Exhibit 99.2
HARRIS CORPORATION
3.5% CONVERTIBLE DEBENTURES DUE 2022
INDENTURE
DATED AS OF
AUGUST 26, 2002
THE BANK OF NEW YORK,
TRUSTEE
PAGE
TABLE OF CONTENTS
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions....................................................... 1
Section 1.2. Other Definitions................................................. 6
Section 1.3. Incorporation by Reference of Trust Indenture Act................. 7
Section 1.4. Rules of Construction............................................. 7
Section 1.5. Acts of Holders................................................... 7
ARTICLE II
THE SECURITIES
Section 2.1. Form and Dating................................................... 8
Section 2.2. Execution and Authentication...................................... 10
Section 2.3. Registrar, Paying Agent and Conversion Agent...................... 11
Section 2.4. Paying Agent and Trustee To Hold Money in Trust................... 11
Section 2.5. Securityholder Lists.............................................. 11
Section 2.6. Transfer and Exchange............................................. 12
Section 2.7. Replacement Securities............................................ 14
Section 2.8. Outstanding Securities; Determinations of Holders' Action......... 15
Section 2.9. Temporary Securities.............................................. 15
Section 2.10. Cancellation...................................................... 16
Section 2.11. Persons Deemed Owners............................................. 16
Section 2.12. Global Securities................................................. 16
Section 2.13. CUSIP Numbers..................................................... 20
Section 2.14. Ranking........................................................... 21
Section 2.15. Regulation S Restrictions on Transfer............................. 21
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1. Company's Right To Redeem; Notices to Trustee..................... 21
Section 3.2. Selection of Securities To Be Redeemed............................ 21
Section 3.3. Notice of Redemption.............................................. 22
Section 3.4. Effect of Notice of Redemption.................................... 23
Section 3.5. Deposit of Redemption Price....................................... 23
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TABLE OF CONTENTS
(CONTINUED)
Section 3.6. Securities Redeemed in Part....................................... 23
Section 3.7. Purchase of Securities by the Company at Option of the Holder..... 23
Section 3.8. Purchase of Securities at Option of the Holder upon a
Change of Control................................................. 25
Section 3.9. Effect of Purchase Notice or Change of Control Purchase Notice.... 28
Section 3.10. Deposit of Purchase Price or Change of Control Purchase Price..... 29
Section 3.11. Securities Purchased in Part...................................... 29
Section 3.12. Covenant To Comply with Securities Laws upon Purchase of
Securities........................................................ 29
Section 3.13. Repayment to the Company.......................................... 30
ARTICLE IV
COVENANTS
Section 4.1. Payment of Securities............................................. 30
Section 4.2. SEC and Other Reports............................................. 30
Section 4.3. Compliance Certificate............................................ 31
Section 4.4. Further Instruments and Acts...................................... 31
Section 4.5. Maintenance of Office or Agency................................... 31
Section 4.6. Delivery of Certain Information................................... 31
Section 4.7. Contingent Payment Debt Instrument; Calculation of
Original Issue Discount........................................... 31
Section 4.8. Limitation on Sale and Leaseback Transactions..................... 32
Section 4.9. Limitation on Liens............................................... 32
ARTICLE V
CONSOLIDATION, MERGER OR SALE
Section 5.1. Consolidation, Merger or Sale..................................... 35
Section 5.2. Securities and Indenture To Be Assumed by Successor on
Consolidation, Merger or Sale..................................... 36
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default................................................. 37
Section 6.2. Acceleration...................................................... 38
Section 6.3. Other Remedies.................................................... 39
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TABLE OF CONTENTS
(CONTINUED)
Section 6.4. Waiver of Past Defaults........................................... 39
Section 6.5. Control by Majority............................................... 39
Section 6.6. Limitation on Suits............................................... 39
Section 6.7. Rights of Holders To Receive Payment.............................. 40
Section 6.8. Collection Suit by Trustee........................................ 40
Section 6.9. Trustee May File Proofs of Claim.................................. 40
Section 6.10. Priorities........................................................ 41
Section 6.11. Undertaking for Costs............................................. 41
Section 6.12. Waiver of Stay, Extension or Usury Laws........................... 41
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee................................................. 42
Section 7.2. Rights of Trustee................................................. 43
Section 7.3. Individual Rights of Trustee...................................... 44
Section 7.4. Trustee's Disclaimer.............................................. 44
Section 7.5. Notice of Defaults................................................ 44
Section 7.6. Reports by Trustee to Holders..................................... 45
Section 7.7. Compensation and Indemnity........................................ 45
Section 7.8. Replacement of Trustee............................................ 46
Section 7.9. Successor Trustee by Merger....................................... 46
Section 7.10. Eligibility; Disqualification..................................... 46
Section 7.11. Preferential Collection of Claims Against Company................. 47
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS AND GOVERNMENT OBLIGATIONS
Section 8.1. Covenant Defeasance of Securities................................. 47
Section 8.2. Satisfaction and Discharge of Indenture........................... 48
Section 8.3. Intentionally Omitted............................................. 49
Section 8.4. Application of Trust Moneys....................................... 49
Section 8.5. Repayment to Company.............................................. 49
Section 8.6. Reinstatement..................................................... 49
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TABLE OF CONTENTS
(CONTINUED)
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders........................................ 50
Section 9.2. With Consent of Holders........................................... 50
Section 9.3. Compliance with Trust Indenture Act............................... 51
Section 9.4. Revocation and Effect of Consents, Waivers and Actions............ 51
Section 9.5. Notation on or Exchange of Securities............................. 52
Section 9.6. Trustee To Sign Supplemental Indentures........................... 52
Section 9.7. Effect of Supplemental Indentures................................. 52
ARTICLE X
CONVERSIONS
Section 10.1. Conversion Privilege.............................................. 52
Section 10.2. Conversion Procedure.............................................. 54
Section 10.3. Fractional Shares................................................. 54
Section 10.4. Taxes on Conversion............................................... 55
Section 10.5. Company To Provide Stock.......................................... 55
Section 10.6. Adjustment for Change in Capital Stock............................ 55
Section 10.7. Adjustment for Rights Issue....................................... 56
Section 10.8. Adjustment for Certain Distributions.............................. 57
Section 10.9. Adjustment for All Cash Distribution.............................. 59
Section 10.10. Adjustment for Self Tender Offers................................. 60
Section 10.11. When Adjustment May Be Deferred................................... 61
Section 10.12. When No Adjustment Required....................................... 61
Section 10.13. Notice of Adjustment.............................................. 62
Section 10.14. Voluntary Increase................................................ 62
Section 10.15. Notice of Certain Transactions.................................... 62
Section 10.16. Reorganization of Company; Special Distributions.................. 63
Section 10.17. Company Determination Final....................................... 64
Section 10.18. Trustee's Adjustment Disclaimer................................... 64
Section 10.19. Simultaneous Adjustments.......................................... 64
Section 10.20. Successive Adjustments............................................ 64
Section 10.21. Restriction on Common Stock Issuable upon Conversion.............. 64
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls...................................... 65
Section 11.2. Notices........................................................... 65
Section 11.3. Communication by Holders with Other Holders....................... 66
Section 11.4. Certificate and Opinion as to Conditions Precedent................ 66
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TABLE OF CONTENTS
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Section 11.5. Statements Required in Certificate or Opinion..................... 66
Section 11.6. Separability Clause............................................... 67
Section 11.7. Rules by Trustee, Paying Agent, Conversion Agent and Registrar.... 67
Section 11.8. Legal Holidays.................................................... 67
Section 11.9. GOVERNING LAW..................................................... 67
Section 11.10. No Recourse Against Others........................................ 67
Section 11.11. Successors........................................................ 67
Section 11.12. Multiple Originals................................................ 67
Exhibits
- --------
Exhibit A-1 - Form of Global Security
Exhibit A-2 - Form of Certificated Security
Exhibit B - Transfer Certificate
Exhibit C - Form of Restricted Common Stock Legend
Exhibit D - Form of Transfer Certificate for Transfer of Restricted
Common Stock
Schedules
- ---------
Schedule A - Projected Payment Schedule
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INDENTURE dated as of August 26, 2002 between HARRIS CORPORATION, a
corporation incorporated and existing under the laws of the State of Delaware
(the "Company") and THE BANK OF NEW YORK, a New York banking corporation (the
"Trustee").
Each party agrees as follows for the benefit of the other party and for
the equal and ratable benefit of the Holders of the Company's 3.5% Convertible
Debentures due 2022:
ARTICLE I
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.1. Definitions.
"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 or cause the direction of the management and policies of such person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Global Security, in each case to
the extent applicable to such transaction and as in effect from time to time.
"Attributable Debt" means, when used with respect to any sale and
leaseback transaction, at the time of determination, the present value
(discounted at the rate of interest implicit in the terms of the lease) of the
obligation of the lessee for net rental payments during the remaining term of
the lease (including any period for which such lease has been extended or may,
at the option of the lessor, be extended). As used in the preceding sentence,
"net rental payments" under any lease for any period shall mean the sum of the
rental and other payments required to be paid in such period by the lessee
thereunder, not including, however, any amounts required to be paid by such
lessee (whether or not designated as rental or additional rental) on account of
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges required to be paid by such lessee thereunder or any amounts required to
be paid by such lessee thereunder contingent upon the amount of sales,
maintenance and repairs, insurance, taxes, assessments, water rates or similar
charges.
"Board of Directors" means either the board of directors of the Company
or any duly authorized committee of such board.
"Business Day" means any day other than a Saturday, a Sunday or a day
that in the City of New York, is a day on which banking institutions are
authorized or required by law, regulation or executive order to close.
"Capital Stock" for any entity means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) stock issued by that entity.
"Certificated Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-2.
"Common Stock" shall mean the shares of common stock, par value $1.00
per share, of the Company existing on the date of this Indenture or any other
shares of Capital Stock of the Company into which such common stock shall be
reclassified or changed.
"Company" means the party named as the "Company" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any two Officers and delivered to the
Trustee.
"Consolidated Net Worth" means the stockholders' equity of the Company
and its consolidated Subsidiaries, as shown on the audited consolidated balance
sheet in the Company's latest annual report to stockholders.
"Continuing Directors" means, as of any date of determination, any
member of the Board of Directors who (i) was a member of such Board of Directors
on the date of this Indenture or (ii) was nominated for election or elected to
such Board of Directors with the approval of a majority of the Continuing
Directors who were members of such Board of Directors at the time of such
nomination or election (either by a specific vote or by approval of the proxy
statement in which such person is named as a nominee for director, without
objection to such nomination).
"Corporate Trust Office" means the principal office of the Trustee at
which at any time its corporate trust business shall be administered, which
office at the date hereof is located at 101 Barclay Street, Floor 21W, New York,
New York 10286, Attention: Corporate Trust Administration, or such other address
as the Trustee may designate from time to time by notice to the Holders and the
Company, or the principal corporate trust office of any successor Trustee (or
such other address as a successor Trustee may designate from time to time by
notice to the Holders and the Company).
"Default" means any event, which is, or after notice or passage of time
or both would be, an Event of Default.
"Depositary" means, with respect to any Global Security, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Global Security (or any successor
securities clearing agency so registered), which shall initially be DTC.
"DTC" means the Depositary Trust Company.
2
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Funded Debt" means all indebtedness issued, incurred, assumed or
guaranteed by the Company or a Restricted Subsidiary, or for the payment of
which it is otherwise primarily or secondarily liable, maturing by its terms
more than one year from the date of the creation thereof or renewable or
refundable at the option of the obligor to a date more than one year from the
date of the original creation thereof.
"Global Securities" means Securities that are in the form of the
Securities attached hereto as Exhibit A-1, and that are issued to a Depositary.
"Holder" or "Securityholder" means a person in whose name a Security is
registered on the Registrar's books.
"Indebtedness" means, without duplication, the principal or face amount
of (i) all obligations for borrowed money, (ii) all obligations evidenced by
debentures, notes or other similar instruments, (iii) all obligations in respect
of letters of credit or bankers acceptances or similar instruments (or
reimbursement obligations with respect thereto), (iv) all obligations to pay the
deferred purchase price of property or services, except trade accounts payable
arising in the ordinary course of business, (v) all obligations as lessee which
are capitalized in accordance with generally accepted accounting principles, and
(vi) all Indebtedness of others guaranteed by such person or for which such
person is legally responsible or liable (whether by agreement to purchase
indebtedness of, or to supply funds or to invest in, others).
"Indenture" means this Indenture, as amended or supplemented from time
to time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Initial Purchasers" means Morgan Stanley & Co. Incorporated, Salomon
Smith Barney, Inc., Suntrust Capital Markets, Inc. and Wachovia Securities Inc.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Liquidated Damages Amount" has the meaning specified in the
Registration Rights Agreement dated as of August 26, 2002, by and among the
Company and the Initial Purchasers.
"NYSE" means The New York Stock Exchange.
"Officer" means the Chairman of the Board, the Vice Chairman, the
President, the Chief Operating Officer, the Chief Financial Officer, any Vice
President, the Controller, the Treasurer, and the Secretary.
"Officers' Certificate" means a written certificate containing the
information specified in Sections 11.4 and 11.5, signed in the name of the
Company by any two Officers, and delivered to the Trustee. An Officers'
Certificate given pursuant to Section 4.3 shall be signed by an authorized
financial or accounting officer of the Company but need not contain the
information specified in Sections 11.4 and 11.5.
3
"Opinion of Counsel" means a written opinion containing the information
specified in Sections 11.4 and 11.5, from legal counsel. The counsel may be an
employee of, or counsel to, the Company.
"person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Principal Property" means any manufacturing plant located within the
United States of America (other than its territories or possessions) and owned
or leased by the Company or any Subsidiary, except any such plant that, in the
opinion of the Board of Directors of the Company, is not of material importance
to the business conducted by the Company and its Subsidiaries, taken as a whole.
"Redemption Date" or "redemption date" shall mean the date specified in
a notice of redemption on which the Securities may be redeemed in accordance
with the terms of the Securities and this Indenture.
"Redemption Price" or "redemption price" shall have the meaning set
forth in Paragraph 5 of the Securities.
"Responsible Officer" shall mean, when used with respect to the
Trustee, any officer within the corporate trust administration division of the
Trustee having direct responsibility for the administration of this Indenture,
including, without limitation, any vice president, assistant vice president,
assistant treasurer or any other officer of the Trustee customarily performing
functions similar to those performed by any of the above designated officers and
also means, with respect to a particular corporate trust matter, any other
officer to whom such matter is referred because of his knowledge of and
familiarity with the particular subject and who shall have direct responsibility
for the administration of this Indenture.
"Restricted Common Stock Legend" means the legend labeled as such and
that is set forth in Exhibit C hereto.
"Restricted Security" means a Security required to bear the restrictive
legend set forth in the form of Security set forth in Exhibits A-1 and A-2 of
this Indenture.
"Restricted Subsidiary" means any Subsidiary that owns or leases a
Principal Property.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Sale Price" of the shares of Common Stock on any date means the
closing per share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either case, the
average of the average bid and the average asked prices) on such date as
reported on the NYSE or, if the shares of Common Stock are not listed on the
NYSE, as reported by the National Association of Securities Dealers Automated
Quotation system. In the absence of such quotations, the Company shall be
entitled to determine the sales price on the basis of such quotations as it
considers appropriate.
4
"SEC" means the Securities and Exchange Commission.
"Securities" means any of the Company's 3.5% Convertible Debentures due
2022, as amended or supplemented from time to time, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended.
"Shelf Registration Statement" shall have the meaning set forth in the
Registration Rights Agreement dated as of August 26, 2002, by and among the
Company and the Initial Purchasers.
"Stated Maturity," when used with respect to any Security, means August
15, 2022.
"Subsidiary" means any corporation of which the Company, or the Company
and one or more Subsidiaries, or any one or more Subsidiaries, directly or
indirectly own at the time (i) more than fifty per cent (50%) of the outstanding
capital stock having under ordinary circumstances (not dependent upon the
happening of a contingency) voting power in the election of members of the board
of directors, managers or trustees of said corporation, and (ii) securities
having at such time voting power to elect at least a majority of the members of
the board of directors, managers or trustees of said corporation.
"TIA" means the Trust Indenture Act of 1939 as in effect on the date of
this Indenture, provided, however, that in the event the TIA is amended after
such date, TIA means, to the extent required by any such amendment, the TIA as
so amended.
"trading day" means a day during which trading in securities generally
occurs on the NYSE or, if the Common Stock is not listed on the NYSE, on the
principal other national or regional securities exchange on which the Common
Stock then is listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the National Association of Securities Dealers
Automated Quotation System or, if the Common Stock is not quoted on the National
Association of Securities Dealers Automated Quotation System, on the principal
other market on which the Common Stock is then traded.
"Trustee" means the party named as the "Trustee" in the first paragraph
of this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"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."
"Wholly-owned Restricted Subsidiary" means a Restricted Subsidiary all
of the outstanding capital stock of which, other than directors' qualifying
shares, and all of the Funded Debt of which, shall at the time be owned by the
Company or by one or more Wholly-owned Restricted Subsidiaries, or by the
Company in conjunction with one or more Wholly-owned Restricted Subsidiaries.
5
Section 1.2. Other Definitions
Term: Defined in Section:
"Act"..................................................... 1.5
"additional lien"......................................... 5.1
"Agent Members"........................................... 2.12(e)
"Average Sale Price"...................................... 10.1
"beneficial owner"........................................ 3.8(a)
"Change of Control"....................................... 3.8(a)
"Change of Control Purchase Date"......................... 3.8(a)
"Change of Control Purchase Notice"....................... 3.8(b)
"Change of Control Purchase Price"........................ 3.8(a)
"Clearstream"............................................. 2.1(a)
"Company Notice".......................................... 3.7(b)
"comparable yield"........................................ 4.7
"Conversion Agent"........................................ 2.3
"Conversion Date"......................................... 10.2
"Conversion Price"........................................ 10.1
"Conversion Rate"......................................... 10.1
"Euroclear"............................................... 2.1(a)
"Event of Default"........................................ 6.1
"Ex-Dividend Time"........................................ 10.1
"Expiration Time"......................................... 10.10
"fair market value"....................................... 10.1
"Government Contracts".................................... 4.9(h)
"Government Obligations".................................. 8.1
"Interest Payment Date"................................... Exhibit A-1
"Legal Holiday"........................................... 11.8
"Legend".................................................. 2.6(f)
"Moody's"................................................. Exhibit A-1
"Notice of Default"....................................... 6.1
"Paying Agent"............................................ 2.3
"projected payment schedule".............................. 4.7
"Purchase Date"........................................... 3.7(a)
"Purchase Notice"......................................... 3.7(a)
"Purchase Price".......................................... 3.7(a)
"Purchased Shares"........................................ 10.10
"QIB"..................................................... 2.1(a)
"Registrar"............................................... 2.3
"Regular Record Date"..................................... Exhibit A-1
"Regulation S"............................................ 2.1(a)
"Reset Date".............................................. Exhibit A-1
"Rule 144A"............................................... 2.1(a)
"Rule 144A Information"................................... 4.6
"S&P"..................................................... Exhibit A-1
"Spin-off"................................................ 10.8
6
Term: Defined in Section:
"Time of Determination"................................... 10.1
"transfer"................................................ 2.12(d)
"Voting Stock"............................................ 3.8(a)
Section 1.3. Incorporation by Reference of Trust Indenture Act.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
"indenture securities" means the Securities.
"indenture securityholder" means a Securityholder.
"indenture to be qualified" means this Indenture.
"indenture trustee" or "institutional trustee" means the
Trustee.
"obligor" on the indenture securities means the Company.
All other TIA terms used in this Indenture that are defined by the TIA,
defined by TIA reference to another statute or defined by SEC rule have the
meanings assigned to them by such definitions.
Section 1.4. Rules of Construction Unless the context otherwise
requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning assigned
to it in accordance with generally accepted accounting principles as in effect
in the United States from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the plural
include the singular.
Section 1.5. Acts of Holders. (a) Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced
7
thereby) are herein sometimes referred to as the "Act" of Holders signing such
instrument or instruments. Proof of execution of any such instrument or of a
writing appointing any such agent shall be sufficient for any purpose of this
Indenture and (subject to Section 7.1) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section 1.5.
(b) The fact and date of the execution by any person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgments of deeds, certifying that the individual signing
such instrument or writing acknowledged to such officer the execution thereof.
Where such execution is by a signer acting in a capacity other than such
signer's individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer's authority. The fact and date of the
execution of any such instrument or writing, or the authority of the person
executing the same, may also be proved in any other manner which the Trustee
deems sufficient.
(c) The ownership of Securities shall be proved by the register for the
Securities.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) If the Company shall solicit from the Holders any request, demand,
authorization, direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of the Board of Directors, fix in
advance a record date for the determination of Holders entitled to give such
request, demand, authorization, direction, notice, consent, waiver or other Act,
but the Company shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice, consent, waiver
or other Act may be given before or after such record date, but only the Holders
of record at the close of business on such record date shall be deemed to be
Holders for the purposes of determining whether Holders of the requisite
proportion of outstanding Securities have authorized or agreed or consented to
such request, demand, authorization, direction, notice, consent, waiver or other
Act, and for that purpose the outstanding Securities shall be computed as of
such record date; provided, however, that no such authorization, agreement or
consent by the Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture not later
than six months after the record date.
ARTICLE II
THE SECURITIES
Section 2.1. Form and Dating. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibits A-1
and A-2, which are a part of this Indenture. To the extent any provisions of the
Securities and this Indenture are in conflict, the provisions of this Indenture
shall control. The Securities may have notations, legends or
8
endorsements required by law, stock exchange rule or usage (provided that any
such notation, legend or endorsement required by usage is in a form acceptable
to the Company). The Company shall provide any such notations, legends or
endorsements to the Trustee in writing. Each Security shall be dated the date of
its authentication.
