EXHIBIT 4.2
MASSEY ENERGY COMPANY
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First Supplemental Indenture
Dated as of May 29, 2003
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Wilmington Trust Company,
Trustee
4.75% Convertible Senior Notes due 2023
TABLE OF CONTENTS/(1)/
Page
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ARTICLE 1 4.75% CONVERTIBLE SENIOR NOTES DUE 2023............................................... 1
Section 1.01 Establishment................................................................... 1
Section 1.02 Definitions..................................................................... 2
Section 1.03 Payment of Principal and Interest............................................... 6
Section 1.04 Denominations................................................................... 7
Section 1.05 Global Securities............................................................... 7
Section 1.06 Optional Redemption............................................................. 8
Section 1.07 Purchase at the Option of the Holder Upon a Fundamental Change.................. 9
Section 1.08 Purchase of Senior Convertible Notes at the Option of the Holder................ 10
Section 1.09 Further Conditions and Procedures for Purchase Upon a Fundamental Change
and Purchase at the Option of the Holder........................................ 10
Section 1.10 Conversion of Senior Convertible Notes.......................................... 15
Section 1.11 Additional Events of Default.................................................... 25
Section 1.12 Amendments; Waiver.............................................................. 25
Section 1.13 Register of Securities; Paying Agent; Conversion Agent.......................... 25
Section 1.14 Calculations in Respect of the Senior Convertible Notes......................... 26
Section 1.15 Tax Treatment................................................................... 26
Section 1.16 Transfer and Exchange........................................................... 26
ARTICLE 2 MISCELLANEOUS PROVISIONS.............................................................. 31
Section 2.01 Recitals by the Corporation..................................................... 31
Section 2.02 Ratification and Incorporation of Original Indenture............................ 31
Section 2.03 Executed in Counterparts........................................................ 31
Exhibit A Form of 4.75% Convertible Senior Note
Exhibit B Certificate of Authentication of 4.75% Convertible Senior Note
/(1)/ This Table of Contents does not constitute part of the Indenture or have
any bearing upon the interpretation of any of its terms and provisions.
THIS FIRST SUPPLEMENTAL INDENTURE is made as of the 29th day of May
2003, by and between MASSEY ENERGY COMPANY, a Delaware corporation, having its
principal office at 4 North 4th Street, Richmond, Virginia 23219 (the
"Corporation"), A.T. MASSEY COAL COMPANY, INC., a Virginia corporation and a
wholly owned subsidiary of the Company, as guarantor (the "Guarantor"), and
Wilmington Trust Company, a Delaware banking corporation, as trustee (herein
called the "Trustee").
W I T N E S S E T H:
WHEREAS, the Corporation and the Guarantor have heretofore entered into
a Senior Indenture, dated as of May 29, 2003 (the "Original Indenture"), with
the Trustee;
WHEREAS, the Original Indenture is incorporated herein by this reference
and the Original Indenture, as may be amended and supplemented to the date
hereof, including by this First Supplemental Indenture, is herein called the
"Indenture";
WHEREAS, under the Indenture, a new series of Securities may at any time
be established in accordance with the provisions of the Indenture and the terms
of such series may be described by a supplemental indenture executed by the
Corporation and the Trustee;
WHEREAS, the Corporation hereby proposes to create under the Indenture a
new series of Securities;
WHEREAS, additional Securities of other series hereafter established,
except as may be limited in the Indenture as at the time supplemented and
modified, may be issued from time to time pursuant to the Indenture as at the
time supplemented and modified; and
WHEREAS, all conditions necessary to authorize the execution and
delivery of this First Supplemental Indenture and to make it a valid and binding
obligation of the Corporation have been done or performed.
NOW, THEREFORE, in consideration of the agreements and obligations set
forth herein and for other good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties hereto hereby agree as follows:
ARTICLE 1
4.75% CONVERTIBLE SENIOR NOTES DUE 2023
SECTION 1.01 Establishment. There is hereby established a new series of
Securities to be issued under the Indenture, to be designated as the
Corporation's 4.75% Convertible Senior Notes due 2023 (the "Senior Convertible
Notes").
There are to be authenticated and delivered $132,000,000 principal
amount of the Senior Convertible Notes, and no further Senior Convertible Notes
shall be authenticated and delivered except as provided by Section 304, 305,
306, 906 or 1106 of the Original Indenture, the last paragraph of Section 301
thereof, Section 1.09(f) hereof and Section 1.10(c)(iv) hereof. The Senior
Convertible Notes shall be issued in fully registered form without coupons.
The Senior Convertible Notes shall be in substantially the form set out
in Exhibit A hereto, and the form of the Trustee's Certificate of Authentication
for the Senior Convertible Notes shall be in substantially the form set forth in
Exhibit B hereto.
Each Senior Convertible Note shall be dated the date of authentication
thereof and shall bear interest from the date of original issuance thereof or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for.
The Senior Convertible Notes issued on the date hereof will be (i)
offered and sold by the Company pursuant to the Purchase Agreement and (ii)
resold initially only to (A) QIBs in reliance on Rule 144A (such resold Senior
Convertible Notes to be referred to herein as the "Rule 144A Securities") and
(B) Persons other than U.S. Persons (as defined in Regulation S) in reliance on
Regulation S (such resold Senior Convertible Notes to be referred to herein as
the "Regulation S Securities" and, together with the Rule 144A Securities, the
"Transfer Restricted Securities"). Such Transfer Restricted Securities may
thereafter be transferred to, among others, QIBs and purchasers in reliance on
Regulation S.
SECTION 1.02 Definitions. The following defined terms used herein shall,
unless the context otherwise requires, have the meanings specified below for
purposes of the Senior Convertible Notes. Capitalized terms used herein for
which no definition is provided herein shall have the meanings set forth in the
Original Indenture.
"Average Sale Price" has the meaning provided in Section 1.08(a) hereof.
"Business Day" means, with respect to any Security (including the Senior
Convertible Notes), any day, other than a Saturday or Sunday, that is neither a
legal holiday nor a day on which commercial banks are authorized or required by
law, regulation or executive order to close in The City of New York or a day on
which the Corporate Trust Office of the Trustee is closed.
"Clearstream" means Clearstream Banking, societe anonyme, Luxembourg.
"Common Stock" means the common stock, $0.625 par value, of the
Corporation, which is the only outstanding class of the Corporation's Common
Stock.
"Conversion Agent" means the Trustee or such other office or agency
designated by the Corporation where Senior Convertible Notes may be presented
for conversion.
"Conversion Date" has the meaning provided in Section 1.10(c)(i) hereof.
"Conversion Price" means $1,000 divided by the Conversion Rate,
initially $19.39 per share of Common Stock.
"Conversion Rate" has the meaning provided in Section 1.10(b) hereof.
"Corporation Purchase Notice" has the meaning provided in Section
1.09(a) hereof.
"Corporation Purchase Notice Date" has the meaning provided in Section
1.09(a) hereof.
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"Current Market Price" per share of Common Stock on any day means the
average of the daily Last Reported Sale Price for the five consecutive Trading
Days selected by the Corporation commencing not more than 30 Trading Days
before, and ending not later than, the earlier of the day in question (including
upon the occurrence of a Fundamental Change) and the day before the "ex date"
with respect to the issuance or distribution requiring such computation. As used
herein, the term "ex date," when used with respect to any issuance or
distribution, shall mean the first date on which the Common Stock trades regular
way on the exchange or in the market in which the security trades without the
right to receive such issuance or distribution.
"Euroclear" means Euroclear Bank S.A./N.V., as operator of the Euroclear
System.
"Expiration Time" has the meaning provided in Section 1.10(g)(vi)
hereof.
"Fundamental Change" will be deemed to have occurred at the time after
Original Issue Date that any of the following occurs:
(i) a "person" or "group" within the meaning of Section
13(d) of the Exchange Act other than the Corporation, its subsidiaries
or its or their employee benefit plans, files a Schedule TO 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
Corporation's common equity representing more than 50% of the voting
power of the Corporation's common equity entitled to vote generally in
the election of directors; or
(ii) consummation of any share exchange, consolidation or
merger of the Corporation pursuant to which the Common Stock will be
converted into cash, securities or other property or any sale, lease or
other transfer in one transaction or a series of transactions of all or
substantially all of the consolidated assets of the Corporation and its
subsidiaries, taken as a whole, to any person other than the Corporation
or one or more of its subsidiaries; provided, however, that a
transaction where the holders of the Corporation's common equity
immediately prior to such transaction have directly or indirectly, more
than 50% of the aggregate voting power of all classes of common equity
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 Fundamental Change.
