EXHIBIT 4.4
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4.00% Convertible Senior Notes
Dated as of July 2, 2004
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Between
The Goodyear Tire & Rubber Company,
as Company,
and
Wells Fargo Bank, N.A.,
as Trustee
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INDENTURE
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TABLE OF CONTENTS
PAGE
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ARTICLE 1
Definitions
SECTION 1.01. Definitions.......................................................................... 1
ARTICLE 2
Issue, Description, Execution, Registration and Exchange of Notes
SECTION 2.01. Amount of Notes; Additional Securities............................................... 11
SECTION 2.02. Form and Dating...................................................................... 12
SECTION 2.03. Execution and Authentication......................................................... 12
SECTION 2.04. Registrar and Paying Agent........................................................... 12
SECTION 2.05. Paying Agent to Hold Money in Trust.................................................. 14
SECTION 2.06. Holder Lists......................................................................... 14
SECTION 2.07. Transfer and Exchange................................................................ 14
SECTION 2.08. Replacement Notes.................................................................... 15
SECTION 2.09. Outstanding Notes.................................................................... 15
SECTION 2.10. Temporary Notes...................................................................... 16
SECTION 2.11. Cancelation.......................................................................... 16
SECTION 2.12. Defaulted Interest................................................................... 16
SECTION 2.13. CUSIP and ISIN Numbers............................................................... 16
ARTICLE 3
Redemption and Repurchase of Notes
SECTION 3.01. Company's Right to Redeem............................................................ 17
SECTION 3.02. Notice of Optional Redemption; Selection of Notes.................................... 17
SECTION 3.03. Payment of Notes Called for Redemption by the Company................................ 19
SECTION 3.04. Repurchase of Notes by the Company at Option of Holders upon a Designated Event...... 19
SECTION 3.05. Repurchase of Notes by the Company at Option of Holders on Specified Dates........... 22
SECTION 3.06. Company's Manner of Payment of Repurchase Price...................................... 24
SECTION 3.07. Conditions and Procedures for Repurchase at Option of Holders........................ 24
ARTICLE 4
Covenants of the Company
SECTION 4.01. Payment of Principal and Interest.................................................... 27
SECTION 4.02. Maintenance of Office or Agency...................................................... 27
SECTION 4.03. Existence............................................................................ 28
SECTION 4.04. Rule 144A Information Requirement.................................................... 28
SECTION 4.05. Stay, Extension and Usury Laws....................................................... 28
SECTION 4.06. Compliance Certificate............................................................... 28
SECTION 4.07. Liquidated Damages Notice............................................................ 29
ARTICLE 5
Reports by the Company
SECTION 5.01. Reports by the Company............................................................... 29
ARTICLE 6
Remedies of the Trustee and Noteholders on an Event of Default
SECTION 6.01. Events of Default.................................................................... 29
SECTION 6.02. Payments of Notes on Default; Suit Therefor.......................................... 32
SECTION 6.03. Application of Monies Collected by Trustee........................................... 33
SECTION 6.04. Proceedings by Noteholder............................................................ 34
SECTION 6.05. Proceedings by Trustee............................................................... 35
SECTION 6.06. Remedies Cumulative and Continuing................................................... 35
SECTION 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders........... 35
SECTION 6.08. Notice of Defaults................................................................... 36
SECTION 6.09. Undertaking to Pay Costs............................................................. 36
ARTICLE 7
The Trustee
SECTION 7.01. Duties of Trustee.................................................................... 36
SECTION 7.02. Rights of Trustee.................................................................... 37
SECTION 7.03. Individual Rights of Trustee......................................................... 38
SECTION 7.04. Trustee's Disclaimer................................................................. 39
SECTION 7.05. Notice of Defaults................................................................... 39
SECTION 7.06. Reports by Trustee to Holders........................................................ 39
SECTION 7.07. Compensation and Indemnity........................................................... 39
SECTION 7.08. Replacement of Trustee............................................................... 40
SECTION 7.09. Successor Trustee by Merger.......................................................... 41
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SECTION 7.10. Eligibility; Disqualification........................................................ 41
SECTION 7.11. Preferential Collection of Claims Against Company.................................... 41
ARTICLE 8
The Noteholders
SECTION 8.01. Action by Noteholders................................................................ 41
SECTION 8.02. Proof of Execution by Noteholders.................................................... 42
SECTION 8.03. Who Are Deemed Absolute Owners....................................................... 42
SECTION 8.04. Company-owned Notes Disregarded...................................................... 42
SECTION 8.05. Revocation of Consents, Future Holders Bound......................................... 43
ARTICLE 9
Meetings of Noteholders
SECTION 9.01. Purpose of Meetings.................................................................. 43
SECTION 9.02. Call of Meetings by Trustee.......................................................... 43
SECTION 9.03. Call of Meetings by Company or Noteholders........................................... 44
SECTION 9.04. Qualifications for Voting............................................................ 44
SECTION 9.05. Regulations.......................................................................... 44
SECTION 9.06. Voting............................................................................... 45
SECTION 9.07. No Delay of Rights by Meeting........................................................ 45
ARTICLE 10
Amendment; Supplemental Indentures
SECTION 10.01. Supplemental Indentures Without Consent of Noteholders.............................. 45
SECTION 10.02. Supplemental Indenture with Consent of Noteholders.................................. 47
SECTION 10.03. Effect of Supplemental Indenture.................................................... 48
SECTION 10.04. Notation on Notes................................................................... 48
ARTICLE 11
Consolidation, Merger, Sale, Conveyance and Lease
SECTION 11.01. Company May Consolidate on Certain Terms............................................ 49
SECTION 11.02. Successor to Be Substituted......................................................... 49
SECTION 11.03. Opinion of Counsel to Be Given Trustee.............................................. 50
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ARTICLE 12
Satisfaction and Discharge of Indenture
SECTION 12.01. Discharge of Indenture.............................................................. 50
SECTION 12.02. Paying Agent to Repay Monies Held................................................... 50
SECTION 12.03. Return of Unclaimed Monies.......................................................... 50
ARTICLE 13
Immunity of Incorporators, Stockholders, Officers and Directors
SECTION 13.01. Indenture and Notes Solely Corporate Obligations.................................... 51
ARTICLE 14
Conversion of Notes
SECTION 14.01. Right to Convert.................................................................... 51
SECTION 14.02. Exercise of Conversion Privilege; Issuance of Common Stock on Conversion;
No Adjustment for Interest or Dividends; Settlement of Cash or Common
Stock upon Conversion.............................................................. 55
SECTION 14.03. Cash Payments in Lieu of Fractional Shares.......................................... 58
SECTION 14.04. Conversion Rate..................................................................... 59
SECTION 14.05. Adjustment of Conversion Rate....................................................... 59
SECTION 14.06. Effect of Reclassification, Consolidation, Merger or Sale........................... 65
SECTION 14.07. Taxes on Shares Issued.............................................................. 66
SECTION 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock.............................................. 66
SECTION 14.09. Responsibility of Trustee........................................................... 67
SECTION 14.10. Notice to Holders Prior to Certain Actions.......................................... 68
SECTION 14.11. Shareholder Rights Plan............................................................. 68
SECTION 14.12. Exchange in Lieu of Conversion...................................................... 69
ARTICLE 15
Make Whole Premium
SECTION 15.01. Make Whole Premium.................................................................. 69
SECTION 15.02. Adjustments Relating to Make Whole Premium.......................................... 72
ARTICLE 16
Miscellaneous Provisions
SECTION 16.01. Provisions Binding on Successors.................................................... 73
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SECTION 16.02. Official Acts by Successor Corporation.............................................. 73
SECTION 16.03. Addresses for Notices, Etc.......................................................... 73
SECTION 16.04. Governing Law....................................................................... 73
SECTION 16.05. Evidence of Compliance with Conditions Precedent, Certificates to Trustee........... 73
SECTION 16.06. Legal Holidays...................................................................... 74
SECTION 16.07. Company Responsible for Making Calculations......................................... 74
SECTION 16.08. Trust Indenture Act................................................................. 74
SECTION 16.09. No Security Interest Created........................................................ 74
SECTION 16.10. Benefits of Indenture............................................................... 75
SECTION 16.11. Table of Contents, Headings, Etc.................................................... 75
SECTION 16.12. Authenticating Agent................................................................ 75
SECTION 16.13. Execution in Counterparts........................................................... 76
SECTION 16.14. Severability........................................................................ 76
Appendix A Provisions Relating to Notes............................................................. A-1
Exhibit A Form of Note............................................................................. E-1
Schedule I Schedule of Increases or Decreases in Global Security.................................... S-1
Exhibit B Form of Transferee Letter of Representation.............................................. B-1
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INDENTURE
INDENTURE dated as of July 2, 2004, among THE GOODYEAR TIRE & RUBBER
COMPANY, an Ohio corporation (hereinafter called the "COMPANY"), having its
principal office at 1144 East Market Street, Akron, Ohio 44316-0001 and WELLS
FARGO BANK, N.A., a national banking association (hereinafter called the
"TRUSTEE").
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 4.00% Convertible Notes (hereinafter called the
"NOTES"), in an aggregate principal amount initially limited to $350,000,000,
and, to provide the terms and conditions upon which the Notes are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture.
WHEREAS, the Notes, the certificate of authentication to be borne by
the Notes, a form of assignment, a form of designated event repurchase election,
a form of Company repurchase election and a form of conversion notice to be
borne by the Notes are to be substantially in the forms hereinafter provided
for.
WHEREAS, all acts and things necessary to make the Notes, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute this Indenture a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Notes have in all
respects been duly authorized. In addition, all things necessary to duly
authorize the issuance of the Common Stock of the Company initially issuable
upon the conversion of the Notes, and to duly reserve for issuance the number of
shares of Common Stock initially issuable upon such conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Notes are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the Notes by
the holders thereof, the Company covenants and agrees with the Trustee for the
equal and proportionate benefit of the respective holders from time to time of
the Notes (except as otherwise provided below), as follows:
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions. The terms defined in this Section 1.01
(except as herein otherwise expressly provided or unless the context otherwise
requires) for all purposes of this Indenture and of any indenture supplemental
hereto shall have the respective meanings specified in this Section 1.01. All
other terms used in this Indenture that are defined in the Trust Indenture Act
or which are by reference therein defined in the Securities Act (except as
herein otherwise expressly provided or unless the context otherwise requires)
shall have the meanings assigned to such terms in the Trust Indenture Act and in
the Securities Act as in force at the date
of the execution of this Indenture. The words "herein", "hereof", "hereunder"
and words of similar import refer to this Indenture as a whole and not to any
particular Article, Section or other Subdivision. The terms defined in this
Article include the plural as well as the singular.
"ADDITIONAL PREMIUM" has the meaning specified in Section 15.01(b).
"ADDITIONAL SECURITIES" means Notes issued from time to time after
the Original Issuance Date under the terms of this Indenture (except for Notes
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Notes pursuant to Sections 2.07, 2.08, 2.09, 2.10,
3.03, 14.02 or Appendix A).
"ADJUSTMENT EVENT" has the meaning specified in Section 14.05(l).
"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.
"BANKRUPTCY LAW" means Title 11, United States Bankruptcy Code of
1978, as amended, or any similar United States federal or state law relating to
the bankruptcy, insolvency, receivership, winding-up, liquidation,
reorganization or relief of debtors or any amendment to, succession to or change
in any such law.
"BOARD OF DIRECTORS" means the Board of Directors of the Company or
a committee of such Board duly authorized to act for it hereunder.
"BOARD RESOLUTION" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
"BUSINESS DAY" means any day, other than a Saturday, Sunday, or
other day on which banking institutions are not required by law or regulation to
be open in the State of New York.
"CAPITAL STOCK" of any Person means any and all shares, interests,
rights to purchase, warrants, options, participations or other equivalents of or
interests in (however designated) equity of such Person, including any Preferred
Stock, but excluding any debt securities convertible into such equity.
"CASH" has the meaning specified in Section 3.06(a).
"CASH AMOUNT" has the meaning specified in Section 14.02(h)(iii).
"CASH SETTLEMENT AVERAGING PERIOD" has the meaning specified in
Section 14.02(h)(i)(B).
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"CASH SETTLEMENT NOTICE PERIOD" has the meaning specified in Section
14.02(g)(i).
"CHANGE OF CONTROL" means the occurrence of either of the following:
(a) any "person" or "group" (within the meaning of Section 13(d) of
the Exchange Act), other than the Company, its Subsidiaries or any of the
employee benefit plans of the Company or its Subsidiaries, files a Schedule TO,
Schedule 13D or any schedule, form or report under the Exchange Act disclosing
that such person or group has become the direct or indirect ultimate "beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of the Common Stock
representing more than 50% of the Voting Stock of the Company; or
(b) consummation of any share exchange, consolidation or merger of
the Company pursuant to which the Common Stock will be converted into cash,
securities or other property or any sale, lease or transfer in one transaction
or a series of transactions of all or substantially all of the consolidated
assets of the Company and its Subsidiaries, taken as a whole, to any Person
other than the Company or one of more of its Subsidiaries; provided, however,
that a transaction where the holders of the Common Stock immediately prior to
such transaction have, directly or indirectly, more than 50% of the aggregate
Voting Stock of the continuing or surviving corporation or transferee entitled
to vote generally in the election of directors immediately after such event
shall not be a Change of Control.
"COMMISSION" means the Securities and Exchange Commission, as from
time to time constituted under the Exchange Act, or, if at any time after the
execution of this Indenture such Commission is not existing and performing the
duties now assigned to it under the Trust Indenture Act, then the body
performing such duties at such time.
"COMMON STOCK" means any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the provisions
of Section 14.06, however, shares issuable on conversion of Notes shall include
only shares of the class designated as common stock of the Company at the date
of this Indenture (namely, the Common Stock, no par value) or shares of any
class or classes resulting from any reclassification or reclassifications
thereof and which have no preference in respect of dividends or of amounts
payable in the event of any voluntary or involuntary liquidation, dissolution or
winding up of the Company and which are not subject to redemption by the
Company; provided that if at any time there shall be more than one such
resulting class, the shares of each such class then so issuable on conversion
shall be substantially in the proportion which the total number of shares of
such class resulting from all such reclassifications bears to the total number
of shares of all such classes resulting from all such reclassifications.
"COMPANY" means the corporation named as the "Company" in the first
paragraph of this Indenture, and, subject to the provisions of Article 11 and
Section 14.06, shall include its successors and assigns.
"COMPANY NOTICE DATE" has the meaning specified in Section 3.05(b).
3
"COMPANY REPURCHASE DATE" has the meaning specified in Section
3.05(a).
"COMPANY REPURCHASE ELECTION" has the meaning specified in Section
3.05(c)(i).
"COMPANY REPURCHASE NOTICE" has the meaning specified in Section
3.05(b).
"COMPANY REPURCHASE PRICE" has the meaning specified in Section
3.05(a).
"CONVERSION AGENT" means the Trustee or such other office or agency
designated by the Company where Notes may be presented for conversion.
"CONVERSION DATE" has the meaning specified in Section 14.02(c).
"CONVERSION OBLIGATION" has the meaning specified in Section
14.02(g)(i).
"CONVERSION PRICE" as of any day means $1,000 divided by the
Conversion Rate as of such date and rounded to the nearest cent. The Conversion
Price shall initially be approximately $12.04 per share of Common Stock.
"CONVERSION RATE" has the meaning specified in Section 14.04.
"CONVERSION RETRACTION PERIOD" has the meaning specified in Section
14.02(g)(i).
"CORPORATE TRUST OFFICE" or other similar term means the designated
office of the Trustee at which at any particular time its corporate trust
business as it relates to this Indenture shall be administered, which office is,
at the date as of which this Indenture is dated, located at Sixth & Marquette,
N9303-120, Minneapolis, MN 55479, Attention: Corporate Trust Administration,
telecopier no: (612) 667-9825.
"CUSTODIAN" means Wells Fargo Bank, N.A., a national banking
association, as custodian with respect to the Notes in global form, or any
successor entity thereto.
"DEFAULT" means any event that is, or after notice or passage of
time, or both, would be, an Event of Default.
"DEFAULTED INTEREST" means any interest on any Notes which is
payable, but is not punctually paid or duly provided for, on any June 15 or
December 15.
"DEFINITIVE NOTE" has the meaning specified in Appendix A.
"DEPOSITARY" has the meaning specified in Appendix A.
"DESIGNATED EVENT" means the occurrence of a Fundamental Change or a
Termination of Trading; provided that a Fundamental Change occurring on or prior
to June 15, 2011, will not be a Designated Event unless the transaction or event
resulting in such Fundamental Change also constitutes a Change of Control.
4
"DESIGNATED EVENT NOTICE DATE" has the meaning specified in Section
3.04(b).
"DESIGNATED EVENT REPURCHASE DATE" has the meaning specified in
Section 3.04(a).
"DESIGNATED EVENT REPURCHASE ELECTION" has the meaning specified in
Section 3.04(c)(i).
"DESIGNATED EVENT REPURCHASE NOTICE" has the meaning specified in
Section 3.04(b).
"DESIGNATED EVENT REPURCHASE PRICE" has the meaning provided in
Section 3.04(a).
"DETERMINATION DATE" has the meaning specified in Section 14.05(l).
"EVENT OF DEFAULT" has the meaning specified in Section 6.01.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as in effect from
time to time.
"EXCHANGE PARTY" has the meaning specified in Section 14.12.
"EX-DIVIDEND DATE" means, with respect to any issuance or
distribution on shares of Common Stock, the first date on which the shares of
Common Stock trade regular way on the principal securities market on which the
shares of Common Stock are then traded without the right to receive such
issuance or distribution.
"EXPIRATION TIME" has the meaning specified in Section 14.05(e).
"FAIR MARKET VALUE" means, with respect to any asset or property,
the sale value that would be obtained in an arm's-length transaction between an
informed and willing seller under no compulsion to sell and an informed and
willing buyer under no compulsion to buy. Unless otherwise indicated, Fair
Market Value shall be determined in good faith by the Board of Directors.
"FINAL NOTICE DATE" has the meaning specified in Section 14.02(g).
"FORM OF CONVERSION NOTICE" has the meaning specified in Section
14.02(a).
"FUNDAMENTAL CHANGE" means any transaction or event (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization or otherwise) in connection with
which all or substantially all of our Common Stock is exchanged for, converted
into, acquired for or constitutes solely the right to receive, consideration
that is not at least 90% (excluding cash payments for fractional shares) common
shares, common stock or American depositary shares that are (i) listed on, or
immediately after the transaction or event will be listed on, the New York Stock
Exchange or a United States national securities exchange; or (ii) approved, or
immediately after the transaction or event will
5
be approved, for quotation on the Nasdaq National Market or any similar United
States system of automated dissemination of quotations of securities prices.
"FUNDAMENTAL CHANGE NOTICE" has the meaning specified in Section
14.01(d).
"FUNDAMENTAL CHANGE NOTICE DATE" means the date at least ten (10)
Trading Days prior to the anticipated effective date of a Fundamental Change.
"GAAP" means generally accepted accounting principles in the United
States of America as in effect as of the Original Issuance Date, including those
set forth in:
(a) the opinions and pronouncements of the Accounting Principles Board
of the American Institute of Certified Public Accountants,
(b) statements and pronouncements of the Financial Accounting Standards
Board,
(c) such other statements by such other entities as approved by a
significant segment of the accounting profession, and
(d) the rules and regulations of the SEC governing the inclusion of
financial statements (including pro forma financial statements) in periodic
reports required to be filed pursuant to Section 13 of the Exchange Act,
including opinions and pronouncements in staff accounting bulletins and
similar written statements from the accounting staff of the SEC.
All computations based on GAAP contained in the Indenture shall be
computed in conformity with GAAP.
"GLOBAL NOTE" means a Note in global form registered in the name of
the Depositary or the nominee of the Depositary.
"INDENTURE" means this instrument as originally executed or, if
amended or supplemented as herein provided, as so amended or supplemented.
"INITIAL PURCHASERS" means Goldman, Sachs & Co., Deutsche Bank
Securities Inc. and J.P. Morgan Securities Inc.
"INTEREST" means, when used with respect to the Notes, any interest
payable under the terms of the Notes and Liquidated Damages, if any, payable
under the terms of the Registration Rights Agreement.
"INTEREST PAYMENT DATE" means June 15 and December 15 of each year,
commencing December 15, 2004.
"LAST REPORTED SALE PRICE" of the Common Stock on any day means the
closing sale price per share (or, if no closing sale price is reported, the
average of the last reported bid and asked prices or, if more than one in either
case, the average of the average bid and the average asked prices) on such day
as reported in composite transactions for the principal United
6
States securities exchange on which the Common Stock is traded or, if the Common
Stock is not listed on a United States national or regional securities exchange,
as reported by the Nasdaq National Market. If the Common Stock is not listed for
trading on a United States national or regional securities exchange and not
reported by the Nasdaq National Market on the relevant date, the "LAST REPORTED
SALE PRICE" shall be the last quoted bid price for the Common Stock in the
over-the-counter market on the relevant date as reported by the National
Quotation Bureau Incorporated or similar organization. If the Common Stock is
not so quoted, the "LAST REPORTED SALE PRICE" shall be determined by the Company
on a basis it considers appropriate.
"LIQUIDATED DAMAGES" has the meaning specified in Section 3(a) of
the Registration Rights Agreement.
"LIQUIDATED DAMAGES NOTICE" has the meaning specified in Section
4.07(a).
"MAKE WHOLE PREMIUM" has the meaning specified in Section 15.01(b).
"NON-ELECTING SHARE" has the meaning specified in Section 14.06.
"NOTE" or "NOTES" means any Note or Notes, as the case may be,
authenticated and delivered under this Indenture, including any Global Note.
"NOTEHOLDER" or "HOLDER" as applied to any Note, or other similar
terms (but excluding the term "BENEFICIAL HOLDER"), means any Person in whose
name a particular Note is registered at the time on the Note Registrar's books.
"NOTE REGISTER" has the meaning specified in Section 2.04.
"NOTE REGISTRAR" has the meaning specified in Section 2.04.
"OFFICER" means the Chairman of the Board, the Chief Executive
Officer, the Chief Financial Officer, the President, any Vice President (whether
or not designated by a number or numbers or word or words added before or after
the title "Vice President"), the Treasurer or the Secretary or an Assistant
Secretary of the Company.
"OFFICER'S CERTIFICATE", when used with respect to the Company,
means a certificate signed by the Chairman of the Board, the Chief Executive
Officer, the Chief Operating Officer, the President, the Chief Financial
Officer, any Vice President (whether or not designated by a number or numbers or
word or words added before or after the title "Vice President"), the Treasurer
or the Secretary of the Company.
"OPINION OF COUNSEL" means an opinion in writing signed by legal
counsel, who may be an employee of or counsel to the Company.
"ORIGINAL ISSUANCE DATE" means the date on which Notes are first
authenticated and delivered under this Indenture.
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"OUTSTANDING", when used with reference to Notes and subject to the
provisions of Section 8.04, means, as of any particular time, all Notes
authenticated and delivered by the Trustee under this Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the
Trustee for cancellation;
(b) Notes, or portions thereof, (i) for the redemption of which
monies in the necessary amount shall have been deposited in trust with the
Trustee or with any Paying Agent (other than the Company) or (ii) which shall
have been otherwise discharged in accordance with Article 12;
(c) Notes in lieu of which, or in substitution for which, other
Notes shall have been authenticated and delivered pursuant to the terms of
Section 2.08; and
(d) Notes converted into Common Stock pursuant to Article 14 and
Notes deemed not outstanding pursuant to Article 3.
"PAYING AGENT" has the meaning specified in Section 2.04.
"PERSON" means any individual, corporation, partnership, limited
liability company, joint venture, association, joint-stock company, trust,
unincorporated organization, government or any agency or political subdivision
thereof or any other entity.
"PREFERRED STOCK," as applied to the Capital Stock of any Person,
means Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution of assets
upon any voluntary or involuntary liquidation or dissolution of such Person,
over shares of Capital Stock of any other class of such Person.
"PRINCIPAL VALUE CONVERSION" has the meaning specified in Section
14.01(a).
"PROTECTED PURCHASER" has the meaning specified in Section 2.08.
"PURCHASE AGREEMENT" has the meaning specified in Appendix A.
"REDEMPTION DATE" has the meaning specified in Section 3.02(a).
"REDEMPTION NOTICE" has the meaning specified in Section 3.02(a).
"REDEMPTION PRICE" has the meaning specified in Section 3.01.
"REGISTRATION RIGHTS AGREEMENT" means (i) with respect to the
Securities issued on the Original Issuance Date, the Registration Rights
Agreement, dated as of July 2, 2004, among the Company and the Initial
Purchasers, as amended from time to time in accordance with its terms, and (2)
with respect to each issuance of Additional Securities issued in a transaction
exempt from the registration requirements of the Securities Act, the
registration rights agreement, if any, among the Company and the Persons
purchasing such Additional Securities under the related Purchase Agreement.
8
"REGULAR RECORD DATE" means, with respect to each Interest Payment
Date, the close of business on June 1 or December 1 preceding such Interest
Payment Date (whether or not a Business Day).
"REPURCHASE DATE" means the Designated Event Repurchase Date or the
Company Repurchase Date, as the context requires.
"REPURCHASE ELECTION" means the Designated Event Repurchase Election
or the Company Repurchase Election, as the context requires.
"REPURCHASE NOTICE" means the Designated Event Repurchase Notice or
the Company Repurchase Notice, as the context requires.
"REPURCHASE PRICE" means the Designated Event Repurchase Price or
the Company Repurchase Price, as the context requires.
"RESTRICTED SECURITIES" refers to every Note or share of Common
Stock that bears or is required under Section 2.07 to bear the legend set forth
in Appendix A.
"RULE 144A" means Rule 144A as promulgated under the Securities Act.
"SECURITIES" means the Notes.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
"SECURITIES CUSTODIAN" has the meaning specified in Appendix A.
"SIGNIFICANT SUBSIDIARY" means any Subsidiary that would be a
"Significant Subsidiary" of the Company within the meaning of Rule 1-02 under
Regulation S-X promulgated by the Commission.
"SPIN-OFF" has the meaning specified in Section 14.05(c)
"STATED MATURITY" means June 15, 2034.
"STOCK PRICE" has the meaning specified in Section 15.01(b).
"STOCK PRICE CAP" has the meaning specified in Section 15.01(b).
"STOCK PRICE THRESHOLD" has the meaning specified in Section
15.01(b).
"STOCK RECORD DATE" means, with respect to any dividend,
distribution or other transaction or event in which the holders of Common Stock
have the right to receive any cash, securities or other property or in which the
Common Stock (or other applicable security) is exchanged for or converted into
any combination of cash, securities or other property, the date fixed for
determination of stockholders entitled to receive such cash, securities or other
property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
9
"SUBSIDIARY" of any Person means any corporation, association,
partnership or other business entity of which more than 50% of the total voting
power of shares of Capital Stock or other interests (including partnership
interests) entitled (without regard to the occurrence of any contingency) to
vote in the election of directors, managers or trustees thereof is at the time
owned or controlled, directly or indirectly, by:
(1) such Person;
(2) such Person and one or more Subsidiaries of such Person; or
(3) one or more Subsidiaries of such Person.
"TERMINATION OF TRADING" means the occurrence of an event in which
the Common Stock or other common stock into which the Notes are convertible is
neither listed for trading on a United States national securities exchange nor
approved for listing on the Nasdaq National Market or another established
automated over-the-counter trading market in the United States, and no American
depositary shares or similar instruments for such Common Stock or other common
stock, as applicable, are so listed or approved for listing in the United
States.
"TRADING DAY" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the applicable security
is not listed on the New York Stock Exchange, on the principal other national or
regional securities exchange on which the applicable security is then listed or,
if the applicable security is not listed on a national or regional securities
exchange, on the National Association of Securities Dealers Automated Quotation
System or, if the applicable security is not quoted on the National Association
of Securities Dealers Automated Quotation System, on the principal other market
on which the applicable security is then traded (provided that no day on which
trading of the applicable security is suspended on such exchange or other
trading market will count as a Trading Day).
"TRADING PRICE" means, on any date of determination, the average of
the secondary market bid quotations per $1,000 principal amount of Notes
obtained by the Trustee (or another Conversion Agent) for $2,000,000 principal
amount of Notes at approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized securities
dealers selected by the Company, which may include one or more of the Initial
Purchasers, provided that if at least three such bids cannot be reasonably
obtained by the Trustee (or another Conversion Agent), then the average of the
two bids shall be used, and if only bid can be reasonably obtained by the
Trustee (or another Conversion Agent), such one bid shall be used. If the
Trustee (or another Conversion Agent) cannot reasonably obtain at least one bid
for $2,000,000 principal amount of Notes from an independent nationally
recognized securities dealer on any date, or in the Company's reasonable
judgment, the bid quotations are not indicative of the secondary market value of
the Notes on such date, then the Trading Price of the Notes on such date will be
deemed to be less than 98% of (a) the Last Reported Sale Price of the Common
Stock on such date multiplied by (b) the Conversion Rate of the Notes on the
date of determination.
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture, except as provided in
Sections 10.03 and 14.06;
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provided that if the Trust Indenture Act of 1939 is amended after the date
hereof, the term "TRUST INDENTURE ACT" shall mean, to the extent required by
such amendment, the Trust Indenture Act of 1939 as so amended.
"TRUST OFFICER" means, when used with respect to the Trustee, any
officer within the corporate trust department of the Trustee, including any vice
president, assistant vice president, assistant treasurer, trust officer or any
other officer of the Trustee who customarily performs functions similar to those
performed by the Persons who at the time shall be such officers, respectively,
or to whom any corporate trust matter is referred because of such person's
knowledge of and familiarity with the particular subject and who shall have
direct responsibility for the administration of this Indenture.
"TRUSTEE" means Wells Fargo Bank, N.A., a national banking
association, and its successors and any corporation resulting from or surviving
any consolidation or merger to which it or its successors may be a party and any
successor trustee at the time serving as successor trustee hereunder.
"VOTING STOCK" of a Person means all classes of Capital Stock or
other interests (including partnership interests) of such Person then
outstanding and normally entitled (without regard to the occurrence of any
contingency) to vote in the election of directors, managers or trustees thereof.
