
any subsequent adjustment. In the case of any adjustment deferred pursuant to
this paragraph (9), the Company shall make appropriate elections under the
Treasury Regulations promulgated pursuant to Section 305 of the Internal Revenue
Code of 1986, as amended.
(10) The Company may make such increases in the Conversion Rate, for
the remaining term of the Securities or any shorter term, in addition to those
required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section 13.4, as
it considers to be advisable in order to avoid or diminish any income tax to any
holders of Common Shares 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 United States federal income tax purposes or for any
other reasons. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (10) and its actions in so doing shall be
final and conclusive.
SECTION 13.5 Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 13.4 and shall prepare a certificate signed by the
Treasurer of the Company setting forth the adjusted Conversion Rate and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith promptly be filed with the Trustee and with each
Conversion Agent; and
(2) a notice stating that the Conversion Rate has been adjusted and
setting forth the adjusted Conversion Rate shall forthwith be prepared, and as
soon as practicable after it is prepared, such notice shall be provided by the
Company to all Holders in accordance with Section 1.5.
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Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate, except to exhibit the same
to any Holder of Securities desiring inspection thereof at its office during
normal business hours.
SECTION 13.6 Notice of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Shares payable otherwise than in cash out
of funds from which such dividend or other distribution is properly
payable; or
(2) the Company shall authorize the granting to the holders of
its Common Shares of rights or warrants to subscribe for or purchase
any shares of capital stock of any class or of any other rights; or
(3) of any reclassification of the Common Shares of the
Company (other than a subdivision or combination of its outstanding
Common Shares), or of any consolidation, merger or share exchange to
which the Company is a party and for which approval of any shareholders
of the Company is required, or of any tender offer by the Company or
any Subsidiary for all or any portion of the Common Shares, or of the
conveyance, transfer, sale or lease of all or substantially all of the
assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to all Holders in accordance with Section 1.5, at least 20
days (or 10 days in any case specified in clause (1) or (2) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights or warrants, or, if a record is not to be taken, the
effective date as of which the holders of Common Shares 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, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Shares of record shall be entitled to exchange their Common
Shares for securities, cash or other property deliverable upon such
reclassification, consolidation, merger, share exchange, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up. Neither the failure to give
such notice or the notice referred to in the following paragraph nor any defect
therein shall affect the legality or validity of the proceedings described in
clauses (1) through (4) of this Section 13.6. If at the time the Trustee shall
not be the Conversion Agent, a copy of such notice and any notice referred to in
the following paragraph shall also forthwith be filed by the Company with the
Trustee.
The Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to all Holders in accordance with Section 1.5, notice of
any tender offer by the Company or any Subsidiary for
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all or any portion of the Common Shares at or about the time that such notice of
tender offer is provided to the public generally.
SECTION 13.7 Company to Reserve Common Shares.
The Company shall at all times while any Securities are Outstanding
reserve and keep available, free from preemptive rights, out of its authorized
but previously unissued Common Shares, for the purpose of effecting the
conversion of Securities, the full number of Common Shares then issuable upon
the conversion of all such Outstanding Securities.
SECTION 13.8 Taxes on Conversions.
Except as provided in the next sentence, the Company will pay any and
all transfer, stamp, documentary and other similar taxes and duties that may be
payable in respect of the issue or delivery of Common Shares on conversion of
Securities pursuant hereto. A Holder delivering a Security for conversion will
be required to pay any tax or duty which may be payable in respect of any
transfer involved in the issue and delivery of Common Shares in a name other
than that of the Holder of the Security or Securities to be converted, and no
such issue or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax or duty or has
established to the satisfaction of the Company that such tax or duty has been
paid.
SECTION 13.9 Covenant as to Common Shares.
The Company covenants that all Common Shares which may be delivered
upon conversion of Securities will be newly issued shares and upon such
delivery, will have been fully paid and nonassessable and, except as provided in
Section 13.8, the Company will pay all taxes, liens and charges with respect to
the issue thereof.
SECTION 13.10 Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to the
Trustee to be canceled by or at the direction of the Trustee, which shall
dispose of the same as provided in Section 3.9.
SECTION 13.11 Provision in Case of Consolidation, Merger or Conveyance of
Assets.