(a) 144A/ Regulation S Global Securities. The Securities are being
offered and sold (i) in reliance on Regulation S under the Securities Act
("Regulation S") or (ii) to "qualified institutional buyers" as defined in Rule
144A ("QIBs") in reliance on Rule 144A under the Securities Act ("Rule 144A"),
and shall be issued in the form of one or more permanent Global Securities
substantially in the form of Exhibit A-1. Such Global Securities shall be
deposited on behalf of the purchasers of the Securities represented thereby with
the Trustee at its Corporate Trust Office, as custodian for the Depositary,
registered in the name of the Depositary or a nominee of the Depositary for the
accounts of participants in the Depositary (and, in the case of Securities held
in accordance with Regulation S, registered with the Depositary for the accounts
of designated agents holding on behalf of the Euroclear System ("Euroclear") or
Clearstream Banking, societe anonyme ("Clearstream")), duly executed by the
Company and authenticated by the Trustee as hereinafter provided. The aggregate
principal amount of a Global Security may from time to time be increased or
decreased by adjustments made on the records of the Trustee and the Depositary
or its nominee as hereinafter provided.
(b) Global Securities in General. Each Global Security shall represent
such of the outstanding Securities as shall be specified therein and each shall
provide that it shall represent the aggregate amount of outstanding Securities
from time to time endorsed thereon and that the aggregate amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, repurchases and conversions.
Any adjustment of the aggregate principal amount of a Global Security
to reflect the amount of any increase or decrease in the amount of outstanding
Securities represented thereby shall be made by the Trustee in accordance with
instructions given by the Holder thereof as required by Section 2.12 hereof and
shall be made on the records of the Trustee and the Depositary.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to
Global Securities deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c), authenticate and deliver initially one or more Global
Securities that (a) shall be registered in the name of the Depositary, (b) shall
be delivered by the Trustee to the Depositary or pursuant to the Depositary's
instructions and (c) shall bear legends substantially to the following effect:
"UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME
OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN
9
AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL
SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST
HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO
TRANSFERS TO NOMINEES OF THE DEPOSITORY TRUST COMPANY OR TO A
SUCCESSOR THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF
PORTIONS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS
MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN ARTICLE
TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF."
(d) Certificated Securities. In the event that the Securities are
issued as Certificated Securities, including pursuant to Section 2.12(a)(ii),
such Securities will be issued substantially in the form of Exhibit A-2 attached
hereto.
Section 2.2. Execution and Authentication. The Securities shall be
executed on behalf of the Company by any Officer. The signature of the Officer
on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals
who were at the time of the execution of the Securities Officers of the Company
shall bind the Company, notwithstanding that such individuals or any of them
have ceased to hold such offices prior to the authentication and delivery of
such Securities or did not hold such offices at the date of authentication of
such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized officer, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and deliver the Securities for original
issue in an aggregate principal amount of up to $150,000,000 upon one or more
Company Orders without any further action by the Company. The aggregate
principal amount of the Securities due at the Stated Maturity thereof
outstanding at any time may not exceed the amount set forth in the foregoing
sentence, except as provided in Section 2.7.
The Securities shall be issued only in registered form without coupons
and only in denominations of $1,000 of principal amount and any integral
multiple thereof.
10
Section 2.3. Registrar, Paying Agent and Conversion Agent. The Company
shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional Paying Agents and one or more additional conversion
agents. The term Paying Agent includes any additional Paying Agent, including
any named pursuant to Section 4.5. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to Section 4.5.
The Company shall enter into an appropriate agency agreement with any
Registrar, Paying Agent, Conversion Agent or co-registrar (that is not also the
Trustee). The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of the name and
address of any such agent. If the Company fails to maintain a Registrar, Paying
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 7.7. The Company or any
Subsidiary or an Affiliate of either of them may act as Paying Agent, Registrar,
Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion
Agent and Paying Agent in connection with the Securities.
Section 2.4. Paying Agent and Trustee To Hold Money in Trust. Except as
otherwise provided herein, on or prior to each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due date) sufficient to make
such payments when so becoming due. The Company shall require each Paying Agent
(other than the Trustee) to agree in writing that the Paying Agent shall hold in
trust for the benefit of Securityholders or the Trustee all money held by the
Paying Agent for the making of payments in respect of the Securities and shall
notify the Trustee of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying Agent shall,
upon the written request of the Trustee, forthwith pay to the Trustee all money
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money held by it as Paying Agent
and hold it as a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to account for any
funds disbursed by it. Upon doing so, the Paying Agent shall have no further
liability for the money.
The Trustee and the Paying Agent shall return to the Company any money
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another person.
Section 2.5. Securityholder Lists. The Trustee shall preserve in as
current a form as is reasonably practicable the most recent list available to it
of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause the Registrar to
11
furnish to the Trustee at least semiannually on January 15 and July 15 a listing
of Securityholders dated within 15 days of the date on which the list is
furnished and at such other times as the Trustee may request in writing a list
in such form and as of such date as the Trustee may reasonably require of the
names and addresses of Securityholders.
Section 2.6. Transfer and Exchange. (a) Subject to Section 2.12 hereof,
upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Securityholder or such Securityholder's attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or co-registrar
pursuant to Section 2.3, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denomination or
denominations, of a like aggregate principal amount. The Company shall not
charge a service charge for any registration of transfer or exchange, but the
Company may require payment of a sum sufficient to pay all taxes, assessments or
other governmental charges that may be imposed in connection with the transfer
or exchange of the Securities from the Securityholder requesting such transfer
or exchange.
At the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a like aggregate
principal amount, upon surrender of the Securities to be exchanged, together
with a written instrument of transfer satisfactory to the Registrar duly
executed by the Securityholder or such Securityholder's attorney duly authorized
in writing, at such office or agency. Whenever any Securities are so surrendered
for exchange, the Company shall execute, and the Trustee shall authenticate and
deliver, the Securities, which the Holder making the exchange is entitled to
receive.
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change of
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the selection of Securities to be
redeemed in part.
The Trustee shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of any interest
in any Security other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by the terms of, this Indenture, and to examine the same to
determine substantial compliance as to form with the express requirements
hereof.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section 2.6(b); provided, however,
that beneficial interests in a Global Security may be transferred to persons who
take delivery thereof in the form of a beneficial interest in the Global
Security in accordance
12
with the transfer restrictions set forth under the heading "Notice to Investors"
in the offering memorandum relating to the Securities dated August 20, 2002 and,
if applicable, in the Legend.
Except for transfers or exchanges made in accordance with Section 2.12,
transfers of a Global Security shall be limited to transfers of such Global
Security in whole, but not in part, to nominees of the Depositary or to a
successor of the Depositary or such successor's nominee.
In the event that a Global Security is exchanged for Securities in
definitive form pursuant to Section 2.12 prior to the effectiveness of a Shelf
Registration Statement with respect to such Securities, such exchange may occur,
and such Securities may be further exchanged or transferred, only upon receipt
by the Registrar of (1) such Global Security or such Securities in definitive
form, duly endorsed as provided herein, as applicable, (2) instructions from the
holder directing the Trustee to authenticate and deliver one or more Securities
in definitive form of the same aggregate principal amount as the Global Security
or the Securities in definitive form (or portion thereof), as applicable, to be
transferred, such instructions to contain the name or names of the designated
transferee or transferees, the authorized denomination or denominations of the
Securities in definitive form to be so issued and appropriate delivery
instructions, and (3) such certifications or other information and, in the case
of transfers pursuant to Rule 144 under the Securities Act, legal opinions as
the Company may reasonably require to confirm that such transfer is being made
pursuant to an exemption from, or in a transaction not subject to, the
registration requirements of the Securities Act (including the certification
requirements intended to ensure that such transfers comply with Rule 144A or
Regulation S under the Securities Act, as the case may be), and upon compliance
with such other procedures as may from time to time be adopted by the Company
and the Registrar.
(c) Successive registrations and registrations of transfers and
exchanges as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.3 hereof shall
provide to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) Except for transfers in connection with a Shelf Registration
Statement, if Securities are issued upon the transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the legends set
forth on the forms of Security attached hereto as Exhibits A-1 and A-2 setting
forth such restrictions (collectively, the "Legend"), or if a request is made to
remove the Legend on a Security, the Securities so issued shall bear the Legend,
or the Legend shall not be removed, as the case may be, unless there is
delivered to the Company and the Registrar such satisfactory evidence (which in
the case of a transfer pursuant to Rule 144 under the Securities Act may include
a legal opinion), as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer set forth
therein are required to ensure that transfers thereof comply with the provisions
of Rule 144A, Regulation S
13
or Rule 144 under the Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale, the Trustee,
at the written direction of the Company, shall authenticate and deliver a
Security that does not bear the Legend. If the Legend is removed from the face
of a Security and the Security is subsequently held by the Company or an
Affiliate of the Company, the Legend shall be reinstated.
(g) Anything to the contrary herein notwithstanding, the Company and
the Trustee may impose such transfer, certification, exchange or other
requirements, and require such restrictive legends on certificates evidencing
the Securities, as (i) they may determine are necessary to ensure compliance
with the securities laws of the United States and the states therein and any
other applicable laws, (ii) to ensure that the Shelf Registration Statement or
amendment covering the Securities or shares of Common Stock to be issued upon
conversion of the Securities is declared effective by the Commission or (iii) as
the Depositary may require.
Section 2.7. Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
protected purchaser as defined in the New York Uniform Commercial Code, the
Company shall execute and upon its written request the Trustee shall
authenticate and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of like tenor and
principal amount, bearing a certificate number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, or is about to be purchased by the
Company pursuant to Article III hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section 2.7, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section 2.7 in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section 2.7 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.
14
Section 2.8. Outstanding Securities; Determinations of Holders' Action
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those cancelled by it, those paid pursuant to Section 2.7,
those delivered to it for cancellation and those described in this Section 2.8
as not outstanding. A Security does not cease to be outstanding because the
Company or an Affiliate thereof holds the Security; provided, however, that in
determining whether the Holders of the requisite principal amount of Securities
have given or concurred in any request, demand, authorization, direction,
notice, consent, waiver or other Act hereunder, Securities owned by the Company
or any other obligor upon the Securities or any Affiliate of the Company or such
other obligor shall be disregarded and deemed not to be outstanding, except
that, in determining whether the Trustee shall be protected in relying upon any
such request, demand, authorization, direction, notice, consent, waiver or other
Act, only Securities which a Responsible Officer of the Trustee actually knows
to be so owned shall be so disregarded. Subject to the foregoing, only
Securities outstanding at the time of such determination shall be considered in
any such determination (including, without limitation, determinations pursuant
to Articles VI and IX).
If a Security is replaced pursuant to Section 2.7, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a protected purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date or a Change of
Control Purchase Date, or on Stated Maturity, money sufficient to pay Securities
payable on that date, then immediately after such Redemption Date, Purchase
Date, Change of Control Purchase Date or Stated Maturity, as the case may be,
such Securities shall cease to be outstanding and interest, if any, on such
Securities shall cease to accrue; provided, however, 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.
If a Security is converted in accordance with Article X, then from and
after the Conversion Date, such Security shall cease to be outstanding and
interest, if any, shall cease to accrue on such Security.
Section 2.9. Temporary Securities Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the Officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.3,
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
15
and deliver in exchange therefor a like principal amount of definitive
Securities of authorized denominations. Until so exchanged the temporary
Securities shall in all respects be entitled to the same benefits under this
Indenture as definitive Securities.
Section 2.10. Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article III, conversion, redemption or
registration of transfer or exchange shall, if surrendered to any person other
than the Trustee, be delivered to the Trustee and shall be promptly cancelled by
it. The Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which the Company
may have acquired in any manner whatsoever, and all Securities so delivered
shall be promptly cancelled by the Trustee. The Company may not issue new
Securities to replace Securities it has paid or delivered to the Trustee for
cancellation or that any Holder has converted pursuant to Article X. No
Securities shall be authenticated in lieu of or in exchange for any Securities
cancelled as provided in this Section 2.10, except as expressly permitted by
this Indenture. All cancelled Securities held by the Trustee shall be disposed
of by the Trustee in accordance with the Trustee's customary procedure.
Section 2.11. Persons Deemed Owners. Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and any agent of
the Company or the Trustee may treat the person in whose name such Security is
registered in the records of the Registrar as the owner of such Security for the
purpose of receiving payment of principal of the Security or the payment of any
Redemption Price, Purchase Price or Change of Control Purchase Price in respect
thereof, and interest thereon, for the purpose of conversion and for all other
purposes whatsoever, whether or not such Security be overdue, and neither the
Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
Section 2.12. Global Securities. (a) Notwithstanding any other
provisions of this Indenture or the Securities, (A) transfers of a Global
Security, in whole or in part, shall be made only in accordance with Section
2.6(b) and Section 2.12(a)(i), (B) transfers of a beneficial interest in a
Global Security for a Certificated Security shall comply with Section 2.6 and
Section 2.12(a)(ii) below, and (C) transfers of a Certificated Security shall
comply with Section 2.6 and Sections 2.12(a)(iii) and (iv) below.
(i) Transfer of Global Security. A Global Security may not be
transferred, in whole or in part, to any person other than the
Depositary or one or more nominees or any successor thereof, and no
such transfer to any such other person may be registered; provided,
however, that this clause (i) shall not prohibit any transfer of a
Security that is issued in exchange for a Global Security but is not
itself a Global Security. No transfer of a Security to any person shall
be effective under this Indenture or the Securities unless and until
such Security has been registered in the name of such person. Nothing
in this Section 2.12(a)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section 2.12(a).
(ii) Restrictions on Transfer of a Beneficial Interest in a
Global Security for a Certificated Security. A beneficial interest in a
Global Security may not be exchanged for a Certificated Security except
upon the circumstances contemplated in
16
Section 2.12(e)(1) below and additionally, upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a transfer
of a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form
satisfactory to the Trustee, together with:
(A) so long as the Securities are Restricted Securities,
certification in the form set forth in Exhibit B,
(B) written instructions to the Trustee to make, or
direct the Registrar to make, an adjustment on its
books and records with respect to such Global
Security to reflect a decrease in the aggregate
principal amount of the Securities represented by the
Global Security, such instructions to contain
information regarding the Depositary account to be
credited with such decrease, and
(C) if the Company so requests, an opinion of counsel or
other evidence reasonably satisfactory to it as to
the compliance with the restrictions set forth in the
Legend,
the Trustee shall cause, or direct the Registrar to cause, in
accordance with the standing instructions and procedures existing
between the Depositary and the Registrar, the aggregate principal
amount of the Securities represented by the Global Security to be
decreased by the aggregate principal amount of the Certificated
Security to be issued, shall issue such Certificated Security and shall
debit or cause to be debited to the account of the person specified in
such instructions a beneficial interest in the Global Security equal to
the principal amount of the Certificated Security so issued.
(iii) Transfer and Exchange of Certificated Securities. When
Certificated Securities are presented to the Registrar with a request:
(y) to register the transfer of such Certificated
Securities; or
(z) to exchange such Certificated Securities for an
equal principal amount of Certificated Securities of other
authorized denominations,
the Registrar shall register the transfer or make the exchange as
requested if its reasonable requirements for such transaction are met;
provided, however, that the Certificated Securities surrendered for
transfer or exchange:
(1) shall be duly endorsed or accompanied by a written instrument
of transfer in form reasonably satisfactory to the Company and
the Registrar, duly executed by the Holder thereof or his
attorney duly authorized in writing; and
(2) so long as such Securities are Restricted Securities, such
Securities are being transferred or exchanged pursuant to an
effective registration statement under the Securities Act or
pursuant to clause (A), (B) or (C) below, and are accompanied
by the following additional information and documents, as
applicable:
17
(A) if such Certificated Securities are being transferred
to the Company, a certification to that effect; or
(B) if such Certificated Securities are being delivered
to the Registrar by a Holder for registration in the
name of such Holder, without transfer, a
certification from such Holder to that effect; or
(C) if such Certificated Securities are being transferred
pursuant to an exemption from registration, (i) a
certification to that effect (in the form set forth
in Exhibit B, if applicable) and (ii) if the Company
so requests, an opinion of counsel or other evidence
reasonably satisfactory to it as to the compliance
with the restrictions set forth in the Legend.
(iv) Restrictions on Transfer of a Certificated Security for a
Beneficial Interest in a Global Security. A Certificated Security may
not be exchanged for a beneficial interest in a Global Security except
upon satisfaction of the requirements set forth below.
Upon receipt by the Trustee of a Certificated Security, duly
endorsed or accompanied by appropriate instruments of transfer, in form
satisfactory to the Trustee, together with:
(I) so long as the Securities are Restricted Securities,
certification, in the form set forth in Exhibit B, that such
Certificated Security is being transferred in accordance with Rule
144A, Regulation S or Rule 144; and
(II) written instructions directing the Trustee to make, or to
direct the Registrar to make, an adjustment on its books and records
with respect to such Global Security to reflect an increase in the
aggregate principal amount of the Securities represented by the Global
Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such Certificated Security and cause, or direct the
Registrar to cause, in accordance with the standing instructions and
procedures existing between the Depositary and the Registrar, the
aggregate principal amount of Securities represented by the Global
Security to be increased by the aggregate principal amount of the
Certificated Security to be exchanged, and shall credit or cause to be
credited to the account of the person specified in such instructions a
beneficial interest in the Global Security equal to the principal
amount of the Certificated Security so cancelled. If no Global
Securities are then outstanding, the Company shall issue and the
Trustee shall authenticate, upon receipt of a Company Order, a new
Global Security in the appropriate principal amount.
(b) Subject to Section 2.12(c), every Security shall be subject to the
restrictions on transfer provided in the Legend. Whenever any Restricted
Security is presented or surrendered for registration of transfer or for
exchange for a Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the form set
forth in Exhibit B, dated the date of such surrender and signed by the Holder of
such Security, as to compliance with such restrictions on transfer. The
Registrar shall not be required to accept for
18
such registration of transfer or exchange any Security not so accompanied by a
properly completed certificate.
(c) The restrictions imposed by the Legend upon the transferability of
any Security shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or transferred
in compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and in form
acceptable to the Company, to the effect that the transfer of such Security has
been made in compliance with Rule 144 or such successor provision), be exchanged
for a new Security, of like tenor and aggregate principal amount, which shall
not bear the restrictive Legend. The Company shall inform the Trustee of the
effective date of any registration statement registering the resale of the
Securities under the Securities Act. The Trustee shall not be liable for any
action taken or omitted to be taken by it in good faith in accordance with the
aforementioned opinion of counsel or registration statement.
(d) As used in the Section 2.12(b) and (c), the term "transfer"
encompasses any sale, pledge, transfer, loan, hypothecation, or other
disposition of any Security.
(e) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole
or in part for a Security registered in the name of any person
other than the Depositary or one or more nominees or any
successor thereof; provided, however, that a Global Security
may be exchanged for Securities registered in the names of any
person designated by the Depositary in the event that (i) the
Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or
such Depositary has ceased to be a "clearing agency"
registered under the Exchange Act, and a successor Depositary
is not appointed by the Company within 90 days, (ii) such
Depositary is closed for business for 14 continuous days,
(iii) such Depositary announces an intention permanently to
cease business or does in fact do so, (iv) an Event of Default
has occurred and is continuing with respect to the Securities
or (v) the Company in its sole discretion elects not to have
the Securities represented by a Global Security and to cause
the issuance of Certificated Securities. Any Global Security
exchanged pursuant to clause (i), (ii), (iii) or (v) above
shall be so exchanged in whole and not in part, and any Global
Security exchanged pursuant to clause (iv) above may be
exchanged in whole or from time to time in part as directed by
the Depositary. Any Security issued in exchange for a Global
Security or any portion thereof shall be a Global
19
Security; provided, however, that any such Security so issued
that is registered in the name of a person other than the
Depositary or a nominee thereof shall not be a Global Security
and shall be deemed a Certificated Security.
(2) Securities issued in exchange for a Global Security or any
portion thereof shall be issued in definitive, fully
registered form, without interest coupons, shall have an
aggregate principal amount equal to that of such Global
Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized
denominations as the Depositary shall designate and shall bear
the applicable legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Registrar. With regard to any
Global Security to be exchanged in part, either such Global
Security shall be so surrendered for exchange or, if the
Trustee is acting as custodian for the Depositary or its
nominee with respect to such Global Security, the principal
amount thereof shall be reduced, by an amount equal to the
portion thereof to be so exchanged, by means of an appropriate
adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and
deliver the Security issuable on such exchange to or upon the
order of the Depositary or an authorized representative
thereof.
(3) Subject to the provisions of clause (5) below, the registered
Holder may grant proxies and otherwise authorize any person,
including Agent Members and persons that may hold interests
through Agent Members, to take any action which a holder is
entitled to take under this Indenture or the Securities.
(4) In the event of the occurrence of any of the events specified
in clause (1) above, the Company will promptly make available
to the Trustee a reasonable supply of Certificated Securities
in definitive, fully registered form, without interest
coupons.
(5) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other persons on
whose behalf Agent Members may act shall have any rights under
this Indenture with respect to any Global Security registered
in the name of the Depositary or any nominee thereof, or under
any such Global Security, and the Depositary or such nominee,
as the case may be, may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Security for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the
Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the
Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person
on whose behalf an Agent Member may act, the operation of
customary practices of such Persons governing the exercise of
the rights of a holder of any Security.
Section 2.13. CUSIP Numbers. The Company may issue the Securities with
one or more "CUSIP", "ISIN" and "CINS" numbers (if then generally in use), and,
if so, the Trustee
20
shall use "CUSIP", "ISIN" and "CINS" numbers in notices of redemption as a
convenience to Holders; provided, however, 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 a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. The Company will promptly notify the Trustee of any
change in the "CUSIP", "ISIN" and "CINS" numbers.
Section 2.14. Ranking. The Indebtedness of the Company arising under or
in connection with this Indenture and every outstanding Security issued under
this Indenture from time to time constitutes and will constitute an
unsubordinated unsecured obligation of the Company, ranking equally with other
existing and future unsubordinated unsecured Indebtedness of the Company.
Section 2.15. Regulation S Restrictions on Transfer. The Company agrees
that it will refuse to register any transfer of Securities or any shares of
Common Stock issued upon conversion of Securities that is not made in accordance
with the provisions of Regulation S under the Securities Act, pursuant to a
registration statement which has been declared effective under the Securities
Act or pursuant to an available exemption from the registration requirements of
the Securities Act; provided, however, that the provisions of this paragraph
shall not be applicable to any Securities which do not bear a Legend or to any
shares of Common Stock evidenced by certificates which do not bear a Restricted
Common Stock Legend.