A Fundamental Change will not be deemed to have occurred in respect of
either of the foregoing, however, if either:
(i) the Last Reported Sale Price of the Common Stock for any
five Trading Days within the 10 consecutive Trading Days ending
immediately before the later of the Fundamental Change or the public
announcement thereof, equals or exceeds 105% of the Conversion Price of
the Senior Convertible Notes immediately before the Fundamental Change
or the public announcement thereof, or
(ii) at least 90% of the consideration, excluding cash
payments for fractional shares, in the transaction or transactions
constituting the Fundamental Change consists of shares of capital stock
traded on a national securities exchange or quoted on the Nasdaq
National Market or which will be so traded or quoted when issued or
exchanged in
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connection with a Fundamental Change (these securities being referred to
as "publicly traded securities") and as a result of this transaction or
transactions the Senior Convertible Notes become convertible into such
publicly traded securities, excluding cash payments for fractional
shares.
For purposes of this First Supplemental Indenture the term capital stock
of any Person means any and all shares (including ordinary shares or American
Depositary Shares), interests, participations, or other equivalents, however
designated, of corporate stock or other equity participations, including
partnership interests, whether general or limited, of such Person and any rights
(other than debt securities convertible or exchangeable into an equity
interest), warrants or options to acquire an equity interest in such Person.
"Fundamental Change Purchase Date" has the meaning provided in Section
1.07(a) hereof.
"Fundamental Change Purchase Notice" has the meaning provided in Section
1.07(b)(i) hereof.
"Fundamental Change Purchase Price" has the meaning provided in Section
1.07(a) hereof.
"Initial Purchasers" means the several initial purchasers party to the
Purchase Agreement.
"Interest Payment Date" means each May 15 and November 15 of each year,
commencing November 15, 2003.
"interest period" means any six-month period from May 15 to November 14
and from November 15 to May 14, as appropriate, commencing with the six-month
period beginning November 15, 2003.
"Last Reported Sale Price" of the Common Stock on any date means the
closing sale price per share (or if no closing sale price is reported, the
average of the bid and asked prices or, if more than one in either case, the
average of the average bid and the average asked prices) on that date as
reported in composite transactions for the principal U.S. securities exchange on
which the Common Stock is traded or, if the Common Stock is not listed on a U.S.
national or regional securities exchange, as reported by the Nasdaq National
Market. If the Common Stock is not listed for trading on a U.S. national or
regional securities exchange and not reported by the Nasdaq National Market on
the relevant date, the "Last Reported Sale Price" will 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 or similar organization. If the
Common Stock is not so quoted, the "Last Reported Sale Price" will be the
average of the mid-point of the last bid and asked prices for the Common Stock
on the relevant date quoted by each of at least three nationally recognized
independent investment banking firms selected by the Corporation for this
purpose.
"Original Issue Date" means May 29, 2003.
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"Purchase Agreement" means the Purchase Agreement, dated May 23, 2003,
among the Corporation, and Citigroup Global Markets Inc. and UBS Warburg LLC, as
the representatives of the initial purchasers.
"Purchase Price" means an amount equal to the principal amount of the
Senior Convertible Notes to be purchased plus any accrued and unpaid interest to
but excluding the Put Date.
"Purchase Price Consideration" has the meaning provided in Section
1.08(a) hereof.
"Purchased Shares" has the meaning provided in Section 1.10(g)(vi).
"Put Date" has the meaning provided in Section 1.08(a) hereof.
"Put Notice" has the meaning provided in Section 1.08(b)(i) hereof.
"QIB" means a "qualified institutional buyer" as defined in Rule 144A.
"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
shareholders 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).
"Redemption Date" has the meaning provided in Section 1.06(a) hereof.
"Redemption Price" has the meaning provided in Section 1.06(a) hereof.
"Registration Agreement" means the Registration Rights Agreement dated
May 29, 2003, among the Company and the Initial Purchasers.
"Regular Record Date" means, with respect to each Interest Payment Date,
the close of business on the 15th calendar day immediately preceding such
Interest Payment Date (whether or not a Business Day).
"Regulation S" means Regulation S under the Securities Act.
"Restricted Period" with respect to any Securities means the period of
40 consecutive days beginning on and including the later of (i) the day on which
such Securities are first offered to persons other than distributors (as defined
in Regulation S under the Securities Act) in reliance on Regulation S and (ii)
the Original Issue Date with respect to such Securities.
"Restricted Securities Legend" means the legend set forth in Section
1.15(e)(i) herein.
"Rule 144A" means Rule 144A under the Securities Act.
"Securities Act" means the Securities Act of 1933, as amended.
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"Senior Convertible Notes" has the meaning provided in Section 1.01
hereof.
"Special Record Date" has the meaning provided in Section 1.03(a)
hereof.
"Spin-off Market Price" per share of Common Stock of the Corporation or
the capital stock of, or similar equity interests in, a subsidiary or other
business unit of the Corporation on any day means the average of the daily Last
Reported Sale Price for the 10 consecutive Trading Days commencing on and
including the fifth Trading Day after the "ex date" with respect to the issuance
or distribution requiring such computation. As used herein, the term "ex date,"
when used with respect to any issuance or distribution, shall mean the first
date on which the Common Stock trades regular way on the exchange or in the
market in which the security trades without the right to receive such issuance
or distribution.
"Stated Maturity" means May 15, 2023.
"Trading Day" means (a) if the applicable security is listed, admitted
for trading or quoted on the New York Stock Exchange, the Nasdaq National Market
or another U.S. national or regional securities exchange, a day on which the New
York Stock Exchange, the Nasdaq National Market or such other national or
regional securities exchange, as the case may be, is open for business or (b) if
the applicable security is not so listed, admitted for trading or quoted, any
Business Day.
"Trading Price" means the price of the Senior Convertible Notes as
determined by the Corporation as calculated in connection with Section 1.14. The
Corporation may determine the Trading Price based upon the average of the
secondary market bid quotations, as of any date of determination, per $1,000
principal amount of Senior Convertible Notes obtained by a bid solicitation
agent appointed by the Corporation for $10 million principal amount of Senior
Convertible Notes at approximately 4:00 p.m., New York City time, on such
determination date from three recognized securities dealers (none of which shall
be an Affiliate of the Corporation) in The City of New York (or such other place
that may be determined from time to time by the Corporation) selected by the
Corporation; provided, however, if (a) at least three such bids are not obtained
by the bid solicitation agent or (b) in the Corporation's reasonable judgment,
the bid quotations are not indicative of the secondary market value of the
Senior Convertible Notes as of such determination date, then the Trading Price
for such determination date shall equal (1) the Conversion Rate in effect as of
such determination date multiplied by (2) the average Last Reported Sale Price
of the Common Stock for the five Trading Days ending on such determination date,
appropriately adjusted to take into account the occurrence, during the period
commencing on the first of such Trading Days during such five Trading Day period
and ending on such determination date, of any event described in Section 1.10(g)
hereof.
"Trustee" has the meaning provided in the preamble hereof.
SECTION 1.03 Payment of Principal and Interest. (a) The principal of the
Senior Convertible Notes shall be due at Stated Maturity (unless earlier
redeemed or purchased by the Corporation). The unpaid principal amount of the
Senior Convertible Notes shall bear interest at the rate of 4.75% per annum
until paid or duly provided for, such interest to accrue from May 29, 2003 or
from the most recent Interest Payment Date to which interest has been paid or
duly
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provided for. Interest shall be paid semi-annually in arrears, commencing on
November 15, 2003, on each Interest Payment Date to the Person or Persons in
whose name the Senior Convertible Notes are registered on the Regular Record
Date for such Interest Payment Date. Any such interest that is not so punctually
paid or duly provided for shall forthwith cease to be payable to the Holders on
such Regular Record Date and may either be paid to the Person or Persons in
whose name the Senior Convertible Notes are registered at the close of business
on a Special Record Date for the payment of such defaulted interest to be fixed
by the Trustee ("Special Record Date"), notice whereof shall be given to Holders
of the Senior Convertible Notes not less than ten (10) days prior to such
Special Record Date, or be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities exchange, if any, on which
the Senior Convertible Notes may be listed, and upon such notice as may be
required by any such exchange, all as more fully provided in the Original
Indenture.