"WHOLLY OWNED SUBSIDIARY" means a Subsidiary of the Company all of
the Capital Stock of which (other than directors' qualifying shares) is owned by
the Company or another Wholly Owned Subsidiary.
ARTICLE 2
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES
SECTION 2.01. Amount of Notes; Additional Securities. (a) The
aggregate principal amount of Notes which may be authenticated and delivered
under this Indenture shall initially be limited to $350,000,000 (except for
Notes authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Notes pursuant to Sections 2.07, 2.08, 2.09,
2.10, 3.03, 14.02 or Appendix A).
(b) So long as no Event of Default, and no event which, after notice
or lapse or time or both, would become an Event of Default, shall have occurred
and be continuing, the Company shall be entitled to issue Additional Securities
under this Indenture which shall have the same terms and conditions as the
Securities issued on the Original Issuance Date, other than with respect to any
differences in the date of issuance, the issue price and the interest accrued
prior to the issue date of the Additional Securities. The Securities issued on
the Original Issuance Date and any Additional Securities shall have the same
CUSIP numbers and shall be treated as a single class for all purposes under this
Indenture, including with respect to waivers, amendments, redemptions and offers
to purchase.
With respect to any Additional Securities, the Company shall set
forth in a Board Resolution and an Officer's Certificate, a copy of each which
shall be delivered to the Trustee, the following information:
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(i) the aggregate principal amount of such Additional Securities to
be authenticated and delivered pursuant to this Indenture;
(ii) the issue price, the issue date and the CUSIP numbers of such
Additional Securities; provided, however, that no Additional Securities
may be issued unless such Additional Securities are fungible in all
respects for U.S. Federal income tax purposes with the Securities then
outstanding; and
(iii) that the Company has complied with this Section 2.01(b).
SECTION 2.02. Form and Dating. Provisions relating to the Notes are
set forth in Appendix A, which is hereby incorporated in and expressly made a
part of this Indenture. The Notes and the Trustee's certificate of
authentication shall each be substantially in the form of Exhibit A hereto,
which is hereby incorporated in and expressly made a part of this Indenture. The
Notes may have notations, legends or endorsements required by law, stock
exchange rules, agreements to which the Company is subject, if any, or usage
(provided that any such notation, legend or endorsement is in a form acceptable
to the Company). Each Note shall be dated the date of its authentication. The
Notes shall be issuable only in registered form without interest coupons and
only in denominations of $1,000 and integral multiples thereof.
SECTION 2.03. Execution and Authentication. One Officer shall sign
the Notes for the Company by manual or facsimile signature.
If an Officer whose signature is on a Note no longer holds that
office at the time the Trustee authenticates the Note, the Note shall be valid
nevertheless.
A Note shall not be valid until an authorized signatory of the
Trustee manually signs the certificate of authentication on the Note. The
signature shall be conclusive evidence that the Note has been authenticated
under this Indenture.
The Trustee shall authenticate and make available for delivery Notes
as set forth in Appendix A.
The Trustee may appoint an authenticating agent reasonably
acceptable to the Company to authenticate the Notes. Any such appointment shall
be evidenced by an instrument signed by a Trust Officer, a copy of which shall
be furnished to the Company. Unless limited by the terms of such appointment, an
authenticating agent may authenticate Notes whenever the Trustee may do so. Each
reference in this Indenture to authentication by the Trustee includes
authentication by such agent. An authenticating agent has the same rights as any
Note Registrar, Paying Agent or agent for service of notices and demands.
SECTION 2.04. Registrar and Paying Agent. (a) The Company shall
maintain an office or agency where Notes may be presented for registration of
transfer or for exchange (the "NOTE REGISTRAR") and an office or agency where
Notes may be presented for payment (the "PAYING AGENT"). The Note Registrar
shall keep a register of the Notes and of their transfer and exchange (the "NOTE
REGISTER"). The Company may have one or more co-Note Registrars and one or more
additional paying agents. The term "Paying Agent" includes any additional paying
agent, and the term "Note Registrar" includes any co-Note Registrars. The
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Company initially appoints the Trustee as (i) Note Registrar and Paying Agent in
connection with the Notes and (ii) the Securities Custodian with respect to the
Global Notes.
(b) The Company shall enter into an agency agreement with any Note
Registrar not a party to this Indenture, which shall incorporate the terms of
the Trust Indenture Act. 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 Note
Registrar, the Trustee shall act as such and shall be entitled to compensation
therefore pursuant to Section 7.07. The Company may change the Note Registrar
without prior notice to the holders of the Notes. The Company or any of its
domestically organized Wholly Owned Subsidiaries may act as Note Registrar.
(c) If the Company shall appoint a Paying Agent other than the
Trustee, or if the Trustee shall appoint such a Paying Agent, the Company will
cause such Paying Agent to execute and deliver to the Trustee an instrument
which shall incorporate the terms of the Trust Indenture Act, which shall
implement the provisions of this Indenture that relate to such agent and in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section 2.04:
(i) that it will hold all sums held by it as such agent for the
payment of the principal of or interest on the Notes (whether such sums
have been paid to it by the Company or by any other obligor on the Notes)
in trust for the benefit of the holders of the Notes;
(ii) that it will give the Trustee notice of any failure by the
Company (or by any other obligor on the Notes) to make any payment of the
principal of or interest on the Notes when the same shall be due and
payable; and
(iii) that at any time during the continuance of an Event of
Default, upon request of the Trustee, it will forthwith pay to the Trustee
all sums so held in trust.
The Company shall notify the Trustee of the name and address of any
such agent. If the Company fails to maintain a Paying Agent, the Trustee shall
act as such and shall be entitled to compensation therefor pursuant to Section
7.07. The Company may change the Paying Agent without prior notice to the
holders of the Notes. The Company or any of its Wholly Owned Subsidiaries may
act as Paying Agent.
(d) The Trustee shall not be responsible for the actions of any
other Paying Agents (including the Company if acting as its own Paying Agent)
and shall have no control of any funds held by such other Paying Agents.
(e) The Company may remove any Note Registrar or Paying Agent upon
written notice to such Note Registrar or Paying Agent and to the Trustee;
provided, however, that no such removal shall become effective until (i)
acceptance of an appointment by a successor as evidenced by an appropriate
agreement entered into by the Company and such successor Note Registrar or
Paying Agent, as the case may be, and delivered to the Trustee or (ii)
notification to the Trustee that the Trustee shall serve as Note Registrar or
Paying Agent until the
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appointment of a successor in accordance with clause (i) above. The Note
Registrar or Paying Agent may resign at any time upon written notice to the
Company and the Trustee.
SECTION 2.05. Paying Agent to Hold Money in Trust. (a) Prior to or
on each due date of the principal of and interest on any Note, the Company shall
deposit with the Paying Agent (or if the Company or a Wholly Owned Subsidiary is
acting as Paying Agent, segregate and hold in trust for the benefit of the
Persons entitled thereto) a sum (in funds which are immediately available on the
due date for such payment) sufficient to pay such principal and interest when so
becoming due; provided that if such deposit is made on the due date, such
deposit shall be received by the Paying Agent by 10:00 a.m., New York City time,
on such date. The Company shall require each Paying Agent (other than the
Trustee) to agree in writing that the Paying Agent (i) shall hold in trust for
the benefit of holders or the Trustee all money held by the Paying Agent for the
payment of principal of and interest on the Notes and (ii) shall notify the
Trustee of any default by the Company in making any such payment. If the Company
or a Wholly Owned Subsidiary of the Company acts as Paying Agent, it shall
segregate the money held by it as Paying Agent and hold it as a separate trust
fund.
(b) Anything in this Section 2.05 to the contrary notwithstanding,
the Company may, at any time, for the purpose of obtaining a satisfaction and
discharge of this Indenture, or for any other reason, pay or cause to be paid to
the Trustee all sums held in trust by the Company or any Paying Agent hereunder
as required by this Section 2.05, such sums to be held by the Trustee under the
trusts herein contained and upon such payment by the Company or any Paying Agent
to the Trustee, the Company or such Paying Agent shall be released from all
further liability with respect to such sums.
(c) Anything in this Section 2.05 to the contrary notwithstanding,
the agreement to hold sums in trust as provided in this Section 2.05 is subject
to Sections 12.02 and 12.03.
SECTION 2.06. Holder Lists. The Trustee shall preserve in as current
a form as is reasonably practicable the most recent list available to it of the
names and addresses of holders. If the Trustee is not the Note Registrar, the
Company shall furnish, or cause the Note Registrar to furnish, to the Trustee,
in writing at least five Business Days before each interest payment date and at
such other times as the Trustee may request in writing, a list in such form and
as of such date as the Trustee may reasonably require of the names and addresses
of holders.
SECTION 2.07. Transfer and Exchange. The Notes shall be issued in
registered form and shall be transferable only upon the surrender of a Note for
registration of transfer and in compliance with Appendix A. When a Note is
presented to the Note Registrar with a request to register a transfer, the Note
Registrar shall register the transfer as requested if its requirements therefore
are met. When Notes are presented to the Note Registrar with a request to
exchange them for an equal principal amount of Notes of other denominations, the
Note Registrar shall make the exchange as requested if the same requirements are
met. To permit registration of transfers and exchanges, the Company shall
execute and the Trustee shall authenticate Notes at the Note Registrar's
request. The Company may require payment of a sum sufficient to pay all taxes,
assessments or other governmental charges in connection with any transfer or
exchange pursuant to this Section. The Company shall not be required to make and
14
the Note Registrar need not register transfers or exchanges of Notes selected
for redemption (except, in the case of Notes to be redeemed in part, the portion
thereof not to be redeemed) or any Notes for a period of 15 days before a
selection of Notes to be redeemed.
Prior to the due presentation for registration of transfer of any
Note, the Company, the Trustee, the Paying Agent and the Note Registrar may deem
and treat the Person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest, if
any, on such Note and for all other purposes whatsoever, whether or not such
Note is overdue, and none of the Company, the Trustee, the Paying Agent, or the
Note Registrar shall be affected by notice to the contrary.
Any holder of a Global Note shall, by acceptance of such Global
Note, agree that transfers of beneficial interest in such Global Note may be
effected only through a book-entry system maintained by (a) the holder of such
Global Note (or its agent) or (b) any holder of a beneficial interest in such
Global Note, and that ownership of a beneficial interest in such Global Note
shall be required to be reflected in a book entry.
All Notes issued upon any transfer or exchange pursuant to the terms
of this Indenture shall evidence the same debt and shall be entitled to the same
benefits under this Indenture as the Notes surrendered upon such transfer or
exchange.
SECTION 2.08. Replacement Notes. If a mutilated Note is surrendered
to the Note Registrar or if the holder of a Note claims that the Note has been
lost, destroyed or wrongfully taken, the Company shall issue and the Trustee
shall authenticate a replacement Note if the requirements of Section 8-405 of
the Uniform Commercial Code are met, such that the holder (a) notifies the
Company or the Trustee within a reasonable time after such holder has notice of
such loss, destruction or wrongful taking and the Note Registrar does not
register a transfer prior to receiving such notification, (b) makes such request
to the Company or the Trustee prior to the Note being acquired by a protected
purchaser as defined in Section 8-303 of the Uniform Commercial Code (a
"PROTECTED PURCHASER") and (c) satisfies any other reasonable requirements of
the Trustee. If required by the Trustee or the Company, such holder shall
furnish an indemnity bond sufficient in the judgment of the Trustee to protect
the Company, the Trustee, the Paying Agent and the Note Registrar from any loss
that any of them may suffer if a Note is replaced. The Company and the Trustee
may charge the holder for their expenses in replacing a Note. In the event any
such mutilated, lost, destroyed or wrongfully taken Note has become or is about
to become due and payable, the Company in its discretion may pay such Note
instead of issuing a new Note in replacement thereof.
Every replacement Note is an additional obligation of the Company.
The provisions of this Section 2.08 are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, lost, destroyed or wrongfully taken Notes.
SECTION 2.09. Outstanding Notes. Notes outstanding at any time are
all Notes authenticated by the Trustee except for those canceled by it, those
delivered to it for cancelation and those described in this Section as not
outstanding. Subject to Section 8.04, a
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Note does not cease to be outstanding because the Company or an Affiliate of the
Company holds the Note.
If a Note is replaced pursuant to Section 2.08, it ceases to be
outstanding unless the Trustee and the Company receive proof satisfactory to
them that the replaced Note is held by a protected purchaser.
If the Paying Agent segregates and holds in trust, in accordance
with this Indenture, on a redemption date or maturity date money sufficient to
pay all principal and interest payable on that date with respect to the Notes
(or portions thereof) to be redeemed or maturing, as the case may be, then on
and after that date such Notes (or portions thereof) cease to be outstanding and
interest on them ceases to accrue.
SECTION 2.10. Temporary Notes. In the event that Definitive Notes
are to be issued under the terms of this Indenture, until such Definitive Notes
are ready for delivery, the Company may prepare and the Trustee shall
authenticate temporary Notes. Temporary Notes shall be substantially in the form
of Definitive Notes but may have variations that the Company considers
appropriate for temporary Notes. Without unreasonable delay, the Company shall
prepare and the Trustee shall authenticate Definitive Notes and deliver them in
exchange for temporary Notes upon surrender of such temporary Notes at the
office or agency of the Company, without charge to the holder.
SECTION 2.11. Cancelation. The Company at any time may deliver Notes
to the Trustee for cancelation. The Note Registrar and the Paying Agent shall
forward to the Trustee any Notes surrendered to them for registration of
transfer, exchange or payment. The Trustee and no one else shall cancel all
Notes surrendered for registration of transfer, exchange, payment or cancelation
and shall dispose of canceled Notes in accordance with its customary procedures
or deliver canceled Notes to the Company pursuant to written direction by an
Officer. The Company may not issue new Notes to replace Notes it has redeemed,
paid or delivered to the Trustee for cancelation. The Trustee shall not
authenticate Notes in place of canceled Notes other than pursuant to the terms
of this Indenture.
SECTION 2.12. Defaulted Interest. If the Company defaults in a
payment of interest on the Notes, the Company shall pay the Defaulted Interest
(plus interest payable on such Defaulted Interest to the extent lawful) in any
lawful manner. The Company may pay the Defaulted Interest to the Persons who are
holders on a subsequent special record date. The Company shall fix or cause to
be fixed any such special record date and payment date to the reasonable
satisfaction of the Trustee and shall promptly mail or cause to be mailed to
each holder a notice that states the special record date, the payment date and
the amount of Defaulted Interest to be paid.
SECTION 2.13. CUSIP and ISIN Numbers. The Company in issuing the
Notes may use "CUSIP" and ISIN numbers (if then generally in use) and, if so,
the Trustee shall use "CUSIP" and ISIN 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 Notes or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Notes, and
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any such redemption shall not be affected by any defect in or omission of such
numbers. The Company shall promptly notify the Trustee of any change in the
"CUSIP" numbers.
ARTICLE 3
REDEMPTION AND REPURCHASE OF NOTES
SECTION 3.01. Company's Right to Redeem. Prior to June 20, 2008, the
Notes will not be redeemable at the Company's option. At any time on or after
June 20, 2008 and prior to Stated Maturity, the Company, at its option, may
redeem the Notes in accordance with the provisions of Sections 3.02 and 3.03 on
the Redemption Date for cash, in whole or in part, at the redemption price
applicable to the period set forth below during which such Redemption Date
occurs (the "REDEMPTION PRICE"), expressed as a percentage of the principal
amount of the Notes to be redeemed, together in each case with accrued and
unpaid interest on the Notes redeemed to (but excluding) the Redemption Date,
subject to the rights of holders of the Notes on the relevant Regular Record
Date to receive interest on the relevant Interest Payment Date:
Period Redemption Price
------ ----------------
Beginning June 20, 2008 and ending on June 14, 2009 101.714%
Beginning June 15, 2009 and ending on June 14, 2010 101.143%
Beginning June 15, 2010 and ending on June 14, 2011 100.571%
Beginning June 15, 2011 and thereafter 100.000%
SECTION 3.02. Notice of Optional Redemption; Selection of Notes. (a)
In case the Company shall desire to exercise the right to redeem all or, as the
case may be, any part of the Notes pursuant to Section 3.01, it shall fix a date
for redemption (the "REDEMPTION DATE") and it or, at its written request
received by the Trustee not fewer than forty-five (45) days prior (or such
shorter period of time as may be acceptable to the Trustee) to the Redemption
Date, the Trustee in the name of and at the expense of the Company, shall mail
or cause to be mailed a notice of such redemption (a "REDEMPTION NOTICE") not
fewer than thirty (30) nor more than sixty (60) days prior to the Redemption
Date to each holder of Notes so to be redeemed at its last address as the same
appears on the Note Register; provided that if the Company shall give such
notice, it shall also give written notice of the Redemption Date to the Trustee.
Such mailing shall be by first class mail. The notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been duly given, whether
or not the holder receives such notice. In any case, failure to give such notice
by mail or any defect in the notice to the holder of any Note designated for
redemption shall not affect the validity of the proceedings for the redemption
of any other Note. Concurrently with the mailing of any such Redemption Notice,
the Company shall issue a press release announcing such redemption, the form and
content of which press release shall be determined by the Company in its sole
discretion. The failure to issue any such press release or any defect therein
shall not affect the validity of the Redemption Notice or any of the proceedings
for the redemption of any Note called for redemption.
(b) Each such Redemption Notice shall specify the aggregate
principal amount of Notes to be redeemed, the CUSIP number or numbers of the
Notes being redeemed, the Redemption Date (which shall be a Business Day), the
Redemption Price at which Notes are
17
to be redeemed, the place or places of payment, that payment will be made upon
presentation and surrender of such Notes, that interest accrued to the
Redemption Date will be paid as specified in said notice, and that on and after
said date interest thereon or on the portion thereof to be redeemed will cease
to accrue. Such notice shall also state the current Conversion Rate and the date
on which the right to convert such Notes or portions thereof (in the case of a
redemption pursuant to Section 3.01) into Common Stock will expire (which date
shall not be later than the close of business on the second Business Day prior
to the Redemption Date). In case any Note is to be redeemed in part only
pursuant to Section 3.01, the Redemption Notice shall state the portion of the
principal amount thereof to be redeemed and shall state that, on and after the
Redemption Date, upon surrender of such Note, a new Note or Notes in principal
amount equal to the unredeemed portion thereof will be issued.
(c) On or prior to the Redemption Date specified in the Redemption
Notice given as provided in this Section 3.02, the Company will deposit with the
Trustee or with one or more Paying Agents (or, if the Company is acting as its
own Paying Agent, set aside, segregate and hold in trust as provided in Section
2.05) an amount of money in immediately available funds sufficient to redeem on
the Redemption Date all the Notes (or portions thereof in the case of a
redemption pursuant to Section 3.01) so called for redemption (other than those
theretofore surrendered for conversion into Common Stock) at the appropriate
Redemption Price; provided that if such payment is made on the Redemption Date,
it must be received by the Trustee or Paying Agent, as the case may be, by 10:00
a.m., New York City time, on such date. The Company shall be entitled to retain
any interest, yield or gain on amounts deposited with the Trustee or any Paying
Agent pursuant to this Section 3.02(c) in excess of amounts required hereunder
to pay the Redemption Price and accrued interest to, but excluding, the
Redemption Date. If any Note called for redemption is converted pursuant hereto
prior to such Redemption Date, any money deposited with the Trustee or any
Paying Agent or so segregated and held in trust for the redemption of such Note
shall be paid to the Company upon its written request, or, if then held by the
Company, shall be discharged from such trust. Whenever any Notes are to be
redeemed, the Company will give the Trustee written notice in the form of an
Officer's Certificate not fewer than thirty-five (35) days (or such shorter
period of time as may be reasonably acceptable to the Trustee) prior to the
Redemption Date as to the aggregate principal amount of Notes to be redeemed.
(d) If less than all of the outstanding Notes are to be redeemed
(pursuant to Section 3.01), the Trustee shall select the Notes or portions
thereof of the Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or
by another method the Trustee deems fair and appropriate. If any Note selected
for partial redemption is submitted for conversion in part after such selection,
the portion of such Note submitted for conversion shall be deemed (so far as may
be possible) to be from the portion selected for redemption. The Notes (or
portions thereof) so selected shall be deemed duly selected for redemption for
all purposes hereof, notwithstanding that any such Note is submitted for
conversion in part before the mailing of the Redemption Notice.
Upon any redemption of less than all of the outstanding Notes, the
Company and the Trustee may (but need not), solely for purposes of determining
the pro rata allocation among such Notes as are unconverted and outstanding at
the time of redemption, treat as outstanding any Notes surrendered for
conversion during the period of fifteen (15) days next preceding the
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mailing of a Redemption Notice and may (but need not) treat as outstanding any
Note authenticated and delivered during such period in exchange for the
unconverted portion of any Note converted in part during such period.
SECTION 3.03. Payment of Notes Called for Redemption by the Company.
If notice of redemption has been given as provided in Section 3.02, the Notes or
portion of Notes with respect to which such notice has been given shall, unless
converted into Common Stock pursuant to the terms hereof, become due and payable
on the Redemption Date and at the place or places stated in such notice at the
applicable Redemption Price, and on and after the Redemption Date (unless the
Company shall default in the payment of such Notes at the Redemption Price)
interest on the Notes or portion of Notes so called for redemption shall cease
to accrue and, after the close of business on the second Business Day
immediately preceding the Redemption Date (unless the Company shall default in
the payment of such Notes at the Redemption Price), such Notes shall cease to be
convertible into Common Stock and to be entitled to any benefit or security
under this Indenture, and the holders thereof shall have no right in respect of
such Notes except the right to receive the Redemption Price thereof. On
presentation and surrender of such Notes at a place of payment in said notice
specified, the said Notes or the specified portions thereof shall be paid and
redeemed by the Company at the applicable Redemption Price; provided that if the
applicable Redemption Date is an Interest Payment Date, the interest payable on
such Interest Payment Date shall be paid on such Interest Payment Date to the
holders of record of such Notes on the applicable record date instead of the
holders surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company
shall execute and the Trustee shall authenticate and make available for delivery
to the holder thereof, at the expense of the Company, a new Note or Notes, of
authorized denominations, in principal amount equal to the unredeemed portion of
the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any
Notes or mail any Redemption Notice during the continuance of a default in
payment of interest on the Notes. If any Note called for redemption shall not be
so paid upon surrender thereof for redemption, the principal shall, until paid
or duly provided for, continue to bear interest at the rate borne by the Note,
compounded semiannually, and such Note shall remain convertible into Common
Stock until the principal and interest shall have been paid or duly provided
for.
SECTION 3.04. Repurchase of Notes by the Company at Option of
Holders upon a Designated Event. (a) If a Designated Event shall occur at any
time prior to Stated Maturity, each holder shall have the right, at such
holder's option, to require the Company to repurchase all of such holder's
Notes, or any portion thereof that is a multiple of $1,000 principal amount, on
the date specified in the Designated Event Repurchase Notice (the "DESIGNATED
EVENT REPURCHASE DATE"), which date shall be no more than thirty-five (35) days
after the Designated Event Notice Date (as defined in paragraph (b) below),
subject to extension to comply with applicable law. The Company shall repurchase
such Notes at a price (the "DESIGNATED EVENT REPURCHASE PRICE") equal to 100% of
the principal amount thereof plus any accrued and unpaid interest to but
excluding the Designated Event Repurchase Date plus, in the case of a
Fundamental Change that constitutes a Change of Control, the Make Whole Premium
(if any); provided that if such Designated Event Repurchase Date falls on an
Interest Payment
19
Date, then the interest payable on such Interest Payment Date shall be paid to
the holders of record of the Notes on the applicable record date instead of the
holders surrendering the Notes for repurchase on such date.
The Company's obligation to repurchase all or a portion of a
holder's Notes under this Section 3.04 shall be satisfied if a third party makes
the offer to repurchase the Notes at the Designated Event Repurchase Price in
the manner and at the times and otherwise in compliance in all material respects
with the requirements set out in this Section 3.04, such third party purchases
all Notes properly tendered and not withdrawn and such third party complies with
the obligations of the Company in connection herewith.
(b) On or before the fifth (5th) Trading Day after the occurrence of
a Designated Event, the Company, or at its written request the Trustee in the
name of and at the expense of the Company (which request must be received by the
Trustee at least three (3) Business Days prior to the date the Trustee is
requested to give notice as described below, unless the Trustee shall agree to a
shorter period), shall mail or cause to be mailed (the date of such mailing,
"DESIGNATED EVENT NOTICE DATE"), by first class mail, a notice (the "DESIGNATED
EVENT REPURCHASE NOTICE") to each holder of record of Notes on such date at its
last address as the same appears on the Note Register of the occurrence of such
Designated Event and of the repurchase right at the option of the holders
arising as a result thereof to each holder of Notes at its last address as the
same appears on the Note Register; provided that if the Company shall give such
notice, it shall also give written notice of the Designated Event to the Trustee
and the Paying Agent at such time as it is mailed to Noteholders. Such notice,
if mailed in the manner herein provided, shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice. Each Designated
Event Repurchase Notice shall state:
(i) the Designated Event Repurchase Price, excluding accrued and
unpaid interest, the applicable Conversion Rate at the time of such notice
(and any applicable adjustments to the Conversion Rate) and, to the extent
known at the time of such notice, the amount of interest that will be
payable with respect to the Notes on the Designated Event Repurchase Date;
(ii) the events causing the Designated Event and the date of the
Designated Event;
(iii) the Designated Event Repurchase Date;
(iv) the last date on which a holder may exercise the repurchase
right;
(v) the name and address of the Paying Agent and the Conversion
Agent;
(vi) that Notes as to which a Designated Event Repurchase Election
has been given by the holder may be converted only if the election has
been withdrawn by the holder in accordance with the terms of this
Indenture; provided that the Notes are otherwise convertible in accordance
with Section 14.01;
(vii) that the holder shall have the right to withdraw any
repurchase election (in whole or part) and any Notes surrendered prior to
the close of business on the
20
Business Day immediately preceding the Designated Event Repurchase Date
(or any such later time as may be required by applicable law);
(viii) that Notes must be surrendered to the Paying Agent for
cancelation to collect payment;
(ix) a description of the procedure which a Noteholder must follow
to exercise such repurchase right or to withdraw any surrendered Notes;
(x) the CUSIP number or numbers of the Notes (if then generally in
use); and
(xi) the Conversion Price and any adjustments thereto (including the
Make Whole Premium, if any) and briefly, the conversion rights of the
Notes and whether, at the time of such notice, the Notes are eligible for
conversion.
In connection with providing the Designated Event Repurchase Notice,
the Company shall publish a notice containing the information contained in such
Designated Event Repurchase Notice in a newspaper of general circulation in The
City of New York or publish the information on the Company's website or through
such other public medium as the Company may use at that time.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to this
Section 3.04.
(c) Notes shall be repurchased pursuant to this Section 3.04 at the
option of the holder upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by a holder of a duly completed notice (a "DESIGNATED EVENT
REPURCHASE ELECTION") in the form set forth on the reverse of the Note at
any time prior to the close of business on the third Business Day
immediately preceding the Designated Event Repurchase Date (subject to
extension by applicable law) stating:
(a) if certificated, the certificate numbers of the Notes
which the holder shall deliver to be repurchased;
(b) the portion of the principal amount of the Notes that the
holder shall deliver to be repurchased, which portion must be $1,000
or an integral multiple thereof; and
(c) that such Notes shall be repurchased as of the Designated
Event Repurchase Date pursuant to the terms and conditions specified
in the Notes and in the Indenture; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or
other Paying Agent appointed by the Company) simultaneously with or at any
time after delivery of the Designated Event Repurchase Election (together
with all necessary
21
endorsements) at the office of the Trustee (or other Paying Agent
appointed by the Company) in the Borough of Manhattan, such delivery or
transfer being a condition to receipt by the holder of the Designated
Event Repurchase Price therefor; provided that such Designated Event
Repurchase Price shall be so paid pursuant to this Section 3.04 only if
the Notes so delivered or transferred to the Trustee (or other Paying
Agent appointed by the Company) shall conform in all respects to the
description thereof in the related Designated Event Repurchase Election.
All questions as to the validity, eligibility (including time of receipt)
and acceptance of any Note for repurchase shall be determined by the
Company, whose determination shall be final and binding absent manifest
error.
SECTION 3.05. Repurchase of Notes by the Company at Option of
Holders on Specified Dates. (a) On each of June 15, 2011, June 15, 2014, June
15, 2019, June 15, 2024 and June 15, 2029 (each, a "COMPANY REPURCHASE DATE"),
each holder shall have the right, at such holder's option, to require the
Company to repurchase all of such holder's Notes, or any portion thereof that is
a multiple of $1,000 principal amount. The Company shall repurchase such Notes
at a price (the "COMPANY REPURCHASE PRICE") equal to 100% of the principal
amount thereof plus any accrued and unpaid interest to but excluding the Company
Repurchase Date; provided that if such Company Repurchase Date falls on an
Interest Payment Date, then the interest payable on such Interest Payment Date
shall be paid to the holders of record of the Notes on the applicable record
date instead of the holders surrendering the Notes for repurchase on such date.