ARTICLE III
REDEMPTION AND PURCHASES
Section 3.1. Company's Right To Redeem; Notices to Trustee. The
Company, at its option, may redeem the Securities, in whole or in part, in
accordance with the provisions of Paragraph 5 of the Securities. If the Company
elects to redeem Securities pursuant to Paragraph 5 of the Securities, it shall
notify the Trustee in writing of the Redemption Date, the principal amount of
Securities to be redeemed and the Redemption Price. The Company shall give the
notice to the Trustee provided for in Section 3.3 by a Company Order, at least
40 days before the Redemption Date (unless a shorter notice shall be
satisfactory to the Trustee).
Section 3.2. Selection of Securities To Be Redeemed. If less than all
the Securities are to be redeemed, unless the procedures of the Depositary
provide otherwise, the Trustee shall select the Securities to be redeemed by
lot, on a pro rata basis or by another method the Trustee considers fair and
appropriate (so long as such method is not prohibited by the rules of any stock
exchange on which the Securities are then listed). The Trustee shall make the
selection at least 35 days but not more than 60 days before the Redemption Date
from outstanding Securities not previously called for redemption. The Trustee
may select for redemption portions of the principal amount of Securities that
have denominations larger than $1,000. Securities and portions of Securities
that the Trustee selects shall be in principal amounts of $1,000 or an integral
multiple of $1,000, if less than all of the Securities are being redeemed.
Provisions of this Indenture that apply to Securities called for redemption also
apply to portions of Securities
21
called for redemption. The Trustee shall notify the Company promptly of the
Securities or portions of the Securities to be redeemed. If any Security
selected for partial redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so selected, the
converted portion of such Security shall be deemed (so far as may be) to be the
portion selected for redemption. Securities, which have been converted during a
selection of Securities to be redeemed, may be treated by the Trustee as
outstanding for the purpose of such selection.
Section 3.3. Notice of Redemption. At least 30 days but not more than
60 days before a Redemption Date, the Company shall mail a notice of redemption
by first-class mail, postage prepaid, to each Holder of Securities to be
redeemed. The notice shall identify the Securities to be redeemed and shall
state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion Agent;
(5) that Securities called for redemption may be converted at any time
before the close of business on the Business Day immediately preceding the
Redemption Date, unless the Company defaults in making the payment due on the
Redemption Date, in which case the conversion right shall terminate at the close
of business on the date such default is cured and such payment is made;
(6) that Holders who want to convert their Securities must satisfy the
requirements set forth in Paragraph 8 of the Securities;
(7) if fewer than all of the outstanding Securities are to be redeemed,
the certificate numbers, if any, and principal amounts of the particular
Securities to be redeemed;
(8) that, unless the Company defaults in making payment of such
Redemption Price, interest, if any, on Securities called for redemption will
cease to accrue on and after the Redemption Date; and
(9) the CUSIP, ISIN and CINS number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense, provided that the
Company makes such request at least five Business Days prior to the date by
which such notice of redemption must be given to Holders in accordance with this
Section 3.3 unless a shorter period is agreed upon by the Trustee.
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Section 3.4. Effect of Notice of Redemption. Once notice of redemption
is given, Securities called for redemption become due and payable on the
Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted in accordance with the terms of this Indenture.
Upon surrender to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice.
Section 3.5. Deposit of Redemption Price. Prior to 10:00 a.m. (New York
City time), on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them is
the Paying Agent, shall segregate and hold in trust) money sufficient to pay the
Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article X. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 3.6. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in principal amount to the unredeemed portion of the Security
surrendered.
Section 3.7. Purchase of Securities by the Company at Option of the
Holder. (a) General. Securities shall be purchased by the Company for cash
pursuant to Paragraph 7(a) of the Securities at the option of the Holder on
August 15, 2007, August 15, 2012 and August 15, 2017 (each, a "Purchase Date"),
at 100.0% of the principal amount thereof plus accrued and unpaid interest, if
any, to such Purchase Date (the "Purchase Price"). Purchases of Securities
hereunder shall be made, at the option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the Holder of a written notice
of purchase (a "Purchase Notice") during the period beginning
at any time from the opening of business on the date that is
20 Business Days prior to the relevant Purchase Date until the
close of business two Business Days prior to such Purchase
Date stating:
(A) the certificate number of the Security which the
Holder will deliver to be purchased or the
appropriate Depositary procedures if Certificated
Securities have not been issued,
(B) the portion of the principal amount of the Security
which the Holder will deliver to be purchased, which
portion must be in principal amounts of $1,000 or an
integral multiple thereof, if less than all of the
Securities are being delivered, and
(C) that such Security shall be purchased by the Company
as of the Purchase Date pursuant to the terms and
conditions specified in Paragraph 7 of the Securities
and in this Indenture; and
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(2) delivery of such Security to the Paying Agent prior to, on or
after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the
Purchase Price therefor; provided, however, that such Purchase
Price shall be so paid pursuant to this Section 3.7 only if
the Security so delivered to the Paying Agent shall conform in
all respects to the description thereof in the related
Purchase Notice, as determined by the Company.
The Company shall purchase from the Holder thereof, pursuant to this
Section 3.7, a portion of a Security, only if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.7 shall be consummated by the delivery of the cash to be received
by the Holder promptly following the later of the Purchase Date and the time of
delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder delivering
to the Paying Agent the Purchase Notice contemplated by this Section 3.7(a)
shall have the right to withdraw such Purchase Notice at any time prior to the
close of business on the Business Day immediately preceding the Purchase Date by
delivery of a written notice of withdrawal to the Paying Agent in accordance
with Section 3.9.
The Paying Agent shall promptly notify the Company of the receipt by it
of any Purchase Notice or written notice of withdrawal thereof.
(b) Notice of Purchase Option. In connection with any purchase of
Securities pursuant to Paragraph 7(a) of the Securities, the Company shall give
notice to Holders setting forth information specified in this Section 3.7(b)
(the "Company Notice"). The Company Notice shall be sent by first-class mail to
the Trustee and each Holder not less than 20 Business Days prior to any Purchase
Date.
Each Company Notice shall include a form of Purchase Notice to be
completed by a Holder and shall state:
(1) the Purchase Price and the Conversion Rate;
(2) the name and address of the Paying Agent and the Conversion Agent;
(3) that Securities as to which a Purchase Notice has been given may be
converted if they are otherwise convertible only in accordance with Article X
hereof and Paragraph 8 of the Securities if the applicable Purchase Notice has
been withdrawn in accordance with the terms of this Indenture;
(4) that Securities must be surrendered to the Paying Agent to collect
payment;
24
(5) that the Purchase Price for any security as to which a Purchase
Notice has been given and not withdrawn will be paid promptly following the
later of the Purchase Date and the time of surrender of such Security as
described in (4);
(6) the procedures the Holder must follow to exercise its rights under
this Section 3.7 and a brief description of those rights;
(7) briefly, the conversion rights of the Securities;
(8) the procedures for withdrawing a Purchase Notice;
(9) that, unless the Company defaults in making payment on Securities
for which a Purchase Notice has been submitted, interest, if any, on such
Securities will cease to accrue on the Purchase Date; and
(10) the CUSIP, ISIN and CINS number of the Securities.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in all
cases, the text of such Company Notice shall be prepared by the Company.
(c) Procedure upon Purchase. The Company shall deposit cash at the time
and in the manner as provided in Section 3.10, sufficient to pay the aggregate
Purchase Price of all Securities to be purchased pursuant to this Section 3.7.
Section 3.8. Purchase of Securities at Option of the Holder upon a
Change of Control. (a) If a Change of Control occurs, the Securities not
previously purchased by the Company shall be purchased by the Company, at the
option of the Holder thereof, for cash at a purchase price equal to 100.0% of
the principal amount thereof plus accrued and unpaid interest, if any, to the
date of purchase (the "Change of Control Purchase Price"), as of the date that
is 45 days after the date of the notice of Change of Control delivered by the
Company (the "Change of Control Purchase Date"), subject to satisfaction by or
on behalf of the Holder of the requirements set forth in Section 3.8(c).
A "Change of Control" shall be deemed to have occurred at such time
after the Securities are originally issued as any of the following events shall
occur:
(i) any person acquires beneficial ownership, directly or
indirectly, through a purchase, merger or other acquisition transaction
or series of transactions, of shares of the Company's Capital Stock
entitling the person to exercise 50% or more of the total voting power
of all shares of the Company's Capital Stock that are entitled to vote
generally in elections of directors (the "Voting Stock"); or
(ii) the Company consolidates or merges with or into any other
person, or the Company sells or transfers all or substantially all its
properties and assets to another person, other than any transaction:
25
(A) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding
shares of the Company's Capital Stock, or
(B) pursuant to which the holders of the Company's Voting
Stock immediately prior to the transaction have the
entitlement to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of
Capital Stock entitled to vote generally in the
election of directors of the continuing or surviving
corporation immediately after the transaction, or
(C) which is effected solely to change the Company's
jurisdiction of incorporation and results in a
reclassification, conversion or exchange of
outstanding shares of the Common Stock solely into
shares of common stock of the surviving entity; or
(iii) the first day on which the Company's Continuing
Directors do not constitute a majority of the Board of Directors of the
Company (or, if applicable, a successor corporation to the Company).
Notwithstanding the foregoing provisions of this Section 3.8, a Change of
Control shall not be deemed to have occurred if (A) the Sale Price per share of
Common Stock for any five trading days within the period of 10 consecutive
trading days ending immediately after the later of a Change of Control or the
public announcement of a Change of Control, in the case of a Change of Control
relating to an acquisition of Capital Stock, or the period of 10 consecutive
trading days ending immediately before a Change of Control, in the case of a
Change of Control relating to a merger, consolidation or asset transfer, equals
or exceeds 105% of the Conversion Price of the Securities in effect on each of
those trading days or (B) all of the consideration (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters' appraisal
rights) in a merger or consolidation otherwise constituting a Change of Control
under clause (i) or clause (ii) above (regardless of whether or not the event
described under clause (iii) above also shall have occurred) consists of shares
of common stock traded on a national securities exchange or quoted on the Nasdaq
National Market (or will be so traded or quoted immediately following the merger
or consolidation) and as a result of the merger or consolidation the Securities
become convertible solely into such common stock. For purposes of this Section
3.8, (x) whether a person is a "beneficial owner" shall be determined in
accordance with Rule 13d-3 under the Exchange Act and (y) "person" includes any
syndicate or group that would be deemed to be a "person" under Section 13(d)(3)
of the Exchange Act.
(b) No later than 30 days after the occurrence of a Change of Control,
the Company shall mail a written notice of the Change of Control by first-class
mail to the Trustee and to each Holder. The notice shall include a form of
written notice of purchase (the "Change of Control Purchase Notice") to be
completed by the Holder and shall state:
(1) briefly, the events causing a Change of Control and the date
of such Change of Control;
26
(2) the date by which the Change of Control Purchase Notice
pursuant to this Section 3.8 must be given;
(3) the Change of Control Purchase Date;
(4) the Change of Control Purchase Price;
(5) the name and address of the Paying Agent and the Conversion
Agent;
(6) the Conversion Rate and any adjustments thereto;
(7) that the Securities as to which a Change of Control Purchase
Notice has been given may be converted if they are otherwise
convertible pursuant to Article X hereof only if the Change of
Control Purchase Notice has been withdrawn in accordance with
the terms of this Indenture;
(8) that the Securities must be surrendered to the Paying Agent to
collect payment;
(9) that the Change of Control Purchase Price for any Security as
to which a Change of Control Purchase Notice has been duly
given and not withdrawn will be paid promptly following the
later of the Change of Control Purchase Date and the time of
surrender of such Security as described in (8);
(10) briefly, the procedures the Holder must follow to exercise
rights under this Section 3.8;
(11) the procedures for withdrawing a Change of Control Purchase
Notice;
(12) that, unless the Company defaults in making payment of such
Change of Control Purchase Price, interest, if any, on
Securities surrendered for purchase by the Company will cease
to accrue on and after the Change of Control Purchase Date;
and
(13) the CUSIP, ISIN and CINS number(s) of the Securities.
At the Company's request, the Trustee shall give the notice of the
Change of Control in the Company's name and at the Company's expense, provided
that the Company makes such request at least five Business Days prior to the
date by which such notice of the Change of Control must be given to Holders in
accordance with this Section 3.8 unless a shorter period is agreed upon by the
Trustee.
(c) A Holder may exercise its rights specified in Section 3.8(a) upon
delivery of a Change of Control Purchase Notice to the Paying Agent at any time
on or prior to the 30th day after the date the Company delivers its written
Change of Control notice, stating:
(1) the certificate number of the Security which the Holder will
deliver to be purchased;
27
(2) the portion of the principal amount of the Security which the Holder
will deliver to be purchased, which portion, if not the entire amount
of the Security, must be $1,000 or an integral multiple thereof; and
(3) that such Security shall be purchased pursuant to the terms and
conditions specified in Paragraph 7(b) of the Securities.
The delivery of such Security to the Paying Agent with the Change of
Control Purchase Notice (together with all necessary endorsements) at the
offices of the Paying Agent shall be a condition to the receipt by the Holder of
the Change of Control Purchase Price therefor; provided, however, that such
Change of Control Purchase Price shall be so paid pursuant to this Section 3.8
only if the Security so delivered to the Paying Agent shall conform in all
respects to the description thereof set forth in the related Change of Control
Purchase Notice.
(d) The Company shall purchase from the Holder thereof, pursuant to
this Section 3.8, a portion of a Security only if the principal amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of
this Section 3.8 shall be consummated by the delivery of the cash to be received
by the Holder on the Change of Control Purchase Date.
(e) The Paying Agent shall promptly notify the Company of the receipt
by it of any Change of Control Purchase Notice.
(f) Notwithstanding the foregoing provisions of this Section 3.8, the
Company shall not be required to offer to purchase Securities following a Change
of Control if a third party makes the offer contemplated by this Section 3.8 in
the manner, at the times and otherwise in compliance with the requirements set
forth in this Section 3.8 and purchases on the Change of Control Purchase Date
all Securities in respect of which a valid Change of Control Purchase Notice was
delivered and not withdrawn.
Section 3.9. Effect of Purchase Notice or Change of Control Purchase
Notice. Upon receipt by the Paying Agent of the Purchase Notice or the Change of
Control Purchase Notice specified in Section 3.7(a) or Section 3.8(c), as
applicable, the Holder of the Security in respect of which such Purchase Notice
or Change of Control Purchase Notice, as the case may be, was given shall
(unless such Purchase Notice or Change of Control Purchase Notice, as the case
may be, is withdrawn as specified in the following paragraph) thereafter be
entitled to receive solely the Purchase Price or the Change of Control Purchase
Price, as the case may be, in cash, with respect to such Security. Such Purchase
Price or Change of Control Purchase Price shall be paid to such Holder, subject
to receipts of funds by the Paying Agent, as soon as practicable following the
later of (x) the Purchase Date or the Change of Control Purchase Date, as the
case may be, with respect to such Security (provided the conditions in Section
3.7(a) or Section 3.8(c), as applicable, have been satisfied) and (y) the time
of delivery of such Security to the Paying Agent by the Holder thereof in the
manner required by Section 3.7(a) or Section 3.8(c), as applicable. Securities
in respect of which a Purchase Notice or Change of Control Purchase Notice has
been
28
given by the Holder thereof may not be converted pursuant to Article X hereof on
or after the date of the delivery of such Purchase Notice or Change of Control
Purchase Notice unless such Purchase Notice or Change of Control Purchase Notice
has first been validly withdrawn as specified in the following paragraph.
A Purchase Notice or Change of Control Purchase Notice may be withdrawn
by means of a written notice of withdrawal delivered to the office of the Paying
Agent in accordance with the Purchase Notice or Change of Control Purchase
Notice at any time prior to the close of business on the Business Day
immediately preceding the Purchase Date specifying:
(1) the certificate number, if any, of the Security in respect of
which such notice of withdrawal is being submitted,
(2) the principal amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the principal amount, if any, of such Security which remains
subject to the original Purchase Notice or Change of Control
Purchase Notice, as the case may be, and which has been or
will be delivered for purchase by the Company.
Section 3.10. Deposit of Purchase Price or Change of Control Purchase
Price. Prior to 10:00 a.m. (local time in the City of New York) on the Purchase
Date or the Change of Control Purchase Date, as the case may be, the Company
shall deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 2.4) an amount of cash
(in immediately available funds if deposited on such Business Day) sufficient to
pay the aggregate Purchase Price or Change of Control Purchase Price, as the
case may be, of all the Securities or portions thereof which are to be purchased
as of the Purchase Date or Change of Control Purchase Date, as the case may be.
Section 3.11. Securities Purchased in Part. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company or the Trustee so requires, due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such Security, without service charge,
a new Security or Securities, of any authorized denomination as requested by
such Holder in aggregate principal amount equal to, and in exchange for, the
portion of the principal amount of the Security so surrendered which is not
purchased.
Section 3.12. Covenant To Comply with Securities Laws upon Purchase of
Securities. When complying with the provisions of Section 3.7 or 3.8 hereof
(provided that such offer or purchase constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used herein, includes any successor
provision thereto) under the Exchange Act at the time of such offer or
purchase), the Company shall (i) comply with Rule 13e-4 and Rule 14e-1 (or any
successor provision) under the Exchange Act, (ii) file the related Schedule TO
(or any successor schedule, form or report) under the Exchange Act, and (iii)
otherwise comply with all Federal
29
and state securities laws so as to permit the rights and obligations under
Sections 3.7 and 3.8 to be exercised in the time and in the manner specified in
Sections 3.7 and 3.8.
Section 3.13. Repayment to the Company. The Trustee and the Paying
Agent shall return to the Company any cash that remains unclaimed as provided in
Paragraph 12 of the Securities, together with interest, if any, thereon (subject
to the provisions of Section 7.1(f)), held by them for the payment of the
Purchase Price or Change of Control Purchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 3.10 exceeds the aggregate Purchase
Price or Change of Control Purchase Price, as the case may be, of the Securities
or portions thereof which the Company is obligated to purchase as of the
Purchase Date or Change of Control Purchase Date, as the case may be, then,
unless otherwise agreed in writing with the Company, promptly after the Business
Day following the Purchase Date or Change of Control Purchase Date, as the case
may be, the Trustee shall return any such excess to the Company together with
interest, if any, thereon (subject to the provisions of Section 7.1(f)).
ARTICLE IV
COVENANTS
Section 4.1. Payment of Securities. The Company shall promptly make all
payments in respect of the Securities on the dates and in the manner provided in
the Securities or pursuant to this Indenture. Any amounts of cash to be given to
the Trustee or Paying Agent, shall be deposited with the Trustee or Paying Agent
by 10:00 a.m. New York City time by the Company. Principal amount, Redemption
Price, Purchase Price, Change of Control Purchase Price and interest, if any,
shall be considered paid on the applicable date due if on such date the Trustee
or the Paying Agent holds, in accordance with this Indenture, cash sufficient to
pay all such amounts then due.
Section 4.2. SEC and Other Reports. The Company shall file with the
Trustee, within 15 days after it files such annual and quarterly reports,
information, documents and other reports with the SEC, copies of its annual
report and of the information, documents and other reports (or copies of such
portions of any of the foregoing as the SEC may by rules and regulations
prescribe) which the Company is required to file with the SEC pursuant to
Section 13 or 15(d) of the Exchange Act. In the event the Company is at any time
no longer subject to the reporting requirements of Section 13 or 15(d) of the
Exchange Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the SEC had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports had it continued to have
been subject to such reporting requirements. The Company also shall comply with
the other provisions of TIA Section 314(a). Delivery of such reports,
information and documents to the Trustee is for informational purposes only and
the Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely conclusively on Officers'
Certificates).
30
Section 4.3. Compliance Certificate The Company shall deliver to the
Trustee within 105 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on June 27, 2003) an Officers'
Certificate, stating whether or not to the best knowledge of the signers
thereof, the Company is in default in the performance and observance of any of
the terms, provisions and conditions of this Indenture (without regard to any
period of grace or requirement of notice provided hereunder) and if the Company
shall be in default, specifying all such defaults and the nature and status
thereof of which they may have knowledge.
Section 4.4. Further Instruments and Acts The Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper to carry out more effectively the purposes of this
Indenture.
Section 4.5. Maintenance of Office or Agency The Company will maintain
in the Borough of Manhattan, the City of New York, an office or agency of the
Trustee, Registrar, Paying Agent and Conversion Agent where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer, exchange, purchase, redemption or conversion and where
notices and demands to or upon the Company in respect of the Securities and this
Indenture may be served. The office of The Bank of New York, 101 Barclay Street,
Floor 8W, New York, New York 10286 (Attention: Corporate Trust Administration),
shall initially be such office or agency for all of the aforesaid purposes. The
Company shall give prompt written notice to the Trustee of the location, and of
any change in the location, of any such office or agency (other than a change in
the location of the office of the Trustee). If at any time the Company shall
fail to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the address of the Trustee set forth in Section
11.2.
The Company may also from time to time designate one or more other
offices or agencies where the Securities may be presented or surrendered for any
or all such purposes and may from time to time rescind such designations;
provided, however, that no such designation or rescission shall in any manner
relieve the Company of its obligation to maintain an office or agency in the
Borough of Manhattan, the City of New York, for such purposes.
Section 4.6. Delivery of Certain Information. At any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act or upon the
request of a Holder or any beneficial owner of Securities or holder or
beneficial owner of shares of Common Stock issued upon conversion thereof, the
Company will promptly furnish or cause to be furnished Rule 144A Information to
such Holder or any beneficial owner of Securities or holder or beneficial owner
of shares of Common Stock issued upon conversion of a Security, or to a
prospective purchaser of any such security designated by any such holder, as the
case may be, to the extent required to permit compliance by such Holder or
holder with Rule 144A under the Securities Act in connection with the resale of
any such security. "Rule 144A Information" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act. Whether a person
is a beneficial owner shall be determined by the Company to the Company's
reasonable satisfaction.