(b) Payments of interest on the Senior Convertible Notes shall
include interest accrued to but excluding the respective Interest Payment Dates,
Redemption Date, Put Date or Fundamental Change Purchase Date, as the case may
be. Payments of interest for the Senior Convertible Notes shall be computed and
paid on the basis of a 360-day year of twelve 30-day months. In the event that
any date on which interest is payable on the Senior Convertible Notes is not a
Business Day, then payment of the interest payable on such date shall be made on
the next succeeding day that is a Business Day (and without any interest or
payment in respect of any such delay) with the same force and effect as if made
on the date the payment was originally payable and no additional interest will
accrue on that payment from and after the date on which the interest is payable
to the date of that payment on the next succeeding Business Day.
(c) Payment of principal of, premium, if any, and interest on the
Senior Convertible Notes shall be made in such coin or currency of the United
States of America as at the time of payment is legal tender for payment of
public and private debts or such other form of consideration as set forth
herein. Payments of principal of, premium, if any, and interest on Senior
Convertible Notes represented by a Global Security shall be made by wire
transfer of immediately available funds to the Holder of such Global Security,
provided that, in the case of payments of principal and premium, if any, such
Global Security is first surrendered to the Paying Agent. If any of the Senior
Convertible Notes are no longer represented by a Global Security, (i) payments
of principal, premium, if any, and interest due at the Stated Maturity or
earlier redemption or purchase of such Senior Convertible Notes shall be made at
the office of the Paying Agent upon surrender of such Senior Convertible Notes
to the Paying Agent and (ii) payments of interest shall be made, at the option
of the Corporation, subject to such surrender where applicable, (A) by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register or (B) by wire transfer at such place and to
such account at a banking institution in the United States as may be designated
in writing to the Trustee at least sixteen (16) days prior to the date for
payment by the Person entitled thereto.
(d) If any payment date, whether an Interest Payment Date, a date on
which payment is due at Maturity, a date on which payment is due upon
redemption, a Fundamental Change Purchase Date or a Put Date, falls on a day
that is not a Business Day, the required payment will be made on the next
succeeding Business Day with the same force and effect as if made on the date
that the payment was due and no additional interest will accrue on that payment
for the
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period from and after such payment date that is not a Business Day to the date
of that payment on the next succeeding Business Day.
SECTION 1.04 Denominations. The Senior Convertible Notes shall be issued
in denominations of $1,000 and any integral multiple thereof.
SECTION 1.05 Global Securities. (a) The Senior Convertible Notes shall
initially be issued in the form of one or more Global Securities registered in
the name of the Depositary (which initially shall be The Depository Trust
Company) or its nominee. Except under the limited circumstances described below,
Senior Convertible Notes represented by such Global Security or Global
Securities shall not be exchangeable for, and shall not otherwise be issuable
as, Senior Convertible Notes in definitive form ("Definitive Securities"). The
Global Securities described in this Article 1 may not be transferred 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 to a successor
Depositary or its nominee.
(b) A Global Security shall be exchangeable for Senior Convertible
Notes registered in the names of Persons other than the Depositary or its
nominee only if (i) the Depositary notifies the Corporation that it is unwilling
or unable to continue as a Depositary for such Global Security and no successor
Depositary shall have been appointed by the Corporation within 90 days of
receipt by the Corporation of such notification, or if at any time the
Depositary ceases to be a clearing agency registered under the Exchange Act at a
time when the Depositary is required to be so registered to act as such
Depositary and no successor Depositary shall have been appointed by the
Corporation within 90 days after it becomes aware of such cessation or (ii) the
Corporation in its sole discretion determines that such Global Security shall be
so exchangeable. Any Global Security that is exchangeable pursuant to the
preceding sentence shall be exchangeable for Senior Convertible Notes registered
in such names as the Depositary shall direct.
(c) Transfers, exchanges and forms of the Senior Convertible Notes
are further subject to the provisions of Section 1.15.
SECTION 1.06 Optional Redemption. (a) On or after May 20, 2009, the
Senior Convertible Notes shall be redeemable, in whole or, from time to time, in
part, at the option of the Corporation on any date (a "Redemption Date"), at a
redemption price equal to 100% of the principal amount of the Senior Convertible
Notes to be redeemed plus any accrued and unpaid interest on the principal
amount to be redeemed to but excluding the Redemption Date (the "Redemption
Price").
(b) The Corporation shall notify each Holder of the redemption
pursuant to Section 1104 of the Original Indenture.
(c) If any Senior Convertible Notes selected for partial redemption
are thereafter surrendered for conversion in part before termination of the
conversion right with respect to the portion of the Senior Convertible Notes so
selected, the converted portion of such Senior Convertible Notes shall be deemed
(so far as may be), solely for purposes of determining the aggregate principal
amount of Senior Convertible Notes to be redeemed by the Corporation, to
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be the portion selected for redemption. Senior Convertible Notes which have been
converted during a selection of Senior Convertible Notes to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such selection. Nothing
in this Section 1.06(c) shall affect the right of any Holder to convert any
Senior Convertible Notes before the termination of the conversion right with
respect thereto. If the Corporation decides to redeem fewer than all of the
outstanding Senior Convertible Notes then the Trustee will select the Senior
Convertible Notes to be redeemed (in principal amount of $1,000 or integral
multiples thereof) by lot, or on a pro rata basis or by another method the
Trustee considers fair and appropriate.
(d) In addition to those matters set forth in Section 1104 of the
Indenture, a notice of redemption sent to the Holders of Senior Convertible
Notes shall state:
(i) the name of the Paying Agent and Conversion Agent;
(ii) the then current Conversion Rate;
(iii) that the Senior Convertible Notes called for redemption
may be converted at any time prior to the close of business on the
second Business Day immediately preceding the Redemption Date; and
(iv) that Holders who wish to convert Senior Convertible
Notes must comply with the procedures in Section 1.10 hereof and the
second through seventh paragraphs of the reverse of the Senior
Convertible Notes.
(e) The Senior Convertible Notes shall not have a sinking
fund.
SECTION 1.07 Purchase at the Option of the Holder Upon a Fundamental
Change. (a) If a Fundamental Change shall occur at any time prior to May 15,
2009, each Holder shall have the right, at such Holder's option, to require the
Corporation to purchase any or all of such Holder's Senior Convertible Notes for
cash on the date that is no later than 35 days after the date of the Corporation
Purchase Notice of the occurrence of such Fundamental Change (subject to
extension to comply with applicable law, as provided in Section 1.09(g)) (the
"Fundamental Change Purchase Date"). The Corporation shall purchase such Senior
Convertible Notes at a price (the "Fundamental Change Purchase Price") equal to
100% of the principal amount of the Senior Convertible Notes to be purchased
plus any accrued and unpaid interest on the principal amount to be purchased to
but excluding the Fundamental Change Purchase Date. No Senior Convertible Notes
may be purchased at the option of the Holders due to a Fundamental Change if
there has occurred and is continuing an Event of Default (other than an Event of
Default that is cured by the payment of the Fundamental Change Purchase Price of
such Senior Convertible Notes).
(b) Exercise of Fundamental Change Option. For a Senior Convertible
Note to be so purchased at the option of the Holder pursuant to this Section
1.07, the Paying Agent must receive:
(i) a written notice of purchase (a "Fundamental Change
Purchase Notice") substantially in the form entitled "Form of
Fundamental Change Purchase Notice" on the reverse of the Senior
Convertible Note duly completed, on or before the close of business
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on the Business Day immediately preceding the Fundamental Change
Purchase Date, subject to extension to comply with applicable law. The
Fundamental Change Purchase Notice shall state:
(1) if certificated, the certificate numbers of the
Senior Convertible Notes which the Holder shall deliver to be
purchased;
(2) the portion of the principal amount of the
Senior Convertible Notes which the Holder shall deliver to be
purchased, which portion must be $1,000 or an integral multiple
thereof; and
(3) that such Senior Convertible Notes shall be
purchased as of the Fundamental Change Purchase Date pursuant to
the terms and conditions specified in the Senior Convertible
Notes and in the Indenture;
(ii) delivery or book-entry transfer of such Senior
Convertible Notes prior to, on or after the Fundamental Change Purchase
Date (together with all necessary endorsements) at the offices of the
Paying Agent, such delivery or transfer being a condition to receipt by
the Holder of the Fundamental Change Purchase Price therefor; provided,
however, that such Fundamental Change Purchase Price shall be so paid
pursuant to this Section 1.07 only if the Senior Convertible Notes so
delivered or transferred to the Paying Agent shall conform in all
respects to the description thereof in the related Fundamental Change
Purchase Notice.