(b) On or before the twentieth (20th) Business Day prior to each
Company Repurchase Date (the "COMPANY NOTICE DATE"), the Company, or at its
written request the Trustee in the name of and at the expense of the Company
(which request must be received by the Trustee at least three (3) Business Days
prior to the date the Trustee is requested to give notice as described below),
unless the Trustee shall agree to a shorter period), shall mail or cause to be
mailed, by first class mail, a notice (the "COMPANY REPURCHASE NOTICE") to each
holder of record of Notes on such date at its last address as the same appears
on the Note Register; provided that if the Company shall give such notice, it
shall also give written notice to the Trustee and the Paying Agent at such time
as it is mailed to Noteholders. Such notice, if mailed in the manner herein
provided, shall be conclusively presumed to have been duly given, whether or not
the holder receives such notice. Each Company Repurchase Notice shall state:
(i) the Company Repurchase Price, excluding accrued and unpaid
interest, the applicable Conversion Rate at the time of such notice (and
any applicable adjustments to the Conversion Rate) and, to the extent
known at the time of such notice, the amount of interest that will be
payable with respect to the Notes on the Company Repurchase Date;
(ii) the Company Repurchase Date;
(iii) the last date on which a holder may exercise the repurchase
right;
(iv) the name and address of the Paying Agent and the Conversion
Agent;
(v) that Notes as to which a Company Repurchase Election has been
given by the holder may be converted only if the election has been
withdrawn by the holder in
22
accordance with the terms of this Indenture; provided that the Notes are
otherwise convertible in accordance with Section 14.01;
(vi) that the holder shall have the right to withdraw any Notes
surrendered prior to the close of business on the Business Day immediately
preceding the Company Repurchase Date (or any such later time as may be
required by applicable law);
(vii) that Notes must be surrendered to the Paying Agent for
cancellation to collect payment;
(viii) that the Company Repurchase Price for any Note as to which a
Company Repurchase Notice has been given and not withdrawn will be paid
promptly following the later of the Company Repurchase Date and the time
of surrender of such Note as described in clause (v) above;
(ix) a description of the procedure which a Noteholder must follow
to exercise such repurchase right or to withdraw any surrendered Notes;
(x) the CUSIP number or numbers of the Notes (if then generally in
use); and
(xi) briefly, the conversion rights of the Notes and whether, at the
time of such notice, the Notes are eligible for conversion.
On or prior to the Company Notice Date, the Company shall publish a
notice containing substantially the same information that is required in the
Company Repurchase Notice in a newspaper of general circulation in The City of
New York, or publish such information on the Company's website or through such
other public medium as the Company may use at such time.
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' repurchase rights or affect the
validity of the proceedings for the repurchase of the Notes pursuant to this
Section 3.05.
(c) Notes shall be repurchased pursuant to this Section 3.05 at the
option of the holder upon:
(i) delivery to the Trustee (or other Paying Agent appointed by the
Company) by a holder of a duly completed notice (a "COMPANY REPURCHASE
ELECTION") in the form set forth on the reverse of the Note at any time
from the opening of business on the twentieth (20th) Business Day
preceding the Company Repurchase Date until the close of business on the
third Business Day immediately preceding the Company Repurchase Date
stating:
(1) if certificated, the certificate numbers of the Notes
which the holder shall deliver to be repurchased;
23
(2) the portion of the principal amount of the Notes that the
holder shall deliver to be repurchased, which portion must be $1,000
or an integral multiple thereof; and
(3) that such Notes shall be repurchased as of the Company
Repurchase Date pursuant to the terms and conditions specified in
the Notes and in this Indenture; and
(ii) delivery or book-entry transfer of the Notes to the Trustee (or
other Paying Agent appointed by the Company) simultaneously with or at any
time after delivery of the Company Repurchase Election (together with all
necessary endorsements) at the office of the Trustee (or other Paying
Agent appointed by the Company) in the Borough of Manhattan, such delivery
or transfer being a condition to receipt by the holder of the Company
Repurchase Price therefore; provided that such Company Repurchase Price
shall be so paid pursuant to this Section 3.05 only if the Notes so
delivered or transferred to the Trustee (or other Paying Agent appointed
by the Company) shall conform in all respects to the description thereof
in the related Company Repurchase Election. All questions as to the
validity, eligibility (including time of receipt) and acceptance of any
Note for repurchase shall be determined by the Company, whose
determination shall be final and binding absent manifest error.
SECTION 3.06. Company's Manner of Payment of Repurchase Price. (a)
The Notes to be repurchased by the Company on any Repurchase Date pursuant to
Section 3.04 or Section 3.05, must be paid for in U.S. legal tender ("cash").
(b) At least three (3) Business Days before the date of any
Repurchase Notice, the Company shall deliver an Officer's Certificate to the
Trustee specifying:
(i) the information required to be included in the Repurchase
Notice; and
(ii) whether the Company desires the Trustee to give the Repurchase
Notice required.
SECTION 3.07. Conditions and Procedures for Repurchase at Option of
Holders. (a) The Company shall repurchase from the holder thereof, pursuant to
Section 3.04 or Section 3.05, a portion of a Note, if the principal amount of
such portion is $1,000 or a whole multiple of $1,000. Provisions of this
Indenture that apply to the repurchase of all of a Note also apply to the
repurchase of such portion of such Note. Upon presentation of any Note
repurchased in part only, the Company shall execute and the Trustee shall
authenticate and make available for delivery to the holder thereof, at the
expense of the Company, a new Note or Notes, of any authorized denomination, in
aggregate principal amount equal to the portion of the Notes presented that is
not repurchased.
(b) On or prior to a Repurchase Date, the Company will deposit with
the Trustee or with one or more Paying Agents (or, if the Company is acting as
its own Paying Agent, set aside, segregate and hold in trust as provided in
Section 2.05) an amount of cash sufficient to repurchase on the Repurchase Date
all the Notes or portions thereof to be
24
repurchased on such date at the Repurchase Price; provided that if such deposit
is made on the Repurchase Date, it must be received by the Trustee or Paying
Agent, as the case may be, by 10:00 a.m., New York City time, on such date.
If the Trustee or other Paying Agent appointed by the Company, or
the Company or an Affiliate of the Company, if it or such Affiliate is acting as
the Paying Agent, holds cash sufficient to pay the aggregate Repurchase Price of
all the Notes or portions thereof that are to be repurchased as of the
Repurchase Date, on the Business Day following the Repurchase Date, (i) such
Notes will cease to be outstanding, (ii) interest on such Notes will cease to
accrue and (iii) all other rights of the holders of such Notes will terminate,
whether or not book-entry transfer of the Notes has been made or the Notes have
been delivered to the Trustee or Paying Agent, other than the right to receive
the Repurchase Price upon delivery of the Notes.
(c) Upon receipt by the Trustee (or other Paying Agent appointed by
the Company) of a Repurchase Election, the holder of the Note in respect of
which such Repurchase Election was given shall (unless such notice is validly
withdrawn) thereafter be entitled to receive solely the Repurchase Price with
respect to such Note. Such Repurchase Price shall be paid to such holder,
subject to receipt of funds and/or Notes by the Trustee (or other Paying Agent
appointed by the Company), promptly (but in no event more than five (5) Business
Days) following the later of (x) the Repurchase Date with respect to such Note
(provided that the holder has satisfied the conditions in Section 3.04(c) or
Section 3.05, applicable) and (y) the time of delivery of such Note to the
Trustee (or other Paying Agent appointed by the Company) by the holder thereof
in the manner required by Section 3.04(c) or Section 3.05(c), as applicable.
Notes in respect of which a Repurchase Election has been given by the holder
thereof may not be converted pursuant to Article 14 hereof on or after the date
of the delivery of such Repurchase Election unless such notice has first been
validly withdrawn.
(d) Notwithstanding anything herein to the contrary, any holder
delivering to the office of the Trustee (or other Paying Agent appointed by the
Company) a Repurchase Election shall have the right to withdraw such election at
any time prior to the close of business on the Business Day preceding the
Repurchase Date (or any such later time as may be required by applicable law) by
delivery of a written notice of withdrawal to the Trustee (or other Paying Agent
appointed by the Company) specifying:
(i) the certificate number, if any, of the Note in respect of which
such notice of withdrawal is being submitted, or the appropriate
Depositary information if the Note in respect of which such notice of
withdrawal is being submitted is represented by a Global Note,
(ii) the principal amount of the Note with respect to which such
notice of withdrawal is being submitted, and
(iii) the principal amount, if any, of such Note which remains
subject to the original Repurchase Election and which has been or will be
delivered for repurchase by the Company.
25
The Trustee (or other Paying Agent appointed by the Company) shall
promptly notify the Company of the receipt by it of any Repurchase Election or
written notice of withdrawal thereof.
(e) The Company will comply with the provisions of Rule 13e-4 and
any other tender offer rules under the Exchange Act to the extent then
applicable in connection with the repurchase rights of the holders of Notes in
the event of a Designated Event or on any Company Repurchase Date. If then
required by applicable law, the Company will file a Schedule TO or any other
schedule required in connection with such repurchase.
(f) There shall be no repurchase of any Notes pursuant to Section
3.04 or Section 3.05 if there has occurred at any time prior to, and is
continuing on, the Repurchase Date an Event of Default (other than an Event of
Default that is cured by the payment of the Repurchase Price with respect to
such Notes). The Paying Agent will promptly return to the respective holders
thereof any Notes (x) with respect to which a Repurchase Election has been
withdrawn in compliance with this Indenture or (y) held by it during the
continuance of an Event of Default (other than a default in the payment of the
Repurchase Price with respect to such Notes) in which case, upon such return,
the Repurchase Election with respect thereto shall be deemed to have been
withdrawn.
(g) The Trustee (or other Paying Agent appointed by the Company)
shall return to the Company any cash that remains unclaimed as provided in
Section 12.03, for the payment of the Repurchase Price; provided that, to the
extent that the aggregate amount of cash deposited by the Company pursuant to
Section 3.07(b) exceeds the aggregate Repurchase Price of the Notes or portions
thereof which the Company is obligated to purchase as of the Repurchase Date,
then, unless otherwise agreed in writing with the Company, promptly after the
Business Day following the Repurchase Date, the Trustee shall return any such
excess to the Company.
(h) In the case of a reclassification, change, consolidation,
merger, combination, sale or conveyance to which Section 14.06 applies, in which
the Common Stock of the Company is changed or exchanged as a result into the
right to receive stock, securities or other property or assets (including cash),
which includes shares of Common Stock of the Company or shares of common stock
of another Person that are, or upon issuance will be, traded on a United States
national securities exchange or approved for trading on an established automated
over-the-counter trading market in the United States and such shares constitute
at the time such change or exchange becomes effective in excess of 50% of the
aggregate fair market value of such stock, securities or other property or
assets (including cash) (as determined by the Company, which determination shall
be conclusive and binding), then the Person formed by such consolidation or
resulting from such merger or which acquires such assets, as the case may be,
shall execute and deliver to the Trustee a supplemental indenture (accompanied
by an Opinion of Counsel that such supplemental indenture complies with the
Trust Indenture Act as in force at the date of execution of such supplemental
indenture) modifying the provisions of this Indenture relating to the right of
holders of the Notes to cause the Company to repurchase the Notes following a
Designated Event, including, without limitation, the applicable provisions of
this Article 3 and the definitions of Common Stock, Designated Event and
Fundamental Change, as appropriate, as determined in good faith by the Company
(which determination shall be
26
conclusive and binding), to make such provisions apply to such other Person if
different from the Company and the common stock issued by such Person (in lieu
of the Company and the Common Stock of the Company).
ARTICLE 4
COVENANTS OF THE COMPANY
SECTION 4.01. Payment of Principal and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
the principal of (including any Redemption Price or Repurchase Price pursuant to
Article 3) and any premium and interest on each of the Notes at the places, at
the respective times and in the manner provided herein and in the Notes.
Principal of (including any Redemption Price or Repurchase Price) and the
premium (if any) and interest on each Note shall be considered paid on the date
due if the Paying Agent, if other than the Company or a Wholly Owned Subsidiary,
holds as of 10:00 a.m., New York City time, on the due date money deposited by
or on behalf of the Company in immediately available funds and designated for
and sufficient to pay all such principal and interest. The Company shall pay
interest on overdue principal at the rate specified in the Notes, and shall pay
interest on overdue installments of interest at the same rate, to the extent
lawful.
SECTION 4.02. Maintenance of Office or Agency. The Company will
maintain an office or agency in the Borough of Manhattan, The City of New York,
where the Notes may be surrendered for registration of transfer or exchange or
for presentation for payment or for conversion, redemption or repurchase and
where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency not designated or appointed by the Trustee. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the office of the Trustee in the
Borough of Manhattan, The City of New York, which office shall be located at the
office of The Depository Trust Company.
The Company may also from time to time designate co-registrars and
one or more offices or agencies where the Notes may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations. The Company will give prompt written notice of any such
designation or rescission and of any change in the location of any such other
office or agency.
The Company hereby initially designates the Trustee as Paying Agent,
Note Registrar, Custodian and Conversion Agent, and each of the Corporate Trust
Office and the office or agency of the Trustee in the Borough of Manhattan shall
be considered as one such office or agency of the Company for each of the
aforesaid purposes.
So long as the Trustee is the Note Registrar, the Trustee agrees to
mail, or cause to be mailed, the notices set forth in Section 7.08(a) and in
Section 7.08(c). If co-registrars have been appointed in accordance with this
Section, the Trustee shall mail such notices only to the Company and the holders
of Notes it can identify from its records.
27
SECTION 4.03. Existence. Subject to Article 11, the Company will do
or cause to be done all things necessary to preserve and keep in full force and
effect its corporate existence and rights (charter and statutory); provided that
the Company shall not be required to preserve any such right if the Company
shall determine that the preservation thereof is no longer desirable in the
conduct of the business of the Company and that the loss thereof is not adverse
in any material respect to the Noteholders.
SECTION 4.04. Rule 144A Information Requirement. Within the period
prior to the expiration of the holding period applicable to sales thereof under
Rule 144(k) under the Securities Act (or any successor provision), the Company
covenants and agrees that it shall, during any period in which it is not subject
to Section 13 or 15(d) under the Exchange Act, make available to any holder or
beneficial holder of Notes or any Common Stock issued upon conversion thereof
which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Notes or such Common Stock designated by such
holder or beneficial holder, the information required pursuant to Rule
144A(d)(4) under the Securities Act upon the request of any holder or beneficial
holder of the Notes or such Common Stock and it will take such further action as
any holder or beneficial holder of such Notes or such Common Stock may
reasonably request, all to the extent required from time to time to enable such
holder or beneficial holder to sell its Notes or Common Stock without
registration under the Securities Act within the limitation of the exemption
provided by Rule 144A, as such Rule may be amended from time to time.
SECTION 4.05. Stay, Extension and Usury Laws. The Company covenants
(to the extent that it may lawfully do so) that it shall not at any time insist
upon, plead, or in any manner whatsoever claim or take the benefit or advantage
of, any stay, extension or usury law or other law which would prohibit or
forgive the Company from paying all or any portion of the principal of or
interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of
this Indenture and the Company (to the extent it may lawfully do so) hereby
expressly waives all benefit or advantage of any such law, and covenants that it
will not, by resort to any such law, 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.
SECTION 4.06. Compliance Certificate. The Company shall deliver to
the Trustee, within one hundred twenty (120) days after the end of each fiscal
year of the Company (which fiscal year of the Company is presently the 12
calendar months ending December 31), a certificate signed by either the
principal executive officer, principal financial officer, principal accounting
officer or treasurer of the Company, stating whether or not, to the best
knowledge of the signer 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 the status thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, promptly upon becoming
aware of (i) any default in the performance or observance of any covenant,
agreement or condition contained in this Indenture, or (ii) any Event of
Default, an Officer's Certificate specifying with
28
particularity such default or Event of Default and further stating what action
the Company has taken, is taking or proposes to take with respect thereto.
Any notice required to be given under this Section 4.06 shall be
delivered to a Trust Officer of the Trustee at its Corporate Trust Office.
SECTION 4.07. Liquidated Damages Notice. (a) In the event that the
Company is required to pay Liquidated Damages to holders of Notes pursuant to
the Registration Rights Agreement, the Company will provide written notice
("LIQUIDATED DAMAGES NOTICE") to the Trustee of its obligation to pay Liquidated
Damages no later than fifteen (15) days prior to the proposed payment date for
the Liquidated Damages, and the Liquidated Damages Notice shall set forth the
amount of Liquidated Damages to be paid by the Company on such payment date. The
Trustee shall not at any time be under any duty or responsibility to any holder
of Notes to determine the Liquidated Damages, or with respect to the nature,
extent or calculation of the amount of Liquidated Damages when made, or with
respect to the method employed in such calculation of the Liquidated Damages.
ARTICLE 5
REPORTS BY THE COMPANY
SECTION 5.01. Reports by the Company. The Company shall file with
the Trustee (and the Commission if at any time after the Indenture becomes
qualified under the Trust Indenture Act), and transmit to holders of Notes, such
information, documents and other reports and such summaries thereof, as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant to such Act, whether or not the Notes are governed by such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within fifteen (15) days after the same is so
required to be filed with the Commission. Delivery of such reports, information
and documents to the Trustee is for informational purposes only and the
Trustee's receipt of such shall not constitute constructive notice of any
information contained therein or determinable from information contained
therein, including the Company's compliance with any of its covenants hereunder
(as to which the Trustee is entitled to rely exclusively on an Officer's
Certificate).
ARTICLE 6
REMEDIES OF THE TRUSTEE AND NOTEHOLDERS ON AN EVENT OF DEFAULT
SECTION 6.01. Events of Default. In case one or more of the
following events (each, an "EVENT OF DEFAULT") (whatever the reason for such
Event of Default and whether it shall be voluntary or involuntary or be effected
by operation of law or pursuant to any judgment, decree or order of any court or
any order, rule or regulation of any administrative or governmental body) shall
have occurred and be continuing:
(a) default in the payment of any installment of interest upon any
of the Notes as and when the same shall become due and payable, and continuance
of such default for a period of thirty (30) days; or
29
(b) default in the payment of the principal of, or premium (if any)
on, any of the Notes as and when the same shall become due and payable either at
maturity or in connection with any redemption or repurchase, in each case
pursuant to Article 3, by acceleration or otherwise; or
(c) default in the Company's obligation to convert the Notes upon
the exercise of a holder's rights pursuant to Article 14 and that default
continues for 10 days or more; or
(d) failure to provide notice of the right to require the Company to
repurchase the Notes following the occurrence of a Designated Event within the
time required by Section 3.04 to give such notice; or
(e) failure on the part of the Company to comply with or observe in
any material respect any other covenant or agreement on the part of the Company
in the Notes or in this Indenture (other than a covenant, warrant or agreement a
default in whose performance or whose breach is elsewhere in this Section 6.01
specifically dealt with) continued for a period of sixty (60) days after the
date on which written notice of such failure, requiring the Company to remedy
the same, shall have been given to the Company by the Trustee, or to the Company
and a Trust Officer of the Trustee by the holders of at least 25% in aggregate
principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04; or
(f) failure by the Company or any Significant Subsidiary to pay any
indebtedness (other than indebtedness owing to the Company or a Significant
Subsidiary) within any applicable grace period after final maturity or the
acceleration of any such Indebtedness by the holders thereof because of a
default if the total amount of such indebtedness unpaid or accelerated exceeds
$50.0 million or its foreign currency equivalent; or
(g) the rendering of any final nonappealable judgment or decree (not
covered by insurance) for the payment of money in excess of $50.0 million or its
foreign currency equivalent (treating any deductibles, self-insurance or
retention as not so covered) against the Company or a Significant Subsidiary if
such final judgment or decree remains outstanding and is not satisfied,
discharged or waived within a period of 60 days following such judgment; or
(h) the Company or any of its Significant Subsidiaries shall
commence a voluntary case or other proceeding seeking liquidation,
reorganization or other relief with respect to the Company or any of its
Significant Subsidiaries or its debts under any bankruptcy, insolvency or other
similar law now or hereafter in effect or seeking the appointment of a trustee,
receiver, liquidator, custodian or other similar official of the Company or any
of its Significant Subsidiaries or any substantial part of the property of the
Company or any of its Significant Subsidiaries, or shall consent to any such
relief or to the appointment of or taking possession by any such official in an
involuntary case or other proceeding commenced against the Company or any of its
Significant Subsidiaries, or shall make a general assignment for the benefit of
creditors, or shall fail generally to pay its debts as they become due; or
(i) an involuntary case or other proceeding shall be commenced
against the Company or any of its Significant Subsidiaries seeking liquidation,
reorganization or other relief
30
with respect to the Company or any of its Significant Subsidiaries or its debts
under any bankruptcy, insolvency or other similar law now or hereafter in effect
or seeking the appointment of a trustee, receiver, liquidator, custodian or
other similar official of the Company or any of its Significant Subsidiaries, or
any substantial part of the property of the Company, and such involuntary case
or other proceeding remains undismissed or unstayed and in effect for a period
of sixty (60) consecutive days;
then, and in each and every such case (other than an Event of Default specified
in Section 6.01(h) or 6.01(i)), unless the principal of all of the Notes shall
have already become due and payable, either the Trustee or the holders of not
less than 25% in aggregate principal amount of the Notes then outstanding
hereunder determined in accordance with Section 8.04, by notice in writing to
the Company (and to the Trustee if given by Noteholders), may declare the
principal of all the Notes and the interest accrued thereon to be due and
payable immediately, and upon any such declaration the same shall become and
shall be immediately due and payable, anything in this Indenture or in the Notes
contained to the contrary notwithstanding. If an Event of Default specified in
Section 6.01(h) or 6.01(i) occurs, the principal of all the Notes and the
interest accrued thereon shall be immediately and automatically due and payable
without necessity of further action. This provision, however, is subject to the
conditions that if, at any time after the principal of the Notes and the
interest accrued thereon shall have been so declared due and payable, and before
any judgment or decree for the payment of the monies due shall have been
obtained or entered as hereinafter provided, the Company shall pay or shall
deposit with the Trustee a sum sufficient to pay all matured installments of
interest upon all Notes and the principal of any and all Notes which shall have
become due otherwise than by acceleration (with interest on overdue installments
of interest (to the extent that payment of such interest is enforceable under
applicable law) and on such principal at the rate borne by the Notes plus 1%, to
the date of such payment or deposit) and amounts due to the Trustee pursuant to
Section 7.07, and if any and all defaults under this Indenture, other than the
nonpayment of principal of and accrued interest on Notes which shall have become
due by acceleration, shall have been cured or waived pursuant to Section 6.07,
then and in every such case the holders of a majority in aggregate principal
amount of the Notes then outstanding hereunder determined in accordance with
Section 8.04, by written notice to the Company and to the Trustee, may waive all
defaults or Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or
shall affect any subsequent default or Event of Default, or shall impair any
right consequent thereon. The Company shall notify in writing a Trust Officer of
the Trustee, promptly upon becoming aware thereof, of any Event of Default.
An Event of Default under Section 6.01(f) or Section 6.01(g) will
not constitute an Event of Default until the Trustee notifies the Company or the
Holders of not less than 25% in aggregate principal amount of the Notes then
outstanding hereunder notify the Company and the Trustee of the Event of Default
and the Company does not cure such default within the time specified in Section
6.01(f) or Section 6.01(g) after receipt of such notice.
In case the Trustee shall have proceeded to enforce any right under
this Indenture and such proceedings shall have been discontinued or abandoned
because of such waiver or rescission and annulment or for any other reason or
shall have been determined adversely to the Trustee, then and in every such case
the Company, the holders of Notes, and the Trustee shall be
31
restored respectively to their several positions and rights hereunder, and all
rights, remedies and powers of the Company, the holders of Notes, and the
Trustee shall continue as though no such proceeding had been taken.
SECTION 6.02. Payments of Notes on Default; Suit Therefor. The
Company covenants that (a) in case default shall be made in the payment of any
installment of interest upon any of the Notes as and when the same shall become
due and payable, and such default shall have continued for a period of thirty
(30) days, or (b) in case default shall be made in the payment of the principal
of any of the Notes as and when the same shall have become due and payable,
whether at maturity of the Notes or in connection with any redemption,
repurchase, acceleration, declaration or otherwise, then, upon demand of the
Trustee, the Company will pay to the Trustee, for the benefit of the holders of
the Notes, the whole amount that then shall have become due and payable on all
such Notes for principal or interest, as the case may be, with interest upon the
overdue principal and (to the extent that payment of such interest is
enforceable under applicable law) upon the overdue installments of interest at
the rate borne by the Notes, and, in addition thereto, such further amount as
shall be sufficient to cover the costs and expenses of collection, including
reasonable compensation to the Trustee, its agents, attorneys and counsel, and
all other amounts due the Trustee under Section 7.07. Until such demand by the
Trustee, the Company may pay the principal of and interest, on the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon
such demand, the Trustee, in its own name and as trustee of an express trust,
shall be entitled and empowered to institute any actions or proceedings at law
or in equity for the collection of the sums so due and unpaid, and may prosecute
any such action or proceeding to judgment or final decree, and may enforce any
such judgment or final decree against the Company or any other obligor on the
Notes and collect in the manner provided by law out of the property of the
Company or any other obligor on the Notes wherever situated the monies adjudged
or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for
the reorganization of the Company or any other obligor on the Notes under Title
11 of the United States Code, or any other applicable law, or in case a
receiver, assignee or trustee in bankruptcy or reorganization, liquidator,
sequestrator or similar official shall have been appointed for or taken
possession of the Company or such other obligor, the property of the Company or
such other obligor, or in the case of any other judicial proceedings relative to
the Company or such other obligor upon the Notes, or to the creditors or
property of the Company or such other obligor, the Trustee, irrespective of
whether the principal of the Notes 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 pursuant to the provisions of this Section 6.02,
shall be entitled and empowered, by intervention in such proceedings or
otherwise, to file and prove a claim or claims for the whole amount of principal
and interest owing and unpaid in respect of the Notes, and, in case of any
judicial proceedings, to file such proofs of claim and other papers or documents
as may be necessary or advisable in order to have the claims of the Trustee and
of the Noteholders allowed in such judicial proceedings relative to the Company
or any other obligor on the Notes, its or their creditors, or its or their
property, and to collect and receive any monies or other property payable or
deliverable on any such claims, and to distribute the same after the deduction
of any amounts due the Trustee under Section 7.07, and to take any other action
with
32
respect to such claims, including participating as a member of any official
committee of creditors, as it reasonably deems necessary or advisable, and,
unless prohibited by law or applicable regulations, and any receiver, assignee
or trustee in bankruptcy or reorganization, liquidator, custodian or similar
official is hereby authorized by each of the Noteholders 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 Noteholders, to pay to the Trustee any amount
due it for reasonable compensation, expenses, advances and disbursements,
including counsel fees and expenses incurred by it up to the date of such
distribution. To the extent that such payment of reasonable compensation,
expenses, advances and disbursements out of the estate in any such proceedings
shall be denied for any reason, payment of the same shall be secured by a Lien
on, and shall be paid out of, any and all distributions, dividends, monies,
securities and other property which the holders of the Notes may be entitled to
receive in such proceedings, whether in liquidation or under any plan of
reorganization or arrangement or otherwise.
All rights of action and of asserting claims under this Indenture,
or under any of the Notes, may be enforced by the Trustee without the possession
of any of the Notes, or the production thereof at any trial or other proceeding
relative thereto, and any such suit or proceeding instituted by the Trustee
shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, be for the ratable benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings
involving the interpretation of any provision of this Indenture to which the
Trustee shall be a party), the Trustee shall be held to represent all the
holders of the Notes, and it shall not be necessary to make any holders of the
Notes parties to any such proceedings.
SECTION 6.03. Application of Monies Collected by Trustee. Any monies
and property collected by the Trustee pursuant to this Article 6 shall be
applied in the order following, at the date or dates fixed by the Trustee for
the distribution of such monies and property, upon presentation of the several
Notes, and stamping thereon the payment, if only partially paid, and upon
surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 7.07;
SECOND: In case the principal of the outstanding Notes shall
not have become due and be unpaid, to the payment of interest on the Notes
in default in the order of the maturity of the installments of such
interest, with interest (to the extent that such interest has been
collected by the Trustee) upon the overdue installments of interest at the
rate borne by the Notes, such payments to be made ratably to the Persons
entitled thereto;
THIRD: In case the principal of the outstanding Notes shall
have become due, by declaration or otherwise, and be unpaid, to the
payment of the whole amount then owing and unpaid upon the Notes for
principal, interest with interest on the overdue principal and (to the
extent that such interest has been collected by the Trustee) upon overdue
installments of interest at the rate borne by the Notes, and in case such
monies
33
shall be insufficient to pay in full the whole amounts so due and unpaid
upon the Notes, then to the payment of such principal, interest without
preference or priority of principal over interest, or of interest over
principal, or of any installment of interest over any other installment of
interest or of any Note over any other Note, ratably to the aggregate of
such principal and accrued and unpaid interest; and
FOURTH: To the payment of the remainder, if any, to the
Company or as a court of competent jurisdiction shall direct in writing.
SECTION 6.04. Proceedings by Noteholder. No holder of any Note shall
have any right by virtue of or by reference to any provision of this Indenture
to institute any suit, action or proceeding in equity or at law upon or under or
with respect to this Indenture, or for the appointment of a receiver, trustee,
liquidator, custodian or other similar official, or for any other remedy
hereunder, unless such holder previously shall have given to the Trustee written
notice of an Event of Default and of the continuance thereof, as hereinbefore
provided, and unless also the holders of not less than 25% in aggregate
principal amount of the Notes then outstanding hereunder determined in
accordance with Section 8.04 shall have made written request upon the Trustee to
institute such action, suit or proceeding in its own name as Trustee hereunder
and shall have offered to the Trustee such reasonable security or indemnity
satisfactory to the Trustee as it may require against the costs, expenses and
liabilities to be incurred therein or thereby, and the Trustee for sixty (60)
days after its receipt of such notice, request and offer of reasonable
indemnity, shall have neglected or refused to institute any such action, suit or
proceeding and no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 6.07; it being understood and
intended, and being expressly covenanted by the taker and holder of every Note
with every other taker and holder and the Trustee, that no one or more holders
of Notes shall have any right in any manner whatever by virtue of or by
reference to any provision of this Indenture to affect, disturb or prejudice the
rights of any other holder of Notes, or to obtain or seek to obtain priority
over or preference to any other such holder, or to enforce any right under this
Indenture, except in the manner herein provided and for the equal, ratable and
common benefit of all holders of Notes (except as otherwise provided herein).
For the protection and enforcement of this Section 6.04, each and every
Noteholder and the Trustee shall be entitled to such relief as can be given
either at law or in equity.
Notwithstanding any other provision of this Indenture and any
provision of any Note, the right of any holder of any Note to receive payment of
the principal of (including any Redemption Price or Repurchase Price pursuant to
Article 3 and any Make Whole Premium pursuant to Article 15) and accrued
interest on such Note on or after the respective due dates expressed in such
Note, or to institute suit for the enforcement of any such payment on or after
such respective dates against the Company, shall not be impaired or affected
without the consent of such holder.