Section 4.7. Contingent Payment Debt Instrument; Calculation of
Original Issue Discount. The Company and each Holder will be deemed to have
agreed (i) that for United
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States federal income tax purposes the Securities will be treated as
indebtedness subject to the Treasury regulations governing contingent payment
debt instruments, (ii) that the Holders will report original issue discount and
interest on the Securities in accordance with the Company's determination of
both the "comparable yield" and the "projected payment schedule" (each within
the meaning of the Treasury regulations governing contingent payment debt
instruments) and (iii) to be bound by the Company's application of the Treasury
regulations that govern contingent payment debt instruments. For this purpose,
the "comparable yield" for the Securities is 7.75% compounded semi-annually and
the "projected payment schedule" is attached as Schedule A hereto. The Company
shall file with the Trustee no later than the end of each calendar year or at
any other time as the Trustee may request (i) a written notice specifying the
amount of original issue discount (including daily rates and accrual periods)
accrued on outstanding Securities as of the end of such year and (ii) such other
specific information relating to such original issue discount as may then be
relevant under the Internal Revenue Code of 1986, as amended from time to time.
Section 4.8. Limitation on Sale and Leaseback Transactions. So long as
any of the Securities shall be outstanding, the Company will not, and will not
permit any Restricted Subsidiary to, sell or transfer (other than to the Company
or a Wholly-owned Restricted Subsidiary) any Principal Property, whether owned
at the date of this Indenture or hereafter acquired, which has been in full
operation for more than 120 days prior to such sale or transfer, with the
intention of entering into a lease of such Principal Property (except for a
lease for a term, including any renewal thereof, of not more than three years),
if after giving effect thereto the Attributable Debt in respect of all such sale
and leaseback transactions involving Principal Properties shall be in excess of
five percent (5%) of Consolidated Net Worth.
Notwithstanding the foregoing, the Company or any Restricted Subsidiary
may sell any Principal Property and lease it back if the net proceeds of such
sale are at least equal to the fair value of such property as determined by the
Board of Directors of the Company and within 120 days of such sale (a) the
Company redeems (if permitted by the terms of outstanding Securities), at the
principal amount thereof together with accrued interest to the date fixed for
redemption, such outstanding Securities in an aggregate principal amount equal
to such net proceeds, or (b) the Company or a Restricted Subsidiary repays other
Funded Debt in an aggregate principal amount equal to such net proceeds, or (c)
the Company delivers to the Trustee, for cancellation, outstanding Securities
uncanceled and in transferable form, in an aggregate principal amount equal to
such net proceeds, or (d) the Company applies such net proceeds to the purchase
of properties, facilities or equipment to be used for general operating
purposes.
Section 4.9. Limitation on Liens. Except as in this Section 4.9
expressly permitted, so long as any of the Securities shall be outstanding, the
Company will not at any time directly or indirectly create, incur, assume or
suffer to exist, and will not suffer or permit any Restricted Subsidiary to
create, incur, assume or suffer to exist, except in favor of the Company or
another Restricted Subsidiary, any mortgage, pledge or other lien or encumbrance
of or upon any Principal Property or any shares of capital stock or indebtedness
of any Restricted Subsidiary, whether owned at the date of this Indenture or
hereafter acquired, or of or upon any income or profits therefrom, if after
giving effect thereto (but not to any mortgages, pledges, liens or encumbrances
described in clauses (a) through (j) below) the aggregate principal amount of
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indebtedness secured by mortgages, pledges, liens or other encumbrances upon the
property of the Company and its Restricted Subsidiaries shall be in excess of
five percent (5%) of Consolidated Net Worth, without making effective provision
(and the Company covenants that in any such case it will make or cause to be
made effective provision) whereby all Securities then outstanding will be
secured by such mortgage, pledge, lien or encumbrance equally and ratably with
(or prior to) any and all obligations, indebtedness or claims secured by such
mortgage, pledge, lien or encumbrance, so long as any such other obligations,
indebtedness or claims shall be so secured.
Nothing in this Section 4.9 shall be construed to prevent the Company
or any Restricted Subsidiary, without so securing the Securities, from creating,
assuming or suffering to exist the following mortgages, pledges, liens or
encumbrances:
(a) The following mortgages and liens in connection with the
acquisition of property hereafter acquired:
(i) (A) any purchase money mortgage or other purchase
money lien on any Principal Property hereafter acquired,
including conditional sales and other title retention
agreements; or (B) any mortgage or other lien on property
hereafter acquired, constructed or improved created as
security for moneys borrowed (at the time of or within 120
days after the purchase, construction or improvement of such
property) to provide funds for the purchase, construction or
improvement of such property, or (C) any mortgage or other
lien on any property hereafter acquired which exists at the
time of the acquisition thereof and which was not created in
connection with or in contemplation of such acquisition;
provided in each case that (x) such mortgage or other lien is
limited to such acquired property (and accretions thereto) or,
in the case of construction or improvements, any theretofore
unimproved real property, and (y) the aggregate amount of the
obligations, indebtedness or claims secured by such mortgage
or other lien does not exceed the cost to the Company or such
Restricted Subsidiary of such acquired property or the value
thereof at the time of acquisition, as determined by the Board
of Directors, whichever be the lower;
(ii) any mortgage or other lien created in connection
with the refunding, renewal or extension of any obligations,
indebtedness or claims secured by a mortgage or lien mentioned
in the foregoing clause (i) which is limited to the same
property; provided that the aggregate amount of the
obligations, indebtedness or claims secured by such refunding,
renewal or extended mortgage or other lien does not exceed the
aggregate amount thereof secured by the mortgage or other lien
so refunded, renewed or extended and outstanding at the time
of such refunding, renewal or extension; or
(iii) any mortgage or other lien to which property
hereafter acquired shall be subject at the time of
acquisition, if the payment of the indebtedness secured
thereby or interest thereon will not become, by assumption or
otherwise, a personal obligation of the Company or a
Restricted Subsidiary;
33
(b) mechanics', materialmen's, carriers' or other like liens, and
pledges or deposits made in the ordinary course of business to obtain the
release of any such liens or the release of property in the possession of a
common carrier; good faith deposits in connection with tenders, leases of real
estate or bids or contracts (other than contracts for the borrowing of money);
pledges or deposits to secure public or statutory obligations; deposits to
secure (or in lieu of) surety, stay, appeal or customs bonds; and deposits to
secure the payment of taxes, assessments, customs duties or other similar
charges;
(c) any lien arising by reason of deposits with, or the giving of any
form of security to, any governmental agency or any body created or approved by
law or governmental regulation, which is required by law or governmental
regulation as a condition to the transaction of any business, or the exercise of
any privilege or license, or to enable the Company or a Restricted Subsidiary to
maintain self-insurance or to participate in any arrangements established by law
to cover any insurance risks or in connection with workers' compensation,
unemployment insurance, old age pensions, social security or similar matters;
(d) the liens of taxes or assessments not at the time due, or the liens
of taxes or assessments already due but the validity of which is being contested
in good faith and against which adequate reserves have been established;
(e) judgment liens, so long as the finality of such judgment is being
contested in good faith and execution thereon is stayed;
(f) easements or similar encumbrances, the existence of which does not
impair the use of the property subject thereto for the purposes for which it is
held or was acquired;
(g) leases and landlords' liens on fixtures and movable property
located on premises leased in the ordinary course of business, so long as the
rent secured thereby is not in default;
(h) liens, pledges or deposits made in connection with contracts with
or made at the request of any government or any department or agency thereof or
made with any prime contractor or subcontractor of any tier in connection with
the furnishing of services or property to any government or any department or
agency thereof (hereinafter referred to as "Government Contracts") insofar as
such liens, pledges or deposits relate to property manufactured, installed,
constructed, acquired or to be supplied by, or property furnished to, the
Company or a Restricted Subsidiary pursuant to, or to enable the performance of,
such Government Contracts, or property the manufacture, installation,
construction or acquisition of which any government or any department or agency
thereof finances or guarantees the financing of, pursuant to, or to enable the
performance of, such Government Contracts; or deposits or liens, made pursuant
to such Government Contracts, of or upon moneys advanced or paid pursuant to, or
in accordance with the provisions of, such Government Contracts, or of or upon
any materials or supplies acquired for the purpose of the performance of such
Government Contracts; or the assignment or pledge to any person, firm or
corporation, to the extent permitted by law,
34
of the right, title and interest of the Company or a Restricted
Subsidiary in and to any Government Contract, or in and to any payments
due or to become due thereunder, to secure indebtedness incurred and
owing to such person, firm or corporation for funds or other property
supplied, constructed or installed for or in connection with the
performance by the Company or such Restricted Subsidiary of its
obligations under such Government Contract;
(i) any mortgage or other lien securing indebtedness of a
corporation which is a successor to the Company to the extent permitted
by Article V or securing indebtedness of a Restricted Subsidiary
outstanding at the time it became a Subsidiary (provided that such
mortgage or other lien was not created in connection with or in
contemplation of the acquisition of such Restricted Subsidiary), and
any mortgage or other lien created in connection with the refunding,
renewal or extension of such indebtedness which is limited to the same
property, provided that the amount of the indebtedness secured by such
refunding, renewal or extended mortgage or other lien does not exceed
the amount of indebtedness secured by the mortgage or other lien to be
refunded, renewed or extended and outstanding at the time of such
refunding, renewal or extension; and
(j) any mortgage or other lien in favor of the United States
of America or any State thereof, or political subdivision of the United
States of America or any State thereof, or any department, agency or
instrumentality of the United States of America or any State thereof or
any such political subdivision, to secure indebtedness incurred for the
purpose of financing the acquisition, construction or improvement of
all or any part of the property subject to such mortgage or other lien,
and any mortgage or other lien created in connection with the
refunding, renewal or extension of such indebtedness which is limited
to the same property, provided that the amount of the indebtedness
secured by such refunding, renewal or extended mortgage or other lien
does not exceed the amount of indebtedness secured by the mortgage or
other lien to be refunded, renewed or extended and outstanding at the
time of such refunding, renewal or extension.
ARTICLE V
CONSOLIDATION, MERGER OR SALE
Section 5.1. Consolidation, Merger or Sale. The Company covenants and
agrees that it will not, in a single transaction or a series of related
transactions, consolidate or merge with or into any other person, or sell or
transfer all or substantially all of its property and assets to any other
person, unless (a) the person formed by or resulting from any such consolidation
or merger, or which shall have received the transfer of all or substantially all
of the property and assets of the Company, shall assume the due and punctual
performance and observance of all of the covenants and conditions to be
performed or observed by the Company hereunder, (b) the Company, such person or
such successor person, as the case may be, shall not, immediately after such
consolidation, merger, sale or transfer, be in default in the performance of any
such covenant or condition, and (c) if, upon such consolidation, merger, sale or
transfer becoming effective any of the property or assets of the Company would
become or be subject to any mortgage or other lien (an "additional lien"), other
than liens existing thereon prior thereto and
35
liens permitted under the first paragraph and clauses (a) through (h) and (j) of
the second paragraph of Section 4.9, then (x) prior to such consolidation,
merger, sale or transfer all of the Securities at the time outstanding shall be
directly secured (equally and ratably with any other indebtedness of the Company
then entitled thereto) by a mortgage or other lien ranking prior to such
additional lien, in form satisfactory to the Trustee, on all of the property and
assets of the Company, and accretions thereto, which would upon such
consolidation, merger, sale or transfer become subject to such additional lien,
such mortgage or other lien securing the Securities to be effective for so long
as such property and assets shall remain subject to such additional lien, or (y)
the Company makes effective provision whereby all Securities outstanding
immediately after such consolidation, merger, sale or transfer will be directly
secured by a mortgage or other lien in form satisfactory to the Trustee equally
and ratably with (or prior to) any and all obligations, indebtedness and claims
secured by such additional lien, upon such property and assets of the Company
(or the person resulting from or surviving such consolidation or merger, if not
the Company, or the person to which such sale or transfer shall have been made,
as the case may be) as are subject to such additional lien, such mortgage or
other lien securing the Securities to be effective for so long as such property
and assets shall remain subject to such additional lien.
Subject to the provisions of Section 7.1, the Trustee shall receive an
Opinion of Counsel as conclusive evidence that the instrument or instruments
evidencing any mortgage and pledge referred to above comply with the foregoing
conditions and provisions of this Section 5.1.
Section 5.2. Securities and Indenture To Be Assumed by Successor on
Consolidation, Merger or Sale. Subject to the provisions of Section 5.1, nothing
in this Indenture shall prevent any consolidation or merger of the Company with
or into any other person, or any sale, or transfer of all or substantially all
of the property and assets of the Company to any other person lawfully entitled
to acquire the same; provided, however, and the Company covenants and agrees,
that any such consolidation, merger, sale, or transfer shall be upon the
condition that the due and punctual payment of the principal, premium, if any,
and interest of all the Securities according to their tenor, and the due and
punctual performance and observance of all the terms, covenants and conditions
of the Indenture to be kept or performed by the Company shall, by an indenture
supplemental hereto, executed and delivered to the Trustee, be assumed by the
person formed by or resulting from any such consolidation or merger (provided
that no such supplemental indenture shall be required if the Company is the
surviving person upon the consolidation or merger), or which shall have received
the transfer of all or substantially all of the property and assets of the
Company, just as fully and effectually as if such successor person had been the
original party of the first part hereto. Every such successor person upon
executing an indenture supplemental hereto, as provided in this Section 5.2, in
form satisfactory to the Trustee, shall succeed to and be substituted for the
Company with the same effect as if it had been named herein as party of the
first part hereto; and any order, certificate, statement, request, instructions,
advice or resolutions of the Board of Directors or officers of the Company
provided for in this Indenture may be made by like officials of such successor
person.
In case of any such consolidation, merger, sale, or transfer such
changes in phraseology and form (but not in substance) may be made in the
Securities thereafter to be issued as may be appropriate.
36
In the event of any such sale or transfer (other than a transfer by way
of lease), the Company or any successor person which shall theretofore have
become such in the manner described in this Article V shall be discharged from
all obligations and covenants under this Indenture and the Securities.
Subject to the provisions of Section 7.1, the Trustee may receive an
Opinion of Counsel as conclusive evidence that any such indenture supplemental
hereto complies with the foregoing conditions and provisions of this Section
5.2.
This Section 5.2 shall be applicable to successive consolidations or
mergers to which the Company (including any successor) is a party and to
successive sales or transfers by the Company (including any successor).
ARTICLE VI
DEFAULTS AND REMEDIES
Section 6.1. Events of Default. An "Event of Default" occurs if:
(1) The Company defaults in the payment of the principal amount plus
accrued and unpaid interest on any Security when the same becomes due and
payable at its Stated Maturity, upon redemption, upon declaration, when due for
purchase by the Company (including pursuant to Section 3.7 or 3.8) or otherwise;
or
(2) the Company defaults in the payment of any interest or Liquidated
Damages Amounts when due and payable, and continuance of such default for a
period of 30 days; or
(3) the Company fails to deliver the shares of Common Stock upon an
appropriate election by Holders to convert the Securities into shares of Common
Stock, and continuance of such default for a period of 10 Business Days; or
(4) the Company fails to comply in any material respect with any of its
agreements or covenants in the Securities or this Indenture (other than those
referred to in clause (1), (2) or (3) above) and such failure continues for 90
days after receipt by the Company of a Notice of Default; or
(5) the Company fails to provide timely notice of any Change of Control
in accordance with Section 3.8(b);
(6) a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company, whether such indebtedness exists
on the date of this Indenture or is created thereafter, which default either (A)
is caused by a failure to pay when due any principal of such indebtedness the
principal amount of which, together with the principal amount of any other such
indebtedness under which there is a payment default, aggregates $25,000,000 or
more within the grace period provided for in such indebtedness, which failure
continues beyond any applicable grace period or (B) results in such indebtedness
becoming or being declared due and payable
37
prior to the date on which it would otherwise become due and payable, and such
payment default is not cured or such acceleration is not rescinded or annulled
within 10 days after receipt by the Company of a Notice of Default; or
(7) the entry by a court having jurisdiction in the premises of (A) a
decree or order for relief in respect of the Company in an involuntary case or
proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (B) a decree or order adjudging the
Company as bankrupt or insolvent, or approving as properly filed a petition by
one or more persons other than the Company 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 for the Company or for all or
substantially all 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 90 consecutive
days; or
(8) the commencement by the Company of a case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or other
similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by it to the entry of a decree or order for relief in
respect of the Company in a case or proceeding under any applicable federal or
state bankruptcy, insolvency, reorganization or other similar law or to the
commencement of any bankruptcy or insolvency case or proceeding against it, or
the filing by it of a petition or answer or consent seeking reorganization or
relief under any applicable federal or state law, or the consent by it to the
filing of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or similar
official of the Company or of all or substantially all of its property, or the
making by it of an assignment for the benefit of creditors, or the admission by
it in writing of its inability to pay its debts generally as they become due, or
the taking of corporate action by the Company in furtherance of any such action.
A Default under clause (4) and (6) above is not an Event of Default
until the Trustee notifies the Company, or the Holders of at least 25% in
aggregate principal amount of the Securities at the time outstanding notify the
Company and the Trustee, of the Default and the Company does not cure such
Default (and such Default is not waived) within the time specified in clause (4)
or (6) above after actual receipt of such notice. Any such notice must specify
the Default, demand that it be remedied and state that such notice is a "Notice
of Default".
The Company shall deliver to the Trustee, within 30 days after it
becomes aware of the occurrence thereof, written notice of any Event of Default
under clause (5), (7) or (8) above or any event described in clause (4) or (6)
which would become an Event of Default upon the passage of time specified in
such clause (4) or (6) following a Notice of Default, its status and what action
the Company is taking or proposes to take with respect thereto.
Section 6.2. Acceleration. If an Event of Default (other than an Event
of Default specified in Section 6.1(7) or (8)) occurs and is continuing, the
Trustee by notice to the Company, or the Holders of at least 25% in aggregate
principal amount of the Securities at the time outstanding by notice to the
Company and the Trustee, may declare the principal amount plus accrued and
unpaid interest, if any, on all the Securities to be immediately due and
payable.
38
Upon such a declaration, such accelerated amount shall be due and payable
immediately. If an Event of Default specified in Section 6.1(7) or (8) occurs
and is continuing, the principal amount plus accrued and unpaid interest, if
any, on all the Securities shall become and be immediately due and payable
without any declaration or other act on the part of the Trustee or any
Securityholders. The Holders of a majority in aggregate principal amount of the
Securities at the time outstanding, by notice to the Trustee (and without notice
to any other Securityholder) may rescind an acceleration and its consequences if
the rescission would not conflict with any judgment or decree and if all
existing Events of Default have been cured or waived except nonpayment of the
principal amount plus accrued and unpaid interest, if any, that have become due
solely as a result of acceleration and if all amounts due to the Trustee under
Section 7.7 have been paid. No such rescission shall affect any subsequent
Default or impair any right consequent thereto.
Section 6.3. Other Remedies. If an Event of Default occurs and is
continuing, the Trustee may pursue any available remedy to collect the payment
of the principal amount plus accrued and unpaid interest, if any, on the
Securities or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does not
possess any of the Securities or does not produce any of the Securities in the
proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or acquiescence in, the
Event of Default. No remedy is exclusive of any other remedy. All available
remedies are cumulative.
Section 6.4. Waiver of Past Defaults. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding, by notice
to the Trustee (and without notice to any other Securityholder), may waive an
existing Default and its consequences except (a) an Event of Default described
in Section 6.1(1), (2), or (3) or (b) a Default in respect of a provision that
under Section 9.2 cannot be amended without the consent of each Securityholder
affected. When a Default is waived, it is deemed cured, but no such waiver shall
extend to any subsequent or other Default or impair any consequent right. This
Section 6.4 shall be in lieu of Section 316(a)(1)(B) of the TIA and such Section
316(a)(1)(B) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
Section 6.5. Control by Majority. The Holders of a majority in
aggregate principal amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it. This Section 6.5 shall be in lieu of Section 316(a)(1)(A) of the TIA and
such Section 316(a)(1)(A) is hereby expressly excluded from this Indenture, as
permitted by the TIA.
Section 6.6. Limitation on Suits. A Securityholder may not pursue any
remedy with respect to this Indenture or the Securities unless:
39
(1) the Holder gives to the Trustee written notice stating that an
Event of Default is continuing;
(2) the Holders of at least 25% in aggregate principal amount of the
Securities at the time outstanding make a written request to the Trustee to
pursue the remedy;
(3) such Holder or Holders offer to the Trustee security or indemnity
reasonably satisfactory to the Trustee against any loss, liability or expense;
(4) the Trustee does not comply with the request within 60 days after
receipt of such notice, request and offer of security or indemnity; and
(5) the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding do not give the Trustee a direction
inconsistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the rights of
any other Securityholder or to obtain a preference or priority over any other
Securityholder.
Section 6.7. Rights of Holders To Receive Payment. Notwithstanding any
other provision of this Indenture, the right of any Holder to receive payment of
the principal amount of the Securities plus accrued and unpaid interest in
respect of the Securities held by such Holder, on or after the respective due
dates expressed in the Securities or any Redemption Date, and to convert the
Securities in accordance with Article X, or to bring suit for the enforcement of
any such payment on or after such respective dates or the right to convert,
shall not be impaired or affected adversely without the consent of such Holder.
Section 6.8. Collection Suit by Trustee. If an Event of Default
described in Section 6.1(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.7.
Section 6.9. Trustee May File Proofs of Claim. In case of the pendency
of any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the principal amount of the Securities plus accrued and unpaid
interest in respect of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee
shall have made any demand on the Company for the payment of any such amount)
shall be entitled and empowered, by intervention in such proceeding or
otherwise,
(a) to file and prove a claim for the whole amount of the principal
amount of the Securities plus accrued and unpaid interest and to file such other
papers or documents as may be necessary or advisable in order to have the claims
of the Trustee (including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel or any other
amounts due the Trustee under Section 7.7) and of the Holders allowed in such
judicial proceeding, and
40
(b) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same; and any custodian,
receiver, assignee, trustee, liquidator, sequestrator or similar official in any
such judicial proceeding is hereby authorized by each Holder to make such
payments to the Trustee and, in the event that the Trustee shall consent to the
making of such payments directly to the Holders, to pay the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and advances
of the Trustee, its agents and counsel, and any other amounts due the Trustee
under Section 7.7.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof, or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 6.10. Priorities. If the Trustee collects any money pursuant to
this Article 6, it shall pay out the money in the following order:
FIRST: to the Trustee for amounts due under Section 7.7;
SECOND: to Securityholders for amounts due and unpaid on the
Securities for the principal amount of the Securities plus accrued and
unpaid interest, ratably, without preference or priority of any kind,
according to such amounts due and payable on the Securities; and
THIRD: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any payment to
Securityholders pursuant to this Section 6.10. At least 15 days before such
record date, the Trustee shall mail to each Securityholder and the Company a
notice that states the record date, the payment date and the amount to be paid.