SECTION 1.08 Purchase of Senior Convertible Notes at the Option of the
Holder. (a) On each of May 15, 2009, May 15, 2013 and May 15, 2018 (each, a "Put
Date"), each Holder shall have the right, at such Holder's option, to require
the Corporation to purchase any or all of such Holder's Senior Convertible
Notes. Any Senior Convertible Notes purchased by the Corporation on May 15, 2009
shall be purchased for cash. Any Senior Convertible Notes purchased by the
Corporation on May 15, 2013 or May 15, 2018 may be purchased at the option of
the Corporation for cash or shares of Common Stock, or a combination of cash and
shares of Common Stock (each a form of "Purchase Price Consideration");
provided, however, that payments for any accrued but unpaid interest on the
principal amount to be purchased shall be paid in cash. The Corporation shall
purchase such Senior Convertible Notes at a price equal to 100% of the principal
amount of the Senior Convertible Notes to be purchased plus any accrued and
unpaid interest on the principal amount to be purchased to but excluding the Put
Date. If the Corporation chooses to include shares of Common Stock as all or a
component of the Purchase Price Consideration, the number of shares of Common
Stock to be delivered will be equal to that portion of the Purchase Price
divided by 97.5% of the average closing sale price (the "Average Sale Price") of
the Common Stock for the five Trading Days ending on the third Business Day
prior to the applicable Put Date (appropriately adjusted to take into account
the occurrence of certain events that would result in an adjustment of the
Conversion Rate with respect to the Common Stock). The Holder bears the market
risk with respect to the value of the Common Stock to be received from the date
the Average Sale Price is determined to the Put Date. The Corporation will not
deliver fractional shares in repurchases using shares of Common Stock as
consideration. Holders of Senior Convertible Notes who would otherwise be
entitled to receive fractional shares will instead receive cash in an amount
equal to the Average Sale Price of a
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share of the Common Stock multiplied by such fraction. The number of shares of
Common Stock to be delivered by the Corporation as Purchase Price Consideration
shall be equal to the portion of the Purchase Price to be paid in Common Stock
divided by the Average Sale Price.
The Corporation's right to purchase Senior Convertible Notes, in whole
or in part, with Common Stock is subject to:
(i) the Corporation providing timely written notice of its
election to do so;
(ii) the Common Stock then being listed on a national
securities exchange or quoted on the Nasdaq National Market;
(iii) information necessary to calculate the market price of
the Common Stock being published in a daily newspaper of national
circulation;
(iv) registration of the Common Stock under the Securities
Act and the Exchange Act, if required; and
(v) the Corporation obtaining any necessary qualification or
registration under applicable state securities law or the availability
of an exemption from such qualification and registration.
If the conditions in items (i) through (v) above are not satisfied with
respect to a Holder prior to the close of business on the Put Date, we will pay
the Purchase Price of the Senior Convertible Notes submitted by such Holder in
accordance with Section 1.08 herein entirely in cash. Except as provided herein,
the Corporation cannot change the form or components or percentages of
components of consideration to be paid for the Senior Convertible Notes once we
have given the Corporation Purchase Notice.
(b) Exercise of Put Option. For a Senior Convertible Note to be so
purchased at the option of the Holder, the Paying Agent must receive:
(i) a written notice of purchase (a "Put Notice")
substantially in the form entitled "Form of Put Notice" on the reverse
of the Senior Convertible Note duly completed, at any time from the
opening of business on the date that is 20 Business Days prior to a Put
Date until the close of business on the fifth Business Day prior to such
Put Date. The Put Notice shall state:
(1) if certificated, the certificate numbers of the
Senior Convertible Notes which the Holder shall deliver to be
purchased;
(2) the portion of the principal amount of the
Senior Convertible Notes which the Holder shall deliver to be
purchased, which portion must be $1,000 or an integral multiple
thereof;
(3) that such Senior Convertible Notes shall be
purchased as of the Put Date pursuant to the terms and
conditions specified in the Senior Convertible Notes and in the
Indenture; and
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(4) for the May 15, 2013 and May 15, 2018 Put Dates,
in the event the Corporation elects, pursuant to the notice that
it is required to give, to pay the Purchase Price in shares of
Common Stock, in whole or in part, but the Purchase Price is
ultimately to be paid to the Holder entirely in cash because any
of the conditions to payment of the Purchase Price, or any
portion of the Purchase Price, in shares of Common Stock is not
satisfied prior to the close of business on the last Business
Day prior to the Put Date, whether the Holder elects: (A) to
withdraw the purchase notice as to some or all of the Senior
Convertible Notes to which it relates; or (B) to receive cash in
respect of the entire Purchase Price for all Senior Convertible
Notes subject to the purchase notice.
If a Holder fails to indicate its choice with respect to the election
described in Section 1.08(b)(i)(4), such Holder will be deemed to have elected
to receive cash in respect of the entire Purchase Price for all Senior
Convertible Notes subject to the Corporation Purchase Notice in these
circumstances.
(ii) delivery or book-entry transfer of such Senior
Convertible Notes to the Paying Agent prior to, on or after the Put Date
(together with all necessary endorsements) at the offices of the Paying
Agent, such delivery or transfer being a condition to receipt by the
Holder of the Purchase Price therefor; provided, however, that such
Purchase Price shall be so paid pursuant to this Section 1.08 only if
the Senior Convertible Notes so delivered or transferred to the Paying
Agent shall conform in all respects to the description thereof in the
related Put Notice.
SECTION 1.09 Further Conditions and Procedures for Purchase Upon a
Fundamental Change and Purchase at the Option of the Holder.
(a) Notice of Put Date or Fundamental Change. The Corporation shall
send notices (each, a "Corporation Purchase Notice") to the Holders (and to
beneficial owners as required by applicable law) at their addresses shown in the
Senior Convertible Note register maintained by the Security Registrar, and shall
deliver a copy of each such notice to the Trustee and Paying Agent, not less
than 20 Business Days prior to each Put Date, or on or before the 30th day after
the occurrence of the Fundamental Change, as the case may be (each such date of
delivery, a "Corporation Purchase Notice Date"). Any such notice delivered to
the Trustee and the Paying Agent with respect to a Fundamental Change shall be
accompanied by an Officers' Certificate certifying that a Fundamental Change has
occurred and as to the date of the occurrence thereof, on which Certificate the
Trustee and the Paying Agent may conclusively rely. Each Corporation Purchase
Notice shall include a form of Put Notice or Fundamental Change Purchase Notice
to be completed by a Holder and shall state:
(i) the applicable Purchase Price or Fundamental Change
Purchase 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 Senior Convertible Notes on the applicable Put Date or
Fundamental Change Purchase Date;
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(ii) if the notice relates to a Fundamental Change, the
events causing the Fundamental Change and the date of the Fundamental
Change;
(iii) if the notice relates to a Put Date, the form of
Purchase Price Consideration to be paid, specifying the percentages of
each form if it is a combination;
(iv) the Put Date or Fundamental Change Purchase Date;
(v) the last date on which a Holder may exercise its
purchase right;
(vi) the name and address of the Paying Agent and the
Conversion Agent;
(vii) that Senior Convertible Notes must be surrendered to the
Paying Agent to collect payment of the Purchase Price or Fundamental
Change Purchase Price;
(viii) that Senior Convertible Notes as to which a Put Notice
or Fundamental Change Purchase Notice has been given by the Holder to
the Corporation may be converted only if the applicable Put Notice or
Fundamental Change Purchase Notice has been withdrawn by the Holder in
accordance with the terms of this First Supplemental Indenture; provided
that the Senior Convertible Notes are otherwise convertible in
accordance with the second through seventh paragraphs of the reverse of
the Senior Convertible Notes;
(ix) that the Purchase Price or Fundamental Change Purchase
Price for any Senior Convertible Notes as to which a Put Notice or a
Fundamental Change Purchase Notice, as applicable, has been given and
not withdrawn shall be paid by the Paying Agent promptly following the
later of the Put Date or Fundamental Change Purchase Date, as
applicable, or the time of book-entry transfer or delivery of such
Senior Convertible Notes;
(x) the procedures the Holder must follow under Sections
1.07 or 1.08, as applicable, and this Section 1.09;
(xi) briefly, the conversion rights of the Senior Convertible
Notes and whether, at the time of such notice, the Convertible Senior
Notes are eligible for conversion;
(xii) that, unless the Corporation defaults in making payment
of such Purchase Price or Fundamental Change Purchase Price on Senior
Convertible Notes covered by any Put Notice or Fundamental Change
Purchase Notice, as applicable, interest will cease to accrue on and
after the Put Date or Fundamental Change Purchase Date, as applicable;
(xiii) the CUSIP and, if applicable, the ISIN number of the
Senior Convertible Notes; and
(xiv) the procedures for withdrawing a Put Notice or
Fundamental Change Purchase Notice.