Anything in this Indenture or the Notes to the contrary
notwithstanding, the holder of any Note, without the consent of either the
Trustee or the holder of any other Note, on its own behalf and for its own
benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
34
SECTION 6.05. Proceedings by Trustee. In case of an Event of
Default, the Trustee may, in its discretion, proceed to protect and enforce the
rights vested in it by this Indenture by such appropriate judicial proceedings
as are necessary to protect and enforce any of such rights, either by suit in
equity or by action at law or by proceeding in bankruptcy or otherwise, whether
for the specific enforcement of any covenant or agreement contained in this
Indenture or in aid of the exercise of any power granted in this Indenture, or
to enforce any other legal or equitable right vested in the Trustee by this
Indenture or by law.
SECTION 6.06. Remedies Cumulative and Continuing. Except as provided
in Section 2.08, all powers and remedies given by this Article 6 to the Trustee
or to the Noteholders shall, to the extent permitted by law, be deemed
cumulative and not exclusive of any thereof or of any other powers and remedies
available to the Trustee or the holders of the Notes, by judicial proceedings or
otherwise, to enforce the performance or observance of the covenants and
agreements contained in this Indenture, and no delay or omission of the Trustee
or of any holder of any of the Notes to exercise any right or power accruing
upon any default or Event of Default occurring and continuing as aforesaid shall
impair any such right or power, or shall be construed to be a waiver of any such
default or any acquiescence therein, and, subject to the provisions of Section
6.04, every power and remedy given by this Article 6 or by law to the Trustee or
to the Noteholders may be exercised from time to time, and as often as shall be
deemed expedient, by the Trustee or by the Noteholders.
SECTION 6.07. Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders. The holders of a majority in aggregate principal amount
of the Notes at the time outstanding determined in accordance with Section 8.04
shall have the right to direct the time, method and place of conducting any
proceeding for any remedy available to the Trustee or exercising any trust or
power conferred on the Trustee; provided that (a) such direction shall not be in
conflict with any rule of law or with this Indenture, (b) the Trustee may take
any other action which is not inconsistent with such direction and (c) the
Trustee may decline to take any action that would benefit some Noteholders to
the detriment of other Noteholders. The holders of a majority in aggregate
principal amount of the Notes at the time outstanding determined in accordance
with Section 8.04 may, on behalf of the holders of all of the Notes, waive any
existing or past default or Event of Default hereunder and its consequences,
except (i) a default in the payment of interest or premium (if any) on, or the
principal of, the Notes, (ii) a failure by the Company to convert any Notes into
Common Stock, (iii) a default in the payment of the Redemption Price pursuant to
Section 3.03, (iv) a default in the payment of the Designated Event Repurchase
Price pursuant to Section 3.04 or Company Repurchase Price pursuant to Section
3.05 or (v) a default in respect of a covenant or provisions hereof which under
Article 10 cannot be modified or amended without the consent of the holders of
each or all Notes then outstanding or affected thereby. Upon any such waiver,
the Company, the Trustee and the holders of the Notes shall be restored to their
former positions and rights hereunder; but no such waiver shall extend to any
subsequent or other default or Event of Default or impair any right consequent
thereon. Whenever any default or Event of Default hereunder shall have been
waived as permitted by this Section 6.07, said default or Event of Default shall
for all purposes of the Notes and this Indenture be deemed to have been cured
and to be not continuing; but no such waiver shall extend to any subsequent or
other default or Event of Default or impair any right consequent thereon.
35
SECTION 6.08. Notice of Defaults. The Trustee shall, within the
earlier of ninety (90) days after a Default occurs or thirty (30) days after a
Trust Officer of the Trustee has knowledge of the occurrence of a Default, mail
to all Noteholders, as the names and addresses of such holders appear upon the
Note Register, notice of all Defaults known to a Trust Officer, unless such
Defaults shall have been cured or waived before the giving of such notice;
provided that except in the case of Default in the payment of the principal of
or interest on any of the Notes, the Trustee shall be protected in withholding
such notice if and so long as a trust committee of directors and/or Trust
Officers of the Trustee in good faith determine that the withholding of such
notice is in the interests of the Noteholders.
SECTION 6.09. Undertaking to Pay Costs. All parties to this
Indenture agree, and each holder of any Note by its acceptance thereof shall be
deemed to have agreed, that any court may, in its discretion, require, in any
suit for the enforcement of any right or remedy under this Indenture, or in any
suit against the Trustee for any action taken or omitted by it as Trustee, the
filing by any party litigant in such suit of an undertaking to pay the costs of
such suit and that such court may in its discretion assess reasonable costs,
including reasonable attorneys' fees and expenses, against any party litigant in
such suit, having due regard to the merits and good faith of the claims or
defenses made by such party litigant; provided that the provisions of this
Section 6.09 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group of
Noteholders, holding in the aggregate more than ten percent in principal amount
of the Notes at the time outstanding determined in accordance with Section 8.04,
or to any suit instituted by any Noteholder for the enforcement of the payment
of the principal of or interest on any Note on or after the due date expressed
in such Note or to any suit for the enforcement of the right to convert any Note
in accordance with the provisions of Article 14.
ARTICLE 7
THE TRUSTEE
SECTION 7.01. Duties of Trustee. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in
their exercise as a prudent person would exercise or use under the circumstances
in the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee undertakes to perform such duties and only such
duties as are specifically set forth in this Indenture and no implied
covenants or obligations shall be read into this Indenture against the
Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions furnished
to the Trustee and conforming to the requirements of this Indenture.
However, in the case of certificates or opinions specifically required by
any provision hereof to be furnished to it, the Trustee shall examine the
certificates and opinions to determine whether or not they conform to the
requirements of this Indenture
36
(but need not confirm or investigate the accuracy of mathematical
calculations or other facts stated therein).
(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:
(i) this paragraph does not limit the effect of paragraph (b) of
this Section;
(ii) the Trustee shall not be liable for any error of judgment made
in good faith by a Trust Officer unless it is proved that the Trustee was
negligent in ascertaining the pertinent facts;
(iii) 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 6.07; and
(iv) no provision of this Indenture shall require the Trustee to
expend or risk its own funds or otherwise incur financial liability in the
performance of any of its duties hereunder or in the exercise of any of
its rights or powers, if it shall have reasonable grounds to believe that
repayment of such funds or adequate indemnity against such risk or
liability is not reasonably assured to it.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b) and (c) of this Section.
(e) The Trustee shall not be liable for interest on any money
received by it except as the Trustee may agree in writing with the Company.
(f) Money held in trust by the Trustee need not be segregated from
other funds except to the extent required by law.
(g) Every provision of this Indenture relating to the conduct or
affecting the liability of or affording protection to the Trustee shall be
subject to the provisions of this Section and to the provisions of the Trust
Indenture Act.
SECTION 7.02. Rights of Trustee. (a) The Trustee may conclusively
rely and shall be protected in acting or refraining from acting on any document
believed by it to be genuine and to have been signed or presented by the proper
person. The Trustee need not investigate any fact or matter stated in any such
document.
(b) Before the Trustee acts or refrains from acting, it may require
an Officer's Certificate or an Opinion of Counsel or both. The Trustee shall not
be liable for any action it takes or omits to take in good faith in reliance on
the Officer's Certificate or Opinion of Counsel.
(c) The Trustee may act through agents and shall not be responsible
for the misconduct or negligence of any agent appointed with due care.
37
(d) The Trustee shall not be liable for any action it takes or omits
to take in good faith which it believes to be authorized or within its rights or
powers; provided, however, that the Trustee's conduct does not constitute wilful
misconduct or negligence.
(e) The Trustee may consult with counsel of its selection, and the
advice or opinion of counsel with respect to legal matters relating to this
Indenture and the Notes shall be full and complete authorization and protection
from liability in respect of any action taken, omitted or suffered by it
hereunder in good faith and in accordance with the advice or opinion of such
counsel.
(f) The Trustee shall not be bound to make any investigation into
the facts or matters stated in any resolution, certificate, statement,
instrument, opinion, report, notice, request, consent, order, approval, bond,
debenture, note or other paper or document unless requested in writing to do so
by the holders of not less than a majority in principal amount of the Notes at
the time outstanding, 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.
(g) The Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or direction of
any of the holders pursuant to this Indenture, unless such holders shall have
offered to the Trustee security or indemnity satisfactory to the Trustee against
the costs, expenses and liabilities which might be incurred by it in compliance
with such request or direction.
(h) The Trustee shall not be deemed to have notice of any Default or
Event of Default unless a Trust 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 Notes and this Indenture.
(i) The rights, privileges, protections, immunities and benefits
given to the Trustee, including, without limitation, its right to be
indemnified, are extended to, and shall be enforceable by, the Trustee in each
of its capacities hereunder, and each agent, custodian and other Person employed
to act hereunder.
(j) The Trustee may request that the Company deliver an Officer's
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 Officer's Certificate may be signed by any Person authorized to sign an
Officer's Certificate, including any Person specified as so authorized in any
such certificate previously delivered and not superseded.
SECTION 7.03. Individual Rights of Trustee. The Trustee in its
individual or any other capacity may become the owner or pledgee of Notes and
may otherwise deal with the Company or its Affiliates with the same rights it
would have if it were not Trustee. Any
38
Paying Agent or Registrar may do the same with like rights. However, the Trustee
must comply with Sections 7.10 and 7.11.
SECTION 7.04. Trustee's Disclaimer. The Trustee shall not be
responsible for and makes no representation as to the validity or adequacy of
this Indenture or the Notes, it shall not be accountable for the Company's use
of the proceeds from the Notes, and it shall not be responsible for any
statement of the Company in this Indenture or in any document issued in
connection with the sale of the Notes or in the Notes other than the Trustee's
certificate of authentication.
SECTION 7.05. Notice of Defaults. If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall mail to each
holder notice of the Default within the earlier of 90 days after it occurs or 30
days after it is known to a Trust Officer or written notice of it is received by
the Trustee. Except in the case of a Default in payment of principal of, premium
(if any) or interest on any Note (including required payments, if any, pursuant
to the redemption provisions of such Note), the Trustee may withhold the notice
if and so long as a committee of directors and/or Trust Officers of the Trustee
in good faith determine that withholding the notice is in the interests of
holders.
SECTION 7.06. Reports by Trustee to Holders. Within 30 days after
each May 15 beginning with the May 15 following the date of this Indenture, the
Trustee shall mail to each holder a brief report dated as of such May 15 that
complies with Section 313(a) of the Trust Indenture Act if and to the extent
required thereby. The Trustee shall also comply with Section 313(b) of the Trust
Indenture Act.
A copy of each report at the time of its mailing to holders shall be
filed with the SEC, each automated quotation system and each stock exchange (if
any) on which the Notes are listed. The Company agrees to notify promptly the
Trustee whenever the Notes become listed on any stock exchange or automated
quotation system and of any delisting thereof.
SECTION 7.07. Compensation and Indemnity. The Company shall pay to
the Trustee from time to time such compensation for its services hereunder as
the Company and the Trustee shall from time to time agree in writing. The
Trustee's compensation shall not be limited by any law on compensation of a
trustee of an express trust. The Company shall reimburse the Trustee upon
request for all reasonable out-of-pocket expenses incurred or made by it,
including costs of collection, in addition to the compensation for its services
as the Company and the Trustee shall, from time to time, agree in writing. Such
expenses shall include the reasonable compensation and expenses, disbursements
and advances of the Trustee's agents, counsel, accountants and experts. The
Company shall indemnify the Trustee or any predecessor Trustee and their agents
against any and all loss, liability or expense (including reasonable attorneys'
fees) incurred by or in connection with the administration of this trust and the
performance of its duties hereunder. The Trustee shall notify the Company of any
claim for which it may seek indemnity promptly upon obtaining actual knowledge
thereof; provided, however, that any failure so to notify the Company shall not
relieve the Company of its indemnity obligations hereunder. The Company shall
defend the claim and the indemnified party shall provide reasonable cooperation
at the Company's expense in the defense. Such indemnified parties may have
separate counsel and the Company shall pay the fees and expenses
39
of such counsel; provided, however, that the Company shall not be required to
pay such fees and expenses if it assumes such indemnified parties' defense and,
in such indemnified parties' reasonable judgment, there is no conflict of
interest between the Company and such parties in connection with such defense.
The Company need not reimburse any expense or indemnify against any loss,
liability or expense incurred by an indemnified party through such party's own
wilful misconduct, negligence or bad faith. The Company need not pay for any
settlement made without its written consent, which consent shall not be
unreasonably withheld.
To secure the Company's payment obligations in this Section, the
Trustee shall have a lien prior to the Notes on all money or property held or
collected by the Trustee other than money or property held in trust to pay
principal of or interest on particular Notes.
The Company's payment obligations pursuant to this Section shall
survive the satisfaction or discharge of this Indenture, any rejection or
termination of this Indenture under any bankruptcy law or the resignation or
removal of the Trustee. Without prejudice to any other rights available to the
Trustee under applicable law, when the Trustee incurs expenses after the
occurrence of a Default specified in Section 6.01(h) or (i) with respect to the
Company, the expenses are intended to constitute expenses of administration
under the Bankruptcy Law.
SECTION 7.08. Replacement of Trustee. (a) The Trustee may resign at
any time by so notifying the Company. The holders of a majority in principal
amount of the Notes then outstanding hereunder determined in accordance with
Section 8.04 may remove the Trustee by so notifying the Trustee and may appoint
a successor Trustee. The Company shall remove the Trustee if:
(i) the Trustee fails to comply with Section 7.10;
(ii) the Trustee is adjudged bankrupt or insolvent;
(iii) a receiver or other public officer takes charge of the Trustee
or its property; or
(iv) the Trustee otherwise becomes incapable of acting.
(b) If the Trustee resigns, is removed by the Company or by the
holders of a majority in principal amount of the Notes then outstanding
hereunder determined in accordance with Section 8.04 and such holders do not
reasonably promptly appoint a successor Trustee, or if a vacancy exists in the
office of Trustee for any reason (the Trustee in such event being referred to
herein as the retiring Trustee), the Company shall promptly appoint a successor
Trustee so that there shall at all times be a Trustee hereunder.
(c) A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to holders. The retiring Trustee shall promptly transfer all property
held by it as Trustee to the successor Trustee, subject to the lien provided for
in Section 7.07.
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(d) If a successor Trustee does not take office within sixty (60)
days after the retiring Trustee resigns or is removed, the retiring Trustee, at
the Company's expense, or the holders of 10% in principal amount of the Notes
then outstanding hereunder determined in accordance with Section 8.04 may
petition at the expense of the Company any court of competent jurisdiction for
the appointment of a successor Trustee.
(e) If the Trustee fails to comply with Section 7.10, unless the
Trustee's duty to resign is stayed as provided in Section 310(b) of the Trust
Indenture Act, any holder who has been a bona fide holder of a Note for at least
six months may petition any court of competent jurisdiction for the removal of
the Trustee and the appointment of a successor Trustee.
(f) Notwithstanding the replacement of the Trustee pursuant to this
Section, the Company's obligations under Section 7.07 shall continue for the
benefit of the retiring Trustee.
SECTION 7.09. Successor Trustee by Merger. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trust business or assets to, another corporation or banking
association, the resulting, surviving or transferee corporation without any
further act shall be the successor Trustee.
In case at the time such successor or successors by merger,
conversion or consolidation to the Trustee shall succeed to the trusts created
by this Indenture any of the Notes shall have been authenticated but not
delivered, any such successor to the Trustee may adopt the certificate of
authentication of any predecessor trustee, and deliver such Notes so
authenticated; and in case at that time any of the Notes shall not have been
authenticated, any successor to the Trustee may authenticate such Notes either
in the name of any predecessor hereunder or in the name of the successor to the
Trustee; and in all such cases such certificates shall have the full force which
it is anywhere in the Notes or in this Indenture provided that the certificate
of the Trustee shall have.
SECTION 7.10. Eligibility; Disqualification. The Trustee shall at
all times satisfy the requirements of Section 310(a) of the Trust Indenture Act.
The Trustee shall have a combined capital and surplus of at least $50,000,000 as
set forth in its most recent published annual report of condition. The Trustee
shall comply with Section 310(b) of the Trust Indenture Act, subject to its
right to apply for a stay of its duty to resign under the penultimate paragraph
of Section 310(b) of the Trust Indenture Act; provided, however, that there
shall be excluded from the operation of Section 310(b)(1) of the Trust Indenture
Act any indenture or indentures under which other securities or certificates of
interest or participation in other securities of the Company are outstanding if
the requirements for such exclusion set forth in Section 310(b)(1) of the Trust
Indenture Act are met.
SECTION 7.11. Preferential Collection of Claims Against Company. The
Trustee shall comply with Section 311(a) of the Trust Indenture Act, excluding
any creditor relationship listed in Section 311(b) of the Trust Indenture Act. A
Trustee who has resigned or been removed shall be subject to Section 311(a) of
the Trust Indenture Act to the extent indicated.
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ARTICLE 8
THE NOTEHOLDERS
SECTION 8.01. Action by Noteholders. Whenever in this Indenture it
is provided that the holders of a specified percentage in aggregate principal
amount of the Notes may take any action (including the making of any demand or
request, the giving of any notice, consent or waiver or the taking of any other
action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any
instrument or any number of instruments of similar tenor executed by Noteholders
in person or by agent or proxy appointed in writing, or (b) by the record of the
holders of Notes voting in favor thereof at any meeting of Noteholders duly
called and held in accordance with the provisions of Article 9, or (c) by a
combination of such instrument or instruments and any such record of such a
meeting of Noteholders. Whenever the Company or the Trustee solicits the taking
of any action by the holders of the Notes, the Company or the Trustee may fix in
advance of such solicitation, a date as the record date for determining holders
entitled to take such action. The record date shall be not more than fifteen
(15) days prior to the date of commencement of solicitation of such action.
SECTION 8.02. Proof of Execution by Noteholders. Subject to the
provisions of Section 7.01, 7.02 and 9.05, proof of the execution of any
instrument by a Noteholder or its agent or proxy shall be sufficient if made in
accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The
holding of Notes shall be proved by the registry of such Notes or by a
certificate of the Note Registrar.
The record of any Noteholders' meeting shall be proved in the manner
provided in Section 9.06.
SECTION 8.03. Who Are Deemed Absolute Owners. The Company, the
Trustee, any Paying Agent, any Conversion Agent and any Note Registrar may deem
the Person in whose name such Note shall be registered upon the Note Register to
be, and may treat it as, the absolute owner of such Note (whether or not such
Note shall be overdue and notwithstanding any notation of ownership or other
writing thereon made by any Person other than the Company or any Note Registrar)
for the purpose of receiving payment of or on account of the principal of,
premium (if any) and interest on such Note, for conversion of such Note and for
all other purposes; and neither the Company nor the Trustee nor any Paying Agent
nor any Conversion Agent nor any Note Registrar shall be affected by any notice
to the contrary. All such payments so made to any holder for the time being, or
upon his order, shall be valid, and, to the extent of the sum or sums so paid,
effectual to satisfy and discharge the liability for monies payable upon any
such Note.
SECTION 8.04. Company-owned Notes Disregarded. In determining
whether the holders of the requisite aggregate principal amount of Notes have
concurred in any direction, consent, waiver or other action under this
Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall be
disregarded and deemed not to be outstanding for the purpose of any such
determination; provided that for the purposes of determining whether the Trustee
shall be
42
protected in relying on any such direction, consent, waiver or other action,
only Notes which a Trust Officer knows are so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.04 if the pledgee shall establish
to the satisfaction of the Trustee the pledgee's right to vote such Notes and
that the pledgee is not the Company, any other obligor on the Notes or any
Affiliate of the Company or any such other obligor. In the case of a dispute as
to such right, any decision by the Trustee taken upon the advice of counsel
shall fully protect the Trustee. Upon request of the Trustee, the Company shall
furnish to the Trustee promptly an Officer's Certificate listing and identifying
all Notes, if any, known by the Company to be owned or held by or for the
account of any of the above described Persons, and, subject to Section 7.01, the
Trustee shall be entitled to accept such Officer's Certificate as conclusive
evidence of the facts therein set forth and of the fact that all Notes listed
therein are outstanding for the purpose of any such determination.
SECTION 8.05. Revocation of Consents, Future Holders Bound. At any
time prior to (but not after) the evidencing to the Trustee, as provided in
Section 8.01, of the taking of any action by the holders of the percentage in
aggregate principal amount of the Notes specified in this Indenture in
connection with such action, any holder of a Note which is shown by the evidence
to be included in the Notes the holders of which have consented to such action
may, by filing written notice with the Trustee at its Corporate Trust Office and
upon proof of holding as provided in Section 8.02, revoke such action so far as
concerns such Note. Except as aforesaid, any such action taken by the holder of
any Note shall be conclusive and binding upon such holder and upon all future
holders and owners of such Note and of any Notes issued in exchange or
substitution therefor, irrespective of whether any notation in regard thereto is
made upon such Note or any Note issued in exchange or substitution therefor.
ARTICLE 9
MEETINGS OF NOTEHOLDERS
SECTION 9.01. Purpose of Meetings.
A meeting of Noteholders may be called at any time and from time to
time pursuant to the provisions of this Article 9 for any of the following
purposes:
(a) to give any notice to the Company or to the Trustee or to give
any directions to the Trustee permitted under this Indenture, or to
consent to the waiving of any default or Event of Default hereunder and
its consequences, or to take any other action authorized to be taken by
Noteholders pursuant to any of the provisions of Article 6;
(b) to remove the Trustee and nominate a successor trustee pursuant
to the provisions of Article 7;
(c) to consent to the execution of an indenture or indentures
supplemental hereto pursuant to the provisions of Section 10.02; or
(d) to take any other action authorized to be taken by or on behalf
of the holders of any specified aggregate principal amount of the Notes
under any other provision of this Indenture or under applicable law.
43
SECTION 9.02. Call of Meetings by Trustee. The Trustee may at any
time call a meeting of Noteholders to take any action specified in Section 9.01,
to be held at such time and at such place as the Trustee shall determine. Notice
of every meeting of the Noteholders, setting forth the time and the place of
such meeting and in general terms the action proposed to be taken at such
meeting and the establishment of any record date pursuant to Section 8.01, shall
be mailed to holders of Notes at their addresses as they shall appear on the
Note Register. Such notice shall also be mailed to the Company. Such notices
shall be mailed not less than twenty (20) nor more than ninety (90) days prior
to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the
holders of all Notes then outstanding are present in person or by proxy or if
notice is waived before or after the meeting by the holders of all Notes
outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
SECTION 9.03. Call of Meetings by Company or Noteholders. In case at
any time the Company, pursuant to a resolution of its Board of Directors, or the
holders of at least 10% in aggregate principal amount of the Notes then
outstanding hereunder determined in accordance with Section 8.04, shall have
requested the Trustee to call a meeting of Noteholders, by written request
setting forth in reasonable detail the action proposed to be taken at the
meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then the Company or such
Noteholders may determine the time and the place for such meeting and may call
such meeting to take any action authorized in Section 9.01, by mailing notice
thereof as provided in Section 9.02.
SECTION 9.04. Qualifications for Voting. To be entitled to vote at
any meeting of Noteholders a person shall (a) be a holder of one or more Notes
on the record date pertaining to such meeting or (b) be a person appointed by an
instrument in writing as proxy by a holder of one or more Notes on the record
date pertaining to such meeting. The only persons who shall be entitled to be
present or to speak at any meeting of Noteholders shall be the persons entitled
to vote at such meeting and their counsel and any representatives of the Trustee
and its counsel and any representatives of the Company and its counsel.
SECTION 9.05. Regulations. Notwithstanding any other provisions of
this Indenture, the Trustee may make such reasonable regulations as it may deem
advisable for any meeting of Noteholders, in regard to proof of the holding of
Notes and of the appointment of proxies, and in regard to the appointment and
duties of inspectors of votes, the submission and examination of proxies,
certificates and other evidence of the right to vote, and such other matters
concerning the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Noteholders as provided in Section 9.03, in which case the Company
or the Noteholders calling the meeting, as the case may be, shall in like manner
appoint a temporary chairman. A permanent chairman and a permanent secretary of
the meeting shall be elected by vote of the holders of a majority in principal
amount of the Notes represented at the meeting and entitled to vote at the
meeting.
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Subject to the provisions of Section 8.04, at any meeting each
Noteholder or proxyholder shall be entitled to one vote for each $1,000
principal amount of Notes held or represented by him; provided that no vote
shall be cast or counted at any meeting in respect of any Note challenged as not
outstanding and ruled by the chairman of the meeting to be not outstanding. The
chairman of the meeting shall have no right to vote other than by virtue of
Notes held by him or instruments in writing as aforesaid duly designating him as
the proxy to vote on behalf of other Noteholders. Any meeting of Noteholders
duly called pursuant to the provisions of Section 9.02 or 9.03 may be adjourned
from time to time by the holders of a majority of the aggregate principal amount
of Notes represented at the meeting, whether or not constituting a quorum, and
the meeting may be held as so adjourned without further notice.
SECTION 9.06. Voting. The vote upon any resolution submitted to any
meeting of Noteholders shall be by written ballot on which shall be subscribed
the signatures of the holders of Notes or of their representatives by proxy and
the outstanding principal amount of the Notes held or represented by them. The
chairman of the meeting shall appoint two inspectors of votes who shall count
all votes cast at the meeting for or against any resolution and who shall make
and file with the secretary of the meeting their verified written reports in
duplicate of all votes cast at the meeting. A record in duplicate of the
proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of
the inspectors of votes on any vote by ballot taken thereat and affidavits by
one or more persons having knowledge of the facts setting forth a copy of the
notice of the meeting and showing that said notice was mailed as provided in
Section 9.02. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by
the affidavits of the permanent chairman and secretary of the meeting and one of
the duplicates shall be delivered to the Company and the other to the Trustee to
be preserved by the Trustee, the latter to have attached thereto the ballots
voted at the meeting.
Any record so signed and verified shall be conclusive evidence of
the matters therein stated.
SECTION 9.07. No Delay of Rights by Meeting. Nothing contained in
this Article 9 shall be deemed or construed to authorize or permit, by reason of
any call of a meeting of Noteholders or any rights expressly or impliedly
conferred hereunder to make such call, any hindrance or delay in the exercise of
any right or rights conferred upon or reserved to the Trustee or to the
Noteholders under any of the provisions of this Indenture or of the Notes.
ARTICLE 10
AMENDMENT; SUPPLEMENTAL INDENTURES
SECTION 10.01. Supplemental Indentures Without Consent of
Noteholders. The Company, when authorized by the resolutions of the Board of
Directors, and the Trustee may, from time to time, and at any time enter into an
indenture or indentures supplemental hereto for one or more of the following
purposes:
45
(a) make provision with respect to the conversion rights of the
holders of Notes pursuant to the requirements of Section 14.06 or the
repurchase obligations of the Company pursuant to the requirements of
Section 3.07(h);
(b) to convey, transfer, assign, mortgage or pledge to the Trustee
as security for the Notes, any property or assets;
(c) to add a guarantor with respect to the Notes;
(d) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by the successor Person of the
covenants, agreements and obligations of the Company pursuant to Article
11;
(e) to surrender any of the Company's rights or powers under the
Indenture;
(f) to add to the covenants of the Company such further covenants,
restrictions or conditions for the benefit of the holders of Notes, and to
make the occurrence, or the occurrence and continuance, of a default in
any such additional covenants, restrictions or conditions a default or an
Event of Default permitting the enforcement of all or any of the several
remedies provided in this Indenture as herein set forth; provided that in
respect of any such additional covenant, restriction or condition, such
supplemental indenture may provide for a particular period of grace after
default (which period may be shorter or longer than that allowed in the
case of other defaults) or may provide for an immediate enforcement upon
such default or may limit the remedies available to the Trustee upon such
default;
(g) to make any changes or modifications necessary in connection
with the registration of the Notes under the Securities Act as
contemplated by the Registration Rights Agreement, so long as any such
change or modification shall not adversely affect the interests of the
holders of the Notes;
(h) to cure any ambiguity or to correct or supplement any provision
contained herein or in any supplemental indenture that may be defective or
inconsistent with any other provisions contained herein or in any
supplemental indenture;
(i) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Indenture and the
Notes;
(j) to modify, eliminate or add to the provisions of this Indenture
to such extent as shall be necessary to effect the qualifications of this
Indenture or any supplemental indenture under the Trust Indenture Act, or
under any similar federal statute hereafter enacted;
(k) to modify the restrictions on, and procedures for, resale and
other transfers of the Notes or shares of Common Stock issuable upon
conversion of the Notes pursuant to law, regulation or practice relating
to the resale or transfer of restricted securities generally;
46
(l) to provide for the issuance of Additional Securities;
(m) to provide for uncertificated Notes in addition to or in place
of certificated Notes; or
(n) make other changes to the Indenture or forms or terms of the
Notes, provided that no such change individually or in the aggregate with
all other such changes has or will have an adverse effect on the rights of
the Noteholders.
Upon the written request of the Company, accompanied by a copy of
the resolutions of the Board of Directors certified by the Company's Secretary
or Assistant Secretary authorizing the execution of any supplemental indenture,
and upon receipt by the Trustee of the documents described in Section 7.02, the
Trustee is hereby authorized to join with the Company in the execution of any
such supplemental indenture, to make any further appropriate agreements and
stipulations that may be therein contained and to accept the conveyance,
transfer and assignment of any property thereunder, but the Trustee shall not be
obligated to, but may in its discretion, enter into any supplemental indenture
that affects the Trustee's own rights, duties or immunities under this Indenture
or otherwise.
Any supplemental indenture authorized by the provisions of this
Section 10.01 may be executed by the Company and the Trustee without the consent
of the holders of any of the Notes at the time outstanding, notwithstanding any
of the provisions of Section 10.02.
SECTION 10.02. Supplemental Indenture with Consent of Noteholders.