Section 6.11. Undertaking for Costs. In any suit for the enforcement of
any right or remedy under this Indenture or in any suit against the Trustee for
any action taken or omitted by it as Trustee, a court in its discretion may
require the filing by any party litigant (other than the Trustee) in the suit of
an undertaking to pay the costs of the suit, and the court in its discretion may
assess reasonable costs, including reasonable attorneys' fees and expenses,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.7 or a suit by Holders of more than 10% in aggregate principal amount of the
Securities at the time outstanding. This Section 6.11 shall be in lieu of
Section 315(e) of the TIA and such Section 315(e) is hereby expressly excluded
from this Indenture, as permitted by the TIA.
Section 6.12. Waiver of Stay, Extension or Usury Laws. The Company
covenants (to the extent that it may lawfully do so) that it will not at any
time insist upon, or plead, or in any manner whatsoever claim or take the
benefit or advantage of, any stay or extension law or any usury or other law
wherever enacted, now or at any time hereafter in force, which would prohibit or
forgive the Company from paying all or any portion of the principal amount of
the Securities
41
plus accrued and unpaid interest or any interest on such amounts, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law, and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE VII
TRUSTEE
Section 7.1. Duties of Trustee (a) If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon
certificates or opinions furnished to the Trustee and
conforming to the requirements of this Indenture, but in case
of any such certificates or opinions which by any provision
hereof are specifically required to be furnished to the
Trustee, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the
requirements of this Indenture, but need not confirm or
investigate the accuracy of mathematical calculations or other
facts stated therein. This Section 7.1(b) shall be in lieu of
Section 315(a) of the TIA and such Section 315(a) is hereby
expressly excluded from this Indenture, as permitted by the
TIA.
(c) The Trustee may not be relieved from liability for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph (b)
of this Section 7.1;
(2) the Trustee shall not be liable for any error of judgment made
in good faith by a Responsible Officer unless it is proved
that the Trustee was negligent in ascertaining the pertinent
facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a
direction received by it pursuant to Section 6.5.
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Subparagraphs (c)(1), (2) and (3) shall be in lieu of Sections 315(d)(1),
315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1), 315(d)(2) and
315(d)(3) are hereby expressly excluded from this Indenture, as permitted by the
TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.1.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity reasonably satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
Section 7.2. Rights of Trustee. Subject to its duties and
responsibilities under the TIA,
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent, order, bond,
debenture, note, other evidence of indebtedness or other paper or document
believed by it to be genuine and to have been signed or presented by the proper
party or parties;
(b) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to taking,
suffering or omitting any action hereunder, the Trustee (unless other evidence
be herein specifically prescribed) may, in the absence of bad faith on its part,
conclusively rely upon an Officers' Certificate;
(c) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents or
attorneys and the Trustee shall not be responsible for any misconduct or
negligence on the part of any agent or attorney appointed with due care by it
hereunder;
(d) the Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith which it believes to be authorized or
within its rights or powers conferred under this Indenture;
(e) the Trustee may consult with counsel selected by it and any advice
or Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel;
(f) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request, order or
direction of any of the Holders, pursuant to the provisions of this Indenture,
unless such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and liabilities which
may be incurred therein or thereby;
43
(g) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order and any resolution
of the Board of Directors may be sufficiently evidenced by a board resolution;
(h) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, certificate, statement, instrument,
opinion, report, notice, request, direction, consent, order, bond, debenture,
note, other evidence of indebtedness or other paper or document, but the
Trustee, in its discretion, may make such further inquiry or investigation into
such facts or matters as it may see fit, and, if the Trustee shall determine to
make such further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or attorney
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation;
(i) the Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in fact such a
default is received by the Trustee at the Corporate Trust Office of the Trustee,
and such notice references the Securities and this Indenture;
(j) the rights, privileges, protections, immunities and benefits given
to the Trustee, including, without limitation, its right to be indemnified, are
extended to, and shall be enforceable by, the Trustee in each of its capacities
hereunder, and to each agent, custodian and other person employed to act
hereunder; and
(k) the Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 7.3. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
Section 7.4. Trustee's Disclaimer. The Trustee makes no representation
as to the validity or adequacy of this Indenture or the Securities, it shall not
be accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in any offering
document for the Securities, the Indenture or the Securities (other than its
certificate of authentication), or the determination as to which beneficial
owners are entitled to receive any notices hereunder.
Section 7.5. Notice of Defaults. If a Default occurs and if it is known
to the Trustee, the Trustee shall give to each Securityholder notice of the
Default within 90 days after the occurrence of such Default, unless such Default
shall have been cured or waived before the giving of such notice.
Notwithstanding the preceding sentence, except in the case of a Default
44
described in Section 6.1(1) or (2), the Trustee may withhold the notice if and
so long as a committee of its Responsible Officers in good faith determines that
withholding the notice is in the interests of Securityholders. The second
sentence of this Section 7.5 shall be in lieu of the proviso to Section 315(b)
of the TIA and such proviso is hereby expressly excluded from this Indenture, as
permitted by the TIA. The Trustee shall not be deemed to have knowledge of a
Default unless a Responsible Officer of the Trustee has received written notice
of such Default.
Section 7.6. Reports by Trustee to Holders Within 60 days after each
May 15 beginning with May 15, 2003, the Trustee shall mail to each
Securityholder a brief report dated as of such May 15 that complies with TIA
Section 313(a), if required by such Section 313(a). The Trustee also shall
comply with TIA Section 313(b).
A copy of each report at the time of its mailing to Securityholders
shall be filed with the SEC and each securities exchange, if any, on which the
Securities are listed. The Company agrees to notify the Trustee promptly
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
Section 7.7. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as the
Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not be limited (to
the extent permitted by law) by any provision of law in regard to the
compensation of a trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the reasonable
compensation and the expenses, advances and disbursements of its agents and
counsel), except any such expense, disbursement or advance as may be caused by
its negligence or bad faith; and
(c) to indemnify the Trustee or any predecessor Trustee and their
agents for, and to hold them harmless against, any loss, damage, claim,
liability, cost or expense (including attorney's fees and expenses, and taxes
(other than taxes based upon, measured by or determined by the income of the
Trustee)) incurred without negligence or bad faith on its part, arising out of
or in connection with the acceptance or administration of this trust, including
the costs and expenses of defending itself against any claim (whether asserted
by the Company or any Holder or any other person) or liability in connection
with the exercise or performance of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.7, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the principal
amount, plus accrued and unpaid interest on particular Securities.
The Company's payment obligations pursuant to this Section 7.7 shall
survive the discharge of this Indenture and the resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 6.1(7) or (8), the expenses
45
including the reasonable charges and expenses of its counsel, are intended to
constitute expenses of administration under any bankruptcy law.
Section 7.8. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
7.8. The Holders of a majority in aggregate principal amount of the Securities
at the time outstanding may remove the Trustee by so notifying the Trustee and
the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with Section 7.10;
(2) the Trustee is adjudged bankrupt or insolvent;
(3) a receiver or public officer takes charge of the Trustee or
its property; or
(4) the Trustee otherwise becomes incapable of acting.
If the Trustee resigns or is removed or if a vacancy exists in the
office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company satisfactory in form and
substance to the retiring Trustee and the Company. Thereupon the resignation or
removal of the retiring Trustee shall become effective, and the successor
Trustee shall have all the rights, powers and duties of the Trustee under this
Indenture. The successor Trustee shall mail a notice of its succession to
Securityholders. The retiring Trustee shall promptly transfer all property held
by it as Trustee to the successor Trustee, subject to the lien provided for in
Section 7.7.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee, the Company or the
Holders of a majority in aggregate principal amount of the Securities at the
time outstanding may petition any court of competent jurisdiction at the expense
of the Company for the appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any Securityholder
may petition any court of competent jurisdiction for the removal of the Trustee
and the appointment of a successor Trustee.
Section 7.9. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee.
Section 7.10. Eligibility; Disqualification. The Trustee shall at all
times satisfy the requirements of TIA Sections 310(a)(1) and 310(b). No obligor
on the Securities or person directly or indirectly controlling, controlled by or
under common control with such obligor shall serve as Trustee. The Trustee (or
its parent holding company) shall have a combined capital and
46
surplus of at least $50,000,000 as set forth in its most recent published annual
report of condition. Nothing herein contained shall prevent the Trustee from
filing with the Commission the application referred to in the penultimate
paragraph of TIA Section 310(b).
Section 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
ARTICLE VIII
SATISFACTION AND DISCHARGE OF INDENTURE;
DEPOSITED MONEYS AND GOVERNMENT OBLIGATIONS
Section 8.1. Covenant Defeasance of Securities. (a) Subject to Section
8.1(b), the Company may at any time terminate its obligations under Section 4.8
and 4.9, the operation of Section 6.01(4) (but only as to failures to comply
with Section 4.8 and 4.9) and the limitation contained in clause (c) of Section
5.1.
(b) The Company may exercise its covenant defeasance option
under this Section 8.1 only if:
(i) The Company irrevocably deposits in trust with the
Trustee, pursuant to an irrevocable trust agreement in form and
substance reasonably satisfactory to the Trustee, money or direct
non-callable obligations of, or non-callable obligations guaranteed by,
the United States of America for the payment of which obligation or
guarantee the full faith and credit of the United States of America is
pledged ("Government Obligations"), or a combination of money and
Government Obligations, maturing as to principal and interest in such
amounts and at such times as are sufficient, without consideration of
the reinvestment of such interest and after payment of all federal,
state and local taxes or other charges or assessments in respect
thereof payable by the Trustee, in the opinion of a nationally
recognized firm of independent public accountants expressed in a
written certification thereof delivered in form and substance
reasonably satisfactory to the Trustee, to pay the principal of and the
interest on the outstanding Securities on the dates on which any such
payments are due and payable in accordance with the terms of this
Indenture and such Securities (or, in the event such Securities 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, to pay such
principal and interest until the date fixed for redemption, in which
case the funds deposited in trust shall also be sufficient to pay any
premium due upon redemption);
(ii) Such deposits shall not cause the Trustee to have a
conflicting interest as defined in and for purposes of the TIA;
47
(iii) No Event of Default shall have occurred and be
continuing on the date of such deposit or shall occur on or before the
91st day after the date of such deposit;
(iv) Such deposit will not result in a breach or violation of,
or constitute a default under, this Indenture or any other instrument
to which the Company is a party or by which it or its property is
bound;
(v) The Company shall deliver to the Trustee an Opinion of
Counsel stating (i) that the Holders of the outstanding Securities will
not recognize income, gain or loss for federal income tax purposes as a
result of such deposit and discharge and will be subject to federal
income tax on the same amounts, in the same manner and at the same
times as would have been the case if such deposit and discharge had not
occurred, and (ii) that after the passage of 90 days (or such other
period of time as then required by the non-insider preference
provisions of any applicable federal bankruptcy laws) following the
deposit, and provided that neither the Trustee nor the Holders are
"insiders" as defined in Title 11 of the United States Code, the trust
funds will not be subject to recovery under Section 547(b) of Title 11
of the United States Code, and (iii) that there would not occur any
violation of the Investment Company Act of 1940, as amended, on the
part of the Company or the Trustee as a result of such deposit and the
related exercise of the Company's rights under this Section 8.1;
(vi) The Holders of the Securities of such series shall have a
first priority perfected security interest under applicable state law
in the money or Government Obligations deposited pursuant to Section
8.1(b)(i); and
(vii) The Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent specified herein relating to the defeasance of the Securities
contemplated by this Section 8.1 (other than the priority of the
security interest referred to in Section 8.1(b)(vi) above) have been
complied with.
In the event all or any portion of the Securities are to be redeemed
through such irrevocable trust, the Company must make arrangements satisfactory
to the Trustee, at the time of such deposit, for the giving of the notice of
such redemption or redemptions by the Trustee in the name and at the expense of
the Company.
Section 8.2. Satisfaction and Discharge of Indenture. This Indenture
shall cease to be of further effect with respect to the Securities, and the
Trustee, on demand of and at the expense of the Company, shall execute proper
instruments acknowledging satisfaction and discharge of this Indenture, when:
(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 2.7 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 2.4) have been delivered to the Trustee for cancellation;
48
(b) the Company has paid or caused to be paid all other sums
payable hereunder by the Company with respect to such Securities; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that the conditions
precedent herein provided for relating to the satisfaction and discharge
of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 7.7 shall survive such
satisfaction and discharge.
Section 8.3. Intentionally Omitted.
Section 8.4. Application of Trust Moneys Subject to the provisions of
Section 2.4, all money or Government Obligations deposited with the Trustee
pursuant to Sections 8.1 shall be held in trust and applied by it, in accordance
with the provisions of the Securities, this Indenture and, in the case of
Section 8.1, such irrevocable trust agreement, 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, premium, if any, and interest for whose payment such money has been
deposited with the Trustee. The money or Government Obligations so held in trust
under Section 8.1 shall not be part of the trust estate under this Indenture but
shall constitute a separate trust fund for the benefit of all Holders of
Securities entitled thereto.
Section 8.5. Repayment to Company. Upon termination of the trust
established pursuant to Section 8.1, the Trustee and the Paying Agent shall
promptly pay to the Company upon request any excess money held by them. The
Trustee and the Paying Agent shall pay to the Company upon request and, if
applicable, in accordance with the irrevocable trust established pursuant to
Section 8.1 any money or Government Obligations held by them for the payment of
principal of, premium, if any, or interest on any Securities that remains
unclaimed for two years; provided, however, that the Trustee or such Paying
Agent, before being required to make any such repayment, may at the expense of
the Company cause to be published once, in a newspaper of general circulation in
the Borough of Manhattan, the City and State of New York, or mail to the Holder
of any such Security, or both, notice that such money remains unclaimed and
that, after a date specified therein, which date shall not be less than thirty
days from the date of such publication or mailing, any unclaimed balance of such
money then remaining will be repaid to the Company. After payment to the
Company, Securityholders entitled to such payment of principal, premium, if any,
and interest must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
Section 8.6. Reinstatement. If the Trustee or any Paying Agent is unable
to apply any money or Government Obligations in accordance with Section 8.4 by
reason of any legal proceeding or by reason of any order or judgment of any
court or governmental authority enjoining, restraining or otherwise prohibiting
such application, or by reason of Government Obligations not paying principal
and interest in such amounts and at such times as are sufficient to pay the
principal of, premium, if any, and interest on the Securities in accordance with
the terms of this Indenture, the Company's obligations under this Indenture with
respect to such Securities shall be revived and reinstated as though no deposit
had occurred pursuant to Sections
49
8.1 until such time as the Trustee or any Paying Agent is permitted to apply all
such money or Government Obligations in accordance with Section 8.4; provided,
however, that if the Company has made any payment of interest on, or principal
of, such Securities because of the reinstatement of its obligations hereunder,
the Company shall be subrogated to the rights of the Holders of Securities to
receive such payment from the money or Government Obligations held by the
Trustee or such Paying Agent for such purpose.
ARTICLE IX
AMENDMENTS
Section 9.1. Without Consent of Holders. The Company and the Trustee may
amend or supplement this Indenture or the Securities without the consent of any
Securityholder:
(a) to cure any ambiguity, omission, defect or inconsistency provided
that such modification or amendment does not adversely affect the interests of
the holders of the Securities in any material respect;
(b) to modify the restrictions on, and procedures for, resale and other
transfers of Securities pursuant to any change in applicable law or regulation
(or the interpretation thereof) or in practice relating to the resale or
transfer of "restricted securities" under the Securities Act generally;
(c) to comply with Article V or Section 10.16;
(d) to secure the Company's obligations or add any guarantee under the
Securities and this Indenture;
(e) to add Events of Default with respect to the Securities;
(f) to add to the Company's covenants for the benefit of the
Securityholders or to surrender any right or power conferred upon the Company;
(g) to make any change necessary for the registration of the Securities
under the Securities Act or to comply with the TIA, or any amendment thereto, or
to comply with any requirement of the SEC in connection with the qualification
of the Indenture under the TIA, provided that such modification or amendment
does not materially and adversely affect the interests of the holders of the
Securities; or
(h) to provide for uncertificated Securities in addition to or in place
of certificated Securities or to provide for bearer Securities.
Section 9.2. With Consent of Holders. With the written consent (including
consent obtained in connection with a tender offer or exchange offer for the
Securities) of the Holders of at least a majority in aggregate principal amount
of the Securities at the time outstanding, the Company and the Trustee may amend
or supplement this Indenture or the Securities. However,
50
without the consent of each Securityholder affected, an amendment or supplement
to this Indenture or the Securities may not:
(1) reduce the interest rate (other than pursuant to an interest
adjustment in accordance with paragraph 1 of the Securities) or change the time
for payment of interest thereon;
(2) reduce the principal amount of or extend the Stated Maturity of any
Security;
(3) reduce the Redemption Price, Purchase Price or Change of Control
Purchase Price of any Security or change the time at which the Securities may or
must be redeemed or repurchased;
(4) change the city of any place of payment or make any payments on the
Securities payable in currency other than as stated in the Security;
(5) make any change to the provisions of Section 6.4, Section 6.7 or the
second sentence of this Section 9.2;
(6) make any change that adversely affects the right to convert any
Security in accordance with the terms thereof and this Indenture;
(7) make any change that adversely affects the right to require the
Company to purchase the Securities in accordance with the terms thereof and this
Indenture;
(8) impair a Holder's right to institute suit for the enforcement of any
payment on the Securities;
(9) waive a continuing default or Event of Default regarding any payment
on the Securities; or
(10) make any change in the Company's obligation to provide Rule 144A
Information in accordance with Section 4.6.
It shall not be necessary for the consent of the Holders under this
Section 9.2 to approve the particular form of any proposed amendment, but it
shall be sufficient if such consent approves the substance thereof.
After an amendment under this Section 9.2 becomes effective, the Company
shall mail to each Holder a notice briefly describing the amendment.
Section 9.3. Compliance with Trust Indenture Act. Every amendment or
supplemental indenture executed pursuant to this Article shall comply with the
TIA.
Section 9.4. Revocation and Effect of Consents, Waivers and Actions.
Until an amendment, waiver or other action by Holders becomes effective, a
consent thereto by a Holder of a Security hereunder is a continuing consent by
the Holder and every subsequent Holder of that Security or portion of the
Security that evidences the same obligation as the consenting Holder's Security,
even if notation of the consent, waiver or action is not made on the Security.
51
However, any such Holder or subsequent Holder may revoke the consent, waiver or
action as to such Holder's Security or portion of the Security if the Trustee
receives the notice of revocation before the date the amendment, waiver or
action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
Section 9.5. Notation on or Exchange of Securities. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article IX may, and shall if required by the Trustee, bear a
notation in form approved by the Trustee as to any matter provided for in such
supplemental indenture. If the Company shall so determine, new Securities so
modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and delivered by the Trustee in exchange for
outstanding Securities.
Section 9.6. Trustee To Sign Supplemental Indentures. The Trustee shall
sign any supplemental indenture authorized pursuant to this Article IX if the
amendment contained therein does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such supplemental indenture
the Trustee shall receive, and (subject to the provisions of Section 7.1) shall
be fully protected in relying upon, an Officers' Certificate and an Opinion of
Counsel stating that such amendment is authorized or permitted by this
Indenture.
Section 9.7. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Securities theretofore or
thereafter authenticated and delivered hereunder shall be bound thereby.
ARTICLE X
CONVERSIONS
Section 10.1. Conversion Privilege. Subject to and upon compliance with
the provisions of this Indenture, a Holder of a Security may convert such
Security into shares of Common Stock at any time during the period stated in
Paragraph 8 of the Securities. The Company shall notify the Trustee (which shall
in turn notify the Holders promptly upon receipt of such notification from the
Company) of the date on which the Securities first become convertible (and, if
the Securities cease to be convertible at any time or from time to time, of the
first date thereafter on which the Securities again become convertible), which
notification shall set forth the calculations on which such determination was
made.
The rate at which Common Stock shall be delivered upon conversion (herein
called the "Conversion Rate") shall be initially 22.0994 shares of Common Stock
for each U.S.$1,000 principal amount of Securities. The Conversion Rate shall be
adjusted in certain instances as provided in this Article X. The price at which
Common Stock 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).
52
A Holder may convert a portion of the principal amount of a Security if
the portion converted is in a $1,000 principal amount or an integral multiple of
$1,000. Provisions of this Indenture that apply to conversion of all of a
Security also apply to conversion of a portion of a Security.
"Average Sale Price" means the average of the Sales Prices of the shares
of Common Stock for the shorter of:
(i) 30 consecutive trading days ending on the last full trading
day prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average Sale
Price is being calculated;
(ii) the period (x) commencing on the date next succeeding the
first public announcement of (a) the issuance of rights, warrants or
options or (b) the distribution, in each case, in respect of which the
Average Sale Price is being calculated and (y) proceeding through the
last full trading day prior to the Time of Determination with respect to
the rights, warrants or options or distribution in respect of which the
Average Sale Price is being calculated (excluding days within such
period, if any, which are not trading days); or
(iii) the period, if any, (x) commencing on the date next
succeeding the Ex-Dividend Time with respect to the next preceding (a)
issuance of rights, warrants or options or (b) distribution, in each
case, for which an adjustment is required by the provisions of Section
10.7, 10.8 or 10.9 and (y) proceeding through the last full trading day
prior to the Time of Determination with respect to the rights, warrants
or options or distribution in respect of which the Average Sale Price is
being calculated (excluding days within such period, if any, which are
not trading days).
In the event that the Ex-Dividend Time (or in the case of a subdivision,
combination or reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, combination or reclassification to which
Section 10.6(1), (2), (3) or (4) applies occurs during the period applicable for
calculating "Average Sale Price" pursuant to the definition in the preceding
sentence, "Average Sale Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such dividend,
subdivision, combination or reclassification on the Sale Price of the shares of
Common Stock during such period.
"Time of Determination" means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants or options or
a distribution, in each case, to which Section 10.7, 10.8 or 10.9 applies and
(ii) the time ("Ex-Dividend Time") immediately prior to the commencement of
"ex-dividend" trading for such rights, warrants or options or distribution on
the NYSE or such other U.S. national or regional exchange or market on which the
shares of Common Stock are then listed or quoted.