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Simultaneously with providing such Corporation Purchase Notice, the
Corporation will publish a notice containing the information in such Corporation
Purchase Notice in a newspaper of general circulation in The City of New York or
publish such information on its then existing web site or through such other
public medium as it may use at the time.
At the Corporation's request, made at least five Business Days prior to
the date upon which such notice is to be mailed, and at the Corporation's
expense, the Paying Agent shall give the Corporation Purchase Notice in the
Corporation's name; provided, however, that, in all cases, the text of the
Corporation Purchase Notice shall be prepared by the Corporation.
(b) Effect of Put Notice or Fundamental Change Purchase Notice. Upon
receipt by the Paying Agent on behalf of the Corporation from the Holder of the
Fundamental Change Purchase Notice or the Put Notice specified in Section
1.07(b)(i) or Section 1.08(b)(i), as applicable, the Holder of the Senior
Convertible Notes in respect of which such Fundamental Change Purchase Notice or
the Put Notice, as the case may be, was given shall (unless such Fundamental
Change Purchase Notice or the Put Notice is withdrawn as specified in the
following two paragraphs) thereafter be entitled to receive solely the
Fundamental Change Purchase Price or the Purchase Price with respect to such
Senior Convertible Notes. Such Fundamental Change Purchase Price or Purchase
Price shall be paid by the Paying Agent to such Holder promptly following the
later of (x) the Fundamental Change Purchase Date or the Put Date, as the case
may be, with respect to such Senior Convertible Notes (provided the conditions
in Section 1.07(b) or Section 1.08(b), as applicable, have been satisfied) and
(y) the time of delivery or book-entry transfer of such Senior Convertible Notes
to the Paying Agent by the Holder thereof in the manner required by Section
1.07(b)(ii) or Section 1.08(b)(ii), as applicable. Senior Convertible Notes in
respect of which a Fundamental Change Purchase Notice or Put Notice, as the case
may be, has been given by the Holder thereof may not be converted for shares of
Common Stock on or after the date of the delivery of such Fundamental Change
Purchase Notice or Put Notice, as the case may be, unless such Fundamental
Change Purchase Notice or Put Notice, as the case may be, has first been validly
withdrawn or deemed to have been validly withdrawn as specified in Section
1.09(c); provided that the Senior Convertible Notes are otherwise convertible in
accordance with the second through seventh paragraphs of the reverse of the
Senior Convertible Notes.
On or before 10:00 a.m. (New York City time) on the Fundamental Change
Purchase Date or the Put Date, as the case may be, the Corporation shall deposit
with the Paying Agent (or if the Corporation or an Affiliate of the Corporation
is acting as the Paying Agent, shall segregate and hold in trust) the Purchase
Price Consideration sufficient to pay the aggregate Fundamental Change Purchase
Price or the aggregate Purchase Price, as the case may be, of the Senior
Convertible Notes to be purchased pursuant to Section 1.07 or Section 1.08, as
applicable. Payment by the Paying Agent of such Fundamental Change Purchase
Price or Purchase Price for such Senior Convertible Notes shall be made promptly
following the later of the Fundamental Change Purchase Date or the Put Date, as
the case may be, or the time of book-entry transfer or delivery of such Senior
Convertible Notes. If the Paying Agent holds, in accordance with the terms of
the Indenture, money sufficient to pay the Fundamental Change Purchase Price or
Purchase Price, as the case may be, of such Senior Convertible Notes on the
Business Day following the Fundamental Change Purchase Date or the Put Date, as
the case may be, then, on and after such date, such Senior Convertible Notes
shall cease to be outstanding and interest on
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such Senior Convertible Notes shall cease to accrue, whether or not book-entry
transfer of such Senior Convertible Notes is made or such Senior Convertible
Notes are delivered to the Paying Agent, and all other rights of the Holder
shall terminate (other than the right to receive the Fundamental Change Purchase
Price or the Purchase Price, as the case may be, upon delivery or transfer of
the Senior Convertible Notes). Nothing herein shall preclude the Corporation
withholding any tax required by law.
The Corporation shall require each Paying Agent (other than the Trustee)
to agree in writing that the Paying Agent shall hold in trust for the benefit of
Holders or the Trustee all money held by the Paying Agent for the payment of the
Fundamental Change Purchase Price or the Purchase Price, as the case may be, and
shall notify the Trustee of any default by the Corporation in making any such
payment. If the Corporation or an Affiliate of the Corporation acts as Paying
Agent, it shall segregate the money held by it as Paying Agent and hold it as a
separate trust fund. The Corporation at any time may require a Paying Agent to
deliver all money held by it pursuant to this Section 1.09 to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon doing so, the Paying
Agent shall have no further liability for the money delivered to the Trustee.
All questions as to the validity, eligibility (including time of
receipt) and acceptance of any Senior Convertible Notes for purchase shall be
determined by the Corporation, whose determination shall be final and binding,
absent manifest error.
(c) Withdrawal of a Put Notice or Fundamental Change Purchase
Notice. A Put Notice or Fundamental Change Purchase Notice, as the case may be,
may be withdrawn by means of a written notice of withdrawal delivered to the
office of the Paying Agent at any time prior to 5:00 p.m. New York City time on
the Business Day prior to the Put Date or the Fundamental Change Purchase Date,
as the case may be, to which it relates specifying:
(i) if certificated, the certificate number of the Senior
Convertible Notes in respect of which such notice of withdrawal is being
submitted;
(ii) the principal amount of the Senior Convertible Notes
with respect to which such notice of withdrawal is being submitted; and
(iii) the principal amount, if any, of such Senior Convertible
Notes which remains subject to the Put Notice or Fundamental Change
Purchase Notice, as the case may be, and which has been or shall be
transferred or delivered for purchase by the Corporation.
The Paying Agent shall promptly notify the Corporation of the receipt by
it of any Put Notice or Fundamental Change Purchase Notice or written notice of
withdrawal thereof.
(d) Notwithstanding the requirements of Sections 1.07 or 1.08 and
this Section 1.09, if the Senior Convertible Notes are represented by Global
Securities in book-entry form the appropriate procedures of the Depositary must
be complied with for any purchase upon a Fundamental Change or Put Option.
15
(e) Effect of Event of Default. There shall be no purchase of any
Senior Convertible Notes pursuant to Section 1.07 or Section 1.08 if an Event of
Default has occurred and is continuing (other than a default that is cured by
the payment of the Purchase Price or Fundamental Change Purchase Price, as the
case may be). The Paying Agent shall promptly return to the respective Holders
thereof any Senior Convertible Notes (x) with respect to which a Put Notice or
Fundamental Change Purchase Notice, as the case may be, has been withdrawn in
compliance with this First Supplemental Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default that is cured by the
payment of the Purchase Price or Fundamental Change Purchase Price, as the case
may be) in which case, upon such return, the Put Notice or Fundamental Change
Purchase Notice with respect thereto shall be deemed to have been withdrawn.
(f) Senior Convertible Notes Purchased in Part. Any Senior
Convertible Notes that are to be purchased only in part shall be surrendered at
the office of the Paying Agent (with, if the Corporation or the Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Corporation and the Trustee duly executed by, the Holder
thereof or such Holder's attorney duly authorized in writing) and the
Corporation shall execute and the Trustee or the Authenticating Agent, if any,
shall authenticate and deliver to the Holder of such Senior Convertible Notes,
without service charge, a new Senior Convertible Note or Senior Convertible
Notes, of any authorized denomination as requested by such Holder in aggregate
principal amount equal to, and in exchange for, the portion of the principal
amount of the Senior Convertible Notes so surrendered which is not purchased.