With the consent (evidenced as provided in Article 8) of the holders of at least
a majority in aggregate principal amount of the Notes at the time outstanding
hereunder determined in accordance with Section 8.04, the Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may,
from time to time and at any time, enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or any
supplemental indenture or of modifying in any manner the rights of the holders
of the Notes; provided that no such supplemental indenture shall (i) extend the
Stated Maturity of any Note, or reduce the rate or extend the time of payment of
interest thereon, or reduce the principal amount thereof, or reduce any amount
payable on redemption or repurchase thereof, or change the time at which any
Note may be redeemed or repurchased, or impair the right of any Noteholder to
institute suit for the payment thereof, or make the principal thereof or
interest thereon payable in any coin or currency other than that provided in the
Notes, or affect the obligation of the Company to redeem any Note on a
Redemption Date in a manner adverse to the holders of Notes, or affect the
obligation of the Company to repurchase any Note upon a Designated Event in a
manner adverse to the holders of Notes, or affect the obligation of the Company
to repurchase any Note on a Company Repurchase Date in a manner adverse to the
holders of Notes, or impair the right to convert the Notes into shares of Common
Stock subject to the terms set forth herein, including Section 14.06, or reduce
the number of shares of Common Stock or other property receivable upon
conversion, in each case, without the consent of the holder of each Note so
affected, or modify any of the provisions of this Section 10.02 or Section 6.07,
except to increase any such percentage or to provide that certain other
provisions of this Indenture cannot be modified or waived without the consent of
the holder of each Note so affected, or change any obligation of
47
the Company to maintain an office or agency in the places and for the purposes
set forth in Section 4.02, or reduce the quorum or voting requirements set forth
in Article 9 or (ii) reduce the aforesaid percentage of Notes, the holders of
which are required to consent to any such supplemental indenture, without the
consent of the holders of all Notes then outstanding.
Upon (a) the written request of the Company, accompanied by a copy
of the resolutions of the Board of Directors certified by its Secretary or
Assistant Secretary authorizing the execution of any such supplemental
indenture, (b) receipt by the Trustee of the documents described in Section 7.02
and (c) the filing with the Trustee of evidence of the consent of Noteholders as
aforesaid, the Trustee shall join with the Company in the execution of such
supplemental indenture unless such supplemental indenture affects the Trustee's
own rights, duties or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter
into such supplemental indenture.
It shall not be necessary for the consent of the Noteholders under
this Section 10.02 to approve the particular form of any proposed supplemental
indenture, but it shall be sufficient if such consent shall approve the
substance thereof.
SECTION 10.03. Effect of Supplemental Indenture. Any supplemental
indenture executed pursuant to the provisions of this Article 10 shall comply
with the Trust Indenture Act, as then in effect, provided that this Section
10.03 shall not require such supplemental indenture or the Trustee to be
qualified under the Trust Indenture Act prior to the time such qualification is
in fact required under the terms of the Trust Indenture Act or the Indenture has
been qualified under the Trust Indenture Act, nor shall it constitute any
admission or acknowledgment by any party to such supplemental indenture that any
such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act or the Indenture has been
qualified under the Trust Indenture Act. Upon the execution of any supplemental
indenture pursuant to the provisions of Article 10, this Indenture shall be and
shall be deemed to be modified and amended in accordance therewith and the
respective rights, limitation of rights, obligations, duties and immunities
under this Indenture of the Trustee, the Company and the holders of Notes shall
thereafter be determined, exercised and enforced hereunder, subject in all
respects to such modifications and amendments and all the terms and conditions
of any such supplemental indenture shall be and shall be deemed to be part of
the terms and conditions of this Indenture for any and all purposes.
SECTION 10.04. Notation on Notes. Notes authenticated and delivered
after the execution of any supplemental indenture pursuant to the provisions of
this Article 10 may bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company or the
Trustee shall so determine, new Notes so modified as to conform, in the opinion
of the Trustee and the Board of Directors, to any modification of this Indenture
contained in any such supplemental indenture may, at the Company's expense, be
prepared and executed by the Company, authenticated by the Trustee (or an
authenticating agent duly appointed by the Trustee pursuant to Section 16.12)
and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
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ARTICLE 11
CONSOLIDATION, MERGER, SALE, CONVEYANCE AND LEASE
SECTION 11.01. Company May Consolidate on Certain Terms. Subject to
the provisions of Section 11.02, the Company shall not consolidate or merge with
or into any other Person or Persons (whether or not affiliated with the
Company), nor shall the Company or its successor or successors be a party or
parties to successive consolidations or mergers, nor shall the Company sell,
convey, transfer or lease all or substantially all of the property and assets of
the Company to any other Person (whether or not affiliated with the Company),
unless: (i) the Company is the surviving Person, or the resulting, surviving or
transferee Person is a corporation organized and existing under the laws of the
United States of America, any state thereof or the District of Columbia; (ii)
upon any such consolidation, merger, sale, conveyance, transfer or lease, the
due and punctual payment of the principal of, Make Whole Premium (if any) and
interest on all of the Notes, according to their tenor and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed by the Company, shall be expressly assumed, by
supplemental indenture satisfactory in form to the Trustee, executed and
delivered to the Trustee by the Person (if other than the Company) formed by
such consolidation, or into which the Company shall have been merged, or by the
Person that shall have acquired or leased such property, and such supplemental
indenture shall provide for the applicable conversion rights set forth in
Section 14.06 and (iii) immediately after giving effect to the transaction
described above, no Event of Default, and no event which, after notice or lapse
of time or both, would become an Event of Default, shall have occurred and be
continuing.
SECTION 11.02. Successor to Be Substituted. In case of any such
consolidation, merger, sale, conveyance, transfer or lease and upon the
assumption by the successor Person, by supplemental indenture, executed and
delivered to the Trustee and satisfactory in form to the Trustee, of the due and
punctual payment of the principal of, Make Whole Premium (if any) and interest
on all of the Notes and the due and punctual performance of all of the covenants
and conditions of this Indenture to be performed by the Company, as described in
Section 11.01, such successor Person shall succeed to and be substituted for the
Company, with the same effect as if it had been named herein as the party of
this first part. Such successor Person thereupon may cause to be signed, and may
issue either in its own name or in the name of The Goodyear Tire & Rubber
Company any or all of the Notes, issuable hereunder that theretofore shall not
have been signed by the Company and delivered to the Trustee; and, upon the
order of such successor Person instead of the Company and subject to all the
terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver, or cause to be authenticated and
delivered, any Notes that previously shall have been signed and delivered by the
officers of the Company to the Trustee for authentication, and any Notes that
such successor Person thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All the Notes so issued shall in all respects have the
same legal rank and benefit under this Indenture as the Notes theretofore or
thereafter issued in accordance with the terms of this Indenture as though all
of such Notes had been issued at the date of the execution hereof. In the event
of any such consolidation, merger, sale, conveyance, transfer or lease, the
Person named as the "COMPANY" in the first paragraph of this Indenture or any
successor that shall thereafter have become such in the manner prescribed in
this Article 11 may be dissolved, wound up and liquidated at any time thereafter
and such Person shall be released from its liabilities as obligor and maker of
the Notes and from its obligations under this Indenture.
49
In case of any such consolidation, merger, sale, conveyance,
transfer or lease, such changes in phraseology and form (but not in substance)
may be made in the Notes thereafter to be issued as may be appropriate.
SECTION 11.03. Opinion of Counsel to Be Given Trustee. The Trustee
shall receive an Officer's Certificate and an Opinion of Counsel as conclusive
evidence that any such consolidation, merger, sale, conveyance, transfer or
lease and any such assumption complies with the provisions of this Article 11.
ARTICLE 12
SATISFACTION AND DISCHARGE OF INDENTURE
SECTION 12.01. Discharge of Indenture. When (a) the Company shall
deliver to the Trustee for cancellation all Notes theretofore authenticated
(other than any Notes that have been destroyed, lost or stolen and in lieu of or
in substitution for which other Notes shall have been authenticated and
delivered) and not theretofore canceled, or (b) all the Notes not theretofore
canceled or delivered to the Trustee for cancellation shall have become due and
payable and the Company shall deposit with the Trustee, in trust, cash or, if
expressly permitted by the terms of the Notes or the Indenture, Common Stock
sufficient to pay all amounts due and owing on Notes (other than any Notes that
shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered)
not theretofore canceled or delivered to the Trustee for cancellation, and if in
either case the Company shall also pay or cause to be paid all other sums
payable hereunder by the Company, then this Indenture shall cease to be of
further effect (except as to (i) remaining rights of registration of transfer,
substitution and exchange and conversion of Notes, (ii) rights hereunder of
Noteholders to receive payments of principal of, premium (if any) and interest
on the Notes and the other rights, duties and obligations of Noteholders, as
beneficiaries hereof with respect to the amounts, if any, so deposited with the
Trustee and (iii) the rights, powers, duties, obligations and immunities of the
Trustee hereunder), and the Trustee, on written demand of the Company
accompanied by an Officer's Certificate and an Opinion of Counsel as required by
Section 16.05 and at the cost and expense of the Company, shall execute proper
instruments acknowledging satisfaction of and discharging this Indenture; the
Company, however, hereby agrees to reimburse the Trustee for any costs or
expenses thereafter reasonably and properly incurred by the Trustee and to
compensate the Trustee for any services thereafter reasonably and properly
rendered by the Trustee in connection with this Indenture or the Notes.
SECTION 12.02. Paying Agent to Repay Monies Held. Upon the
satisfaction and discharge of this Indenture, all monies then held by any Paying
Agent of the Notes (other than the Trustee) shall, upon written request of the
Company, be repaid to it or paid to the Trustee, and thereupon such Paying Agent
shall be released from all further liability with respect to such monies.
SECTION 12.03. Return of Unclaimed Monies. Subject to the
requirements of applicable law, any monies deposited with or paid to the Trustee
for payment of the principal of or interest on Notes and not applied but
remaining unclaimed by the holders of Notes for two years after the date upon
which the principal of or interest on such Notes, as the case may be, shall have
become due and payable, shall be repaid to the Company by the Trustee
50
on demand and all liability of the Trustee shall thereupon cease with respect to
such monies; and the holder of any of the Notes shall thereafter look only to
the Company for any payment that such holder may be entitled to collect unless
an applicable abandoned property law designates another Person.
ARTICLE 13
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS AND DIRECTORS
SECTION 13.01. Indenture and Notes Solely Corporate Obligations. No
recourse for the payment of the principal of or interest on any Note or any
other amount due with respect thereto, or for any claim based thereon or
otherwise in respect thereof, and no recourse under or upon any obligation,
covenant or agreement of the Company in this Indenture or in any supplemental
indenture or in any Note, or because of the creation of any indebtedness
represented thereby, shall be had against any incorporator, stockholder,
employee, agent, officer, director or Subsidiary, as such, past, present or
future, of the Company or of any successor corporation, either directly or
through the Company or any successor corporation, whether by virtue of any
constitution, statute or rule of law, or by the enforcement of any assessment or
penalty or otherwise; it being expressly understood that all such liability is
hereby expressly waived and released as a condition of, and as a consideration
for, the execution of this Indenture and the issue of the Notes.
ARTICLE 14
CONVERSION OF NOTES
SECTION 14.01. Right to Convert. (a) Subject to and upon compliance
with the provisions of this Indenture, prior to the close of business on the
date of Stated Maturity, the holder of any Note shall have the right, at such
holder's option, to convert the principal amount of the Note, or any portion of
such principal amount which is a multiple of $1,000, into fully paid and
non-assessable shares of Common Stock (as such shares shall then be constituted)
at the Conversion Rate in effect at such time, by surrender of the Note so to be
converted in whole or in part, together with any required funds, under the
circumstances described in this Section 14.01 and in the manner provided in
Section 14.02. Upon conversion, the Company may choose to deliver, in lieu of
shares of Common Stock, cash or a combination of cash and shares of Common
Stock. The Notes shall be convertible only during the following periods upon the
occurrence of one of the following events:
(i) (A) on any Business Day in any fiscal quarter commencing prior
to Stated Maturity (and only during such fiscal quarter) if the Last
Reported Sale Price of the Common Stock for at least twenty (20) Trading
Days during the period of thirty (30) consecutive Trading Days ending on
the eleventh Trading Day of such fiscal quarter is greater than 120% of
the Conversion Price in effect on such eleventh Trading Day and (B) on any
Business Day after June 15, 2029 through the close of business on the
Business Day prior to Stated Maturity if the Last Reported Sale Price of
the Common Stock on any Trading Day after June 15, 2029 is greater than
120% of the applicable Conversion Price;
51
(ii) in the event that the Company calls any or all of the Notes for
redemption, at any time prior to the close of business on the second
Business Day immediately preceding the Redemption Date; provided that only
those Notes that are called for redemption may be converted following such
an event;
(iii) as provided in Section (b) of this Section 14.01;
(iv) during the five (5) consecutive Business Day period immediately
after any five (5) consecutive Trading Day period in which the Trading
Price per $1,000 principal amount of the Notes for each day of such five
(5) day measurement period was less than 98% of the product of the Last
Reported Sale Price of the Common Stock on the applicable date and the
applicable Conversion Rate; or
(v) during the period from the opening of business on the
Fundamental Change Notice Date to the close of business on the date that
is ten (10) Trading Days from and including the Fundamental Change Notice
Date, or, if later, the related Designated Event Purchase Date, if any,
for such Fundamental Change; unless, prior to that time, the Company has
publicly announced that the Fundamental Change giving rise to the
conversion right will not take place.
Notwithstanding the foregoing, if, on the date of any conversion
pursuant to Section 14.01(a)(iv) on or after June 15, 2029, the Last Reported
Sale Price of the Common Stock on the Trading Day prior to the date of
conversion is greater than 100% but less than 120% of the Conversion Price, the
holders of Notes surrendered for conversion shall receive, in lieu of Common
Stock (or cash or a combination of cash and Common Stock) based on the
applicable Conversion Rate, cash or Common Stock or a combination of cash and
Common Stock, at the Company's option, with a value equal to the principal
amount of the Notes being converted plus accrued and unpaid interest thereon, as
of the Conversion Date ("PRINCIPAL VALUE CONVERSION"). Any Common Stock
delivered upon a Principal Value Conversion will be valued at the greater of the
Conversion Price on the Conversion Date and the average of the Last Reported
Sale Price of the Common Stock for a five (5) Trading Day period starting the
third Trading Day following the conversion date of such Notes. If a holder of
Notes surrenders their Notes for a Principal Value Conversion, the Company shall
notify such holder by the second Trading Day following the Conversion Date that
it is a Principal Value Conversion and whether the Company will pay such holder
all or a portion of the principal amount plus accrued and unpaid interest in
cash, Common Stock or a combination of cash and Common Stock, and in what
percentage. The Company shall pay such holder any portion of the principal
amount plus accrued and unpaid interest to be paid in cash and deliver Common
Stock with respect to any portion of the principal amount plus accrued and
unpaid interest and to be paid in Common Stock, no later than the third Business
Day following the determination of the average Last Reported Sale Price of the
Common Stock.
The Company or its designated agent shall determine on a daily basis
during the time period specified in Section 14.01(a)(i) whether the Notes shall
be convertible as a result of the occurrence of an event specified in clause (i)
above and, if the Notes shall be so convertible, the Company shall promptly
deliver to the Trustee (or other Conversion Agent appointed by the Company)
written notice thereof. Whenever the Notes shall become convertible pursuant to
this Section 14.01, the Company or, at the Company's request, the Trustee in the
name and at the
52
expense of the Company, shall notify the holders of the event triggering such
convertibility in the manner provided in Section 16.03, and in the case of a
Fundamental Change, on the Fundamental Change Notice Date, and the Company shall
also publicly announce such information by publication on the Company's web site
or through such other public medium as it may use at such time. Any notice so
given shall be conclusively presumed to have been duly given, whether or not the
holder receives such notice.
The Trustee (or other Conversion Agent appointed by the Company)
shall have no obligation to determine the Trading Price under Section
14.01(a)(iv) unless the Company has requested in writing such a determination;
and the Company shall have no obligation to make such request unless a holder
provides it with reasonable evidence that the Trading Price per $1,000 principal
amount of Notes would be less than 98% of the product of the Last Reported Sale
Price of the Common Stock and the Conversion Rate. If such evidence is provided,
the Company shall instruct the Trustee (or other Conversion Agent) in writing to
determine the Trading Price of the Notes beginning on the next Trading Day and
on each successive Trading Day until, and only until, the Trading Price per
$1,000 principal amount of Notes on a Trading Day is greater than or equal to
98% of the product of the average Last Reported Sale Prices of the Common Stock
and the Conversion Rate for the immediately preceding five (5) consecutive
Trading Days.
The Trustee shall be entitled at its sole discretion to consult with
the Company and to request the assistance of the Company in connection with the
Trustee's duties and obligations pursuant to Section (a) hereof, and the Company
agrees, if requested by the Trustee, to cooperate with, and provide assistance
to, the Trustee in carrying out its duties under this Section 14.01; provided,
however, that nothing herein shall be construed to relieve the Trustee of its
duties pursuant to Section (a) hereof.
If an Event of Default (other than a Default in a cash payment upon
conversion of the Notes) has occurred and is continuing, the Company may not pay
cash upon conversion of any Notes (other than cash in lieu of fractional
shares).
(b) In addition, if:
(i) the Company distributes to all holders of its Common Stock
rights or warrants entitling them (for a period expiring within sixty (60)
days of the date of the distribution) to subscribe for or purchase shares
of Common Stock at a price per share less than the Last Reported Sale
Price of the Common Stock on the Trading Day immediately preceding the
declaration date of the distribution, or (ii) the Company distributes to
all holders of Common Stock assets (including cash), debt securities or
rights to purchase securities of the Company, which distribution has a per
share value as determined by the Company's Board of Directors and set
forth in a Board Resolution exceeding 5% of the Last Reported Sale Price
of the Common Stock on the Trading Day immediately preceding the
declaration date for such distribution, then, in either case, the Notes
may be surrendered for conversion at any time on and after the date that
the Company gives notice to the holders of such distribution, which shall
be not less than twenty (20) Business Days prior to the Ex-Dividend Date
for such distribution, until the earlier of the close of business on the
Business Day immediately preceding, but not
53
including, the Ex-Dividend Date and the date the Company publicly
announces that such distribution will not take place; provided that no
adjustment to the Conversion Price or the ability of a holder of a Note to
convert will be made if the holder will otherwise participate in such
distribution without conversion.
The Board of Directors shall determine the anticipated effective date of the
transaction, and such determination shall be conclusive and binding on the
holders and shall be publicly announced by the Company by publication on its
website or through such other public medium as it may use at that time not later
than two (2) Business Days prior to such fifteenth day. If the distribution does
not take place, no Notes surrendered for conversion pursuant to this Section
14.01(b) will be converted.
(c) A Note in respect of which a holder is electing to exercise its
option to require repurchase upon a Designated Event that constitutes a
Fundamental Change pursuant to Section 3.04 or repurchase pursuant to Section
3.05 may be converted only if such holder withdraws its election in accordance
with Section 3.07(d). A holder of Notes is not entitled to any rights of a
holder of Common Stock until such holder has converted his Notes to Common
Stock, and only to the extent such Notes are deemed to have been converted to
Common Stock under this Article 14.
(d) On or before the tenth Trading Day prior to and excluding the
anticipated effective date, as determined by the Board of Directors, of a
Fundamental Change, the Company or at its written request (which must be
received by the Trustee at least three (3) Business Days prior to the date the
Trustee is requested to give notice as described below, unless the Trustee shall
agree in writing to a shorter period), the Trustee, in the name of and at the
expense of the Company, shall mail or cause to be mailed to all holders of
record on such date a notice (the "FUNDAMENTAL CHANGE NOTICE") of the
anticipated effective date with respect to such Fundamental Change, the
repurchase right and conversion right at the option of the holders arising as a
result thereof, and whether a Make Whole Premium will be payable in connection
with any such repurchase or conversion. If the effective date with respect to a
Fundamental Change occurs without notice to, or the knowledge of, the Company,
the Company shall give the Designated Event Repurchase Notice required by
Section 3.04(b) and the date of the Fundamental Change Notice shall be deemed to
be the date of such Designated Event Repurchase Notice. The Fundamental Change
Notice shall be mailed by first class mail to each holder of Notes at its last
address as the same appears on the Note Register. If the Company shall give such
notice, the Company shall also deliver a copy of such notice to the Trustee at
such time as it is mailed to holders. Each notice, if mailed in the manner
herein provided, shall be conclusively presumed to have been duly given, whether
or not the holder receives such notice. In any case, failure to give such notice
by mail or any defect in the notice to the holder of any Note shall not affect
the validity of the proceedings for the conversion of any other Note.
Concurrently with the mailing of such notice, the Company shall issue a press
release with the information contained in such notice, the form and content of
which press release shall be determined by the Company in its sole discretion,
and the Company shall also publish such information on the Company's website.
The failure to issue any such press release or any defect therein shall not
affect the validity of such notice or any proceedings for the conversion of any
Note which any Holder may elect to convert. The Company shall provide notice, in
the manner described above, to all holders and to the Trustee that such
Fundamental Change has become
54
effective within the five (5) Trading Day period after the date such Fundamental
Change becomes effective.
SECTION 14.02. Exercise of Conversion Privilege; Issuance of Common
Stock on Conversion; No Adjustment for Interest or Dividends; Settlement of Cash
or Common Stock upon Conversion. (a) In order to exercise the conversion
privilege with respect to any Note in certificated form, the Company must
receive at the office or agency of the Company maintained for that purpose or,
at the option of such holder, the Corporate Trust Office, such Note with the
original or facsimile of the form entitled "FORM OF CONVERSION NOTICE" on the
reverse thereof, duly completed and manually signed, together with such Notes
duly endorsed for transfer, accompanied by the funds, if any, required by
paragraph (d) of this Section 14.02. Such notice shall also state the name or
names (with address or addresses) in which the certificate or certificates for
shares of Common Stock which shall be issuable on such conversion shall be
issued, and shall be accompanied by transfer or similar taxes, if required
pursuant to Section 14.07.
In order to exercise the conversion privilege with respect to any
interest in a Global Note, the beneficial holder must complete, or cause to be
completed, the appropriate instruction form for conversion pursuant to the
Depositary's book-entry conversion program, deliver, or cause to be delivered,
by book-entry delivery an interest in such Global Note, furnish appropriate
endorsements and transfer documents if required by the Company or the Trustee or
Conversion Agent, and pay the funds, if any, required by this Section 14.02 and
any transfer taxes if required pursuant to Section 14.07.
(b) As promptly as practicable after satisfaction of the
requirements for conversion set forth above, subject to compliance with any
restrictions on transfer if shares issuable on conversion are to be issued in a
name other than that of the Noteholder (as if such transfer were a transfer of
the Note or Notes (or portion thereof) so converted), the Company shall issue
and shall deliver to such Noteholder at the office or agency maintained by the
Company for such purpose pursuant to Section 4.02, a certificate or certificates
for the number of full shares of Common Stock issuable upon the conversion of
such Note or portion thereof as determined by the Company in accordance with the
provisions of this Article 14 and a check or cash in respect of any fractional
interest in respect of a share of Common Stock arising upon such conversion,
calculated by the Company as provided in Section 14.03. In case any Note of a
denomination greater than $1,000 shall be surrendered for partial conversion,
subject to Section 2.02, the Company shall execute and the Trustee shall
authenticate and deliver to the holder of the Note so surrendered, without
charge to him, a new Note or Notes in authorized denominations in an aggregate
principal amount equal to the unconverted portion of the surrendered Note.
(c) Each conversion shall be deemed to have been effected as to any
such Note (or portion thereof) on the date on which the requirements set forth
above in this Section 14.02 have been satisfied as to such Note (or portion
thereof) (such date, the "CONVERSION DATE"), and the Person in whose name any
certificate or certificates for shares of Common Stock shall be issuable upon
such conversion shall be deemed to have become on said date the holder of record
of the shares represented thereby; provided that any such surrender on any date
when the stock transfer books of the Company shall be closed shall constitute
the
55
Person in whose name the certificates are to be issued as the record holder
thereof for all purposes on the next succeeding day on which such stock transfer
books are open, but such conversion shall be at the Conversion Rate in effect on
the date upon which such Note shall be surrendered.
(d) Any Note or portion thereof surrendered for conversion during
the period from the close of business on any Regular Record Date to the close of
business on the Business Day preceding the following Interest Payment Date that
has not been called for redemption during such period shall be accompanied by
payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided that no such
payment need be made (1) if the Company has specified a Redemption Date that is
after a Regular Record Date and on or prior to the next Interest Payment Date,
(2) if the Company has specified a Repurchase Date following a Designated Event
that is during such period or (3) to the extent of any overdue interest, if any
overdue interest exists at the time of conversion with respect to such Note.
Except as provided above in this Section 14.02 or Article 15, no payment or
other adjustment shall be made for interest accrued on any Note converted or for
dividends on any shares issued upon the conversion of such Note as provided in
this Article 14.
(e) Upon the conversion of an interest in a Global Note, the Trustee
(or other Conversion Agent appointed by the Company), or the Custodian at the
direction of the Trustee (or other Conversion Agent appointed by the Company),
shall make a notation on such Global Note as to the reduction in the principal
amount represented thereby. The Company shall notify the Trustee in writing of
any conversions of Notes effected through any Conversion Agent other than the
Trustee.
(f) Except as provided in clause (k) below and in Article 15, upon
the conversion of a Note, that portion of the accrued but unpaid interest with
respect to the converted Note shall not be canceled, extinguished or forfeited,
but rather shall be deemed to be paid in full to the holder thereof through
delivery of the Common Stock (together with the cash payment, if any, in lieu of
fractional shares) in exchange for the Note being converted pursuant to the
provisions hereof; and the fair market value of such shares of Common Stock
(together with any such cash payment in lieu of fractional shares) shall be
treated as issued, to the extent thereof, first in exchange for and in
satisfaction of the Company's obligation to pay the principal amount of the
converted Note and the accrued but unpaid interest, and the balance, if any, of
such fair market value of such Common Stock (and any such cash payment) shall be
treated as issued in exchange for and in satisfaction of the right to convert
the Note being converted pursuant to the provisions hereof.
(g) In the event that the Company receives a Form of Conversion
Notice on or prior to (1) the date on which the Company gives a Redemption
Notice or (2) the date that is ten (10) days prior to the Stated Maturity of the
Notes (the "FINAL NOTICE DATE"), the following procedures shall apply:
(i) If the Company elects to satisfy all or any portion of its
obligation to convert the Notes (the "CONVERSION OBLIGATION") in cash, the
Company shall notify holders through the Trustee of the dollar amount to
be satisfied in cash (which must be
56
expressed either as 100% of the Conversion Obligation or as a fixed dollar
amount) at any time on or before the date that is two Trading Days
following the Conversion Date (the "CASH SETTLEMENT NOTICE PERIOD"). If
the Company timely elects to pay cash for any portion of the Common Stock
otherwise issuable to holders upon conversion, holders may retract the
Conversion Notice at any time during the two Business Days following the
final day of the Cash Settlement Notice Period (the "CONVERSION RETRACTION
PERIOD"). No such retraction can be made (and a Form of Conversion Notice
shall be irrevocable) if the Company does not elect to deliver cash in
lieu of Common Stock (other than cash in lieu of fractional shares). Upon
the expiration of a Conversion Retraction Period, a Form of Conversion
Notice shall be irrevocable. If the Company elects to satisfy all or any
portion of the Conversion Obligation in cash, and the applicable Form of
Conversion Notice has not been retracted, then settlement (in cash or in
cash and Common Stock) will occur no later than the fifteenth (15th)
Trading Day following the Conversion Date.
(ii) If the Company does not elect to satisfy any part of the
Conversion Obligation in cash (other than cash in lieu of any fractional
shares), delivery of the Common Stock into which the Notes are converted
(and cash in lieu of any fractional shares) shall occur through the
Conversion Agent no later than the fifth (5th) Trading Day following the
Conversion Date.
(h) Settlement amounts will be computed as follows:
(i) If the Company elects to satisfy the entire Conversion
Obligation in Common Stock, it shall deliver to holders that have
delivered the Conversion Notice giving rise to the Conversion Obligation a
number of shares of Common Stock equal to (A) the aggregate principal
amount of Notes to be converted divided by $1,000, multiplied by (B) the
Conversion Rate. In addition, the Company shall pay cash for any
fractional shares of Common Stock based on the Last Reported Sale Price of
the Common Stock on the Trading Day immediately preceding the Conversion
Date.
(ii) If the Company elects to satisfy the entire Conversion
Obligation in cash, it shall deliver to holders that have delivered the
Conversion Notice giving rise to the Conversion Obligation cash in an
amount equal to the product of:
(A) a number equal to (1) the aggregate principal amount of
Notes to be converted divided by $1,000, multiplied by (2) the
Conversion Rate; and
(B) the average of the Last Reported Sale Prices of the Common
Stock for the ten consecutive Trading Days beginning on the third
day after the Conversion Date (the "CASH SETTLEMENT AVERAGING
PERIOD").
(iii) If the Company elects to satisfy a fixed portion (other than
100%) of the Conversion Obligation in cash, it will deliver to holders the
specified cash amount (the "CASH AMOUNT") and a number of shares of Common
Stock per $1,000 principal amount of Notes equal to the sum, for each
Trading Day of the Cash Settlements
57
Averaging Period, of the greater of (A) zero and (B) the number of shares
of Common Stock determined by the following formula:
(Last Reported Sale Price of Common Stock on such Trading Day X applicable
Conversion Rate) - Cash Amount
---------------------------------------------------------------------------
Last Reported Sale Price of Common Stock on such Trading Day X number of
Trading Days in Cash Settlement Averaging Period
In addition, the Company shall pay cash for all fractional shares of Common
Stock based on the average Last Reported Sale Price of the Common Stock on the
Trading Day immediately preceding the Conversion Date.
(i) The Company must determine whether or not it will satisfy all or
a portion of the conversion obligation in cash at the time it issues a
Redemption Notice or a Final Maturity Notice and such notices will state the
amount of the Conversion Obligation to be settled in cash. If a Form of
Conversion Notice is received from holders of Notes after the date that a
Redemption Notice or the Final Maturity Notice has been issued, such holders may
not retract their Conversion Notice. Settlement (in cash and/or Common Stock)
will occur no later than the fifth (5th) Business Date following the Conversion
Date.