For purposes of this Article X, "fair market value" means the fair market
value, as determined in good faith by the Board of Directors (except as Section
10.8 otherwise provides in the case of a Spin-off) and set forth in a certified
resolution filed with the Trustee.
53
Section 10.2. Conversion Procedure. To convert a Security a Holder must
satisfy the requirements in Paragraph 8 of the Securities. The first Business
Day on which the Holder satisfies all those requirements and submits such
Holder's Securities for conversion is the conversion date (the "Conversion
Date").
As soon as practicable after the Conversion Date, the Company shall
deliver to the Holder, through the Conversion Agent, a certificate for, or a
beneficial interest in a global certificate representing, the number of full
shares of Common Stock issuable upon the conversion or exchange and cash in lieu
of any fractional share determined pursuant to Section 10.3. The person in whose
name the certificate is registered shall be treated as a shareholder of record
as of the close of business on the Conversion Date. Upon conversion by a Holder
of a Security in its entirety, such person shall no longer be a Holder of such
Security.
No payment or adjustment will be made for dividends on, or other
distributions with respect to, any shares of Common Stock except as provided in
this Article X. On conversion of a Security, except as provided below with
respect to interest payable on Securities or portions thereof converted after a
Regular Record Date, that portion of accrued and unpaid interest on the
converted Securities attributable to the period from the most recent Interest
Payment Date through the Conversion Date shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be paid in full to the Holder thereof
through delivery of the shares of Common Stock (together with the cash payment,
if any, in lieu of fractional shares) for the Security being converted pursuant
to the provisions hereof. The Company will not adjust the Conversion Rate to
account for accrued interest, if any. If the Holder converts more than one
Security at the same time, the number of shares of Common Stock issuable upon
the conversion shall be based on the total principal amount of the Securities
converted.
The Securities or portions thereof surrendered for conversion during the
period from the close of business on any Regular Record Date to the opening of
business on the date on which such interest is payable shall be accompanied by
payment to the Company or its order, 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 the Securities or portions
thereof being surrendered for conversion.
If the last day on which a Security may be converted is a Legal Holiday,
the Security may be surrendered on the next succeeding day that is not a Legal
Holiday.
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security in an authorized denomination equal in principal amount to the
unconverted portion of the Security surrendered.
Section 10.3. Fractional Shares. The Company will not issue fractional
shares of Common Stock upon conversion of a Security. Instead, the Company will
either (a) pay cash based on the current market value for all fractional shares
or (b) issue a whole share of Common Stock in lieu of such fractional share. The
current market value of a fractional share shall be determined, to the nearest
1/1,000th of a share, by multiplying the Sale Price on the last trading day
immediately prior to the Conversion Date, of a full share by the fractional
amount and rounding the product to the nearest whole cent. It is understood that
if a Holder elects to have
54
more than one Security converted, the number of shares of Common Stock shall be
based on the aggregate principal amount of Securities to be converted.
Section 10.4. Taxes on Conversion. If a Holder submits a Security for
conversion, the Company shall pay all documentary, transfer or stamp taxes or
duties and all other taxes or duties, if any, which may be imposed by the United
States or any political subdivision thereof or taxing authority thereof or
therein with respect to the issuance of shares of Common Stock upon the
conversion. However, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder's name.
The Conversion Agent may refuse to deliver the certificates representing the
shares of Common Stock being issued in a name other than the Holder's name until
the Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
Section 10.5. Company To Provide Stock. The Company shall, prior to
issuance of any Securities under this Article X, and from time to time as may be
necessary, reserve out of its authorized but unissued shares of Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Securities.
All shares of Common Stock delivered upon conversion of the Securities
shall be newly issued shares or treasury shares, shall be duly and validly
issued and fully paid and nonassessable, and shall be free from preemptive
rights and free of any lien or adverse claim. The Company will endeavor promptly
to comply with all federal and state securities laws regulating the offer and
delivery of shares of Common Stock upon conversion of Securities, if any, and
will list or cause to have quoted such shares of Common Stock on each national
securities exchange or in the over-the-counter market or such other market on
which the shares of Common Stock are then listed or quoted.
Section 10.6. Adjustment for Change in Capital Stock. If the Company:
(1) pays a dividend or makes another distribution to all holders of its
Common Stock payable exclusively in shares of its Common Stock;
(2) subdivides the outstanding shares of its Common Stock into a greater
number of shares of Common Stock;
(3) combines the outstanding shares of its Common Stock into a smaller
number of shares of Common Stock; or
(4) issues by reclassification of its Common Stock any shares of Capital
Stock,
then the conversion privilege and the Conversion Rate in effect immediately
prior to such action shall be adjusted so that the Holder of a Security
thereafter converted may receive the number of shares of Capital Stock of the
Company which such Holder would have owned immediately following such action if
such Holder had converted the Security immediately prior to the record date for
such action.
55
The adjustment shall become effective immediately after the record date
in the case of a dividend or distribution and immediately after the effective
date in the case of a subdivision, combination or reclassification.
If after an adjustment a Holder of a Security upon conversion of such
Security may receive shares of two or more classes of Capital Stock of the
Company, the Conversion Rate shall thereafter be subject to adjustment upon the
occurrence of an action taken with respect to any such class of Capital Stock as
is contemplated by this Article X with respect to the shares of Common Stock, on
terms comparable to those applicable to shares of Common Stock in this Article
X.
Section 10.7. Adjustment for Rights Issue. If the Company distributes any
rights or warrants to all or substantially all holders of shares of its Common
Stock entitling them to purchase shares of Common Stock at a price per share
less than the Average Sale Price as of the Time of Determination (except that no
adjustment will be made if the Holders of Securities may participate in the
distribution without conversion on a basis and with the notice that the Board of
Directors determines to be fair and appropriate in light of the basis and notice
on which holders of shares of Common Stock participate in the distribution), the
Conversion Rate shall be adjusted in accordance with the formula:
(O + N)
R' = R x ---------------
(O + (N x P)/M)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding on the
record date for the distribution to which this Section 10.7
is being applied.
N = the number of additional shares of Common Stock offered
pursuant to the distribution.
P = the offering price per share of the additional shares.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 10.6(4) applies or (ii) a
distribution to which Section 10.8 or 10.9 applies, for
which, in each case, (x) the record date shall occur on or
before the record date for the distribution to which this
Section 10.7 applies and (y) the Ex-Dividend Time shall
occur on or after the date of the Time of Determination for
the distribution to which this Section 10.7 applies, the
fair market value (on the record date for the distribution
to which this Section 10.7 applies) of the:
56
(1) Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section
10.6(4) distribution; and
(2) the Company's debt, securities or assets or
certain rights, warrants or options to purchase securities
of the Company distributed in respect of each share of
Common Stock in such Section 10.8 or 10.9 distribution.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the rights, warrants
or options to which this Section 10.7 applies. If all of the shares of Common
Stock subject to such rights, warrants or options have not been issued when such
rights, warrants or options expire, then the Conversion Rate shall promptly be
readjusted to the Conversion Rate which would then be in effect had the
adjustment upon the issuance of such rights, warrants or options been made on
the basis of the actual number of shares of Common Stock issued upon the
exercise of such rights, warrants or options.
No adjustment shall be made under this Section 10.7 if the application of
the formula stated above in this Section 10.7 would result in a value of R' that
is equal to or less than the value of R.
Section 10.8. Adjustment for Certain Distributions. If the Company
distributes to all holders of its shares of Common Stock any of its debt,
securities or assets or any rights, warrants or options to purchase securities
of the Company (including securities or cash, but excluding (x) distributions of
Capital Stock referred to in Section 10.6, distributions of rights, warrants or
options referred to in Section 10.7 and cash distributions referred to in
Section 10.9 and (y) payments made to redeem rights issued under any present or
future rights agreement of the Company) (except that no adjustment will be made
if the Holders of Securities may participate in the distribution without
conversion on a basis and with notice that the Board of Directors determines to
be fair and appropriate in light of the basis and notice on which holders of the
Common Stock participate in the distribution), the Conversion Rate shall be
adjusted, subject to the provisions of the last paragraph of this Section 10.8,
in accordance with the formula:
R x M
R' = -------
(M - F)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 10.6(4) applies or (ii) a
distribution to which Section 10.7 or 10.9 applies, for
which, in each case, (x) the record date shall occur on or
before the record date for the distribution to which this
Section 10.8 applies and (y) the Ex-Dividend Time shall
occur on or after the date of
57
the Time of Determination for the distribution to which
this Section 10.8 applies, the fair market value (on the
record date for the distribution to which this Section 10.8
applies) of the:
(1) Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section
10.6(4) distribution; and
(2) the Company's debt, securities or assets or
certain rights, warrants or options to purchase securities
of the Company distributed in respect of each share of
Common Stock in such Section 10.7 or 10.9 distribution.
F = the fair market value (on the record date for the
distribution to which this Section 10.8 applies) of the
assets, securities, rights, warrants or options to be
distributed in respect of each share of Common Stock in the
distribution to which this Section 10.8 is being applied
(including, in the case of cash dividends or other cash
distributions giving rise to an adjustment, all such cash
distributed concurrently).
In the event the Company distributes shares of Capital Stock of a
Subsidiary, the Conversion Rate will be adjusted, if at all, based on the market
value of the Subsidiary stock so distributed relative to the market value of the
Common Stock, as discussed below. The Board of Directors of the Company shall
determine fair market values for the purposes of this Section 10.8, except that
in respect of a dividend or other distribution of shares of Capital Stock of any
class or series, or similar equity interests, of or relating to a Subsidiary or
other business unit of the Company (a "Spin-off"), the fair market value of the
securities to be distributed shall equal the average of the daily Sales Prices
of those securities for the five consecutive trading days commencing on and
including the sixth day of trading of those securities after the effectiveness
of the Spin-off and the average of the Sales Prices shall mean the average Sales
Prices for the Common Stock for the same five trading days. In the event,
however, that an underwritten initial public offering of the securities in the
Spin-off occurs simultaneously with the Spin-off, fair market value of the
securities distributed in the Spin-off shall mean the initial public offering
price of such securities and the Average Sale Price, for purposes of this
sentence, shall mean the Sales Price for the Common Stock on the same trading
day.
The adjustment shall become effective immediately after the record date
for the determination of shareholders entitled to receive the distribution to
which this Section 10.8 applies, except that an adjustment related to a Spin-off
shall become effective at the earlier to occur of (i) 10 trading days after the
effective date of the Spin-off and (ii) the initial public offering of the
securities distributed in the Spin-off.
In the event that, with respect to any distribution to which this Section
10.8 would otherwise apply, the difference "M-F" as defined in the above formula
is less than $1.00 or "F" is equal to or greater than "M", then the adjustment
provided by this Section 10.8 shall not be made and in lieu thereof the
provisions of Section 10.16 shall apply to such distribution.
58
Section 10.9. Adjustment for All Cash Distribution. If the Company shall
pay or make a dividend or other distribution consisting exclusively of cash to
all holders of its Common Stock (excluding any cash that is distributed (x) upon
a merger or consolidation to which Section 10.16 applies or (y) as part of a
distribution referred to in Section 10.8), in an aggregate amount that, (A)
during the fiscal quarter in which the Securities were issued or either of the
two fiscal quarters next succeeding such quarter, exceeds the amount so
distributed during the fiscal quarter immediately preceding such fiscal quarter
or (B) at any other time, combined together with (1) the aggregate amount of any
other such distributions to all holders of Common Stock made exclusively in cash
within the 12 months preceding the date of payment of such distribution, and in
respect of which no Conversion Rate adjustment has been made, and (2) the
aggregate amount of any cash plus the fair market value of consideration payable
in respect of any tender or exchange offer by the Company or any Subsidiary of
the Company for all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution, and in respect of
which no Conversion Rate adjustment has been made, exceeds 15% of the product of
the Sale Price on the record date with respect to such distribution times the
number of shares of Common Stock outstanding on such date, the Conversion Rate
shall be adjusted, subject to the last paragraph of this Section 10.9, in
accordance with the following formula:
R x M
R' = -------
(M - C)
where:
R' = the adjusted Conversion Rate.
R = the current Conversion Rate.
M = the Average Sale Price, minus, in the case of (i) a
distribution to which Section 10.6(4) applies or (ii) a
distribution to which Section 10.7 or 10.8 applies, for
which, in each case, (x) the record date shall occur on or
before the record date for the distribution to which this
Section 10.9 applies and (y) the Ex-Dividend Time shall
occur on or after the date of the Time of Determination for
the distribution to which this Section 10.9 applies, the
fair market value (on the record date for the distribution
to which this Section 10.9 applies) of the:
(1) Capital Stock of the Company distributed in
respect of each share of Common Stock in such Section
10.6(4) distribution; and
(2) the Company's debt, securities or assets or
certain rights, warrants or options to purchase securities
of the Company distributed in respect of each share of
Common Stock in such Section 10.7 or 10.8 distribution.
59
C = the amount of (1) such cash dividend or other distribution
plus (2) the aggregate amount of any other such
distributions to all holders of Common Stock made
exclusively in cash within the 12 months preceding the date
of payment of such distribution, and in respect of which no
Conversion Rate adjustment has been made, plus (3) the
aggregate amount of any cash plus the fair market value of
consideration payable in respect of any tender or exchange
offer by the Company or any Subsidiary of the Company for
all or any portion of the Common Stock concluded within the
12 months preceding the date of payment of such
distribution, and in respect of which no Conversion Rate
adjustment has been made, applicable to one share of Common
Stock
The adjustment shall become effective immediately prior to the
opening of business on the day following the date fixed for payment of such
distribution.
In the event that, with respect to any distribution to which this
Section 10.9 would otherwise apply, the difference "M-C" as defined in the above
formula is less than $1.00 or "C" is equal to or greater than "M", then the
adjustment provided by this Section 10.9 shall not be made and in lieu thereof
the provisions of Section 10.16 shall apply to such distribution. Any adjustment
pursuant to this Section made as a result of a distribution described in Section
10.9(A) above shall be made only to the extent that the amount distributed
exceeds the amount so distributed during the fiscal quarter immediately
preceding the date of issuance of the Securities.
Section 10.10. Adjustment for Self Tender Offers. If the Company or any
Subsidiary of the Company acquires shares of the Company's Common Stock by way
of a tender or exchange offer, other than an odd-lot offer by the Company or any
of its Subsidiaries, for the Common Stock (excluding stock options) to the
extent that the offer involves aggregate consideration that, together with (i)
any cash and the fair market value of any other consideration payable in respect
of any tender or exchange offer by the Company or any of its Subsidiaries for
shares of Common Stock consummated within the 12 months preceding the Expiration
Time, and in respect of which no Conversion Rate adjustment has been made, and
(ii) the aggregate amount of any all-cash dividends or distributions to all
holders of Common Stock made within the 12 months preceding the Expiration Time,
and in respect of which no a Conversion Rate adjustment has been made, exceeds
an amount equal to 15% of the Sale Price of the Common Stock on the Business Day
immediately preceding the Expiration Time times the number of shares of Common
Stock outstanding on such day, the Conversion Rate shall be adjusted in
accordance with the formula:
F + (N x M)
R' = R x -----------
(O x M)
where:
R' = the adjusted Conversion Rate.
60
R = the current Conversion Rate.
O = the number of shares of Common Stock outstanding (including
any tendered or exchanged shares) at the last time tenders
of exchanges may be made pursuant to such tender or exchange
offer (the "Expiration Time").
M = the Sale Price per share of Common Stock on the trading day
on the NYSE next succeeding the Expiration Time.
F = the sum of (1) the fair market value of the aggregate
consideration payable to stockholders based on the
acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all shares of Common Stock
validly tendered or exchanged and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any
such maximum, being referred to as the "Purchased Shares")
plus (2) any cash and the fair market value of any other
consideration payable in respect of any tender or exchange
offer by the Company or any of its Subsidiaries for shares
of Common Stock consummated within the 12 months preceding
the Expiration Time, and in respect of which no Conversion
Rate adjustment has been made, plus (3) the aggregate amount
of any all-cash dividends or distributions to all holders of
Common Stock made within the 12 months preceding the
Expiration Time, and in respect of which no Conversion Rate
adjustment has been made.
N = the number of shares of Common Stock (less any Purchased
Shares) at the Expiration Time.
The adjustment shall become effective immediately prior to the
opening of business on the day following the Expiration Time.
Section 10.11. When Adjustment May Be Deferred. No adjustment in the
Conversion Rate need be made unless the adjustment would require an increase or
decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article X shall be made to the nearest cent
or to the nearest 1/1,000th of a share, as the case may be.
Section 10.12. When No Adjustment Required. Notwithstanding any provision
to the contrary herein, no adjustment to the Conversion Rate need be made as a
result of:
(1) (i) the issuance of the rights; (ii) the distribution of separate
certificates representing the rights; (iii) the exercise or redemption of the
rights in accordance with any rights agreement; or (iv) the termination or
invalidation of the rights, in each case, pursuant to the Company's
61
existing stockholders rights plan, as amended, modified, or supplemented from
time to time or any newly adopted stockholders rights plans;
(2) upon the issuance of any shares of Common Stock pursuant to any
present or future plan providing for the reinvestment of dividends or interest
payable on securities of the Company and the investment of additional optional
amounts in shares of Common Stock under any plan;
(3) upon the issuance of any shares of Common Stock or options or rights
to purchase those shares pursuant to any present or future employee, director or
consultant benefit plan or program of or assumed by the Company or any of its
Subsidiaries; or
(4) upon the issuance of any shares of Common Stock pursuant to any
option, warrant, right, or exercisable, exchangeable or convertible security
outstanding as of the date the Securities were first issued.
No adjustment need be made for a change in the par value or no par value
of the Common Stock.
To the extent the Securities become convertible pursuant to this Article
X in whole or in part into cash, no adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
Section 10.13. Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Company shall promptly mail to Holders a notice of the adjustment.
The Company shall file with the Trustee and the Conversion Agent such notice
briefly stating the facts requiring the adjustment and the manner of computing
it. The certificate shall be conclusive evidence that the adjustment is correct.
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 desiring inspection thereof.
Section 10.14. Voluntary Increase. The Company from time to time may
increase the Conversion Rate by any amount at any time for at least 20 days, so
long as the increase is irrevocable during such period. Whenever the Conversion
Rate is increased, the Company shall mail to Securityholders and file with the
Trustee and the Conversion Agent a notice of the increase. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes effect. The notice shall state the increased Conversion Rate and the
period it will be in effect. A voluntary increase of the Conversion Rate does
not change or adjust the Conversion Rate otherwise in effect for purposes of
Section 10.6, 10.7, 10.8, 10.9 or 10.10.
Section 10.15. Notice of Certain Transactions. If:
(a) the Company takes any action that would require an adjustment in the
Conversion Rate pursuant to Section 10.6, 10.7, 10.8, 10.9 or 10.10 (unless no
adjustment is to occur pursuant to Section 10.12); or
(b) the Company takes any action that would require a supplemental
indenture pursuant to Section 10.16; or
62
(c) there is a liquidation or dissolution of the Company;
then the Company shall mail to Holders and file with the Trustee and the
Conversion Agent a notice stating the proposed record date for a dividend,
distribution or subdivision or the proposed effective date of a combination,
reclassification, consolidation, merger, binding share exchange, transfer,
liquidation or dissolution. The Company shall file and mail the notice at least
15 days before such date. Failure to file or mail the notice or any defect in it
shall not affect the validity of the transaction.
Section 10.16. Reorganization of Company; Special Distributions. If the
Company is a party to a transaction subject to Article V (other than a sale of
all or substantially all of the properties and assets of the Company in a
transaction in which the holders of shares of Common Stock immediately prior to
such transaction do not receive securities, cash or other assets of the Company
or any other person) or a merger which reclassifies or changes its outstanding
shares of Common Stock, the person obligated to deliver securities, cash or
other assets upon conversion of Securities shall enter into a supplemental
indenture. If the issuer of securities deliverable upon conversion of Securities
is an Affiliate of the successor Company, that issuer shall join in the
supplemental indenture.
The supplemental indenture shall provide that the Holder of a Security
may convert it into the kind and amount of securities, cash or other assets
which such Holder would have received immediately after the consolidation,
merger, or transfer if such Holder had converted the Security immediately before
the effective date of the transaction, assuming (to the extent applicable) that
such Holder (i) was not a constituent person or an Affiliate of a constituent
person to such transaction; (ii) made no election with respect thereto; and
(iii) was treated alike with the plurality of non-electing Holders. The
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practical to the adjustments provided for in this Article
X. The successor Company shall mail to Securityholders a notice briefly
describing the supplemental indenture.
If this Section 10.16 applies, neither Section 10.6 nor 10.7 applies.
If the Company makes a distribution to all holders of its shares of
Common Stock of any of its debt, securities or assets or any rights, warrants or
options to purchase securities of the Company or any cash that, but for the
provisions of the last paragraph of Section 10.8 or 10.9, would otherwise result
in an adjustment in the Conversion Rate pursuant to the provisions of Section
10.8 or 10.9, then, from and after the record date for determining the holders
of shares of Common Stock entitled to receive the distribution, a Holder of a
Security that converts such Security in accordance with the provisions of this
Indenture shall upon such conversion be entitled to receive, in addition to the
shares of shares of Common Stock into which the Security is convertible, the
kind and amount of securities, cash or other assets comprising the distribution
that such Holder would have received if such Holder had converted the Security
immediately prior to the record date for determining the holders of shares of
Common Stock entitled to receive the distribution.
63
Section 10.17. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to Section 10.3, 10.6,
10.7, 10.8, 10.9, 10.10, 10.11, 10.12, 10.16 or 10.19 is conclusive, absent
manifest error.
Section 10.18. Trustee's Adjustment Disclaimer. The Trustee has no duty
to determine when an adjustment under this Article X should be made, how it
should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 10.16 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article X. Each Conversion Agent shall have the same protection under this
Section 10.18 as the Trustee.
Section 10.19. Simultaneous Adjustments. In the event that this Article X
requires adjustments to the Conversion Rate under more than one of Sections
10.6(4), 10.7, 10.8 or 10.9, and the record dates for the distributions giving
rise to such adjustments shall occur on the same date, then such adjustments
shall be made by applying, first, the provisions of Section 10.6, second, the
provisions of Section 10.8, third, the provisions of Section 10.7 and, fourth,
the provisions of Section 10.9.