In case of 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 Common Shares of the Company (other than
cancellation of Common Shares of the Company held by such other Person)) or any
sale or transfer of all or substantially all of the assets of the Company, the
Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the
Trustee a supplemental indenture executed in accordance with Article IX
providing that the Holder of each Security then Outstanding shall have the right
thereafter, during the period such Security shall be convertible as specified in
Section 13.1, to convert such Security only into the kind and amount of
securities, cash and other property receivable upon such consolidation, merger,
sale or transfer by a holder of the number of Common Shares of the Company into
which such Security might have been converted immediately prior to such
consolidation, merger, sale or transfer, assuming such holder
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of Common Shares of the Company (i) is not a Person with which the Company
amalgamated or consolidated or into which the Company merged or which merged
into the Company or to which such sale or transfer was made, 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 consolidation, merger,
sale or transfer (provided that if the kind or amount of securities, cash and
other property receivable upon such consolidation, merger, sale or transfer is
not the same for each Common Share of the Company held immediately prior to such
consolidation, merger, sale or transfer by other 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 Section
13.11 the kind and amount of securities, cash and other property receivable upon
such consolidation, merger, sale or transfer by the holders of each Non-electing
Share shall be deemed to be the kind and amount so receivable per share by a
plurality of the Non-Electing Shares). Such supplemental indenture shall provide
for adjustments which, 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 13.11 shall similarly apply to successive consolidations, mergers, sales
or transfer. Notice of the execution of such a supplemental indenture shall be
given by the Company to the Holder of each Security as provided in Section 1.5
promptly upon such execution.
Neither the Trustee nor any Paying 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 other securities or property or cash receivable by Holders of
Securities upon the conversion of their Securities after any such consolidation,
merger, sale or transfer or to any such adjustment, but 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.
SECTION 13.12 Responsibility of Trustee for Conversion Provisions.
The Trustee, subject to the provisions of Section 6.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the Conversion Rate, or with respect to the nature, extent or
amount 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, or whether a supplemental indenture need be entered into. Neither the
Trustee, subject to the provisions of Section 6.1, nor any Conversion Agent
shall be accountable with respect to the validity or value (or the kind or
amount) of any Common Shares, or of any other securities or property or cash,
which may at any time be issued or delivered upon the conversion of any
Security; and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Section 6.1, 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 Common Shares or share
certificates or other securities or property or cash upon the surrender of any
Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 6.1, and any Conversion Agent shall not be responsible for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article.
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ARTICLE XIV
SUBORDINATION
SECTION 14.1 Securities Subordinate to Senior Debt.
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 (subject to the provisions of
Article IV), the indebtedness represented by the Securities, and the payment of
the principal of, interest on and all other amounts, if any, owing with respect
to each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or other
immediately available funds of all Senior Debt of the Company.
SECTION 14.2 Payment Over of Proceeds Upon Dissolution, Etc.
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 specified in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or in
respect of all Senior Debt, in cash or other immediately available funds or
provision shall be made for such payment in cash or other immediately available
funds or otherwise in a manner satisfactory to each holder of Senior Debt with
respect to its indebtedness, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character, whether (a) in
cash, property or securities, on account of principal of, interest on or any
other amount, if any, owing with respect to the Securities or on account of any
purchase or other acquisition of Securities by the Company or any Subsidiary of
the Company, (b) by way of cancellation, forgiveness or offset of the
indebtedness evidenced by the Securities against any indebtedness owed by a
Holder to the Company or (c) payable or deliverable by reason of the payment of
any other indebtedness of the Company being subordinated to the payment of the
Securities (all such payments, distributions, purchases and acquisitions herein
referred to, individually and collectively, as a "Securities Payment"), and to
that end the holders of all Senior Debt shall be entitled to receive, for
application to the payment thereof, any Securities Payment which may be payable
or deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
Securities Payment before all Senior Debt is paid in full in cash or other
immediately available funds or otherwise in a manner satisfactory to each holder
of Senior Debt with respect to its indebtedness, and if such fact shall, at or
prior to the time of such Securities Payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then and
in such event such Securities Payment 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 Debt, to the extent
necessary
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to pay all Senior Debt in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
of the Company provided for by a plan of reorganization or readjustment giving
effect to these subordination provisions authorized by an order or decree of a
court of competent jurisdiction in a reorganization proceeding under any
applicable bankruptcy law or of any other corporation provided for by such plan
of reorganization or readjustment which stock or securities are subordinated in
right of payment to all then outstanding Senior Debt to substantially the same
extent as the Securities are so subordinated as provided in this Article, which
shall require that (i) the final maturity of any such subordinated securities
shall exceed the term of the Senior Debt provided for by such plan of
reorganization or readjustment, and there shall not be any scheduled principal
payment in respect of such subordinated securities prior to that of such Senior
Debt and (ii) such subordinated securities shall be unsecured and unguaranteed.