(j) At any time prior to Stated Maturity, the Company may, at its
option, elect, by notice to the Trustee and the Noteholders, that upon
conversion of the Notes at any time following the date of such notice, to be
required to deliver cash in an amount at least equal to the principal amount of
the Notes converted. If the Company makes such election, the Company will also
be required to deliver cash only in connection with any Principal Value
Conversion.
(k) In the event the Company receives a Form of Conversion Notice
from a holder in accordance with clause (g) above and in connection with a
Fundamental Change pursuant to Section 14.01(a)(v), the Company shall deliver to
such holder (i) if such holder is entitled to a Make Whole Premium in connection
with such conversion, the Make Whole Premium determined in accordance with
Article 15, which shall be payable on the applicable Designated Event Repurchase
Date, and an amount equal to any accrued but unpaid cash interest to, but
excluding, the Conversion Date, which interest shall be payable in cash, plus
(ii) the number of shares of Common Stock (or cash or a combination of cash and
Common Stock) into which such Notes are convertible (if such Notes are
surrendered for conversion prior to the record date for receiving distributions
in connection with the Fundamental Change or, if earlier, the effective date of
such Fundamental Change) or the kind and amount of cash, securities and other
assets or property which such holder would have received if such holder had held
the number of shares of Common Stock into which such Notes were convertible
immediately prior to the transaction (if such Notes are surrendered for
conversion after such record date or effective date, as the case may be).
SECTION 14.03. Cash Payments in Lieu of Fractional Shares. No
fractional shares of Common Stock or scrip certificates representing fractional
shares shall be issued upon conversion of Notes. If more than one Note shall be
surrendered for conversion at one time by the same holder, the number of full
shares that shall be issuable upon conversion shall be computed on the basis of
the aggregate principal amount of the Notes (or specified portions thereof to
the extent permitted hereby) so surrendered. If any fractional share of stock
would be issuable upon the conversion of any Note or Notes, the Company shall
make an adjustment and payment therefor in cash to the holder of Notes at the
Last Reported Sale Price of
58
the Common Stock on the last Trading Day immediately preceding the day on which
the Notes (or specified portions thereof) are deemed to have been converted.
SECTION 14.04. Conversion Rate. Each $1,000 principal amount of the
Notes shall be convertible into the number of shares of Common Stock specified
in the form of Note (herein called the "CONVERSION RATE") set forth in Appendix
A hereto (initially 83.0703 shares), subject to adjustment as provided in this
Article 14.
SECTION 14.05. Adjustment of Conversion Rate. The Conversion Rate
(and the Stock Price Threshold, the Stock Price Cap and each of the stock prices
set forth in the table in Section 15.01(b)(ii)(A) used to determine the Make
Whole Premium, if applicable) shall be adjusted from time to time by the Company
as follows:
(a) If shares of Common Stock are issued as a dividend or
distribution on shares of Common Stock, or if a stock split or stock combination
is effected, the conversion rate will be adjusted based on the following
formula:
OS(1)
CR(1) = CR(0) x -----
OS(0)
where,
CR(0) = the Conversion Rate in effect immediately prior to such event
CR(1) = the Conversion Rate in effect immediately after such event
OS(0) = the number of shares of Common Stock outstanding immediately
prior to such event
OS(1) = the number of shares of Common Stock outstanding immediately
prior to such event plus the total number of shares
constituting such dividend or distribution
An adjustment made pursuant to this subsection (a) shall become effective on the
date immediately after (x) the date fixed for the determination of stockholders
entitled to receive such dividend or other distribution or (y) the date on which
such split or combination becomes effective, as applicable. If any dividend or
distribution described in this subsection (a) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
(b) If any rights, warrants or options are issued to all or
substantially all holders of Common Stock entitling them for a period of not
more than 60 days to subscribe for or purchase shares of Common Stock, or
securities convertible into shares of Common Stock, in either case at a price
per share or a conversion price per share less than the Last Reported Sale Price
of Common Stock on the Trading Day immediately preceding the day on which such
issuance is announced, the Conversion Rate will be adjusted based on the
following formula:
OS(0)+X
CR(1) = CR(0) x -------
OS(0)+Y
59
where,
CR(0) = the Conversion Rate in effect immediately prior to such event
CR(1) = the Conversion Rate in effect immediately after such event
OS(0) = the number of shares of Common Stock outstanding immediately
prior to such event
X = the total number of shares of Common Stock issuable pursuant
to such rights, warrants or options
Y = the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights divided by the average
of the Last Reported Sale Prices of Common Stock for the ten
consecutive Trading Days prior to the Trading Day immediately
preceding the record date for the issuance of such rights,
warrants or options
An adjustment made pursuant to this subsection (b) shall be made
successively whenever such rights, warrants or options are issued, and shall
become effective on the day following the date of announcement of such issuance.
If at the end of the period during which such rights, warrants or options are
exercisable, not all rights, warrants or options have been exercised, the
adjusted Conversion Rate shall be immediately readjusted to what it would have
been based upon the number of additional shares of Common Stock actually issued
(or the number of shares of Common Stock issuable upon conversion of convertible
securities actually issued).
In determining whether such rights, warrants or options entitle the holder to
subscribe for or purchase shares of Common Stock at less than the average Last
Reported Sale Price, and in determining the aggregate offering price of such
shares of Common Stock, there shall be taken into account any consideration
received by the Company for such rights or warrants and any amount payable on
exercise or conversion thereof, the value of such consideration, if other than
cash, to be determined by the Board of Directors.
(c) If shares of the Company's Capital Stock, evidences of the
Company's indebtedness or other assets or property of the Company is distributed
to all or substantially all holders of Common Stock, excluding:
(i) dividends, distributions and rights, warrants, options or
securities referred to in clause (a) or (b) above; and
(ii) dividends or distributions in cash referred to in clause (d)
below;
then the conversion rate will be adjusted based on the following formula:
SP(0)
CR(1) = CR(0) x ---------
SP(0)-FMV
where,
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CR(0) = the Conversion Rate in effect immediately prior to such
distribution
CR(1) = the Conversion Rate in effect immediately after such
distribution
SP(0) = the average of the Last Reported Sale Prices of Common Stock
for the ten consecutive Trading Days prior to the Trading Day
immediately preceding the Ex Dividend Date for such
distribution
FMV = the Fair Market Value of the shares of Capital Stock,
evidences of indebtedness, assets or property distributed
with respect to each outstanding share of Common Stock on the
Ex Dividend Date for such distribution
An adjustment made pursuant to the above paragraph shall be made
successively whenever any such distribution is made and shall become effective
on the day immediately after the date fixed for the determination of
shareholders entitled to receive such distribution.
With respect to an adjustment pursuant to this clause (c) where
there has been a payment of a dividend or other distribution on Common Stock or
shares of the Company's Capital Stock of any class or series, or similar equity
interest, of or relating to a Subsidiary of the Company or other business unit
(a "SPIN-OFF"), the Conversion Rate in effect immediately before the close of
business on the record date fixed for determination of holders entitled to
receive the distribution will be increased based on the following formula:
FMV+MP(0)
CR(1) = CR(0) x ---------
MP(0)
where,
CR(0) = the Conversion Rate in effect immediately prior to such
distribution
CR(1) = the Conversion Rate in effect immediately after such
distribution
FMV = the average of the Last Reported Sale Prices of the Company's
Capital Stock or similar equity interest distributed to
holders applicable to one share of Common Stock over the
first 10 Trading Days after the effective date of the
Spin-off
MP(0) = the average of the Last Reported Sale Prices of Common Stock
over the first 10 consecutive Trading Days after the
effective date of the Spin-off
(d) If any cash dividend or distribution is made to all or
substantially all holders of Common Stock, the Conversion Rate will be adjusted
based on the following formula:
SP(0)
CR(1) = CR(0) x -------
SP(0)-C
where,
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CR(0) = the Conversion Rate in effect immediately prior to the record
date for such distribution
CR(1) = the Conversion Rate in effect immediately after the Ex
Dividend Date for such distribution
SP(0) = the average of the Last Reported Sale Prices of Common Stock
for the ten consecutive Trading Days prior to the Trading Day
immediately preceding the Ex Dividend Date of such
distribution
C = the amount in cash per share the Company distributes to
holders of Common Stock
An adjustment made pursuant to this subsection (d) shall become effective on the
date immediately after the record date for the determination of shareholders
entitled to receive such dividend or distribution. If any dividend or
distribution described in this subsection (d) is declared but not so paid or
made, the Conversion Rate shall again be adjusted to the Conversion Rate that
would then be in effect if such dividend or distribution had not been declared.
(e) The Conversion Rate will be increased if the Company or any of
its Subsidiaries purchases shares of Common Stock pursuant to a tender offer or
exchange offer which involves an aggregate consideration that exceeds the Last
Reported Sale Price of Common Stock on the Trading Day next succeeding the last
date on which tenders or exchanges may be made pursuant to the tender offer or
exchange offer (the "EXPIRATION TIME"). The Conversion Rate will be increased
based on the following formula:
AC+(SP(1) x OS(1))
CR(1) = CR(0) x ------------------
SP(1) x OS(0)
where,
CR(0) = the Conversion Rate in effect on the date such tender offer
or exchange offer expires
CR(1) = the Conversion Rate in effect on the day next succeeding the
date such tender offer or exchange offer expires
AC = the aggregate value of all cash and any other consideration
(as determined by the Board of Directors) paid or payable for
all shares of Common Stock that the Company or one of its
Subsidiaries purchases in the tender offer or exchange offer
OS(0) = the number of shares of Common Stock outstanding immediately
prior to the date such tender offer or exchange offer expires
OS(1) = the number of shares of Common Stock outstanding immediately
after the date such tender offer or exchange offer expires
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SP(1) = the average of the Last Reported Sale Prices of Common Stock
for the ten consecutive Trading Days commencing on the
Trading Day next succeeding the date such tender offer or
exchange offer expires
If, however, the application of the foregoing formula would result in a decrease
in the Conversion Rate, no adjustment to the Conversion Rate will be made. Any
adjustment made pursuant to this subsection (e) shall become effective on the
date immediately following the Expiration Time. If the company is obligated to
purchase shares pursuant to any such tender or exchange offer, but the Company
is permanently prevented by applicable law from effecting any such purchases or
all such purchases are rescinded, the Conversion Rate shall again be adjusted to
be the Conversion Rate that would be in effect if such tender or exchange offer
had not been made.
(f) The reclassification of Common Stock into securities other than
Common Stock (other than any reclassification upon an event to which Section
14.06 applies) shall be deemed to involve (i) a distribution of such securities
other than Common Stock to all holders of Common Stock (and the effective date
of such reclassification shall be deemed to be the date fixed for the
determination of stockholders entitled to receive such distribution within the
meaning of Section 14.05(a)), and (ii) a subdivision, split or combination, as
the case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be the date upon which such split or
combination becomes effective within the meaning of Section 14.05(a)).
(g) Notwithstanding the foregoing provisions of Section 14.05, no
adjustment shall be made thereunder, nor shall an adjustment be made to the
ability of a holder of a Note to convert, for any distribution described therein
if the holder will otherwise participate in the distribution without conversion
of such holder's Notes.
(h) The Company may make such increases in the Conversion Rate, in
addition to those required by clauses (a) through (f) of this Section 14.05, as
the Board of Directors considers to be advisable to avoid or diminish any income
tax to holders of Common Stock or rights to purchase Common Stock resulting from
any dividend or distribution of stock (or rights to acquire stock) or from any
event treated as such for income tax purposes.
To the extent permitted by applicable law, the Company from time to
time may increase the Conversion Rate by any amount for any period of time if
the period is at least twenty (20) days, the increase is irrevocable during the
period and the Board of Directors shall have made a determination that such
increase would be in the best interests of the Company, which determination
shall be conclusive. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to holders of record of the Notes a
notice of the increase at least fifteen (15) days prior to the date the
increased Conversion Rate takes effect, and such notice shall state the
increased Conversion Rate and the period during which it will be in effect.
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(i) Except as stated herein, no adjustment to the Conversion Rate
need be made:
(i) 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;
(ii) 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;
(iii) upon the issuance of any shares of Common Stock pursuant to
any option, warrant, right, or exercisable, exchangeable or convertible
security not described in (ii) above and outstanding as of the Original
Issuance Date;
(iv) for a change in the par value of the Common Stock; or
(v) for accrued and unpaid interest.
(j) All calculations under this Article 14 shall be made by the
Company and shall be made to the nearest one-ten thousandth (1/10,000) of a
share.
(k) Whenever the Conversion Rate is adjusted as herein provided, the
Company shall promptly file with the Trustee and any Conversion Agent other than
the Trustee an Officer's Certificate setting forth the Conversion Rate and the
applicable Make Whole Premium Table after such adjustment and setting forth a
brief statement of the facts requiring such adjustment. Unless and until a Trust
Officer of the Trustee shall have received such Officer's Certificate, the
Trustee shall not be deemed to have knowledge of any adjustment of the
Conversion Rate and may assume that the last Conversion Rate of which it has
knowledge is still in effect. Promptly after delivery of such certificate, the
Company shall prepare a notice of such adjustment of the Conversion Rate setting
forth the adjusted Conversion Rate and the date on which each adjustment becomes
effective and shall mail such notice of such adjustment of the Conversion Rate
to the holder of each Note at its last address appearing on the Note Register
provided for in Section 2.04 of this Indenture, within twenty (20) days after
execution thereof. Failure to deliver such notice shall not affect the legality
or validity of any such adjustment.
(l) In any case in which this Section 14.05 provides that an
adjustment shall become effective immediately after (1) a record date or Stock
Record Date for an event, (2) the date fixed for the determination of
stockholders entitled to receive a dividend or distribution pursuant to Section
14.05(a), (3) a date fixed for the determination of stockholders entitled to
receive rights or warrants pursuant to Section 14.05(b) or (4) the Expiration
Time for any tender or exchange offer pursuant to Section 14.05(e), (each a
"DETERMINATION DATE"), the Company may elect to defer until the occurrence of
the applicable Adjustment Event (as hereinafter defined) (x) issuing to the
holder of any Note converted after such Determination Date and before the
occurrence of such Adjustment Event, the additional shares of Common Stock or
other securities issuable upon such conversion by reason of the adjustment
required by such Adjustment Event over and above the Common Stock issuable upon
such conversion before
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giving effect to such adjustment and (y) paying to such holder any amount in
cash in lieu of any fraction pursuant to Section 14.03; provided that in the
case of an adjustment made pursuant to Section 14.05(d) with respect to a
distribution of shares of Capital Stock of, or similar equity interest in, a
Subsidiary or other business unit of the Company, the Company may defer the
issuance of such additional shares and cash payment, if any, until the third
Business Day immediately following the last day of the twenty (20) consecutive
Trading Day period commencing on the fifth Trading Day after the Ex-Dividend
Date. For purposes of this Section 14.05(l), the term "ADJUSTMENT EVENT" shall
mean:
(i) in any case referred to in clause (1) hereof, the occurrence of
such event;
(ii) in any case referred to in clause (2) hereof, the date any such
dividend or distribution is paid or made;
(iii) in any case referred to in clause (3) hereof, the date of
expiration of such rights or warrants; and
(iv) in any case referred to in clause (4) hereof, the date a sale
or exchange of Common Stock pursuant to such tender or exchange offer is
consummated and becomes irrevocable.
(m) For purposes of this Section 14.05, the number of shares of
Common Stock at any time outstanding shall not include shares held in the
treasury of the Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The Company
will not pay any dividend or make any distribution on shares of Common Stock
held in the treasury of the Company.
(n) Notwithstanding the foregoing provisions of Section 14.05, in
the event of an adjustment to the Conversion Rate pursuant to clause (d) or (e)
above, in no event shall the Conversion Rate exceed 107.9914, subject to
adjustment pursuant to clauses (a), (b) and (c) above.
SECTION 14.06. Effect of Reclassification, Consolidation, Merger or
Sale. If any of the following events occur, namely (i) any reclassification or
change of the outstanding shares of Common Stock (other than a subdivision or
combination to which Section 14.05(c) applies), (ii) any consolidation, merger
or combination of the Company with another Person as a result of which holders
of Common Stock shall be entitled to receive stock, other securities or other
property or assets (including cash) with respect to or in exchange for such
Common Stock, or (iii) any sale or conveyance of all or substantially all of the
properties and assets of the Company to any other Person as a result of which
holders of Common Stock shall be entitled to receive stock, other securities or
other property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Company or the successor or purchasing Person, as
the case may be, shall execute with the Trustee a supplemental indenture (which
shall comply with the Trust Indenture Act as in force at the date of execution
of such supplemental indenture) providing that each Note shall be convertible
into the kind and amount of shares of stock, other securities or other property
or assets (including cash) receivable upon such reclassification, change,
consolidation, merger, combination, sale or conveyance by a holder of a number
of
65
shares of Common Stock issuable upon conversion of such Notes (assuming, for
such purposes, a sufficient number of authorized shares of Common Stock are
available to convert all such Notes) immediately prior to such reclassification,
change, consolidation, merger, combination, sale or conveyance assuming such
holder of Common Stock did not exercise his rights of election, if any, as to
the kind or amount of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance (provided that, if the kind or amount of
stock, other securities or other property or assets (including cash) receivable
upon such reclassification, change, consolidation, merger, combination, sale or
conveyance is not the same for each share of Common Stock in respect of which
such rights of election shall not have been exercised ("NON-ELECTING SHARE"),
then for the purposes of this Section 14.06 the kind and amount of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
for each non-electing share shall be deemed to be the kind and amount so
receivable per share by a plurality of the non-electing shares). Such
supplemental indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in this Article
14.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder of Notes, at its address appearing on the
Note Register provided for in Section 2.04 of this Indenture, within twenty (20)
days after execution thereof. Failure to deliver such notice shall not affect
the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, changes, consolidations, mergers, combinations,
sales and conveyances.
If this Section 14.06 applies to any event or occurrence, Section
14.05 shall not apply.
SECTION 14.07. Taxes on Shares Issued. The issue of stock
certificates on conversions of Notes shall be made without charge to the
converting Noteholder for any documentary, stamp or similar issue or transfer
tax in respect of the issue thereof. The Company shall not, however, be required
to pay any such tax which may be payable in respect of any transfer involved in
the issue and delivery of stock in any name other than that of the holder of any
Note converted, and the Company shall not be required to issue or deliver any
such stock certificate unless and until the Person or Persons requesting the
issue thereof shall have paid to the Company the amount of such tax or shall
have established to the satisfaction of the Company that such tax has been paid.
SECTION 14.08. Reservation of Shares, Shares to Be Fully Paid;
Compliance with Governmental Requirements; Listing of Common Stock. The Company
shall provide, free from preemptive rights, out of its authorized but unissued
shares or shares held in treasury, sufficient shares of Common Stock to provide
for the conversion of the Notes from time to time as such Notes are presented
for conversion.
Before taking any action which would cause an adjustment increasing
the Conversion Rate to an amount that would cause the Conversion Price to be
reduced below the then par value, if any, of the shares of Common Stock issuable
upon conversion of the Notes, the
66
Company will take all corporate action which may, in the opinion of its counsel,
be necessary in order that the Company may validly and legally issue shares of
such Common Stock at such adjusted Conversion Rate.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Notes will upon issue be fully paid and nonassessable
by the Company and free from all taxes, liens and charges with respect to the
issue thereof.
The Company covenants that, if any shares of Common Stock to be
provided for the purpose of conversion of Notes hereunder require registration
with or approval of any governmental authority under any federal or state law
before such shares may be validly issued upon conversion, the Company will in
good faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
The Company further covenants that, at any time the Common Stock
shall be listed on the New York Stock Exchange, the Nasdaq National Market or
any other national securities exchange or automated quotation system, the
Company will, if permitted by the rules of such exchange or automated quotation
system, list and keep listed, so long as the Common Stock shall be so listed on
such exchange or automated quotation system, all Common Stock issuable upon
conversion of the Note; provided that if the rules of such exchange or automated
quotation system permit the Company to defer the listing of such Common Stock
until the first conversion of the Notes into Common Stock in accordance with the
provisions of this Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Notes in accordance with the requirements of
such exchange or automated quotation system at such time.
SECTION 14.09. Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any holder of Notes to determine the Conversion Rate or whether any facts exist
which may require any adjustment of the Conversion Rate, or with respect to the
nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture
provided to be employed, in making the same. The Trustee and any other
Conversion Agent shall not be accountable with respect to the validity or value
(or the kind or amount) of any shares of Common Stock, or of any securities or
property, which may at any time be issued or delivered upon the conversion of
any Note; and the Trustee and any other Conversion Agent make no representations
with respect thereto. Neither the Trustee nor any Conversion Agent shall be
responsible for any failure of the Company to issue, transfer or deliver any
shares of Common Stock or stock certificates or other securities or property or
cash upon the surrender of any Note for the purpose of conversion or to comply
with any of the duties, responsibilities or covenants of the Company contained
in this Article 14. Without limiting the generality of the foregoing, neither
the Trustee nor any Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained in any supplemental
indenture entered into pursuant to Section 14.06 relating either to the kind or
amount of shares of stock or securities or property (including cash) receivable
by Noteholders upon the conversion of their Notes after any event referred to in
such Section 14.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.02, may accept as conclusive evidence of
the correctness of any such provisions, and shall be protected in
67
relying upon, the Officer's Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 14.10. Notice to Holders Prior to Certain Actions.
In case:
(a) the Company shall declare a dividend (or any other distribution)
on its Common Stock that would require an adjustment in the Conversion Rate
pursuant to Section 14.05; or
(b) the Company shall authorize the granting to the holders of all
or substantially all of its Common Stock of rights or warrants to subscribe for
or purchase any share of any class or any other rights or warrants; or
(c) of any reclassification or reorganization of the Common Stock of
the Company (other than a subdivision or combination of its outstanding Common
Stock, or a change in par value, or from par value to no par value, or from no
par value to par value), or of any consolidation or merger to which the Company
is a party and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially all of the assets
of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation or
winding up of the Company;
the Company shall cause to be filed with the Trustee and to be mailed to each
holder of Notes at its address appearing on the Note Register provided for in
Section 2.04 of this Indenture, as promptly as possible but in any event at
least ten (10) days prior to the applicable date hereinafter specified, a notice
stating (x) the date on which a record is to be taken for the purpose of such
dividend, distribution or rights or warrants, or, if a record is not to be
taken, the date as of which the holders of Common Stock of record to be entitled
to such dividend, distribution or rights are to be determined, or (y) the date
on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur,
and the date as of which it is expected that holders of Common Stock of record
shall be entitled to exchange their Common Stock for securities or other
property deliverable upon such reclassification, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up. Failure to give such notice,
or any defect therein, shall not affect the legality or validity of such
dividend, distribution, reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up.
SECTION 14.11. Shareholder Rights Plan. To the extent that the
Company adopts any future rights plan, upon conversion of the Notes into Common
Stock, holders of Notes shall receive, in addition to Common Stock, the rights
under the future rights plan unless the rights have separated from the Common
Stock at the time of conversion, in which case the conversion rate will be
adjusted as if the Company distributed to all holders of Common Stock shares of
the Company's Capital Stock, evidences of indebtedness or assets or property in
accordance with Section 14.05(b), subject to readjustments in the event of the
expiration, termination or redemption of such rights.
68
SECTION 14.12. Exchange in Lieu of Conversion. The Company shall
have the option, exercisable at any time or from time to time, by an instrument
in writing signed by the Company and provided to the Conversion Agent, to
designate a, or change the existing designation of the, financial institution
(an "EXCHANGE PARTY") of which Notes surrendered by a holder for conversion will
initially be offered by the Conversion Agent on behalf of a holder for exchange
in lieu of conversion. In order to accept any Notes surrendered for conversion,
the Exchange Party must agree to deliver in exchange for such Notes, a number of
full shares of Common Stock issuable on conversion thereof based on the
applicable Conversion Rate, plus cash for any fractional shares, or cash or a
combination of cash and Common Stock in lieu thereof in the form that would
otherwise have been deliverable by the Company under this Article 14. If the
Exchange Party accepts any Notes for conversion, it will deliver to the
Conversion Agent, and the Conversion Agent will deliver to the converting
holders, the shares of Common Stock or other consideration payable with respect
to such Notes. In the event that the Exchange Party agrees to accept any Notes
for conversion but fails to deliver the consideration for the converted Notes by
the second Business Day following the determination of the applicable stock
price, the Notes will be converted by the Company in accordance with this
Article 14 and the Company will, as promptly as practicable thereafter, but not
later than three Business Days following the determination of the applicable
stock price, deliver to the Holder shares of Common Stock (together with any
cash payment in lieu of fractional shares) or cash or a combination of cash and
shares of Common Stock in accordance with this Article 14. Any Notes exchanged
by the Exchange Party shall remain outstanding. The designation by the Company
of an Exchange Party does not require such Exchange Party to accept any Notes
for conversion. If the Exchange Party declines to accept any Notes surrendered
for conversion, the Company will convert the Notes on the terms provided in this
Indenture. The Company will not pay any consideration to, or otherwise enter
into any arrangement with, the Exchange Party for or with respect to such
designation.
ARTICLE 15
MAKE WHOLE PREMIUM
SECTION 15.01. Make Whole Premium. (a) If a Fundamental Change that
constitutes a Change of Control becomes effective on or prior to June 15, 2011,
the Company shall pay the Make Whole Premium to holders of the Notes who convert
their Notes pursuant to Section 14.01(a)(v) in connection with such Fundamental
Change or to holders of the Notes who surrender their Notes for repurchase upon
such Fundamental Change pursuant to Section 3.04. The Make Whole Premium will be
paid on the Designated Event Repurchase Date solely in shares of Common Stock
(other than cash paid in lieu of fractional shares) or in the same form of
consideration into which shares of Common Stock have been converted in
connection with the Fundamental Change. If holders of Common Stock have the
right to elect the form of consideration received in a Fundamental Change, then
for purposes of the foregoing the consideration into which a share of Common
Stock has been converted shall be deemed to equal the aggregate consideration
distributed in respect of all shares of Common Stock divided by the total number
of shares of Common Stock participating in the distribution.
(b) The Make Whole Premium will be determined as follows:
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(i) "STOCK PRICE" means the price paid per share of Common Stock in
the transaction constituting the Fundamental Change, determined as
follows:
(A) if holders of the Common Stock receive only cash in such
Fundamental Change, the Stock Price shall be the cash amount paid
per share of Common Stock; and
(B) otherwise, the Stock Price shall be the average of the
Last Reported Sale Price of the Common Stock on the 10 Trading Days
up to but not including the effective date of such Fundamental
Change.
(ii) "ADDITIONAL PREMIUM" means the percentage (expressed as a
decimal) set forth on the tables below:
(A) the table below sets forth the Additional Premiums prior
to June 20, 2008 for the Stock Price and the effective date of the
Fundamental Change:
Stock Price
-------------------------------------------------------------------------------------------------
Effective Date $9.26 $10.00 $11.00 $12.00 $13.00 $15.00 $20.00 $50.00 $100.00
- -----------------------------------------------------------------------------------------------------------------------
July 2, 2004 0.0% 4.6% 10.9% 17.4% 16.4% 14.0% 9.3% 0.6% 0.0%
June 15, 2005 0.0% 2.4% 8.8% 15.4% 14.6% 11.5% 7.8% 0.4% 0.0%
June 15, 2006 0.0% 1.0% 6.9% 13.4% 11.9% 9.5% 5.3% 0.4% 0.0%
June 15, 2007 0.0% 0.5% 4.5% 10.5% 9.3% 6.0% 2.9% 0.4% 0.0%
June 19, 2008 0.0% 1.7% 1.7% 1.7% 1.7% 1.7% 1.7% 1.7% 0.0%
If the Stock Price is (1) between two Stock Price amounts on
the table or the effective date of the Fundamental Change is between
two dates on the table, the Additional Premium will be determined by
straight-line interpolation between Additional Premium amounts set
forth for the higher and lower Stock Price amounts and the two
dates, as applicable, based on a 365 day year. The Stock Prices set
forth in the column headers are subject to adjustment pursuant to
Section 14.05.
(B) The table below sets forth the Additional Premiums on or
after June 20, 2008:
Effective Date of Fundament Change Additional Premium
- --------------------------------------------------- ------------------
Beginning June 20, 2008 and ending on June 14, 2009 1.7%
Beginning June 15, 2009 and ending on June 14, 2010 1.1%
Beginning June 15, 2010 and ending on June 14, 2011 0.6%
(iii) "MAKE WHOLE PREMIUM" means the amount per $1,000 original
principal amount of Notes equal to:
(A) if the effective date of the Fundamental Change is on or
after June 16, 2011, $0;
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(B) if the Stock Price is less than $9.26 (subject to
adjustment pursuant to Section 15.02) (the "STOCK PRICE THRESHOLD"),
$0; and
(C) if the Stock Price is more than $100.00 (subject to
adjustment pursuant to Section 15.02) (the "STOCK PRICE CAP"), $0;
and
(D) otherwise, the dollar amount equal to the product of the
Additional Premium and $1,000.
(c) The value of the shares of Common Stock, or other consideration
to be received, for purposes of determining the number of shares to be issued,
or other consideration to be delivered, in respect of the Make Whole Premium
will be calculated as follows:
(i) in the case of a Fundamental Change in which all or
substantially all of the shares of Common Stock have been converted as of
the effective date of such Fundamental Change into the right to receive
securities or other assets or property, then the value of the shares of
Common Stock will equal the value of the consideration paid per share,
with the consideration valued as follows:
(A) securities that are traded on an United States national
securities exchange or approved for quotation on the Nasdaq National
Market or any similar system of automated dissemination of
quotations of securities prices will be valued based on 98% of the
average Last Reported Sale Price on the ten (10) Trading Days prior
to but excluding the Designated Event Repurchase Date,
(B) other securities, assets or property (other than cash)
which holders will have the right to receive will be valued based on
98% of the average of the fair market value of such securities,
assets or property (other than cash) as determined by two
independent nationally recognized investment banks selected by the
Trustee, and
(C) 100% of any cash; and
(ii) in all other cases, the value of each share of Common Stock
will equal 98% of the average of the Last Reported Sale Price of Common
Stock on the ten (10) Trading Days prior to but excluding the Designated
Event Repurchase Date.