Section 10.20. Successive Adjustments. After an adjustment to the
Conversion Rate under this Article X, any subsequent event requiring an
adjustment under this Article X shall cause an adjustment to the Conversion Rate
as so adjusted.
Section 10.21. Restriction on Common Stock Issuable upon Conversion.
(a) Shares of Common Stock to be issued upon conversion of the Securities
prior to the effectiveness of a Shelf Registration Statement shall be physically
delivered in certificated form or in the form of beneficial interests in
book-entry Common Stock registered in the name of the Depositary or a nominee
thereof to the holders converting such Securities, and the certificate or
certificates representing such shares of Common Stock shall bear the Restricted
Common Stock Legend unless removed in accordance with Section 10.21(c).
(b) If (i) shares of Common Stock to be issued upon conversion of a
Security prior to the effectiveness of a Shelf Registration Statement are to be
registered in a name other than that of the holder of such Security or (ii)
shares of Common Stock represented by a certificate bearing the Restricted
Common Stock Legend are transferred subsequently by such holder, then, unless
the Shelf Registration Statement has become effective and such shares are being
transferred pursuant to the Shelf Registration Statement, the holder must
deliver to the transfer agent for the Common Stock a certificate in
substantially the form of Exhibit D as to compliance with the restrictions on
transfer applicable to such shares of Common Stock, and neither the transfer
agent nor the registrar for the Common Stock shall be required to register any
transfer of such Common Stock not so accompanied by a properly completed
certificate.
(c) Except for transfers in connection with a Shelf Registration
Statement, if certificates representing shares of Common Stock are issued upon
the registration of transfer, exchange or replacement of any other certificate
representing shares of Common Stock bearing the Restricted
64
Common Stock Legend, or if a request is made to remove such Restricted Common
Stock Legend from certificates representing shares of Common Stock, the
certificates so issued shall bear the Restricted Common Stock Legend, or the
Restricted Common Stock Legend shall not be removed, as the case may be, unless
there is delivered to the Company such satisfactory evidence, which, in the case
of a transfer made pursuant to Rule 144 under the Securities Act, may include an
opinion of counsel as may be reasonably required by the Company, that neither
the legend nor the restrictions on transfer set forth therein are required to
ensure that transfers thereof comply with the provisions of Rule 144A, Rule 144
or Regulation S under the Securities Act or that such shares of Common Stock are
securities that are not "restricted" within the meaning of Rule 144 under the
Securities Act. Upon provision to the Company of such reasonably satisfactory
evidence, the Company shall cause the transfer agent for the Common Stock to
countersign and deliver certificates representing shares of Common Stock that do
not bear the legend.
ARTICLE XI
MISCELLANEOUS
Section 11.1. Trust Indenture Act Controls. If any provision of this
Indenture limits, qualifies, or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required provision
shall control.
Section 11.2. Notices. Any request, demand, authorization, notice,
waiver, consent or communication shall be in writing and delivered in person or
mailed by first-class mail, postage prepaid, addressed as follows or transmitted
by facsimile transmission (confirmed by guaranteed overnight courier) to the
following facsimile numbers:
if to the Company:
Harris Corporation
1025 West NASA Boulevard
Melbourne, FL 32919
Attn: Treasurer
Facsimile No: (321) 727-9222
with a copy to:
Harris Corporation
1025 West NASA Boulevard
Melbourne, FL 32919
Attn: Scott T. Mikuen, Esq.
Facsimile No: (321) 727-9234
if to the Trustee:
65
The Bank of New York
101 Barclay Street, Floor 8W
New York, NY 10286
Attention: Corporate Trust Administration
Facsimile No. (212) 815-5704
The Company or the Trustee by notice given to the other in the manner
provided above may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication given to a Securityholder shall be mailed to
the Securityholder, by first-class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or any
defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to the Securityholders, it
shall mail a copy to the Trustee and each Registrar, Paying Agent, Conversion
Agent or co-registrar.
Section 11.3. Communication by Holders with Other Holders.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
Section 11.4. Certificate and Opinion as to Conditions Precedent. Upon
any request or application by the Company to the Trustee to take any action
under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the signers,
all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such counsel,
all such conditions precedent have been complied with.
Section 11.5. Statements Required in Certificate or Opinion. Each
Officers' Certificate or Opinion of Counsel with respect to compliance with a
covenant or condition provided for in this Indenture shall include:
(1) a statement that each person making such Officers' Certificate or
Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the examination or
investigation upon which the statements or opinions contained in such Officers'
Certificate or Opinion of Counsel are based;
66
(3) a statement that, in the opinion of each such person, he has made
such examination or investigation as is necessary to enable such person to
express an informed opinion as to whether or not such covenant or condition has
been complied with; and
(4) a statement that, in the opinion of such person, such covenant or
condition has been complied with.
Section 11.6. Separability Clause. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
Section 11.7. Rules by Trustee, Paying Agent, Conversion Agent and
Registrar. The Trustee may make reasonable rules for action by or a meeting of
Securityholders. The Registrar, the Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
Section 11.8. Legal Holidays. A "Legal Holiday" is any day other than a
Business Day. If any specified date (including a date for giving notice) is a
Legal Holiday, the action shall be taken on the next succeeding day that is not
a Legal Holiday, and, if the action to be taken on such date is a payment in
respect of the Securities, no interest, if any, shall accrue for the intervening
period.
Section 11.9. GOVERNING LAW. THE INDENTURE AND THE SECURITIES WILL BE
GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD AS TO CONFLICT OF LAWS PRINCIPLES.
Section 11.10. No Recourse Against Others. A director, officer, employee
or stockholder, as such, of the Company shall not have any liability for any
obligations of the Company under the Securities or this Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
Section 11.11. Successors. All agreements of the Company in this
Indenture and the Securities shall bind its successor. All agreements of the
Trustee in this Indenture shall bind its successor.
Section 11.12. Multiple Originals. The parties may sign any number of
copies of this Indenture. Each signed copy shall be an original, but all of them
together represent the same agreement. One signed copy is enough to prove this
Indenture.
67
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
HARRIS CORPORATION
By: /s/ D. S. Wasserman
------------------------------------
Name: David S. Wasserman
Title: Vice President - Treasurer
THE BANK OF NEW YORK, as Trustee
By: /s/ Mary LaGumina
------------------------------------
Name: Mary LaGumina
Title: Vice President
68
EXHIBIT A-1
[FORM OF FACE OF GLOBAL SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS GOVERNING CONTINGENT
PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. AS
REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE COMPANY HAS SET FORTH THE
"COMPARABLE YIELD" IN SECTION 4.7 OF THE INDENTURE PURSUANT TO WHICH THIS
SECURITY IS BEING ISSUED. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED
PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO HARRIS
CORPORATION, 1025 WEST NASA BOULEVARD, MELBOURNE, FL 32919, ATTENTION:
TREASURER.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER, PLEDGE OR OTHER
USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL SINCE THE
REGISTERED OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS TO
NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR THEREOF OR SUCH
SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL SECURITY SHALL BE
LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS SET FORTH IN
ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY AND ANY COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUE HEREOF (OR ANY
PREDECESSOR SECURITY HEREOF) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE"
(WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY
TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE
OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR
A-1-1
FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE RESALE, PLEDGE OR OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3)
IN AN OFFSHORE TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT)
IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF
APPLICABLE) UNDER THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH
ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER
HEREOF, BY PURCHASING THIS SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF
THE COMPANY THAT IT IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S.
PERSON AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN ACCOUNT
SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S
UNDER THE SECURITIES ACT. IN ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR
INDIRECTLY, ENGAGE IN ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR
ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED
BY THE SECURITIES ACT.
The foregoing legend may be removed from this Security on satisfaction of
the conditions specified in the Indenture.
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HARRIS CORPORATION
3.5% CONVERTIBLE DEBENTURES DUE 2022
No. Rule 144A CUSIP: 413 875 ag0
Issue Date: Regulation S CUSIP: U24 663 AA1
Issue Price: 100% of principal amount
HARRIS CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware, promises to pay to Cede & Co. or registered
assigns, the principal amount set forth on Schedule I hereto (which amount may
from time to time be increased or decreased by adjustments made on Schedule I
hereto by or on behalf of the Depositary in accordance with the Applicable
Procedures) on August 15, 2022.
This Security shall bear interest at the initial rate of 3.5% per annum,
subject to the adjustments set forth on the other side of this Security. This
Security is convertible as specified on the other side of this Security.
Additional provisions of this Security are set forth on the other side of
this Security.
Dated: HARRIS CORPORATION
By:
----------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By
----------------------------------
Authorized Signatory
Dated:
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[FORM OF REVERSE OF GLOBAL SECURITY]
3.5% CONVERTIBLE DEBENTURES DUE 2022
1. Interest.
This Security shall bear interest at an initial rate of 3.5% per year on
the principal amount hereof, from August 26, 2002 or from the most recent
Interest Payment Date (as defined below) to which payment has been paid or duly
provided for, payable semiannually in arrears on August 15 and February 15 of
each year (each, an "Interest Payment Date") to the persons in whose names the
Securities are registered at the close of business on February 1 and August 1
(each, a "Regular Record Date") (whether or not a Business Day), as the case may
be, next preceding such Interest Payment Date. Notwithstanding the foregoing, on
the close of business on August 15, 2007, August 15, 2012 and August 15, 2017
(each, a "Reset Date"), the interest rate on this Security shall be
automatically reset, and this Security shall accrue interest, from such Reset
Date, to but excluding the next succeeding Reset Date, or, in the case of August
15, 2017, until the principal amount is paid or duly made available for payment,
at a rate per annum equal to the interest rate payable 120 days prior to such
Reset Date on 5-year U.S. Treasury Notes, provided that, in no event shall the
interest rate on this Security be reset below 3.5% per annum or above 5.5% per
annum. Any change in the interest rate pursuant to the preceding sentence shall
not have any effect on any other provision of the Indenture or this Security.
Interest on the Securities will be computed on the basis of a 360-day year
comprised of twelve 30-day months.
Interest on Securities converted after a Regular Record Date, but prior to
the corresponding Interest Payment Date, will be paid to the Holder of the
Securities on the Regular Record Date but, upon conversion, the Holder must pay
the Company the interest which has accrued and will be paid on such Interest
Payment Date.
If the principal amount of a Security, plus accrued and unpaid interest,
or any portion thereof, is not paid when due (whether upon acceleration pursuant
to Section 6.2 of the Indenture, upon the date set for payment of the Redemption
Price pursuant to Paragraph 5 hereof, upon the date set for payment of the
Purchase Price or the Change of Control Purchase Price pursuant to Paragraph 7
hereof, or upon the Stated Maturity of this Security), then, in each such case,
the overdue amount shall, to the extent permitted by law, bear interest at the
rate applicable to the Securities, compounded semi-annually, which interest
shall accrue from the date such overdue amount was originally due to the date of
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable on demand and shall be based on
a 360-day year comprised of twelve 30-day months.
(a) General. Except as provided below, interest and Liquidated Damages
Amounts, if any, will be paid (i) on the Global Securities to the Depositary in
immediately available funds, (ii) on the definitive Securities having an
aggregate principal amount of $2,000,000 or less, by check mailed to the Holders
of such Securities, and (iii) on the definitive Securities having an aggregate
principal amount of more than $2,000,000, by wire transfer in immediately
available funds at the election of the Holders of these Securities.
2. Method of Payment.
A-1-4
Subject to the terms and conditions of the Indenture, the Company will
make payments in cash in respect of Redemption Prices, Purchase Prices, Change
of Control Purchase Prices and at Stated Maturity to Holders who surrender
Securities to the Paying Agent to collect such payments in respect of the
Securities. The Company will pay cash amounts in money of the United States that
at the time of payment is legal tender for payment of public and private debts.
However, the Company may make such cash payments by wire transfer of immediately
available funds or check payable in such money.
3. Paying Agent, Conversion Agent and Registrar.
Initially, The Bank of New York (the "Trustee") will act as Paying Agent,
Conversion Agent and Registrar. The Company may appoint and change any Paying
Agent, Conversion Agent or Registrar without notice, other than notice to the
Trustee; provided, however, that the Company will maintain at least one Paying
Agent in the State of New York, City of New York, Borough of Manhattan, which
shall initially be an office or agency of the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent or Registrar.
4. Indenture.
The Company issued the Securities under an Indenture dated as of August
26, 2002 (the "Indenture"), between the Company and the Trustee. The terms of
the Securities include those stated in the Indenture and those made part of the
Indenture by reference to the Trust Indenture Act of 1939, as in effect from
time to time (the "TIA"). Capitalized terms used herein and not defined herein
have the meanings ascribed thereto in the Indenture. The Securities are subject
to all such terms, and Securityholders are referred to the Indenture and the TIA
for a statement of those terms. To the extent any provisions of this Security
and the Indenture conflict, the provisions of the Indenture shall control.
The Securities are unsubordinated unsecured obligations of the Company
limited to $150,000,000 aggregate principal amount.
5. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. The Securities are
redeemable at the option of the Company in whole or in part, on or after August
18, 2007 upon not less than 30 nor more than 60 days' notice by mail for a cash
price equal to 100.0% of the principal amount thereof plus accrued and unpaid
interest, if any, to the Redemption Date (the "Redemption Price").
6. Notice of Redemption.
Notice of redemption pursuant to Paragraph 5 of this Security will be
mailed at least 30 days but not more than 60 days before the Redemption Date to
each Holder of Securities to be redeemed at the Holder's registered address. If
money sufficient to pay the Redemption Price of all Securities or portions
thereof to be redeemed on the Redemption Date is deposited with the Paying Agent
prior to or on the Redemption Date, interest ceases to accrue on such Securities
or portions thereof immediately after such Redemption Date. Securities in
denominations larger
A-1-5
than $1,000 of principal amount may be redeemed in part but only in integral
multiples of $1,000 of principal amount, if less than all of the Securities are
being redeemed.
7. Purchase by the Company at the Option of the Holder.
(a) Subject to the terms and conditions of the Indenture, the Company
shall become obligated to purchase, at the option of the Holder, all or any
portion of the Securities held by such Holder on any Purchase Date in integral
multiples of $1,000, if less than all of the Securities are being purchased, at
a Purchase Price equal to 100.0% of the principal amount thereof plus accrued
and unpaid interest, if any, to the Purchase Date. To exercise such right, a
Holder shall deliver to the Company a Purchase Notice containing the information
set forth in the Indenture at any time from the opening of business on the date
that is 20 Business Days prior to such Purchase Date until the close of business
two Business Days prior to such Purchase Date, and shall deliver the Securities
to the Paying Agent as set forth in the Indenture.
The Purchase Price shall be paid in cash.
(b) At the option of the Holder and subject to the terms and conditions of
the Indenture, the Company shall become obligated to offer to purchase the
Securities held by such Holder within 30 days (which purchase shall occur 45
days after the date of such offer) after the occurrence of a Change of Control
for a Change of Control Purchase Price equal to 100.0% of the principal amount
thereof plus accrued and unpaid interest, if any, to the Change of Control
Purchase Date.
The Change of Control Purchase Price shall be paid in cash.
(c) Holders have the right to withdraw any Purchase Notice or Change of
Control Purchase Notice, as the case may be, by delivering to the Paying Agent a
written notice of withdrawal in accordance with the provisions of the Indenture.
If cash sufficient to pay the Purchase Price or Change of Control Purchase
Price, as the case may be, of all Securities or portions thereof to be purchased
on the Purchase Date or the Change of Control Purchase Date, as the case may be,
is deposited with the Paying Agent on the Purchase Date or the Change of Control
Purchase Date, interest ceases to accrue on such Securities or portions thereof
immediately after such Purchase Date or Change of Control Purchase Date, and the
Holder thereof shall have no other rights as such other than the right to
receive the Purchase Price or Change of Control Purchase Price upon surrender of
such Security.
8. Conversion.
(a) The Securities may be converted into shares of common stock on the
terms and subject to the conditions of the Indenture and this Security.
(b) Holders may surrender Securities or portions thereof for conversion
into shares of Common Stock during any calendar quarter if the Sale Price of the
Common Stock for at least 20 trading days in the period of 30 consecutive
trading days ending on the last trading day of the previous calendar quarter
exceeds 110% of the applicable Conversion Price per share of Common Stock on
such last trading day.
A-1-6
(c) A Holder also may surrender for conversion a Security or portion of a
Security which has been called for redemption pursuant to Paragraph 5 hereof,
even if the Security would not otherwise be eligible for conversion, until the
close of business on the Business Day immediately preceding the Redemption Date,
unless the Company defaults in making the payment due on the Redemption Date, in
which case the conversion right shall terminate at the close of business on the
date such default is cured and such payment is made.
(d) If the Company (1) distributes any rights or warrants to all or
substantially all holders of shares of its Common Stock entitling them to
purchase shares of Common Stock at less than the average of the Sales Prices of
a share of the Common Stock for the 10 consecutive trading days ending on the
trading day immediately preceding the date of declaration for such distribution
or (2) distributes to all holders of shares of its Common Stock any of its debt,
securities or assets or any rights, warrants or options to purchase securities
of the Company, which distribution has a per share value exceeding 15% of the
average of the Sales Prices for the 10 consecutive trading days ending on the
trading day immediately preceding the declaration date for such distribution,
unless the Holder may participate in this distribution without conversion, the
Securities may be surrendered for conversion beginning on the date the Company
gives notice to the Holders of such right, which shall be not less than 20 days
prior to the Ex-Dividend Time for such dividend or distribution, and the
Securities may be surrendered for conversion at any time thereafter until the
close of business on the Business Day immediately preceding the Ex-Dividend Time
or until the Company announces that such distribution will not take place.
(e) In the event the Company is a party to a consolidation, merger or sale
or transfer of all or substantially all its properties and assets pursuant to
which the shares of Common Stock would be converted into cash, securities or
other property, the Securities may be surrendered for conversion at any time
from and after the date which is 15 days prior to the date the Company announces
as the anticipated effective time for such transaction until 15 days after the
date of the actual effective time of such transaction.
(f) Finally, a holder may surrender any securities for conversion during
any period that the long-term credit rating assigned to the Securities by either
of Moody's Investors Service, Inc. ("Moody's") or Standard & Poor's Ratings
Group ("S&P") is at or below Ba1 or BB+, respectively, or if the Securities are
no longer rated by either of these ratings services, or if the ratings for the
Securities have been suspended by either of these ratings services. Following
the occurrence of any event that gives rise to or suspends a right of conversion
pursuant to this paragraph, the Company shall give notice to the Holders of such
event not later than 15 days after the date on which the Company is notified of
any such event by the relevant ratings service.
A Security in respect of which a Holder has delivered a Purchase Notice or
Change of Control Purchase Notice exercising the option of such Holder to
require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 22.0994 shares of Common Stock per $1,000
principal amount of Securities, subject to adjustment in certain events
described in the Indenture. A Holder that surrenders Securities for conversion
will receive cash or a check, or, at the
A-1-7
Company's option, a whole share of Common Stock, in lieu of any fractional
shares of Common Stock.
To surrender a Security for conversion, a Holder must (1) complete and
manually sign the irrevocable conversion notice below (or complete and manually
sign a facsimile of such notice) and deliver such notice to the Conversion
Agent, (2) surrender the Security to the Conversion Agent, (3) furnish
appropriate endorsements and transfer documents and (4) pay any transfer or
similar tax, if required.
A Holder may convert a portion of a Security if the principal amount of
such portion is $1,000 or an integral multiple of $1,000. No payment or
adjustment will be made for dividends on the shares of Common Stock except as
provided in the Indenture. Except as provided in Paragraph 1 hereof, on
conversion of a Security, the Holder will not receive any cash payment
representing accrued interest with respect to the converted Securities. Instead,
upon conversion the Company will deliver to the Holder a fixed number of shares
of Common Stock and any cash payment to account for fractional shares. Accrued
interest will be deemed paid in full rather than canceled, extinguished or
forfeited. The Company will not adjust the Conversion Rate to account for
accrued interest.
The Conversion Rate will be adjusted as provided in Article X of the
Indenture. The Company may increase the Conversion Rate for any period of at
least 20 days, upon at least 15 days' notice so long as the increase is
irrevocable during such period.
If the Company is a party to a consolidation, merger or sale or transfer
of all or substantially all its properties and assets, or upon certain
distributions described in the Indenture, then at the effective time of the
transaction the right to convert a Security into shares of Common Stock may be
changed into a right to convert it into securities, cash or other assets of the
Company or another person.
9. Conversion Arrangement on Call for Redemption.
Any Securities called for redemption, unless surrendered for conversion
before the close of business on the Business Day immediately preceding the
Redemption Date, may be deemed to be purchased from the Holders of such
Securities at an amount not less than the Redemption Price, by one or more
investment bankers or other purchasers who may agree with the Company to
purchase such Securities from the Holders, to convert them into shares of Common
Stock and to make payment for such Securities to the Trustee in trust for such
Holders.
10. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in minimum
denominations of $1,000 of principal amount and integral multiples of $1,000. A
Holder may transfer or exchange the Securities in accordance with the Indenture.
The Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a
A-1-8
Purchase Notice or Change of Control Purchase Notice has been given and not
withdrawn (except, in the case of a Security to be purchased in part, the
portion of the Security not to be purchased) or any Securities for a period of
15 days before the mailing of a notice of redemption of Securities to be
redeemed.
11. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
12. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company any money
held by them for the payment of any amount with respect to the Securities that
remains unclaimed for two years, subject to applicable unclaimed property law.
After return to the Company, Holders entitled to the money or securities must
look to the Company for payment as general creditors unless an applicable
abandoned property law designates another person.
13. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate principal amount of the Securities
at the time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate principal amount of the
Securities at the time outstanding. Subject to certain exceptions set forth in
the Indenture, without the consent of any Holder, the Company and the Trustee
may amend the Indenture or the Securities among other things, (i) to cure any
ambiguity, omission, defect or inconsistency, provided that such modification or
amendment does not adversely affect the interests of the Holders of the
Securities in any material respect; (ii) to modify the restrictions on, and
procedures for, resale and other transfers of Securities pursuant to any change
in applicable law or regulation (or the interpretation thereof) or in practice
relating to the resale or transfer of "restricted securities" under the
Securities Act generally; (iii) to comply with Article V or Section 10.16 of the
Indenture; (iv) to secure the Company's obligations or to add any guarantee
under the Securities and the Indenture; (v) to add events of default with
respect to the Securities; (vi) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power conferred upon the
Company; (vii) to make any change necessary for the registration of the
Securities under the Securities Act or to comply with the TIA, or any amendment
thereto, or to comply with any requirement of the SEC in connection with the
qualification of the Indenture under the TIA, provided that such modification or
amendment does not materially and adversely affect the interests of the Holders
of the Securities; or (viii) to provide for uncertificated Securities in
addition to or in place of certificated Securities or to provide for bearer
Securities.
14. Defaults and Remedies.
Under the Indenture, Events of Default include (i) default in payment of
the principal amount of the Securities plus accrued and unpaid interest when the
same becomes due and
A-1-9
payable at Stated Maturity, upon redemption, upon declaration, when due for
purchase by the Company or otherwise, (ii) default in the payment of any
interest or Liquidated Damages Amounts, when due and payable, subject to lapse
of time, (iii) failure by the Company to comply in any material respect with
other agreements or covenants in the Indenture or the Securities, subject to
notice and lapse of time; (iv) failure by the Company to deliver shares of
Common Stock upon the election by the Holders to convert their Securities,
subject to lapse of time; (v) failure to provide timely notice of a Change of
Control; (vi) a default under any mortgage, indenture or instrument under which
there may be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company, whether such indebtedness exists
on the date of the Indenture or is created thereafter, which default either (A)
is caused by a failure to pay when due any principal of such indebtedness the
principal amount of which, together with the principal amount of any other such
indebtedness under which there is a payment default, aggregates $25,000,000 or
more within the grace period provided for in such indebtedness, which failure
continues beyond any applicable grace period or (B) results in such indebtedness
becoming or being declared due and payable prior to the date on which it would
otherwise become due and payable, and such payment default is not cured or such
acceleration is not rescinded or annulled within 10 days after receipt by the
Company of a Notice of Default; and (vii) certain events of bankruptcy,
insolvency and reorganization of the Company.
Holders may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the
Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate principal amount of the
Securities at the time outstanding may direct the Trustee in its exercise of any
trust or power. The Trustee may withhold from the Holders notice of any
continuing Default (except a Default in payment of amounts specified in clause
(i) or (ii) above) if it determines that withholding notice is in their
interests.
15. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with the Company or its Affiliates
with the same rights it would have if it were not Trustee.
16. Calculations in Respect of Securities.
The Company will be responsible for making all calculations called for
under the Securities. These calculations include, but are not limited to,
determination of the Sales Prices for the Common Stock, the rate of interest
payable on the Securities and the Conversion Rate of the Securities. Any
calculations made in good faith and without manifest error will be final and
binding on Holders of the Securities. The Company will be required to deliver to
each of the Trustee and the Conversion Agent a schedule of its calculations and
each of the Trustee and the Conversion Agent will be entitled to rely upon the
accuracy of such calculations without independent verification. The Trustee will
forward the Company's calculations to any Holder of the Securities upon the
request of such Holder.
17. Restrictive Covenants.
A-1-10
The Indenture imposes certain limitations on the ability of the Company to
consolidate or merge with or into any other person, or sell or transfer all or
substantially all of its property and assets to any other person, and on the
ability of the Company and its Restricted Subsidiaries to (i) create, incur,
assume or suffer to exist specified liens and (ii) enter into Sale and Leaseback
Transactions. Within 105 days after the end of each fiscal year, the Company
must report to the Trustee on compliance with such limitations.
18. Successor Persons.
When a successor person or other entity assumes all the obligations of its
predecessor under the Securities and the Indenture, the predecessor person will
be released from those obligations.
19. No Recourse Against Others.
A director, officer, employee or stockholder, as such, of the Company or
the Trustee shall not have any liability for any obligations of the Company
under the Securities or the Indenture or for any claim based on, in respect of
or by reason of such obligations or their creation. By accepting a Security,
each Holder waives and releases all such liability. The waiver and release are
part of the consideration for the issue of the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee manually signs the Trustee's Certificate of Authentication on the other
side of this Security.
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an
assignee, such as TEN COM (=tenants in common), TEN ENT (=tenants by the
entireties), JT TEN (=joint tenants with right of survivorship and not as
tenants in common), CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors
Act).
22. GOVERNING LAW.
THE INDENTURE AND THIS SECURITY WILL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD AS TO CONFLICT
OF LAW PRINCIPLES.
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture which has in it the text of this Security in
larger type. Requests may be made to:
Harris Corporation
1025 West NASA Boulevard
Melbourne, FL 32919
Attn: Treasurer
A-1-11
23. Registration Rights.
The Holders of the Securities are entitled to the benefits of a
Registration Rights Agreement, dated as of August 26, 2002, by and among the
Company and the Initial Purchasers, including the receipt of Liquidated Damages
Amounts in respect of Events (each as defined in such agreement).
A-1-12
FORM OF CONVERSION NOTICE
[NOTICE PURSUANT TO SECTION 10.2 OF THE INDENTURE]
[Name and Address of Conversion Agent]
Re: Harris Corporation 3.5 % Convertible Debentures
due August 15 2022 (the "Securities")
Reference is hereby made to the Indenture, dated as of August 26, 2022
(the "Indenture"), between Harris Corporation, as Issuer, and The Bank of New
York, as Trustee. Capitalized terms used but not defined herein shall have the
meanings given to them in the Indenture.
This letter relates to the Securities specified below, which are
registered in the name of the undersigned (the "Holder"). The Holder hereby
irrevocably exercises its right to convert such Securities, or the portion
thereof, if any, specified below, into Common Stock and, except to the extent
specified or required as described below, directs that certificates representing
such Common Stock, together with any check in payment for a fractional share and
any Security representing any unconverted principal amount, be issued and
delivered through the facilities of the Depositary, for credit to the account(s)
of the Person(s) indicated below.
The Holder acknowledges and agrees that no Common Stock will be
delivered on conversion until any amount payable by the Holder on account of
interest is paid, any certificates evidencing specified Securities not held in
book-entry form are duly endorsed or assigned to the Company or in blank and
surrendered and any taxes or other charges or documents required in connection
with a transfer on conversion, and any other required items, are delivered to
the Conversion Agent.
The Holder acknowledges and agrees that, notwithstanding this request
for conversion, the Company may require that the Common Stock delivered on
conversion of the specified Securities be delivered in certificated form subject
to a restrictive legend, or that additional certifications be delivered on
behalf of the relevant beneficial owner(s), if it determines that doing so is
necessary to comply with the requirements of the Securities Act or otherwise, as
provided in the Indenture.
Conversion of the specified Securities is subject to the requirements
established by the Company as well as to the procedures of the Depositary, all
as in effect from time to time. The specified Securities will be deemed to have
been converted as of the close of business on the Business Day on which this
conversion notice and all other required items have been delivered to the
Conversion Agent as provided above and, upon such conversion, shall cease to
accrue interest or be outstanding (subject to the Holder's right to receive the
Common Stock as provided in the Indenture). Prior to such conversion, the Holder
will have no rights in the Common Stock.
A-1-13
Please provide the information requested below, as applicable.
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION THEREOF TO BE
CONVERTED:
Principal amount held: U.S. $ _____________________________________
CUSIP number(s): __________________________________________________
Depositary (DTC) account where held: ______________________________
Principal amount being converted (if less than all):
U.S. $_________________________________________________
2. UNLESS AND TO THE EXTENT OTHERWISE SPECIFIED BELOW, all Securities
(together with any unconverted Securities) will be delivered in
book-entry form to the DTC account specified in Item 1 above.
3. IF OTHER ARRANGEMENTS ARE DESIRED, please (a) specify the type, number
and form of securities to be delivered on conversion and the name(s) of
the account holder(s) or registered owner(s), by checking the
appropriate boxes and providing the information requested and (b)
complete Item (4) below:
[ ] Common Stock
[ ] Book-Entry
Number of shares of Common Stock: ____________________
DTC Account: _________________________________________
[ ] Certificates
Number of shares of Common Stock: _____________________
Registered Owner: ____________________________________
[ ] Unconverted Securities
[ ] Certificates
Principal Amount: U.S. $ _______________________
Registered Owner: _____________________________
[ ] Book-Entry
Principal Amount: U.S. $ _______________________
DTC Account: ___________________________________
4. [TO BE COMPLETED ONLY IF UNCONVERTED SECURITIES OR SHARES OF COMMON
STOCK ARE TO BE ISSUED OTHER THAN TO THE HOLDER PURSUANT TO ITEM (3)
ABOVE.] The undersigned confirms that such unconverted Securities or
shares of Common Stock are being transferred:
CHECK ONE BOX BELOW
(a) [ ] to the Company; or
(b) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(c) [ ] pursuant to and in compliance with Regulation S under
the Securities Act of 1933; or
(d) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the
name of any person other than the registered holder thereof; provided,
however, that if box (c) or (d) is checked, the transfer agent may
require, prior to registering any such transfer of the Common Stock
such certifications and other information, and if box (d) is checked
such legal opinions, as the Company has reasonably requested in
writing, by delivery to the transfer agent of a
- ------------------
* Aggregate principal amount of each certificate must equal U.S. $1,000
or any amount in excess thereof in integral multiples of U.S. $1,000.
A-1-15
standing letter of instruction, to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933.
Please sign and date this notice in the space provided below.
DATE: _______________________________________
Name of Holder
_______________________________________
Signature(s) of Holder
Title(s):
(If the Holder is a corporation, partnership or
fiduciary, the title of the Person signing on behalf
of the Holder must be stated.)
Notice: Signature(s) must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Trustee, which requirements will include
membership or participation in the Securities Transfer Agents Medallion Program
(STAMP), the Stock Exchange Medallion Program (SEMP) and the New York Stock
Exchange Medallion Signature Program (MSP) or such other "signature guarantee
program" as may be determined by the Trustee in addition to, or in substitution
for, STAMP, SEMP or MSP, all in accordance with the Securities Exchange Act of
1934.
_______________________________________
Signature Guarantee
A-1-16
ASSIGNMENT FORM
To assign this Security, fill in the form below:
(I) or (we) assign and transfer this Security to
- --------------------------------------------------------------------------------
(Insert assignee's social security or tax I.D. no.)
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
(Print or type assignee's name, address and zip code)
and irrevocably appoint ____________________________________ agent to transfer
this Security on the books of the Company. The agent may substitute another to
act for him.
Your Signature: ________________________________________________
(Sign exactly as your name appears on the other
side of this Security)
Date: __________________________
Medallion Signature Guarantee: _________________________________
[FOR INCLUSION ONLY IF THIS SECURITY BEARS A RESTRICTED SECURITIES LEGEND] In
connection with any transfer of any of the Securities evidenced by this
certificate which are "restricted securities" (as defined in Rule 144 (or any
successor thereto) under the Securities Act), the undersigned confirms that such
Securities are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof; provided,
however, that if box (3) or (4) is checked, the Trustee may require,
prior to registering any such transfer of the Securities, such
certifications and other information, and if box (4) is checked such
legal opinions, as the Company has
A-1-17
reasonably requested in writing, by delivery to the Trustee of a
standing letter of instruction, to confirm that such transfer is being
made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933; provided
further, however, that this paragraph shall not be applicable to any
Securities which are not "restricted securities" (as defined in Rule
144 (or any successor thereto) under the Securities Act).
Your Signature: ______________________________________________
(Sign exactly as your name appears on the
other side of this Security)
Date: __________________________
Medallion Signature Guarantee:
A-1-18
SCHEDULE I
SCHEDULE OF INCREASES AND DECREASES OF GLOBAL SECURITY
The Initial Principal Amount of Global Security is: ____________($___________).
Such Principal Amount has been increased or decreased by the adjustments set
forth below by or on behalf of the Depository in accordance with the Applicable
Procedures.
Principal Amount of
Amount of Increase Amount of Decrease in Global Security Notation by
in Principal Amount Principal Amount of After Increase or Registrar or
Date of Global Security Global Security Decrease Security Custodian
---- ------------------ --------------- -------- ------------------
A-1-19
EXHIBIT A-2
[FORM OF FACE OF CERTIFICATED SECURITY]
THIS SECURITY WILL BE SUBJECT TO THE REGULATIONS GOVERNING CONTINGENT
PAYMENT DEBT INSTRUMENTS FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. AS
REQUIRED UNDER APPLICABLE TREASURY REGULATIONS, THE COMPANY HAS SET FORTH THE
"COMPARABLE YIELD" IN SECTION 4.7 OF THE INDENTURE PURSUANT TO WHICH THIS
SECURITY IS BEING ISSUED. THE HOLDER OF THIS SECURITY MAY OBTAIN THE PROJECTED
PAYMENT SCHEDULE BY SUBMITTING A WRITTEN REQUEST FOR SUCH INFORMATION TO HARRIS
CORPORATION, 1025 WEST NASA BOULEVARD, MELBOURNE, FL 32919, ATTENTION:
TREASURER.
THIS SECURITY AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS
SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY, AGREES
FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY AND ANY COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE ISSUE HEREOF (OR ANY
PREDECESSOR SECURITY HEREOF) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE"
(WITHIN THE MEANING OF RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY
TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE
OTHER THAN (1) TO THE COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR
RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE
MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A
QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR
OTHER TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE
TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE
WITH REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON STOCK ISSUABLE
UPON CONVERSION OF THIS SECURITY EXCEPT AS PERMITTED BY THE SECURITIES ACT.
A-2-1
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
A-2-2
HARRIS CORPORATION
3.5% CONVERTIBLE DEBENTURES DUE 2022
No. Rule 144A CUSIP: 413 875 ag0
Issue Date: Regulation S CUSIP: U24 663 AA1
Issue Price: 100% of principal amount
HARRIS CORPORATION, a corporation duly organized and existing under the
laws of the State of Delaware, promises to pay to ____________________, or
registered assigns, the principal amount of ($__________________) on August 15,
2022.
This Security shall bear interest at the initial rate of 3.5% per
annum, subject to the adjustments set forth on the other side of this Security.
This Security is convertible as specified on the other side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
Dated: HARRIS CORPORATION
By:
-------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
THE BANK OF NEW YORK,
as Trustee, certifies that this is one
of the Securities referred to in the
within-mentioned Indenture.
By
-----------------------------------
Authorized Signatory
Dated:
A-2-3
[FORM OF REVERSE OF CERTIFICATED SECURITY
IS IDENTICAL TO EXHIBIT A-1]
A-2-4
EXHIBIT B
HARRIS CORPORATION
3.5% CONVERTIBLE DEBENTURES DUE 2022
TRANSFER CERTIFICATE
In connection with any transfer of any of the Securities within the period prior
to the expiration of the holding period applicable to the sales thereof under
Rule 144(k) under the Securities Act of 1933, as amended (the "Securities Act")
(or any successor provision), the undersigned registered owner of this Security
hereby certifies with respect to $____________ principal amount of the
above-captioned Securities presented or surrendered on the date hereof (the
"Surrendered Securities") for registration of transfer, or for exchange or
conversion where the securities issuable upon such exchange or conversion are to
be registered in a name other than that of the undersigned registered owner
(each such transaction being a "transfer"), the undersigned confirms that such
Securities are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
Unless one of the boxes is checked, the Registrar will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof; provided,
however, that if box (3) or (4) is checked, the Trustee may require,
prior to registering any such transfer of the Securities, such
certifications and other information, and if box (4) is checked such
legal opinions, as the Company has reasonably requested in writing, by
delivery to the Trustee of a standing letter of instruction, to confirm
that such transfer is being made pursuant to an exemption from, or in a
transaction not subject to, the registration requirements of the
Securities Act of 1933; provided further, however, that this paragraph
shall not be applicable to any Securities which are not "restricted
securities" (as defined in Rule 144 (or any successor thereto) under
the Securities Act).
Your Signature: ______________________________________________
(Sign exactly as your name appears on the
other side of this Security)
Date: __________________________
Medallion Signature Guarantee: _________________________________
C-1
EXHIBIT C
FORM OF RESTRICTED COMMON STOCK LEGEND
"THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
AGREES FOR THE BENEFIT OF THE COMPANY THAT THIS SECURITY MAY NOT BE RESOLD,
PLEDGED OR OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY PREDECESSOR SECURITY HERETO, INCLUDING THE RELATED
DEBENTURE) OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING OF
RULE 144 UNDER THE SECURITIES ACT) OF THE COMPANY AT ANY TIME DURING THE THREE
MONTHS PRECEDING THE DATE OF SUCH TRANSFER, IN EITHER CASE OTHER THAN (1) TO THE
COMPANY, (2) SO LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON WHO THE SELLER
REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A, PURCHASING FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE TRANSACTION
(AS DEFINED IN REGULATION S UNDER THE SECURITIES ACT) IN ACCORDANCE WITH
REGULATION S UNDER THE SECURITIES ACT, (4) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER
THE SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER
THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE WITH ANY APPLICABLE SECURITIES
LAWS OF ANY STATE OF THE UNITED STATES. THE HOLDER HEREOF, BY PURCHASING THIS
SECURITY, REPRESENTS AND AGREES FOR THE BENEFIT OF THE COMPANY THAT IT IS (1) A
QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON AND IS OUTSIDE THE UNITED
STATES WITHIN THE MEANING OF (OR AN ACCOUNT SATISFYING THE REQUIREMENTS OF
PARAGRAPH (k)(2) OF RULE 902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN
ANY CASE THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THIS SECURITY EXCEPT AS PERMITTED BY THE
SECURITIES ACT."
C-1
The foregoing legend may be removed from this Security on satisfaction
of the conditions specified in the Indenture.
C-2
EXHIBIT D
FORM OF TRANSFER CERTIFICATE FOR TRANSFER
OF RESTRICTED COMMON STOCK
(TRANSFERS PURSUANT TO SECTION 10.21(b) OF THE INDENTURE)
[NAME AND ADDRESS OF COMMON STOCK TRANSFER AGENT]
Re: Harris Corporation 3.5% Convertible Debentures due 2022 (the
"Securities")
Reference is hereby made to the Indenture dated as of August 26, 2002
(the "Indenture") between Harris Corporation and The Bank of New York, as
Trustee. Capitalized terms used but not defined herein shall have the meanings
given to them in the Indenture.
This letter relates to _________ shares of Common Stock represented by
the accompanying certificate(s) that were issued upon conversion of Securities
and which are held in the name of [name of transferor] (the "Transferor") to
effect the transfer of such Common Stock.
In connection with the transfer of such shares of Common Stock, the
undersigned confirms that such shares of Common Stock are being transferred:
CHECK ONE BOX BELOW
(1) [ ] to the Company; or
(2) [ ] pursuant to and in compliance with Rule 144A under the
Securities Act of 1933; or
(3) [ ] pursuant to and in compliance with Regulation S under the
Securities Act of 1933; or
(4) [ ] pursuant to an exemption from registration under the
Securities Act of 1933 provided by Rule 144 thereunder.
D-1
Unless one of the boxes is checked, the transfer agent will refuse to
register any of the Common Stock evidenced by this certificate in the name of
any person other than the registered holder thereof; provided, however, that if
box (3) or (4) is checked, the transfer agent may require, prior to registering
any such transfer of the Common Stock such certifications and other information,
and if box (4) is checked such legal opinions, as the Company has reasonably
requested in writing, by delivery to the transfer agent of a standing letter of
instruction, to confirm that such transfer is being made pursuant to an
exemption from, or in a transaction not subject to, the registration
requirements of the Securities Act of 1933.
[Name of Transferor],
By ______________________________
Name:____________________________
Title:___________________________
Dated:
D-2
SCHEDULE A
PROJECTED PAYMENT SCHEDULE*
Projected
Payment per
Period Debenture
------ ---------
August 26, 2002 - February 15, 2003 $16.43
February 15, 2003 - August 15, 2003 $17.50
August 15, 2003 - February 15, 2004 $17.50
February 15, 2004 - August 15, 2004 $17.50
August 15, 2004 - February 15, 2005 $17.50
February 15, 2005 - August 15, 2005 $17.50
August 15, 2005 - February 15, 2006 $17.50
February 15, 2006 - August 15, 2006 $17.50
August 15, 2006 - February 15, 2007 $17.50
February 15, 2007 - August 15, 2007 $17.50
August 15, 2007 - February 15, 2008 $26.75
February 15, 2008 - August 15, 2008 $26.75
August 15, 2008 - February 15, 2009 $26.75
February 15, 2009 - August 15, 2009 $26.75
August 15, 2009 - February 15, 2010 $26.75
February 15, 2010 - August 15, 2010 $26.75
August 15, 2010 - February 15, 2011 $26.75
February 15, 2011 - August 15, 2011 $26.75
August 15, 2011 - February 15, 2012 $26.75
February 15, 2012 - August 15, 2012 $26.75
August 15, 2012 - February 15, 2013 $27.50
February 15, 2013 - August 15, 2013 $27.50
August 15, 2013 - February 15, 2014 $27.50
February 15, 2014 - August 15, 2014 $27.50
August 15, 2014 - February 15, 2015 $27.50
February 15, 2015 - August 15, 2015 $27.50
August 15, 2015 - February 15, 2016 $27.50
February 15, 2016 - August 15, 2016 $27.50
August 15, 2016 - February 15, 2017 $27.50
February 15, 2017 - August 15, 2017 $27.50
August 15, 2017 - February 15, 2018 $27.50
February 15, 2018 - August 15, 2018 $27.50
August 15, 2018 - February 15, 2019 $27.50
February 15, 2019 - August 15, 2019 $27.50
August 15, 2019 - February 15, 2020 $27.50
February 15, 2020 - August 15, 2020 $27.50
August 15, 2020 - February 15, 2021 $27.50
February 15, 2021 - August 15, 2021 $27.50
August 15, 2021 - February 15, 2022 $27.50
February 15, 2022 - August 15, 2022 $27.50
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* The comparable yield and the schedule of projected payments are determined
on the basis of certain assumptions and are not determined for any purpose
other than for the determination of interest accruals and adjustments
thereof in respect of the Securities for United States federal income tax
purposes. The comparable yield and the schedule of projected payments do
not constitute a projection or representation regarding the actual amounts
payable on the Securities.