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, transfer, sale or lease of all or substantially all of its
properties and assets to another Person upon the terms and conditions set forth
in Article VIII shall not be deemed a Proceeding 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, transfer, sale or lease such
properties and assets, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer, sale or lease comply with the
conditions set forth in Article VIII.
SECTION 14.3 No Payment When Senior Debt in Default.
In the event that any Securities are declared or otherwise shall become
due and payable before their Stated Maturity (including by reason of a Change in
Control), then and in such event the holders of the Senior Debt 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
Senior Debt in cash or other immediately available funds or otherwise in a
manner satisfactory to the holders of such Senior Debt, before the Holders of
the Securities are entitled to receive any Securities Payment.
In the event and during the continuation of any default in the payment
of any amount owing in respect of any Senior Debt beyond any applicable grace
period with respect thereto, or in the event that any event of default with
respect to any Senior Debt shall have occurred and be continuing permitting the
holders of such Senior Debt (or a trustee or other representative on behalf of
the holders thereof) to declare such Senior Debt 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 in the
event any judicial proceeding shall be pending with respect to any such default
in payment or event of default, then no Securities Payment shall be made.
In the event that, notwithstanding the foregoing, the Company shall
make any Securities Payment to the Trustee or any Holder prohibited by the
foregoing provisions of this Section, and if (i) such fact shall, at or prior to
the time of such Securities Payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be, such Holder or (ii)
the
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Securities have been accelerated, then and in such event such Securities Payment
shall be paid over and delivered forthwith to the Company.
The provisions of this Section shall not apply to any Securities
Payment with respect to which Section 14.2 would be applicable.
SECTION 14.4 Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any proceeding referred to in Section 14.2 or under the
conditions described in Section 14.3, from making Securities Payments, or (b)
the application by the Trustee of any money deposited with it hereunder to
Securities Payments or the retention of such Securities Payment by the Holders,
if, at the time of such application by the Trustee, it did not have actual
knowledge that such Securities Payment would have been prohibited by the
provisions of this Article.
SECTION 14.5 Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all amounts due or to become due on
or in respect of Senior Debt, in cash or other immediately available funds or
otherwise in a manner satisfactory to the holders of Senior Debt, the Holders of
the Securities shall be subrogated to the rights of the holders of such Senior
Debt to receive payments and distributions of cash, property and securities
applicable to the Senior Debt until the principal of 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 Debt 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 holders of Senior Debt by
Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of the
Senior Debt.
SECTION 14.6 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 Debt 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, the creditors of the Company other
than holders of Senior Debt 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 Debt, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of the Securities the principal of 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 Debt;
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 Debt to receive cash, property and securities otherwise payable or
deliverable to the Trustee or such Holder.
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SECTION 14.7 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 14.8 No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt 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 Debt 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 Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or the time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 14.9 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. 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 Trustee in respect of the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor or
representative thereof; and, prior to the receipt of any such written notice,
the Trustee shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have received the notice
provided for in this Section at least two Business Days prior to the date upon
which by the terms hereof any money may become payable for any purpose
(including, without limitation, the payment of, the principal of or interest on
any Security), 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 two
Business Days prior to such date.
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The Trustee shall be entitled to rely conclusively on the delivery to
it of a written notice, and proof of ownership acceptable to the Trustee, by a
Person representing himself to be a holder of Senior Debt (or a trustee therefor
or representative thereof) to establish that such notice has been given by a
holder of Senior Debt (or a trustee therefor or representative thereof). 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 Debt 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 Debt 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 14.10 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 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 Proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating trustee, custodian, 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 the Senior Debt and other indebtedness of the
Company, the amount thereof or payable thereon, the amount or amounts paid or
distributed thereon and all other facts pertinent thereto or to this Article.
SECTION 14.11 Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith and absent gross negligence or willful misconduct, 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 Debt shall be
entitled by virtue of this Article or otherwise.