Notwithstanding the foregoing, in no event shall the value of each share of
Common Stock (or of the securities or other assets or property into which each
share of Common Stock has been converted) be less than 50% of the Stock Price
used to determine the amount of the Make Whole Premium.
The Trustee (or other Conversion Agent appointed by the Company)
shall, on behalf of and on request by the Company or the Trustee, calculate (A)
the Stock Price, and (B) the Additional Premium and Make Whole Premium with
respect to such Stock Price, based on the effective date specified by the
Company or the Trustee, and shall deliver its calculation of the Stock Price and
Make Whole Premium to the Company and the Trustee within three
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Business Days of the request by the Company or the Trustee. In addition, the
Trustee or Conversion Agent shall, on behalf of and upon request by the Company
or the Trustee no less than three Business Days prior to a Designated Event
Repurchase Date, make the determinations described in Section 15.01(c)(i)(A) and
Section 15.01(c)(ii) above and deliver its calculations to the Company or the
Trustee by 9:00 p.m., New York City time, on the day prior to the Designated
Event Repurchase Date. The Company, or at the Company's request, the Trustee in
the name and at the expense of the Company, (x) shall notify the holders of the
Stock Price and Make Whole Premium per $1,000 original principal amount of Notes
with respect to a Fundamental Change as part of the Fundamental Change Notice
and (y) shall notify the holders promptly upon the opening of business on the
Designated Event Repurchase Date of the number of shares of Common Stock (or
such other securities, assets or property into which all or substantially all of
the shares of Common Stock have been converted as of the effective date as
described above) to be paid in respect of the Make Whole Amount in connection
with such Fundamental Change and the Company shall also publicly announce such
information and publish it on the Company's website. Any notice so given shall
be conclusively presumed to have been duly given, whether or not the Holder
receives such notice.
(d) On or prior to the Designated Event Repurchase Date, the Company
will deposit with the Trustee or with one or more Paying Agents (or, if the
Company is acting as its own Paying Agent, set aside, segregate and hold in
trust) an amount of shares of Common Stock (or in the case of a Fundamental
Change in which all or substantially all of the shares of Common Stock have been
converted as of the effective date into the right to receive securities or other
assets or property, an amount of such other securities or other assets or
property) sufficient to pay the Make Whole Premium with respect to all the Notes
to be repurchased on such date and all the Notes converted in connection with
such Fundamental Change; provided that if such payment is made on the Designated
Event Repurchase Date it must be received by the Trustee or paying agent, as the
case may be, by 10:00 a.m., New York City time, on such date. Payment of the
Make Whole Premium for Notes surrendered for repurchase (and not withdrawn)
prior to the close of business on the third Business Day immediately preceding
the Designated Event Repurchase Date or surrendered for conversion within the
period described in Section 14.01(a)(v), will be made promptly (but in no event
more than five (5) Business Days) following the Designated Event Repurchase Date
by mailing checks in respect of cash and otherwise delivering entitlements to
securities, other assets or property for the amount payable to the holders of
such Notes entitled thereto as they shall appear in the Note Register.
SECTION 15.02. Adjustments Relating to Make Whole Premium. Whenever
the Conversion Rate shall be adjusted from time to time by the Company pursuant
to Section 14.05, the Stock Price Threshold and the Stock Price Cap shall be
adjusted and each of the stock prices set forth in the table above in Section
15.01(b)(ii)(A) will be adjusted by multiplying each such amount by a fraction
the numerator of which is the Conversion Rate immediately prior to such
adjustment and the denominator of which is the Conversation Rate as so adjusted.
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ARTICLE 16
MISCELLANEOUS PROVISIONS
SECTION 16.01. Provisions Binding on Successors. All the covenants,
stipulations, promises and agreements by a party hereto contained in this
Indenture shall bind such party's successors and assigns whether so expressed or
not.
SECTION 16.02. Official Acts by Successor Corporation. Any act or
proceeding by any provision of this Indenture authorized or required to be done
or performed by any board, committee or officer of the Company shall and may be
done and performed with like force and effect by the like board, committee or
officer of any Person that shall at the time be the lawful sole successor of the
Company.
SECTION 16.03. Addresses for Notices, Etc. Any notice or demand
which by any provision of this Indenture is required or permitted to be given or
served by the Trustee or by the holders of Notes on the Company shall be deemed
to have been sufficiently given or made, for all purposes, if given or served by
being deposited postage prepaid by registered or certified mail in a post office
letter box or sent by telecopier transmission addressed as follows: The Goodyear
Tire & Rubber Company, 1144 East Market Street, Akron, Ohio 44316-0001,
Attention: General Counsel and Secretary, telecopier no: (330) 796-8836. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be
deemed to have been sufficiently given or made, for all purposes, if given or
served by being deposited, postage prepaid, by registered or certified mail in a
post office letter box or sent by telecopier transmission addressed to the
Corporate Trust Office of the Trustee.
By notice to the other party, the Company or the Trustee, as the
case may be, may designate additional or different addresses for subsequent
notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed
to him by first class mail, postage prepaid, at his address as it appears on the
Note Register and shall be sufficiently given to him if so mailed within the
time prescribed.
Failure to mail a notice or communication to a Noteholder or any
defect in it shall not affect its sufficiency with respect to other Noteholders.
If a notice or communication is mailed in the manner provided above, it is duly
given, whether or not the addressee receives it.
SECTION 16.04. Governing Law. This Indenture and each Note shall be
deemed to be a contract made under the laws of the State of New York, and for
all purposes shall be construed in accordance with the laws of the State of New
York (including Section 5-1401 of the New York General Obligations Law or any
successor to such statute).
SECTION 16.05. Evidence of Compliance with Conditions Precedent,
Certificates to Trustee. Upon any application or demand by the Company to the
Trustee to take any action under any of the provisions of this Indenture, the
Company shall furnish to the Trustee an Officer's Certificate stating that all
conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that,
in the opinion of such counsel, all such conditions precedent have been complied
with.
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Each certificate or opinion provided for in this Indenture and
delivered to the Trustee with respect to compliance with a condition or covenant
provided for in this Indenture shall include: (1) a statement that each Person
making such certificate or opinion has read such covenant or condition; (2) a
brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is
based; (3) a statement that, in the opinion of each such Person, he has made
such examination or investigation as is necessary to enable him to express an
informed opinion as to whether or not such covenant or condition has been
complied with; and (4) a statement as to whether or not, in the opinion of each
such Person, such condition or covenant has been complied with.
SECTION 16.06. Legal Holidays. In any case in which the date of
maturity of interest on, Make Whole Premium (if any) on, or principal of the
Notes or the Redemption Date of any Note or any Repurchase Date with respect to
any Note will not be a Business Day, then payment of such interest on, Make
Whole Premium (if any) on, or principal of the Notes need not be made on such
date, but may be made on the next succeeding Business Day with the same force
and effect as if made on the date of maturity or the Redemption Date or the
Repurchase Date, as the case may be, and no interest shall accrue for the period
from and after such date to the next succeeding Business Day.
SECTION 16.07. Company Responsible for Making Calculations. Unless
otherwise specified in this Indenture, the Company will be responsible for
making all calculations called for under the Notes. These calculations include,
but are not limited to, determination of the Last Reported Sale Price, the
amount of accrued interest payable on the Notes and the Conversion Rate of the
Notes. The Company will make these calculations in good faith and, absent
manifest error, these calculations will be final and binding on the Noteholders.
Promptly after the calculation thereof, the Company will provide to each of the
Trustee and the Conversion Agent an Officer's Certificate setting forth a
schedule of its calculations, and each of the Trustee and the Conversion Agent
is entitled to conclusively rely upon the accuracy of such calculations without
independent verification. The Trustee will forward the Company's calculations to
any holder upon the request of such holder.
SECTION 16.08. Trust Indenture Act. This Indenture is hereby made
subject to, and shall be governed by, the provisions of the Trust Indenture Act
required to be part of and to govern indentures qualified under the Trust
Indenture Act; provided that this Section 16.08 shall not require this Indenture
or the Trustee to be qualified under the Trust Indenture Act prior to the time
such qualification is in fact required under the terms of the Trust Indenture
Act, nor shall it constitute any admission or acknowledgment by any party to the
Indenture that any such qualification is required prior to the time such
qualification is in fact required under the terms of the Trust Indenture Act. If
any provision hereof limits, qualifies or conflicts with another provision
hereof which is required to be included in an indenture qualified under the
Trust Indenture Act, such required provision shall control.
SECTION 16.09. No Security Interest Created. Except as provided in
Section 7.07, nothing in this Indenture or in the Notes, expressed or implied,
shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in
effect, in any jurisdiction in which property of the Company or its subsidiaries
is located.
74
SECTION 16.10. Benefits of Indenture. Nothing in this Indenture or
in the Notes, express or implied, shall give to any Person, other than the
parties hereto, any Paying Agent, any authenticating agent, any Note Registrar
and their successors hereunder and the holders of Notes any benefit or any legal
or equitable right, remedy or claim under this Indenture.
SECTION 16.11. Table of Contents, Headings, Etc. The table of
contents and the titles and headings of the Articles and Sections of this
Indenture have been inserted for convenience of reference only, are not to be
considered a part hereof, and shall in no way modify or restrict any of the
terms or provisions hereof.
SECTION 16.12. Authenticating Agent. The Trustee may appoint an
authenticating agent that shall be authorized to act on its behalf, and subject
to its direction, in the authentication and delivery of Notes in connection with
the original issuance thereof and transfers and exchanges of Notes hereunder,
including under Sections 2.03, 2.07, 2.08, 2.10, 3.02 and 3.07, as fully to all
intents and purposes as though the authenticating agent had been expressly
authorized by this Indenture and those Sections to authenticate and deliver
Notes. For all purposes of this Indenture, the authentication and delivery of
Notes by the authenticating agent shall be deemed to be authentication and
delivery of such Notes "by the Trustee" and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to
satisfy any requirement hereunder or in the Notes for the Trustee's certificate
of authentication. Such authenticating agent shall at all times be a Person
eligible to serve as trustee hereunder pursuant to Section 7.10.
Any corporation into which any authenticating agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, consolidation or conversion to which any authenticating agent
shall be a party, or any corporation succeeding to the corporate trust business
of any authenticating agent, shall be the successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this
Section 16.12, without the execution or filing of any paper or any further act
on the part of the parties hereto or the authenticating agent or such successor
corporation.
Any authenticating agent may at any time resign by giving written
notice of resignation to the Trustee and to the Company. The Trustee may at any
time terminate the agency of any authenticating agent by giving written notice
of termination to such authenticating agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
any authenticating agent shall cease to be eligible under this Section, the
Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this
Indenture and, upon such appointment of a successor authenticating agent, if
made, shall give written notice of such appointment of a successor
authenticating agent to the Company and shall mail notice of such appointment of
a successor authenticating agent to all holders of Notes as the names and
addresses of such holders appear on the Note Register.
The Company agrees to pay to the authenticating agent from time to
time such reasonable compensation for its services as shall be agreed upon in
writing between the Company and the authenticating agent.
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The provisions of Sections 7.02, 7.03, 7.04 and 8.03 and this
Section 16.12 shall be applicable to any authenticating agent.
SECTION 16.13. Execution in Counterparts. This Indenture may be
executed in any number of counterparts, each of which shall be an original, but
such counterparts shall together constitute but one and the same instrument.
SECTION 16.14. Severability. In case any provision in this Indenture
or in the Notes shall be invalid, illegal or unenforceable, then (to the extent
permitted by law) the validity, legality and enforceability of the remaining
provisions shall not in any way be affected or impaired thereby.
Wells Fargo Bank, N.A. hereby accepts the trusts in this Indenture
declared and provided, upon the terms and conditions herein above set forth.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to
be duly executed.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ Darren R. Wells
--------------------------------------
Name: Darren R. Wells
Title: Vice President and Treasurer
WELLS FARGO BANK, N.A., as Trustee
By: /s/ Timothy P. Mowdy
--------------------------------------
Name: Timothy P. Mowdy
Title: Assistant Vice President
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APPENDIX A
PROVISIONS RELATING TO NOTES
1. Definitions
1.1 Definitions
For the purposes of this Appendix A the following terms shall have the
meanings indicated below:
"Definitive Note" means a certificated Note (bearing the Restricted
Securities Legend if the transfer of such Note is restricted by applicable law)
that does not include the Global Notes Legend.
"Depositary" means The Depository Trust Company, its nominees and
their respective successors.
"Global Notes Legend" means the legend set forth in Appendix A to
this Indenture.
"IAI" means an institutional "accredited investor" as defined in
Rule 501(a)(1), (2), (3) or (7) of Regulation D under the Securities Act.
"Initial Purchasers" means Goldman, Sachs & Co., Deutsche Bank
Securities Inc. and J.P. Morgan Securities Inc.
"Purchase Agreement" means (1) with respect to the Securities issued
on the Original Issue Date, the Purchase Agreement dated June 28, 2004, among
the Company and the Initial Purchasers, and (2) with respect to each issuance of
Additional Securities issued in a transaction exempt from the registration
requirements of the Securities Act, the purchase agreement among the Company and
the Persons purchasing such Additional Securities.
"QIB" means a "qualified institutional buyer" as defined in Rule
144A.
"Registration Agreement" means (1) with respect to the Securities
issued on the Original Issue Date, the Registration Rights Agreement dated July
2, 2004, among the Company and the Initial Purchasers as amended from time to
time in accordance with its terms, and (2) with respect to each issuance of
Additional Securities issued in a transaction exempt from the registration
requirements of the Securities Act, the registration rights agreement, if any,
among the Company and the Persons purchasing such Additional Securities under
the related Purchase Agreement.
"Restricted Securities Legend" means the legend set forth in Section
2.3(d)(i) herein.
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"Rule 144A" means Rule 144A as promulgated under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
"Securities Custodian" means the custodian with respect to a Global
Note (as appointed by the Depositary) or any successor person thereto, who shall
initially be the Trustee.
"Shelf Registration Statement" means the registration statement
filed by the Company in connection with an offer and sale of Notes pursuant to a
Registration Agreement.
"Transfer Restricted Notes" means Definitive Notes and any other
Notes that bear or are required to bear the Restricted Securities Legend.
1.2 Other Definitions
Term:
------
"Agent Members".................................... 2.1(c)
"Global Notes"..................................... 2.1(b)
"IAI Global Note".................................. 2.1(b)
"Rule 144A Global Note"............................ 2.1(b)
2. The Notes
2.1 Form and Dating
(a) The Notes will be (i) offered and sold by the Company pursuant
to the Purchase Agreement and (ii) resold, initially only to QIBs in reliance on
Rule 144A. Such Notes may thereafter be transferred to, among others, QIBs and
IAIs, subject to the restrictions on transfer set forth herein.
(b) Global Notes. Notes initially resold pursuant to Rule 144A shall
be issued initially in the form of one or more permanent global Notes in
definitive, fully registered form (collectively, the "Rule 144A Global Note"),
without interest coupons and bearing the Global Notes Legend and Restricted
Securities Legend, which shall be deposited on behalf of the purchasers of the
Notes represented thereby with the Securities Custodian, and registered in the
name of the Depositary or a nominee of the Depositary, duly executed by the
Company and authenticated by the Trustee as provided in this Indenture.
Beneficial interests in Rule 144A Global Notes may be exchanged for
an interest in securities resold to IAIs, which securities shall be issued in
the form of one or more permanent global Notes in definitive, fully registered
form (collectively, the "IAI Global Note"), if (1) such exchange occurs in
connection with a transfer of the securities in compliance with an exemption
under the Securities Act and (2) the transferor of the Rule 144A Global Note
first delivers to the trustee a written certificate (substantially in
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the form of Exhibit B) to the effect that (A) the Rule 144A Global Security is
being transferred to an "accredited investor" within the meaning of 501(a) (1),
(2), (3) or (7) under the Securities Act that is an institutional investor
acquiring the securities for its own account or for the account of such an
institutional accredited investor, in each case in a minimum principal amount of
Notes of $250,000, for investment purposes and not with a view to or for offer
or sale in connection with any distribution in violation of the Securities Act
and (B) in accordance with all applicable securities laws of the states of the
United States and other jurisdictions. The IAI Global Note shall be issued
without interest coupons and shall bear the Global Notes Legend and the
Restricted Securities Legend.
Beneficial interests in IAI Global Notes may be exchanged for
interests in Rule 144A Global Notes if (1) such exchange occurs in connection
with a transfer of Notes in compliance with Rule 144A and (2) the transferor of
the beneficial interest in the IAI Global Notes first delivers to the Trustee a
written certificate (in a form satisfactory to the Trustee) to the effect that
the beneficial interest in the IAI Global Note is being transferred to a Person
(a) who the transferor reasonably believes to be a QIB, (b) purchasing for its
own account or the account of a QIB in a transaction meeting the requirements of
Rule 144A and (c) in accordance with all applicable securities laws of the
states of the United States and other jurisdictions.
The Rule 144A Global Note and the IAI Global Note are collectively
referred to herein as "Global Notes". The aggregate principal amount of the
Global Securities 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.
(c) Book-Entry Provisions. This Section 2.1(c) shall apply only to a
Global Note deposited with or on behalf of the Depositary.
The Company shall execute and the Trustee shall, in accordance with
this Section 2.1(c) and Section 2.2 and pursuant to an order of the Company
signed by an Officer, authenticate and deliver one or more Global Notes that (i)
shall be registered in the name of the Depositary for such Global Note or Global
Notes or the nominee of such Depositary and (ii) shall be delivered by the
Trustee to such Depositary or pursuant to such Depositary's instructions or held
by the Trustee as Securities Custodian.
Members of, or participants in, the Depositary ("Agent Members")
shall have no rights under this Indenture with respect to any Global Note held
on their behalf by the Depositary or by the Trustee as Securities Custodian or
under such Global Note, and the Depositary may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute owner of
such Global Note 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 impair, as between the
Depositary and its Agent Members, the operation of customary practices of such
Depositary governing the exercise of the rights of a holder of a beneficial
interest in any Global Note.
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(d) Definitive Notes. Except as provided in Section 2.3 or 2.4,
owners of beneficial interests in Global Notes will not be entitled to receive
physical delivery of certificated Notes.
2.2 Authentication. The Trustee shall authenticate and make available for
delivery upon a written order of the Company signed by an Officer (a) Notes for
original issue on the date hereof in an aggregate principal amount of
$350,000,000, and (b) any Additional Securities for original issue in an
aggregate principal amount specified in the written order of the Company.
2.3 Transfer and Exchange. (a) Transfer and Exchange of Definitive Notes.
When Definitive Notes are presented to the Registrar with a request:
(i) to register the transfer of such Definitive Notes; or
(ii) to exchange such Definitive Notes for an equal principal amount
of Definitive Notes 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 Definitive Notes 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) in the case of Transfer Restricted Notes, are accompanied by the
following additional information and documents, as applicable:
(A) if such Definitive Notes 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
(in the form set forth on the reverse side of the Note); or
(B) if such Definitive Notes are being transferred to the
Company, a certification to that effect (in the form set forth on
the reverse side of the Note); or
(C) if such Definitive Notes are being transferred pursuant to
an exemption from registration in accordance with Rule 144 under the
Securities Act or in reliance upon another exemption from the
registration requirements of the Securities Act, (x) a certification
to that effect (in the form set forth on the reverse side of the
Note) and (y) 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 set forth in Section
2.3(d)(i).
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(b) Restrictions on Transfer of a Definitive Note for a Beneficial
Interest in a Global Note. A Definitive Note may not be exchanged for a
beneficial interest in a Global Note except upon satisfaction of the
requirements set forth below. Upon receipt by the Trustee of a Definitive Note,
duly endorsed or accompanied by a written instrument of transfer in form
reasonably satisfactory to the Company and the Registrar, together with:
(i) certification (in the form set forth on the reverse side of the
Note) that such Definitive Note is being transferred (1) to a QIB in
accordance with Rule 144A; and
(ii) written instructions directing the Trustee to make, or to
direct the Securities Custodian to make, an adjustment on its books and
records with respect to such Global Note to reflect an increase in the
aggregate principal amount of the Notes represented by the Global Note,
such instructions to contain information regarding the Depositary account
to be credited with such increase, then the Trustee shall cancel such
Definitive Note and cause, or direct the Securities Custodian to cause, in
accordance with the standing instructions and procedures existing between
the Depositary and the Securities Custodian, the aggregate principal
amount of Notes represented by the Global Note to be increased by the
aggregate principal amount of the Definitive Note 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 Note
equal to the principal amount of the Definitive Note so canceled. If no
Global Notes are then outstanding and the Global Note has not been
previously exchanged for certificated Notes pursuant to Section 2.4, the
Company shall issue and the Trustee shall authenticate, upon written order
of the Company in the form of an Officer's Certificate, a new Global Note
in the appropriate principal amount.
(c) Transfer and Exchange of Global Notes. (i) The transfer and
exchange of Global Notes or beneficial interests therein shall be effected
through the Depositary, in accordance with this Indenture (including applicable
restrictions on transfer set forth herein, if any) and the procedures of the
Depositary therefor. A transferor of a beneficial interest in a Global Note
shall deliver a written order given in accordance with the Depositary's
procedures containing information regarding the participant account of the
Depositary to be credited with a beneficial interest in such Global Note or
another Global Note and such account shall be credited in accordance with such
order with a beneficial interest in the applicable Global Note and the account
of the Person making the transfer shall be debited by an amount equal to the
beneficial interest in the Global Note being transferred.
(ii) If the proposed transfer is a transfer of a beneficial interest
in one Global Note to a beneficial interest in another Global Note, the
Registrar shall reflect on its books and records the date and an increase
in the principal amount of the Global Note to which such interest is being
transferred in an amount equal to the principal amount of the interest to
be so transferred, and the Registrar shall
A-5
reflect on its books and records the date and a corresponding decrease in
the principal amount of Global Note from which such interest is being
transferred.
(iii) Notwithstanding any other provisions of this Appendix A (other
than the provisions set forth in Section 2.4), a Global Note may not be
transferred as a whole except by the Depositary to a nominee of the
Depositary or by a nominee of the Depositary to the Depositary or another
nominee of the Depositary or by the Depositary or any such nominee to a
successor Depositary or a nominee of such successor Depositary.
(iv) In the event that a Global Note is exchanged for Definitive
Notes pursuant to Section 2.4 prior to the effectiveness of a Shelf
Registration Statement with respect to such Notes, such Notes may be
exchanged only in accordance with such procedures as are substantially
consistent with the provisions of this Section 2.3 (including the
certification requirements set forth on the reverse of the Notes intended
to ensure that such transfers comply with Rule 144A or such other
applicable exemption from registration under the Securities Act, as the
case may be) and such other procedures as may from time to time be adopted
by the Company.
(d) Legend.
(i) Except as permitted by the following paragraphs (ii) and (iii),
each Note certificate evidencing the Global Notes and the Definitive Notes
(and all Notes issued in exchange therefor or in substitution thereof)
shall bear a legend in substantially the following form (each defined term
in the legend being defined as such for purposes of the legend only):
THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE HAVE
NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH
PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY
BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE
SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE MAY
NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
PERSON WHO THE TRANSFEROR REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL
BUYER WITHIN THE MEANING OF RULE 144A UNDER THE SECURITIES ACT ACQUIRING
FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER
IN A TRANSACTION MEETING THE REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN
EXEMPTION FROM REGISTRATION UNDER THE
A-6
SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING
OF RULE 501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES
ACT PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT
(IF AVAILABLE) OR (4) PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT
UNDER THE SECURITIES ACT AND (B) IN ACCORDANCE WITH ALL APPLICABLE
SECURITIES LAWS OF THE STATES OF THE UNITED STATES AND OTHER
JURISDICTIONS.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND ANY
RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO
MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND
ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR
THE INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND
SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH
SHARES TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE REGISTRAR
AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER
COMPLIES WITH THE FOREGOING RESTRICTIONS.
(ii) Upon any sale or transfer of a Transfer Restricted Note that is
a Definitive Note, the Registrar shall permit the holder thereof to exchange
such Transfer Restricted Note for a Definitive Note that does not bear the
legends set forth above and rescind any restriction on the transfer of such
Transfer Restricted Note if the holder certifies in writing to the Registrar
that its request for such exchange was made in reliance on Rule 144 (such
certification to be in the form set forth on the reverse of the Note).
(iii) After a transfer of any Notes during the period of the
effectiveness of a Shelf Registration Statement with respect to such Notes, all
requirements pertaining to the Restricted Securities Legend on such Notes shall
cease to apply and the requirements that any such Notes be issued in global form
shall continue to apply.
(e) Cancelation or Adjustment of Global Note. At such time as all
beneficial interests in a Global Note have either been exchanged for Definitive
Notes, transferred, redeemed, repurchased or canceled, such Global Note shall be
returned by the Depositary to the Trustee for cancelation or retained and
canceled by the Trustee. At
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any time prior to such cancelation, if any beneficial interest in a Global Note
is exchanged for Definitive Notes, transferred in exchange for an interest in
another Global Note, redeemed, repurchased or canceled, the principal amount of
Notes represented by such Global Note shall be reduced and an adjustment shall
be made on the books and records of the Trustee (if it is then the Securities
Custodian for such Global Note) with respect to such Global Note, by the Trustee
or the Securities Custodian, to reflect such reduction.
(f) Obligations with Respect to Transfers and Exchanges of Notes.
(i) To permit registrations of transfers and exchanges, the Company
shall execute and the Trustee shall authenticate, Definitive Notes and Global
Notes at the Registrar's request.
(ii) No service charge shall be made for any registration of
transfer or exchange, but the Company may require payment of a sum sufficient to
cover any transfer tax, assessments, or similar governmental charge payable in
connection therewith (other than any such transfer taxes, assessments or similar
governmental charge payable upon exchanges pursuant to Sections 2.07, 3.03, and
10.04 of this Indenture).
(iii) Prior to the due presentation for registration of transfer of
any Note, the Company, the Trustee, the Paying Agent or the Registrar may deem
and treat the person in whose name a Note is registered as the absolute owner of
such Note for the purpose of receiving payment of principal of and interest on
such Note and for all other purposes whatsoever, whether or not such Note is
overdue, and none of the Company, the Trustee, the Paying Agent or the Registrar
shall be affected by notice to the contrary.
(iv) All Notes issued upon any transfer or exchange pursuant to the
terms of this Indenture shall evidence the same debt and shall be entitled to
the same benefits under this Indenture as the Notes surrendered upon such
transfer or exchange.
(g) No Obligation of the Trustee.
(i) The Trustee shall have no responsibility or obligation to any
beneficial owner of a Global Note, a member of, or a participant in the
Depositary or any other Person with respect to the accuracy of the records of
the Depositary or its nominee or of any participant or member thereof, with
respect to any ownership interest in the Notes or with respect to the delivery
to any participant, member, beneficial owner or other Person (other than the
Depositary) of any notice (including any notice of redemption or repurchase) or
the payment of any amount, under or with respect to such Notes. All notices and
communications to be given to the holders and all payments to be made to holders
under the Notes shall be given or made only to the registered holders (which
shall be the Depositary or its nominee in the case of a Global Note). The rights
of beneficial owners in any Global Note shall be exercised only through the
Depositary subject to the applicable rules and procedures of the Depositary. The
Trustee may rely and shall be fully protected in relying upon information
furnished by the Depositary with respect to its members, participants and any
beneficial owners.
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(ii) 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 Note (including any transfers between or among Depositary
participants, members or beneficial owners in any Global Note) 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.
2.4 Definitive Notes
(a) A Global Note deposited with the Depositary or with the Trustee
as Securities Custodian pursuant to Section 2.1 shall be transferred to the
beneficial owners thereof in the form of Definitive Notes in an aggregate
principal amount equal to the principal amount of such Global Note, in exchange
for such Global Note, only if such transfer complies with Section 2.3 and (i)
the Depositary notifies the Company that it is unwilling or unable to continue
as a Depositary for such Global Note or if at any time the Depositary ceases to
be a "clearing agency" registered under the Exchange Act, and a successor
depositary is not appointed by the Company within 90 days of such notice or
after the Company becomes aware of such cessation, or (ii) the Company, in its
sole discretion, notifies the Trustee in writing that it elects to cause the
issuance of certificated Notes under this Indenture.
(b) Any Global Note that is transferable to the beneficial owners
thereof pursuant to this Section 2.4 shall be surrendered by the Depositary to
the Trustee, to be so transferred, in whole or from time to time in part,
without charge, and the Trustee shall authenticate and deliver, upon such
transfer of each portion of such Global Note, an equal aggregate principal
amount of Definitive Notes of authorized denominations. Any portion of a Global
Note transferred pursuant to this Section shall be executed, authenticated and
delivered only in denominations of $1,000 and any integral multiple thereof and
registered in such names as the Depositary shall direct. Any certificated Note
in the form of a Definitive Note delivered in exchange for an interest in the
Global Note shall, except as otherwise provided by Section 2.3(d), bear the
Restricted Securities Legend.
(c) Subject to the provisions of Section 2.4(b), the registered
holder of a Global Note 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 Notes.
(d) In the event of the occurrence of any of the events specified in
Section 2.4(a)(i), (ii) or (iii), the Company will promptly make available to
the Trustee a reasonable supply of Definitive Notes in fully registered form
without interest coupons.
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EXHIBIT A
[FORM OF FACE OF NOTE]
[Global Notes Legend]
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE
OF THE DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), NEW YORK, NEW
YORK, TO THE COMPANY OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR
PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY
PAYMENT IS MADE TO CEDE & CO., OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN
WHOLE, BUT NOT IN PART, TO DTC, TO NOMINEES OF DTC 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
THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
[Restricted Securities Legend]
THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE
HAVE NOT BEEN REGISTERED UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE
OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER OF
THIS NOTE IS HEREBY NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE
EXEMPTION FROM THE PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY
RULE 144A THEREUNDER.