(g) Covenant to Comply with Securities Laws Upon Purchase of Senior
Convertible Notes. In connection with any offer to purchase Senior Convertible
Notes under Sections 1.07 or 1.08 hereof, the Corporation shall, to the extent
applicable, (i) comply with Rules 13e-4 and 14e-1 (and any successor provisions
thereto) under the Exchange Act, if applicable, (ii) file the related Schedule
TO (or any successor schedule, form or report) under the Exchange Act, if
applicable and (iii) otherwise comply with all applicable federal and state
securities laws so as to permit the rights and obligations under Sections 1.07,
1.08 or this Section 1.09 to be exercised in the manner specified in Sections
1.07, 1.08 or this Section 1.09; provided, however, that the Corporation shall
not take any action in violation of any applicable federal or state securities
laws.
(h) Repayment to the Corporation. The Trustee and the Paying Agent
shall return to the Corporation any cash or property that remains unclaimed as
provided in Section 1003 of the Original Indenture, together with any unclaimed
interest, held by them for the payment of a Purchase Price or Fundamental Change
Purchase Price, as the case may be; provided, however, that to the extent that
the aggregate amount of cash deposited by the Corporation pursuant to Section
1.09(b), as applicable, exceeds the aggregate Purchase Price or Fundamental
Change Purchase Price, as the case may be, of the Senior Convertible Notes or
portions thereof which the Corporation is obligated to purchase as of the Put
Date or Fundamental Change Purchase Date, as the case may be, then promptly on
and after the Business Day following the Put Date or Fundamental Change Purchase
Date, as the case may be, the Trustee or the Paying Agent, as the case may be,
shall return any such excess to the Corporation together with any excess
interest held by them for payment to Holders.
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(i) In any case where a Put Date or a Fundamental Change Purchase
Date shall not be a Business Day at any Place of Payment, then (notwithstanding
any other provision of the Indenture or the Senior Convertible Notes) payment of
interest and the Purchase Price or the Fundamental Change Purchase Price, as the
case may be, need not be made at such Place of Payment on such date (provided
that all other conditions therefor have been complied with), but may be made on
the next succeeding Business Day at such Place of Payment (provided that such
conditions have been complied with) with the same force and effect as if made on
the Put Date or the Fundamental Change Purchase Date, as the case may be (and
without any interest or payment in respect of any such delay).
SECTION 1.10 Conversion of Senior Convertible Notes.
(a) Right to Convert. A Holder may convert its Senior Convertible
Notes for Common Stock at any time during the periods specified in the second
paragraph of the reverse of the Senior Convertible Notes.
(b) The Conversion Rate. The initial Conversion Rate is 51.573
shares of Common Stock issuable upon conversion of $1,000 principal amount of a
Senior Convertible Note (the "Conversion Rate"), subject to adjustment as herein
set forth. A Holder may convert a portion of the principal amount of Senior
Convertible Notes if the portion is $1,000 or an integral multiple thereof.
(c) Conversion Procedures. To convert Senior Convertible Notes, the
requirements set forth in this Section 1.10(c) and in the second through seventh
paragraphs of the reverse of the Senior Convertible Notes must be satisfied.
(i) To convert the Senior Convertible Notes, a Holder must
(1) complete and manually sign the irrevocable conversion notice on the
back of the Senior Convertible Notes (or complete and manually sign a
facsimile of such notice) and deliver such notice to the Conversion
Agent at the office maintained by the Conversion Agent for such purpose,
(2) with respect to Senior Convertible Notes in certificated form,
surrender the Senior Convertible Notes to the Conversion Agent or with
respect to Senior Convertible Notes represented by Global Securities,
cause the book-entry transfer thereof to the Conversion Agent, (3)
furnish appropriate endorsements and transfer documents if required by
the Conversion Agent, the Corporation or the Trustee and (4) pay any
transfer or similar tax, if required. The date on which the Holder
satisfies all such requirements is the conversion date (the "Conversion
Date"). As soon as practicable, but in no event later than the fifth
Business Day following the Conversion Date, the Corporation shall
deliver to the Holder, through the Conversion Agent, a certificate (or
credit the book-entry transfer of such shares of Common Stock) for the
number of full shares of Common Stock issuable upon the conversion and
cash in lieu of any fractional share determined pursuant to Section
1.10(d).
(ii) Holders of Senior Convertible Notes at the close of
business on a Regular Record Date will receive payment of interest
payable on the corresponding Interest Payment Date notwithstanding the
conversion of such Senior Convertible Notes at any time after the close
of business on such Regular Record Date. Senior Convertible Notes
17
surrendered for conversion by a Holder during the period from the close
of business on any Regular Record Date to the opening of business on the
corresponding Interest Payment Date must be accompanied by payment of an
amount equal to the interest that the Holder is to receive on the Senior
Convertible Notes; provided, however, that no such payment need be made
with respect to Senior Convertible Notes in respect of which a
Redemption Date or Fundamental Change Purchase Date has been set that
falls within this period or on such Interest Payment Date or to the
extent any overdue interest exists at the time of such conversion.
Except as described above, no payment or adjustment will be made for
accrued interest on converted Senior Convertible Notes. Upon conversion
of Senior Convertible Notes, a Holder will not receive any cash payment
of interest (unless such conversion occurs between a Regular Record Date
and the Interest Payment Date to which it relates) and the Corporation
will not adjust the Conversion Rate to account for accrued and unpaid
interest.
(iii) The Person in whose name the certificate for such shares
of Common Stock is registered shall be treated as a stockholder of
record on and after the Conversion Date; provided, however, that no
surrender of Senior Convertible Notes on any date when the stock
transfer books of the Corporation shall be closed shall be effective to
constitute the Person or Persons entitled to receive the shares of
Common Stock upon such conversion as the record holder or holders of
such shares of Common Stock on such date, but such surrender shall be
effective to constitute the Person or Persons entitled to receive such
shares of Common Stock as the record holder or holders thereof for all
purposes at the close of business on the next succeeding day on which
such stock transfer books are open; such conversion shall be at the
Conversion Rate in effect on the date that such Senior Convertible Notes
shall have been surrendered for conversion, as if the stock transfer
books of the Corporation had not been closed. Upon conversion of Senior
Convertible Notes, such Person shall no longer be a Holder of such
Senior Convertible Notes.
(iv) No payment or adjustment shall be made for dividends on
or other distributions with respect to any Common Stock except as
provided in Section 1.10(g) or as otherwise provided in the Indenture.
If a Holder converts more than one Senior Convertible Note at the same
time, the number of shares of Common Stock issuable upon the conversion
shall be based on the total principal amount of the Senior Convertible
Notes converted. Upon surrender of a Senior Convertible Note that is
converted in part, the Corporation shall execute, and the Trustee or the
Authenticating Agent shall authenticate and deliver to the Holder, a new
Senior Convertible Note in an authorized denomination equal in principal
amount to the unconverted portion of the Senior Convertible Note
surrendered. If the last day on which Senior Convertible Notes may be
converted is not a Business Day in a place where a Conversion Agent is
located, the Senior Convertible Notes may be surrendered to that
Conversion Agent on the next succeeding day that is a Business Day. A
Holder of Senior Convertible Notes is not entitled to any rights of a
holder of Common Stock until such Holder has converted its Senior
Convertible Notes to Common Stock, and only to the extent such Senior
Convertible Notes are deemed to have been converted into Common Stock
pursuant to this Section 1.10.
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(v) If a Holder of Senior Convertible Notes has already
delivered a Fundamental Change Purchase Notice or Put Notice with
respect to a Senior Convertible Note, then the Holder may not surrender
such Senior Convertible Note for conversion until the Holder has
withdrawn the applicable Fundamental Change Purchase Notice or Put
Notice in accordance with the provisions hereof.
(d) Cash Payments in Lieu of Fractional Shares. The Corporation
shall not issue a fractional share of Common Stock upon conversion of Senior
Convertible Notes. Instead the Corporation shall deliver cash for the current
market value of the fractional share. The current market value of a fractional
share shall be determined to the nearest 1/10,000th of a share by multiplying
the Last Reported Sale Price of a full share of Common Stock on the Trading Day
immediately preceding the Conversion Date by the fractional amount and rounding
the product to the nearest whole cent.