SECTION 14.12 Rights of Trustee as Holder of Senior Debt;
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 Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
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 under or pursuant to Section 6.7.
SECTION 14.13 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
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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 Sections 14.9 and 14.12 shall not apply to the
Company or any Affiliate of the Company if it or such Affiliate acts as Paying
Agent.
SECTION 14.14 Subsidiaries.
No payment, distribution of assets or other action may be taken by any
Subsidiary of the Company with respect to the Securities if the Company would be
prohibited by this Article 14 from taking such action.
SECTION 14.15 Rescission.
The provisions of this Article 14 shall continue to be effective or be
reinstated, as the case may be, if at any time any payment in respect of any of
the Senior Debt is rescinded or must otherwise be returned by the holder thereof
upon the insolvency, bankruptcy or reorganization of the Company or otherwise,
all as though such payment had not been made.
SECTION 14.16 Payment.
For purposes of this Article XIV, "payment in full" of Senior Debt
shall mean prior payment in full (including payment of reimbursement obligations
under letters of credit) of such Senior Debt (including all interest accruing
after the commencement of any bankruptcy or similar proceeding, whether or not a
claim for post-petition interest is allowed as a claim in any such proceeding)
in cash or other immediately available funds and termination, cash
collateralization or replacement of contingent obligations (including all
letters of credit issued thereunder but excluding only any unasserted indemnity
obligations) and termination of all commitments thereunder.
ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 15.1 Right to Require Repurchase.
In the event that a Change in Control (as hereinafter defined) shall
occur, then each Holder shall have the right, at the Holder's option, to require
the Company to repurchase, and upon the exercise of such right the Company shall
repurchase, all of such Holder's Securities, or any portion of the principal
amount thereof that is equal to U.S.$1,000 or any integral multiple of
U.S.$1,000 in excess thereof, on the date (the "Repurchase Date") that is 45
days after the date of the Company Notice (as defined in Section 15.2) at a
purchase price equal to 100% of the principal amount of the Securities to be
repurchased (the "Repurchase Price") plus interest accrued to the Repurchase
Date; provided, however, that installments of interest on Securities whose
Stated Maturity is on or prior to the Repurchase Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such on the relevant Record Date according to their terms and the provisions of
Section 3.7. Such right to require the repurchase of the Securities shall not
continue after a discharge of the Company from its
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obligations with respect to the Securities in accordance with Article IV, unless
a Change in Control shall have occurred prior to such discharge. At the option
of the Company, the Repurchase Price may be paid in cash or, except as otherwise
provided in Section 15.2(j), by delivery of shares of Common Shares having a
fair market value equal to the Repurchase Price; provided that payment may not
be made in Common Shares unless at the time of payment such stock is listed on a
national securities exchange or quoted on the Nasdaq National Market. For
purposes of this Section, the fair market value of shares of Common Shares shall
be determined by the Company and shall be equal to 95% of the average of the
Closing Prices Per Share for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the Repurchase Date.
Whenever in this Indenture there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Repurchase Price payable in respect of such Security to
the extent that such Repurchase Price is, was or would be so payable at such
time, and express mention of the Repurchase Price in any provision of this
Indenture shall not be construed as excluding the Repurchase Price in those
provisions of this Indenture when such express mention is not made.
SECTION 15.2 Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for redemption all
of the Outstanding Securities, on or before the 30th day after the occurrence of
a Change in Control, the Company or, at the request and expense of the Company,
the Trustee, shall give to all Holders of Securities, in the manner provided in
Section 1.5, notice (the "Company Notice") of the occurrence of the Change in
Control and of the repurchase right set forth herein arising as a result
thereof. 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 Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price,
(4) a description of the procedure which a Holder must follow
to exercise a repurchase right, and the place or places where such
Securities are to be surrendered for payment of the Repurchase Price
and accrued interest, if any,
(5) that on the Repurchase Date the Repurchase Price, and
accrued interest, if any, will become due and payable upon each such
Security designated by the Holder to be repurchased, and that interest
thereon shall cease to accrue on and after said date,
(6) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such
Securities may be surrendered for conversion, and
(7) the place or places that the certificate required by
Section 2.3 shall be delivered, and the form of such certificate.