THIS NOTE AND ANY COMMON STOCK ISSUABLE UPON CONVERSION OF THIS NOTE
MAY NOT BE OFFERED, SOLD, PLEDGED OR OTHERWISE TRANSFERRED EXCEPT (A)(1) TO A
PERSON WHO THE TRANSFEROR
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REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER WITHIN THE MEANING OF
RULE 144A UNDER THE SECURITIES ACT ACQUIRING FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (2) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER
THE SECURITIES ACT PROVIDED BY RULE 144 THEREUNDER (IF AVAILABLE), (3) TO AN
INSTITUTIONAL INVESTOR THAT IS AN ACCREDITED INVESTOR WITHIN THE MEANING OF RULE
501(a)(1), (2), (3) OR (7) OF REGULATION D UNDER THE SECURITIES ACT PURSUANT TO
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT (IF AVAILABLE) OR (4)
PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT AND (B)
IN ACCORDANCE WITH ALL APPLICABLE SECURITIES LAWS OF THE STATES OF THE UNITED
STATES AND OTHER JURISDICTIONS.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION
AND ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME
TO MODIFY THE RESTRICTIONS ON RESALES AND OTHER TRANSFERS OF THIS NOTE AND ANY
SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION (OR THE
INTERPRETATION THEREOF) OR IN PRACTICES RELATING TO THE RESALE OR TRANSFER OF
RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND SUCH SHARES SHALL
BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES TO HAVE AGREED TO
ANY SUCH AMENDMENT OR SUPPLEMENT.
Each Definitive Note shall bear the following additional legend:
IN CONNECTION WITH ANY TRANSFER, THE HOLDER WILL DELIVER TO THE
REGISTRAR AND TRANSFER AGENT SUCH CERTIFICATES AND OTHER INFORMATION AS SUCH
TRANSFER AGENT MAY REASONABLY REQUIRE TO CONFIRM THAT THE TRANSFER COMPLIES WITH
THE FOREGOING RESTRICTIONS.
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THE GOODYEAR TIRE & RUBBER COMPANY
4.00% CONVERTIBLE SENIOR NOTE
CUSIP:
No. $
The Goodyear Tire & Rubber Company, a corporation duly organized and
validly existing under the laws of the State of Ohio (herein called the
"COMPANY", which term includes any successor corporation under the Indenture
referred to on the reverse hereof), for value received, hereby promises to pay
to CEDE & CO. or its registered assigns the principal sum of $[ ]
dollars on June 15, 2034 [or such greater or lesser amount as is indicated on
Schedule I](1) at the office or agency of the Company maintained for that
purpose in accordance with the terms of the Indenture, in such coin or currency
of the United States of America as at the time of payment shall be legal tender
for the payment of public and private debts, and to pay interest, semiannually
in arrears on June 15 and December 15 of each year, commencing December 15,
2004, on said principal sum at said office or agency, in like coin or currency,
at the rate per annum of 4.00%, from the June 15 or December 15, as the case may
be, next preceding the date of this Note to which interest has been paid or duly
provided for, unless the date hereof is a date to which interest has been paid
or duly provided for, in which case from the date of this Note, or unless no
interest has been paid or duly provided for on the Notes, in which case from
July 2, 2004 until payment of said principal sum has been made or duly provided
for. Except as otherwise provided in the Indenture, the interest payable on the
Note pursuant to the Indenture on any June 15 or December 15 will be paid to the
Person entitled thereto as it appears in the Note Register at the close of
business on the Regular Record Date, which shall be the June 1 or December 1
(whether or not a Business Day) next preceding such June 15 or December 15, as
provided in the Indenture; provided that any such interest not punctually paid
or duly provided for shall be payable as provided in the Indenture. The Company
shall pay interest (i) on any Notes in certificated form by check mailed to the
address of the Person entitled thereto as it appears in the Note Register (or,
upon written notice, by wire transfer in immediately available funds, if such
Person is entitled to interest on Notes with an aggregate principal amount in
excess of $2,000,000) or (ii) on any Global Note by wire transfer of immediately
available funds to the account of the Depositary or its nominee.
The Company promises to pay interest at the rate of 4.00% per annum,
compounded semiannually. The Company shall pay interest on overdue principal at
the rate borne by the Notes plus 1% per annum, and it shall pay interest on
overdue installments of interest at such higher rate, to the extent lawful.
Reference is made to the further provisions of this Note set forth
on the reverse hereof, including, without limitation, provisions giving the
holder of this Note the right to convert this Note into Common Stock of the
Company on the terms and subject to the limitations referred to on the reverse
hereof and as more fully specified in the Indenture. Under the
- -------------------
(1) This phrase should be included only if the Note is a Global Note.
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circumstances described in the Indenture, the Company may fulfill all or part of
its conversion obligation by delivering cash in lieu of Common Stock.
This Note shall be deemed to be a contract made under the laws of
the State of New York, and for all purposes shall be construed in accordance
with and governed by the laws of the State of New York (including Section 5-1401
of the New York General Obligations Law or any successor to such statute).
This Note shall not be valid or become obligatory for any purpose
until the certificate of authentication hereon shall have been manually signed
by the Trustee or a duly authorized authenticating agent under the Indenture.
If and to the extent that any provision of this Note limits,
qualifies or conflicts with a provision of the Indenture, such Indenture
provision shall control.
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Additional provisions of this Note are set forth on the other side
of this Note.
IN WITNESS WHEREOF, the parties have caused this instrument to be
duly executed.
THE GOODYEAR TIRE & RUBBER COMPANY
by: ______________________________________
Name:
Title:
Dated:
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
WELLS FARGO BANK, N.A.,
as Trustee, certifies
that this is one of the
Notes referred to
in the Indenture.
By: ______________________________
Authorized Signatory
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[FORM OF REVERSE OF NOTE]
THE GOODYEAR TIRE & RUBBER COMPANY
4.00% CONVERTIBLE SENIOR NOTE
This Note is one of a duly authorized issue of Notes of the Company,
designated as its 4.00% Convertible Senior Notes (herein called the "NOTES"),
issued and to be issued under and pursuant to an Indenture dated as of July 2,
2004 (herein called the "INDENTURE"), between the Company and Wells Fargo Bank,
N.A., as trustee (herein called the "TRUSTEE"), to which Indenture and all
indentures supplemental thereto reference is hereby made for a description of
the rights, limitations of rights, obligations, duties and immunities thereunder
of the Trustee, the Company and the holders of the Notes. The Company shall be
entitled to issue Additional Securities pursuant to Section 2.01(b) of the
Indenture. The Notes issued on the Original Issuance Date and any Additional
Securities will be treated as a single class for all purposes under the
Indenture.
In case an Event of Default shall have occurred and be continuing,
the principal of and accrued interest on all Notes may be declared by either the
Trustee or the holders of not less than 25% in aggregate principal amount of the
Notes then outstanding, and upon said declaration shall become, due and payable,
in the manner, with the effect and subject to the conditions provided in the
Indenture.
The Indenture contains provisions permitting the Company and the
Trustee, with the consent of the holders of at least a majority in aggregate
principal amount of the Notes at the time outstanding, to execute supplemental
indentures adding any provisions to or changing in any manner or eliminating any
of the provisions of the Indenture or of any supplemental indenture or modifying
in any manner the rights of the holders of the Notes; provided that no such
supplemental indenture shall (i) extend the Stated Maturity of any Note, or
reduce the rate or extend the time of payment of interest thereon, or reduce the
principal amount thereof, or reduce any amount payable upon redemption or
repurchase thereof, or change the time at which any Note may be redeemed or
repurchased, or impair the right of any Noteholder to institute suit for the
payment thereof, or make the principal thereof or interest thereon payable in
any coin or currency other than that provided in the Notes, or affect the
obligation of the Company to redeem any Note on a Redemption Date in a manner
adverse to the holders, or affect the obligation of the Company to repurchase
any Note upon a Designated Event in a manner adverse to the holder of the Notes,
or affect the obligation of the Company to repurchase any Note on a Company
Repurchase Date in a manner adverse to the holder of the Notes, or impair the
right to convert the Notes into Common Stock subject to the terms set forth in
the Indenture, including Section 14.06 thereof, or reduce the number of shares
of Common Stock or other property receivable upon conversion, in each case
without the consent of the holder of each Note so affected, or modify any of the
provisions of Section 10.02 or Section 6.07 thereof, except to increase any such
percentage or to provide that certain other provisions of the Indenture cannot
be modified or waived without the consent of the holder of each Note so
affected, or change any obligation of the Company to maintain an office or
agency in the places and for the purposes set forth in Section 4.02 thereof, or
reduce the quorum or voting requirements set forth in Article 9 or (ii) reduce
the aforesaid percentage of Notes, the holders of which are required to consent
to
E-6
any such supplemental indenture, without the consent of the holders of all Notes
then outstanding. Subject to the provisions of the Indenture, the holders of a
majority in aggregate principal amount of the Notes at the time outstanding may
on behalf of the holders of all of the Notes waive any existing or past default
or Event of Default under the Indenture and its consequences except (A) a
default in the payment of interest or premium (if any) on, or the principal of,
any of the Notes, (B) a failure by the Company to convert any Notes into Common
Stock, (C) a default in the payment of the Redemption Price pursuant to Article
3 of the Indenture, (D) a default in the payment of the Company Repurchase Price
or Designated Event Repurchase Price pursuant to Article 3 of the Indenture or
(E) a default in respect of a covenant or provisions of the Indenture which
under Article 10 of the Indenture cannot be modified or amended without the
consent of the holders of each or all Notes then outstanding or affected
thereby. Any such consent or waiver by the holder of this Note (unless revoked
as provided in the Indenture) shall be conclusive and binding upon such holder
and upon all future holders and owners of this Note and any Notes which may be
issued in exchange or substitution hereof, irrespective of whether or not any
notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of, premium (if any) and
interest on this Note at the place, at the respective times, at the rate and in
the coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day
year of twelve 30-day months and, in the case of an incomplete month, the actual
number of days elapsed.
The Notes are issuable in fully registered form, without coupons, in
denominations of $1,000 principal amount and any multiple of $1,000. At the
office or agency of the Company referred to on the face hereof, and in the
manner and subject to the limitations provided in the Indenture, without payment
of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with
any registration or exchange of Notes, Notes may be exchanged for a like
aggregate principal amount of Notes of any other authorized denominations.
The holder of this Note is entitled to the benefits of the
Registration Rights Agreement. If a Registration Default occurs, the Company
shall be obligated to pay Liquidated Damages to each holder of Transfer
Restricted Notes during the period of such Registration Default, in an amount
equal to 0.25% per annum of the aggregate issue price of the Notes to and
including the 90th day following such Registration Default, and 0.50% per annum
of the aggregate issue price of the Notes from and after the 91st day following
such Registration Default until the earlier of (i) the day on which the
Registration Default has been cured and (ii) the day on which the Shelf
Registration Statement is no longer required to be kept effective. In no event
will Liquidated Damages accrue at a rate per annum exceeding 0.50% of the
aggregate issue price of the Notes. The holder of this Note, by acceptance
hereof, acknowledges and agrees to the provisions of the Registration Rights
Agreement, including the obligations of the holders of the Notes with respect to
a registration and the indemnification of the Company to the extent provided
therein. Capitalized terms used in this paragraph but not defined herein or in
the Indenture have the meanings assigned to them in the Registration Rights
Agreement.
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At any time on or after June 20, 2008 and prior to maturity, the
Notes may be redeemed at the option of the Company, in whole or in part, in cash
upon mailing a notice of such redemption not less than thirty (30) days but not
more than sixty (60) days before the Redemption Date to the holders of Notes at
their last registered addresses, all as provided in the Indenture, at the
applicable Redemption Price during the periods set forth below, expressed as a
percentage of the principal amount of Notes being redeemed, plus accrued and
unpaid interest to, but excluding, the Redemption Date:
Period Redemption Price
------ ----------------
Beginning June 20, 2008 and ending on June 14, 2009 101.714%
Beginning June 15, 2009 and ending on June 14, 2010 101.143%
Beginning June 15, 2010 and ending on June 14, 2011 100.571%
Beginning June 15, 2011 and thereafter 100.000%
provided that if the Redemption Date is on June 15 or December 15, then the
interest payable on such date shall be paid to the holder of record on the
preceding June 1 or December 1, respectively.
The Company may not give notice of any redemption of the Notes if a
default in the payment of interest on the Notes has occurred and is continuing.
The Notes are not subject to redemption through the operation of any
sinking fund.
If a Designated Event occurs at any time prior to maturity of the
Notes, the holder of this Note will have the right to require the Company to
repurchase this Note on a Designated Event Repurchase Date, specified by the
Company, which shall be no later than thirty-five (35) days after the Designated
Event Notice Date, at the option of the holder of this Note at a Designated
Event Repurchase Price equal to 100% of the principal amount thereof, together
with accrued interest to (but excluding) the Designated Event Repurchase Date
plus, in the case of a Fundamental Change that constitutes a Change of Control,
a Make Whole Premium (if any); provided that if such Designated Event Repurchase
Date falls after a record date and on or prior to the corresponding Interest
Payment Date, the interest payable on such Interest Payment Date shall be paid
to the holder of record of this Note on the preceding June 1 or December 1,
respectively. The Notes will be repurchased in multiples of $1,000 principal
amount. The Company shall mail to all holders of record of the Notes a notice of
the occurrence of a Designated Event and of the repurchase right arising as a
result thereof on or before the fifth (5th) day after the occurrence of a
Designated Event. For a Note to be so repurchased at the option of the holder,
the Company must receive at the office or agency of the Company maintained for
that purpose in accordance with the terms of the Indenture, such Note with the
form entitled "FORM OF DESIGNATED EVENT REPURCHASE ELECTION" on the reverse
thereof duly completed, together with such Note, duly endorsed for transfer, at
any time prior to the close of business on the third Business Day immediately
preceding the Designated Event Repurchase Date (subject to extension by
applicable laws).
Subject to the terms and conditions of the Indenture, the Company
shall become obligated to repurchase, at the option of the holder, all or any
portion of the Notes held by such
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holder on each June 15 of 2011, 2014, 2019, 2024, and 2029 in integral multiples
of $1,000 at a Company Repurchase Price of 100% of the principal amount, plus
any accrued and unpaid interest on such Note to but excluding the Company
Repurchase Date. To exercise such right, a holder shall deliver to the Company
such Note with the form entitled "FORM OF COMPANY REPURCHASE ELECTION" on the
reverse thereof duly completed, together with the Note, duly endorsed for
transfer, at any time from the opening of business on the date that is twenty
(20) Business Days prior to such Company Repurchase Date until the close of
business on the third Business Day immediately preceding the Company Repurchase
Date, and shall deliver the Notes to the Trustee (or other Paying Agent
appointed by the Company) as set forth in the Indenture.
Holders have the right to withdraw any Repurchase Election by
delivering to the Trustee (or other Paying Agent appointed by the Company) a
written notice of withdrawal up to the close of business on the Business Day
immediately preceding the Repurchase Date, all as provided in the Indenture.
If cash sufficient to pay the Repurchase Price with respect to all
Notes or portions thereof to be repurchased as of any Repurchase Date are
deposited with the Trustee (or other Paying Agent appointed by the Company),
then on and after such Repurchase Date, interest will cease to accrue on such
Notes (or portions thereof), and the holder thereof shall have no other rights
as such other than the right to receive the Repurchase Price upon surrender of
such Note.
Subject to the occurrence of certain events and in compliance with
the provisions of the Indenture, prior to the Stated Maturity of the Notes, the
holder hereof has the right, at its option, to convert each $1,000 principal
amount of the Notes into 83.0703 shares of the Company's Common Stock (at a
Conversion Price of approximately $12.04 per share), as such shares shall be
constituted at the date of conversion and subject to adjustment from time to
time as provided in the Indenture, upon surrender of this Note with the form
entitled "FORM OF CONVERSION NOTICE" on the reverse hereof duly completed, to
the Company at the office or agency of the Company maintained for that purpose
in accordance with the terms of the Indenture or, at the option of such holder,
the Corporate Trust Office, and, unless the shares issuable on conversion are to
be issued in the same name as this Note, duly endorsed by, or accompanied by
instruments of transfer in form satisfactory to the Company duly executed by,
the holder or by his duly authorized attorney. The Company will notify the
holder thereof of any event triggering the right to convert the Notes as
specified above in accordance with the Indenture.
If the Company (i) is a party to a consolidation, merger, statutory
share exchange or combination, (ii) reclassifies the Common Stock or (iii) sells
or conveys its properties and assets substantially as an entirety to any Person,
the right to convert a Note into shares of Common Stock may be changed into a
right to convert it into securities, cash or other assets of the Company or such
other Person, in each case in accordance with the Indenture.
No adjustment in respect of interest on any Note converted or
dividends on any shares issued upon conversion of such Note will be made upon
any conversion except as set forth in the next sentence. If this Note (or
portion hereof) is surrendered for conversion during the period from the close
of business on any record date for the payment of interest to the close of
business on the Business Day preceding the following Interest Payment Date and
has not been
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called for redemption by the Company on a Redemption Date that occurs during
such period, this Note (or portion hereof being converted) must be accompanied
by payment, in immediately available funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on such Interest
Payment Date on the principal amount being converted; provided that no such
payment shall be required (1) if the Company has specified a Redemption Date
that is after a record date and prior to the next Interest Payment Date, (2) if
the Company has specified a Designated Event Repurchase Date that is during such
period or (3) to the extent of any overdue interest, if any overdue interest
exists at the time of conversion with respect to such Note.
No fractional shares will be issued upon any conversion, but an
adjustment and payment in cash will be made, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the
surrender of any Note or Notes for conversion.
A Note in respect of which a holder is exercising its right to
require repurchase upon a Designated Event or repurchase on a Repurchase Date
may be converted only if such holder withdraws its election to exercise such
right in accordance with the terms of the Indenture.
Any Notes called for redemption, unless surrendered for conversion
by the holders thereof on or before the close of business on the second Business
Day preceding the Redemption Date, may be deemed to be redeemed from the holders
of such Notes for an amount equal to the applicable Redemption Price, together
with accrued but unpaid interest to, but excluding, the Redemption Date, by one
or more investment banks or other purchasers who may agree with the Company (i)
to purchase such Notes from the holders thereof and convert them into shares of
the Company's Common Stock and (ii) to make payment for such Notes as aforesaid
to the Trustee in trust for the holders.
Upon due presentment for registration of transfer of this Note at
the office or agency of the Company maintained for that purpose in accordance
with the terms of the Indenture, a new Note or Notes of authorized denominations
for an equal aggregate principal amount will be issued to the transferee in
exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessment or other governmental charge imposed in
connection therewith.
The Company, the Trustee, any authenticating agent, any Paying
Agent, any Conversion Agent and any Note Registrar may deem and treat the
registered holder hereof as the absolute owner of this Note (whether or not this
Note shall be overdue and notwithstanding any notation of ownership or other
writing hereon made by anyone other than the Company or any Note Registrar) for
the purpose of receiving payment hereof, or on account hereof, for the
conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor other
Conversion Agent nor any Note Registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder
shall, to the extent of the sum or sums paid, satisfy and discharge liability
for monies payable on this Note.
No recourse for the payment of the principal of or interest on this
Note or any other amount due with respect thereto, or for any claim based hereon
or otherwise in respect
E-10
hereof, and no recourse under or upon any obligation, covenant or agreement of
the Company in the Indenture or any supplemental indenture or in any Note, or
because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, agent, officer or director or
Subsidiary, as such, past, present or future, of the Company or of any of its
successor corporations, either directly or through the Company or any of its
successor corporations, whether by virtue of any constitution, statute or rule
of law or by the enforcement of any assessment or penalty or otherwise, all such
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
Terms used in this Note and defined in the Indenture are used herein
as therein defined.
E-11
ABBREVIATIONS
The following abbreviations, when used in the inscription of the
face of this Note, shall be construed as though they were written out in full
according to applicable laws or regulations.
TEN COM = as tenants in common UGMA = Uniform Gifts to Minors
Act
TEN ENT = as tenant by the entireties CUST = Custodian
JT TEN = as joint tenants with right of
survivorship and not as tenants
in common
Additional abbreviations may also be used though not in the above list.
E-12
FORM OF
CONVERSION NOTICE
TO: THE GOODYEAR TIRE & RUBBER COMPANY
WELLS FARGO BANK, N.A.
The undersigned registered owner of this Note hereby irrevocably exercises the
option to convert this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, into shares of Common Stock of The Goodyear
Tire & Rubber Company in accordance with the terms of the Indenture referred to
in this Note, and directs that the shares issuable and deliverable upon such
conversion, together with any check in payment for fractional shares and any
Notes representing any unconverted principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. Capitalized terms used herein but not defined shall have the
meanings ascribed to such terms in the Indenture. If shares or any portion of
this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and
pay all transfer taxes payable with respect thereto. Any amount required to be
paid by the undersigned on account of interest or Liquidated Damages, if any,
accompanies this Note.
Dated: _____________________________
_________________________________
_________________________________
Signature(s)
E-13
Signature(s) must be guaranteed
by an "ELIGIBLE GUARANTOR
INSTITUTION" meeting the
requirements of the Note
Registrar, which requirements
include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other
"SIGNATURE GUARANTEE PROGRAM" as
may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
_________________________________
Signature Guarantee
Fill in the registration of shares of Common Stock if to be issued,
and Notes if to be delivered, other than to and in the name of the registered
holder:
__________________________________
(Name)
__________________________________
(Street Address)
__________________________________
(City, State and Zip Code)
__________________________________
Please print name and address
Principal amount to be converted
(if less than all):
$_________________________________
Social Security or Other Taxpayer
Identification Number:
__________________________________
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
E-14
FORM OF
DESIGNATED EVENT REPURCHASE ELECTION
TO: THE GOODYEAR TIRE & RUBBER COMPANY
WELLS FARGO BANK, N.A.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from The Goodyear Tire & Rubber Company (the
"COMPANY") as to the occurrence of a Designated Event with respect to the
Company and requests and instructs the Company to repurchase the entire
principal amount of this Note, or the portion thereof (which is $1,000 or a
multiple thereof) below designated, in accordance with the terms of the
Indenture referred to in this Note at the price of 100% of such entire principal
amount or portion thereof, together with accrued interest to, but excluding, the
Designated Event Repurchase Date, plus the applicable Make Whole Premium (if
any), to the registered holder hereof. Capitalized terms used herein but not
defined shall have the meanings ascribed to such terms in the Indenture.
Dated: _____________________________
_________________________________
_________________________________
Signature(s)
E-15
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
Note Certificate Number (if applicable):
Principal amount to be repurchased (if less than all):
Social Security or Other Taxpayer Identification Number:
E-16
FORM OF
COMPANY REPURCHASE ELECTION
TO: THE GOODYEAR TIRE & RUBBER COMPANY
WELLS FARGO BANK, N.A.
The undersigned registered owner of this Note hereby irrevocably
acknowledges receipt of a notice from The Goodyear Tire & Rubber Company (the
"COMPANY") regarding the right of holders to elect to require the Company to
repurchase the Notes and requests and instructs the Company to repay the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an
integral multiple thereof) below designated, in accordance with the terms of the
Indenture at the price of 100% of such entire principal amount or portion
thereof, together with accrued interest to, but excluding, the Company
Repurchase Date, to the registered holder hereof. Capitalized terms used herein
but not defined shall have the meanings ascribed to such terms in the Indenture.
The Notes shall be repurchased by the Company as of the Company Repurchase Date
pursuant to the terms and conditions specified in the Indenture.
Dated: _____________________________
_________________________________
_________________________________
Signature(s)
E-17
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
Note Certificate Number (if applicable):
__________________________________________
Principal amount to be repurchased (if less than all):
__________________________________________
Social Security or Other Taxpayer Identification Number:
__________________________________________
E-18
ASSIGNMENT
For value received _____________________ hereby sell(s) assign(s)
and transfer(s) unto __________________________________________ (Please insert
social security or other Taxpayer Identification Number of assignee) the within
Note, and hereby irrevocably constitutes and appoints attorney to transfer said
Note on the books of the Company, with full power of substitution in the
premises.
In connection with any transfer of the Note prior to the expiration
of the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act of 1933, as amended (the "SECURITIES ACT") (or any successor
provision) (other than any transfer pursuant to a registration statement that
has been declared effective under the Securities Act), the undersigned confirms
that such Note is being transferred:
[ ] (1) To The Goodyear Tire & Rubber Company or a subsidiary thereof;
or
[ ] (2) To a "QUALIFIED INSTITUTIONAL BUYER" in compliance with Rule
144A under the Securities Act; or
[ ] (3) Pursuant to and in compliance with Rule 144 under the Securities
Act; or
[ ] (4) To an institutional investor that is an accredited investor
within the meaning of Rule 501(a)(1), (2), (3) or (7) of Regulation
D under the Securities Act pursuant to an exemption from
registration under the Securities Act; or
[ ] (5) Pursuant to a registration statement that has been declared
effective under the Securities Act, and which continues to be
effective at the time of transfer;
and unless the Note has been transferred to The Goodyear Tire & Rubber Company
or a subsidiary thereof, the undersigned confirms that such Note is not being
transferred to an "affiliate" of the Company as defined in Rule 144 under the
Securities Act.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Notes evidenced by this certificate in the name of any
person other than the registered holder thereof.
Dated: _____________________________
_________________________________
_________________________________
Signature(s)
E-19
Signature(s) must be guaranteed
by an "ELIGIBLE GUARANTOR
INSTITUTION" meeting the
requirements of the Note
Registrar, which requirements
include membership or
participation in the Security
Transfer Agent Medallion Program
("STAMP") or such other
"SIGNATURE GUARANTEE PROGRAM" as
may be determined by the Note
Registrar in addition to, or in
substitution for, STAMP, all in
accordance with the Securities
Exchange Act of 1934, as amended.
_________________________________
Signature Guarantee
TO BE COMPLETED BY PURCHASER IF (2) ABOVE IS CHECKED:
The undersigned represents and warrants that it is purchasing this Security for
its own account or an account with respect to which it exercises sole investment
discretion and that it and any such account is a "qualified institutional buyer"
within the meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and acknowledges that
it has received such information regarding the Company as the undersigned has
requested pursuant to Rule 144A or has determined not to request such
information and that it is aware that the transferor is relying upon the
undersigned's foregoing representations in order to claim the exemption from
registration provided by Rule 144A.
Dated: _______________ _________________________________
Notice: To be executed by an
executive officer
NOTICE: The above signature(s) of the holder hereof must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatsoever.
E-20
Schedule I
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The initial principal amount of this Global Security is
$[ ]. The following increases or decreases in this Global
Security have been made:
Principal Signature of
Amount of Amount of amount of this authorized
decrease in increase in Global Security signatory of
Principal Principal following such Trustee or
Date of Amount of this Amount of this decrease or Securities
Exchange Global Security Global Security increase Custodian
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S-1
EXHIBIT B
Form of Transferee Letter of Representation
Goodyear Tire & Rubber Company
1144 East Market Street
Akron, OH 44316-001
In care of
[ ]
Ladies and Gentlemen:
This certificate is delivered to request a transfer of $[ ]
principal amount of the 4.00% Convertible Senior Notes Due 2034 (the "Notes") of
Goodyear Tire & Rubber Company (the "Company").
Upon transfer, the Notes would be registered in the name of the new
beneficial owner as follows:
Name: ______________________________________________________
Address: ___________________________________________________
Taxpayer ID Numbers: _______________________________________
The undersigned represents and warrants to you that:
1. We are an institutional "accredited investor" (as defined in Rule
501(a)(1), (2), (3) or (7) under the Securities Act of 1933, as amended (the
"Securities Act")), purchasing for our own account or for the account of such an
institutional "accredited investor" at least $250,000 principal amount of the
Notes, and we are acquiring the Notes not with a view to, or for offer or sale
in connection with, any distribution in violation of the Securities Act. We have
such knowledge and experience in financial and business matters as to be capable
of evaluating the merits and risks of our investment in the Notes, and we invest
in or purchase securities similar to the Notes in the normal course of our
business. We, and any accounts for which we are acting, are each able to bear
the economic risk of our or its investment.
B-1
2. We understand that the Notes have not been registered under the
Securities Act and, unless so registered, may not be sold except as permitted in
the following sentence. We agree on our own behalf and on behalf of any investor
account for which we are purchasing Notes to offer, sell or otherwise transfer
such Notes prior to the date that is two years after the later of the date of
original issue and the last date on which the Company or any affiliate of the
Company was the owner of such Notes (or any predecessor thereto) (the "Resale
Restriction Termination Date") only (i) to the Company, (ii) in the United
States to a person whom the seller reasonably believes is a qualified
institutional buyer in a transaction meeting the requirements of Rule 144A,
(iii) to an institutional "accredited investor" within the meaning of Rule
501(a)(1), (2), (3) or (7) under the Securities Act that is an institutional
accredited investor purchasing for its own account or for the account of an
institutional accredited investor, in each case in a minimum principal amount of
the Securities of $250,000, (iv) outside the United States in a transaction
complying with the provisions of Rule 904 under the Securities Act, (v) pursuant
to an exemption from registration under the Securities Act provided by Rule 144
(if available) or (vi) pursuant to an effective registration statement under the
Securities Act, in each of cases (i) through (vi) subject to any requirement of
law that the disposition of our property or the property of such investor
account or accounts be at all times within our or their control and in
compliance with any applicable state securities laws. The foregoing restrictions
on resale will not apply subsequent to the Resale Restriction Termination Date.
If any resale or other transfer of the Securities is proposed to be made
pursuant to clause (iii) above prior to the Resale Restriction Termination Date,
the transferor shall deliver a letter from the transferee substantially in the
form of this letter to the Company and the Trustee, which shall provide, among
other things, that the transferee is an institutional "accredited investor"
within the meaning of Rule 501(a)(1), (2), (3) or (7) under the Securities Act
and that it is acquiring such Securities for investment purposes and not for
distribution in violation of the Securities Act. Each purchaser acknowledges
that the Company and the Trustee reserve the right prior to the offer, sale or
other transfer prior to the Resale Restriction Termination Date of the
Securities pursuant to clause (iii), (iv) or (v) above to require the delivery
of an opinion of counsel, certifications or other information satisfactory to
the Company and the Trustee.
TRANSFEREE:
by _____________________________
Name:
Title:
B-2