(e) Taxes on Conversion. At the option of the Holders, if a Holder
converts Senior Convertible Notes, the Corporation shall pay any documentary,
stamp or similar issue or transfer tax due on the issue of shares of Common
Stock upon the conversion. However, the Holder shall pay any such tax which is
due because the Holder requests the shares to be issued in a name other than the
Holder's name. The Conversion Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the Holder's
name until the Conversion Agent receives a sum sufficient to pay any tax which
shall be due because the shares are to be issued in a name other than the
Holder's name. Nothing herein shall preclude the Corporation's withholding any
tax required by law.
(f) Covenants of the Corporation. The Corporation shall, prior to
issuance of any Senior Convertible Notes hereunder, and from time to time as may
be necessary, reserve out of its authorized but unissued Common Stock a
sufficient number of shares of Common Stock to permit the conversion of the
Senior Convertible Notes. All shares of Common Stock delivered upon conversion
of the Senior Convertible Notes shall be newly issued shares or treasury shares,
shall be duly and validly issued and fully paid and nonassessable and shall be
free from preemptive rights and free of any lien or adverse claim. The
Corporation shall endeavor promptly to comply with all federal and state
securities laws regulating the order and delivery of shares of Common Stock upon
the conversion of Senior Convertible Notes, if any, and shall cause to have
listed or quoted all such shares of Common Stock on the New York Stock Exchange,
or, if not listed thereon, on each United States national securities exchange or
over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.
(g) Adjustments to Conversion Rate. The Conversion Rate shall be
adjusted from time to time by the Corporation as follows:
(i) In case the Corporation shall pay or make a dividend or
other distribution on the Common Stock in Common Stock, the Conversion
Rate, as in effect at the opening of business on the day following the
date fixed for the determination of stockholders entitled to receive
such dividend or other distribution, shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the number
of shares of Common Stock outstanding at the close of business on the
date fixed for such determination and the denominator shall be the sum
of such number of shares and the
19
total number of shares constituting such dividend or other distribution,
such increase to become effective immediately after the opening of
business on the day following the date fixed for such determination. For
the purposes of this Section 1.10(g)(i), the number of shares of Common
Stock at any time outstanding shall not include shares held in treasury
by the Corporation but shall include any shares issuable in respect of
any scrip certificates issued in lieu of fractions of shares of Common
Stock. The Corporation will not pay any dividend or make any
distribution on shares of Common Stock held in treasury by the
Corporation.
(ii) In case the Corporation shall issue rights, options or
warrants (other than pursuant to any dividend reinvestment or share
purchase plans) to all holders of its Common Stock (not being available
on an equivalent basis to Holders of the Senior Convertible Notes upon
conversion of such Senior Convertible Notes) entitling them, for a
period expiring within 45 days after the record date for the
determination of stockholders entitled to receive such rights, options
or warrants, to subscribe for or purchase shares of Common Stock at a
price per share less than the Current Market Price per share of the
Common Stock on the date fixed for the determination of stockholders
entitled to receive such rights, options or warrants (other than
pursuant to a dividend reinvestment plan or share purchase plan), the
Conversion Rate in effect at the opening of business on the day
following the date fixed for such determination shall be increased by
dividing such Conversion Rate by a fraction of which the numerator shall
be the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock which the aggregate offering price of the total
number of shares of Common Stock so offered for subscription or purchase
would purchase at such Current Market Price and the denominator shall be
the number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number of
shares of Common Stock so offered for subscription or purchase at such
below Current Market Price, such increase to become effective
immediately after the opening of business on the day following the date
fixed for such determination. For the purposes of this Section
1.10(g)(ii), the number of shares of Common Stock at any time
outstanding shall not include shares held in treasury by the Corporation
but shall include any shares issuable in respect of any scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Corporation shall not issue any such rights, options or warrants in
respect of shares of Common Stock held in treasury by the Corporation.
(iii) In case outstanding shares of Common Stock shall be
subdivided or split into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision or split becomes effective
shall be proportionately increased, and, conversely, in case outstanding
shares of Common Stock shall each be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision, split or combination becomes effective.
20
(iv) In case the Corporation shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of capital stock, securities, cash or other
property (but excluding any rights, options or warrants referred to in
Section 1.10(g)(ii) of this Section, any dividend or distribution paid
exclusively in cash and any dividend or distribution referred to in
Section 1.10(g)(i)), the Conversion Rate shall be adjusted by dividing
the Conversion Rate in effect immediately prior to the close of business
on the date fixed for the determination of stockholders entitled to
receive such distribution by a fraction of which the numerator shall be
the Current Market Price per share of the Common Stock on the date fixed
for such determination less the then fair market value (as determined by
the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) on such date of the portion of the
evidences of indebtedness, shares of capital stock, securities, cash or
other property so distributed applicable to one share of Common Stock
and the denominator shall be such Current Market Price per share of the
Common Stock, such adjustment to become effective immediately prior to
the opening of business on the day following the date fixed for the
determination of stockholders entitled to receive such distribution;
provided, however, that in the event that the Corporation makes a
distribution to all holders of its Common Stock consisting of capital
stock of, or similar equity interests in, a subsidiary or other business
unit of the Corporation, the Conversion Rate shall be adjusted by
dividing the Conversion Rate in effect immediately prior to the close of
business on the date fixed for the determination of stockholders
entitled to receive such distribution by a fraction of which the
numerator shall be the Spin-off Market Price per share of the Common
Stock on the date fixed for such determination less the Spin-off Market
Price per share or similar equity interest of the subsidiary or other
business unit of the Corporation on such date and the denominator shall
be the Spin-off Market Price per share of the Common Stock, such
adjustment to become effective 10 trading days after the effective date
of such distribution of capital stock of, or similar equity interest in,
a subsidiary or other business unit of the Corporation. In any case in
which this Section 1.10(g)(iv) is applicable, Sections 1.10(g)(i) and
(ii) shall not be applicable.
(v) In case the Corporation shall, (I) by dividend or
otherwise, distribute to all holders of its Common Stock cash (excluding
(i) any cash that is distributed in an event to which Section
1.10(h)(iv) applies or (ii) cash that is distributed as part of a
distribution referred to in Section 1.10(g)(iv)) in an aggregate amount
that, combined together with (II) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively in
cash within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to this
Section 1.10(g)(v) or Section 1.10(g)(vi) has been made and (III) the
aggregate of any cash plus the fair market value, as of the expiration
of the applicable tender or exchange offer referred to below (as
determined by the Board of Directors, whose determination shall be
conclusive and described in a Board Resolution), of consideration
payable in respect of any tender or exchange offer (other than
consideration payable in respect of any odd-lot tender offer) by the
Corporation or any of its subsidiaries for all or any portion of the
Common Stock concluded within the 12 months preceding the date of
payment of the distribution described in clause (I) above and in respect
of which no adjustment pursuant to this Section 1.10(g)(v) or Section
1.10(g)(vi) has been made, exceeds the product of $0.16 (appropriately
adjusted from time to time for any stock dividends on or subdivisions or
21
combinations of Common Stock) multiplied by the number of shares of
Common Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for determination,
the Conversion Rate shall be increased so that the same shall equal the
rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for determination of
the stockholders entitled to receive such distribution by a fraction (i)
the numerator of which shall be equal to the Current Market Price per
share of the Common Stock on the date fixed for such determination plus
$0.16 (appropriately adjusted from time to time for any stock dividends
on or subdivisions or combination of Common Stock) less an amount equal
to the quotient of (x) the combined amount distributed or payable in the
transactions described in clauses (I), (II) and (III) above and (y) the
number of shares of Common Stock outstanding on such date for
determination and (ii) the denominator of which shall be equal to the
Current Market Price per share of the Common Stock on such date for
determination.