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In addition, at least two Business Days preceding the Repurchase Date,
the Company shall give to all Holders of the Securities, in the manner provided
in Section 1.5, notice specifying whether the Repurchase Price will be payable
in cash or Common Shares and shall deliver a copy of such notice to the Trustee.
No failure of the Company to give the foregoing notices or defect
therein shall limit any Holder's right to exercise a repurchase right or affect
the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of this Article
are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to the
Trustee or any Paying Agent on or before the 30th day after the date of the
Company Notice (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
Securities to be repurchased (and, if any Security is to repurchased in part,
the serial number thereof, the portion of the principal amount thereof to be
repurchased and the name of the Person in which the portion thereof to remain
Outstanding after such repurchase is to be registered) and a statement that an
election to exercise the repurchase right is being made thereby, and, in the
event that the Repurchase Price shall be paid in Common Shares, the name or
names (with addresses) in which the certificate or certificates for Common
Shares shall be issued, and (ii) the Securities with respect to which the
repurchase right is being exercised. Such written notice shall be irrevocable,
except that the right of the Holder to convert the Securities with respect to
which the repurchase right is being exercised shall continue until the close of
business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in accordance
with the terms hereof, the Company shall pay or cause to be paid to the Trustee
or the Paying Agent the Repurchase Price in cash or Common Shares, as provided
above, for payment to the Holder on the Repurchase Date or, if Common Shares are
to be paid, as promptly after the Repurchase Date as practicable, together with
accrued and unpaid interest to the Repurchase Date payable with respect to the
Securities as to which the purchase right has been exercised; provided, however,
that installments of interest that mature on or prior to the Repurchase Date
shall be payable in cash, in the case of Securities, to the Holders of such
Securities, or one or more Predecessor Securities, registered as such at the
close of business on the relevant Regular Record Date, in each case according to
the terms and provisions of Article Three.
(d) If any Security (or portion thereof) surrendered for repurchase
shall not be so paid on the Repurchase Date, the principal amount of such
Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date at
the rate of 5 1/4% per annum, and each Security shall remain convertible into
Common Shares until the principal of such Security (or portion thereof, as the
case may be) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part shall be
surrendered to the Trustee (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and make available for delivery to the Holder of such
Security
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without service charge, a new Security or Securities, containing identical terms
and conditions, each in an authorized denomination in aggregate principal amount
equal to and in exchange for the unrepurchased portion of the principal of the
Security so surrendered.
(f) Any issuance of Common Shares in respect of the Repurchase Price
shall be deemed to have been effected immediately prior to the close of business
on the Repurchase Date and the Person or Persons in whose name or names any
certificate or certificates for Common Shares shall be issuable upon such
repurchase shall be deemed to have become on the Repurchase Date the holder or
holders of record of the shares represented thereby; provided, however, that any
surrender for repurchase on a date when the stock transfer books of the Company
shall be closed shall constitute the Person or Persons in whose name or names
the certificate or certificates for such shares are to be issued as the
recordholder or holders thereof for all purposes at the opening of business on
the next succeeding day on which such stock transfer books are open. No payment
or adjustment shall be made for dividends or distributions on any Common Shares
issued upon repurchase of any Security declared prior to the Repurchase Date.
(g) No fractions of shares shall be issued upon repurchase of
Securities. If more than one Security shall be repurchased from the same Holder
and the Repurchase Price shall be payable in Common Shares, the number of full
shares which shall be issuable upon such repurchase shall be computed on the
basis of the aggregate principal amount of the Securities so repurchased.
Instead of any fractional Common Share which would otherwise be issuable on the
repurchase of any Security or Securities, the Company will deliver to the
applicable Holder its check for the current market value of such fractional
share. The current market value of a fraction of a share is determined by
multiplying the current market price of a full share by the fraction, and
rounding the result to the nearest cent. For purposes of this Section, the
current market price of a Common Share is the Closing Price Per Share of the
Common Shares on the last Trading Day prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for Common Shares on
repurchase of Securities shall be made without charge to the Holder of
Securities being repurchased for such certificates or for any tax or duty in
respect of the issuance or delivery of such certificates or the securities
represented thereby; provided, however, that the Company shall not be required
to pay any tax or duty which may be payable in respect of (i) income of the
Holder or (ii) any transfer involved in the issuance or delivery of certificates
for Common Shares in a name other than that of the Holder of the Securities
being repurchased, and no such issuance or delivery shall be made unless and
until the Person requesting such issuance or delivery has paid to the Company
the amount of any such tax or duty or has established, to the satisfaction of
the Company, that such tax or duty has been paid.
(i) If any Common Shares to be issued upon repurchase of Securities
hereunder require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued or
delivered upon repurchase, the Company covenants that it will in good faith and
as expeditiously as possible endeavor to secure such registration or approval,
as the case may be; provided, however, that nothing in this Section shall be
deemed to affect in any way the obligations of the Company to repurchase
Securities as provided in this Article and if such registration is not completed
or does not become effective or such approval is not obtained prior to the
Repurchase Date, the Repurchase Price shall be paid in cash.
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(j) The Company covenants that all Common Shares which may be issued
upon repurchase of Securities will upon issue be duly and validly issued and
fully paid and non-assessable.
SECTION 15.3 Certain Definitions.
For purposes of this Article XV,
(a) the term "beneficial owner" shall be determined in accordance with
Rule 13d-3, as in effect on the date of the original execution of this
Indenture, promulgated by the Commission pursuant to the Exchange Act;
(b) a "Change in Control" shall be deemed to have occurred at the time,
after the original issuance of the Securities, of:
(i) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or other acquisition
transaction or series of transactions, of shares of capital stock of
the Company entitling such Person to exercise 50% or more of the total
voting power of all shares of capital stock of the Company entitled to
vote generally in the elections of directors (any shares of voting
stock of which such person or group is the beneficial owner that are
not then outstanding being deemed outstanding for purposes of
calculating such percentage) other than any such acquisition by the
Company, any Subsidiary of the Company or any employee benefit plan of
the Company; or
(ii) any consolidation of the Company with, or merger of the
Company into, any other Person, any merger of another Person into the
Company, or any sale or transfer of all or substantially all of the
assets of the Company to another Person (other than a merger (x) which
does not result in any reclassification, conversion, exchange or
cancellation of outstanding Common Shares or (y) which is effected
solely to change the jurisdiction of incorporation of the Company and
results in a reclassification, conversion or exchange of outstanding
Common Shares into solely Common Shares);
provided, however, that a Change in Control shall not be deemed to have occurred
if either (x) the Closing Price Per Share of the Common Shares for any five
Trading Days within the period of 10 consecutive Trading Days ending immediately
after the later of the date of the Change in Control or the date of the public
announcement of the Change in Control (in the case of a Change in Control under
Clause (i) above) or the period of 10 consecutive Trading Days ending
immediately prior to the date of the Change in Control (in the case of a Change
in Control under Clause (ii) above) shall equal or exceed 105% of the Conversion
Price in effect on such trading day or (y) all of the consideration (excluding
cash payments for fractional shares) to be paid for the Common Shares in a
transaction or transactions constituting the Change in Control as described in
Clause (ii) above consists of shares of common stock traded on a national
securities exchange or quoted on the Nasdaq National Market and as a result of
such transaction or transactions the Securities become convertible solely into
such common stock; and
(c) the term "Person" shall include any syndicate or group which would
be deemed to be a "person" under Section 13(d)(3) of the Exchange Act, as in
effect on the date of the original execution of this Indenture.
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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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
WILLIAMS-SONOMA, INC.
By
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Name:
Title:
[SEAL]
Attest:
- -------------------------------
Name:
-------------------------
Title:
-------------------------
-------------------------
BANKERS TRUST COMPANY, not in its
individual capacity but solely as Trustee
By
--------------------------------------
Name:
Title:
[SEAL]
Attest:
- -------------------------------
Name:
-------------------------
Title:
-------------------------
-------------------------
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STATE OF _____________ )
: ss.:
COUNTY OF _______________ )
On the ___ day of April 1996, before me personally came ______________,
to me known, who, being by me duly sworn, did depose and say that he is
______________________ of Williams-Sonoma, Inc., one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his name thereto by like authority.
-------------------------------------
Notary Public
STATE OF ___________ )
: ss.:
COUNTY OF _____________ )
On the ___ day of April 1996, before me personally came ______________,
to me known, who, being by me duly sworn, did depose and say that he/she is
______________________ of Bankers Trust Company, one of the corporations
described in and which executed the foregoing instrument; that he/she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that he/she signed his name thereto by like authority.
-------------------------------------
Notary Public
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