(vi) In case (I) a tender or exchange offer made by the
Corporation or any subsidiary of the Corporation for all or any portion
of the Common Stock (other than consideration payable in respect of any
odd-lot tender offer) shall expire and such tender or exchange offer (as
amended upon the expiration thereof) shall require the payment to
stockholders (based on the acceptance (up to any maximum specified in
the terms of the tender or exchange offer) of Purchased Shares) of an
aggregate consideration having a fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution) that combined together with (II) the
aggregate of the cash plus the fair market value (as determined by the
Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender or
exchange offer, of consideration payable in respect of any other tender
or exchange offer (other than consideration payable in respect of any
odd-lot tender offer) by the Corporation or any subsidiary of the
Corporation for all or any portion of the Common Stock expiring within
the 12 months preceding the expiration of such tender or exchange offer
and in respect of which no adjustment pursuant to Section 1.10(g)(v) or
this Section 1.10(g)(vi) has been made and (III) the aggregate amount of
any distributions to all holders of the Corporation's Common Stock made
exclusively in cash within the 12 months preceding the expiration of
such tender or exchange offer and in respect of which no adjustment
pursuant to Section 1.10(g)(v) or this Section 1.10(g)(vi) has been
made, exceeds the product of $0.16 (appropriately adjusted from time to
time for any stock dividends on or subdivisions or combination of Common
Stock) multiplied by the number of shares of Common Stock outstanding
(including any tendered shares) as of the last time (the "Expiration
Time") tenders could have been made pursuant to such tender or exchange
offer (as it may be amended), then, and in each such case, immediately
prior to the opening of business on the day after the date of the
Expiration Time, the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by dividing the Conversion Rate
immediately prior to the close of business as of the Expiration Time by
a fraction (i) the numerator of which shall be equal to (A) the product
of (1) the Current Market Price per share of the Common Stock as of the
Expiration Time plus $0.16 (appropriately adjusted from time to time for
any stock dividends on or subdivisions or combination of Common Stock)
and (2) the number of shares of Common Stock outstanding (including any
tendered shares) as of the Expiration
22
Time less (B) the amount of cash plus the fair market value (determined
as aforesaid) of the aggregate consideration payable to stockholders
based on the transactions described in clauses (I), (II) and (III) above
(assuming in the case of clause (I) the acceptance, up to any maximum
specified in the terms of the tender or exchange offer, of Purchased
Shares), and (ii) the denominator of which shall be equal to the product
of (A) the Current Market Price per share of the Common Stock as of the
Expiration Time and (B) the number of shares of Common Stock outstanding
(including any tendered shares) as of the Expiration Time less the
number of all shares validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so accepted, up to any such maximum,
being referred to as the "Purchased Shares").
(vii) All adjustments to the Conversion Rate, shall be
calculated to the nearest 1/10,000th of a share of Common Stock (or if
there is not a nearest 1/10,000th of a share to the next lower
1/10,000th of a share). No adjustment in the Conversion Rate shall be
required unless such adjustment would require an increase or decrease of
at least one percent therein; provided, however, that any adjustments
which by reason of this subparagraph are not required to be made because
they would have required an increase or decrease of less than one
percent shall be carried forward and taken into account in any
subsequent adjustment.
(viii) Notwithstanding the foregoing provisions of Section
1.10(g)(ii) or (iv), 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
Senior Convertible Notes.
(ix) No adjustment pursuant to the Conversion Rate or a
holder's ability to convert pursuant to this Section 1.10(g) shall be
made in connection with the issuance of rights, the distribution of
separate certificates representing rights or the exercise, redemption,
termination or invalidation of rights pursuant to any stockholder rights
plan implemented by the Corporation which provides that, upon conversion
of the Senior Convertible Notes, the Holders shall receive, in addition
to the Common Stock issuable upon such conversion, the rights issued
under such stockholder rights plan (notwithstanding the occurrence of an
event causing such rights to separate from the Common Stock at or prior
to the time of conversion).
(h) Miscellaneous Provisions Relating to Conversion.
(i) When No Adjustment Required. No adjustment to the
Conversion Rate need be made:
(1) 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 Corporation and the investment of additional optional
amounts in shares of Common Stock under any plan;
23
(2) 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 Corporation or any of its
Subsidiaries;
(3) upon the issuance of any shares of Common Stock
pursuant to any option, warrant, right, or exercisable,
exchangeable or convertible security not described in (2) above
and outstanding as of the date the Senior Convertible Notes were
first issued;
(4) for a change in the par value of the Common
Stock; or
(5) for accrued and unpaid interest.
To the extent the Senior Convertible Notes become convertible into cash,
assets or property (other than capital stock of the Corporation or
securities to which Section 1.10(h)(iv) applies), no adjustment shall be
made thereafter as to the cash, assets or property. Interest shall not
accrue on such cash, assets or property.
(ii) Notice of Adjustment. Whenever the Conversion Rate is
adjusted, the Corporation shall promptly mail to Holders a notice of the
adjustment. The Corporation shall file with the Trustee and the
Conversion Agent such notice. The certificate shall, absent manifest
error, be conclusive evidence that the adjustment is correct. Neither
the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate except to exhibit
the same to any Holder desiring inspection thereof.
(iii) Voluntary Increase. The Corporation may make such
increases in the Conversion Rate, in addition to those required by
Section 1.10(g), 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 Common Stock) or from any event treated as
such for income tax purposes. To the extent permitted by applicable law,
the Corporation may from time to time increase the Conversion Rate by
any amount for any period of time if the period is at least 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 Corporation, which determination shall be conclusive.
Whenever the Conversion Rate is so increased, the Corporation shall mail
to Holders and file with the Trustee and the Conversion Agent a notice
of such increase. Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such notice except
to exhibit the same to any Holder desiring inspection thereof. The
Corporation shall mail the notice at least 15 days before the date the
increased Conversion Rate takes affect. The notice shall state the
increased Conversion Rate and the period it shall be in effect.
(iv) Effect of Reclassification, Consolidation, Merger,
Binding Share Exchange or Sale. If any of the following events occur,
namely (a) any reclassification or
24
change of outstanding shares of Common Stock (other than a change in par
value, or from par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination), (b) any
consolidation, merger or binding share exchange of the Corporation with
another corporation as a result of which holders of Common Stock shall
be entitled to receive stock, securities or other property or assets
(including cash) with respect to or in exchange for such Common Stock or
(c) any sale or conveyance of all or substantially all of the assets of
the Corporation to any other corporation as a result of which holders of
Common Stock shall be entitled to receive stock, securities or other
property or assets (including cash) with respect to or in exchange for
such Common Stock, then the Conversion Rate will not be adjusted. If any
of the events described in the preceding sentence occur, the Corporation
or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture or otherwise amend the
terms of the Senior Convertible Notes, to provide that each Senior
Convertible Note shall be convertible into the kind and amount of shares
of stock, other securities or property or assets (including cash) that
the Holder of the Senior Convertible Note would have received upon such
reclassification, change, consolidation, merger, binding share exchange,
sale or conveyance if such Holder had converted such Senior Convertible
Note into the number of shares of Common Stock issuable upon conversion
of such Senior Convertible Note immediately prior to such
reclassification, change, consolidation, merger, combination, binding
share exchange, sale or conveyance. Such supplemental indenture or other
amendment to the Senior Convertible Notes shall provide for adjustments
which shall be as nearly equivalent as may be practicable to the
adjustments provided for in this Section 1.10(h)(iv). The Corporation
shall cause notice of the execution of such supplemental indenture or
amendment of the Senior Convertible Notes to be mailed to each Holder,
at its address appearing on the Senior Convertible Note register, within
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,
binding share exchanges, sales and conveyances. If this Section
1.10(h)(iv) applies to any event or occurrence, Section 1.10(g) shall
not apply.
(v) Responsibility of Trustee. The Trustee and any other
Conversion Agent shall not at any time be under any duty or
responsibility to any Holder to either calculate the Conversion Rate or
determine 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 herein, or in any supplemental indenture provided to be
employed, in making the same and shall be protected in relying upon an
Officers' Certificate with respect to 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 Senior Convertible Notes 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 Corporation 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 Senior
Convertible Notes for the purpose of conversion or to comply with any of
the duties, responsibilities or covenants of the Corporation contained
in this
25
Section 1.10. 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 1.10(h)(iv)
relating either to the kind or amount of shares of stock or securities
or other property or assets (including cash) receivable by Holders upon
the conversion of their Senior Convertible Notes after any event
referred to in such Section 1.10(h)(iv) or to any adjustment to be made
with respect thereto, but, subject to the provisions of Article Six of
the Indenture, may accept as conclusive evidence of the correctness of
any such provisions, and shall be protected in relying upon, the
Officers' Certificate (which the Corporation shall be obligated to file
with the Trustee prior to the execution of any such supplemental
indenture) with respect thereto. Neither the Trustee nor the Conversion
Agent shall be responsible for determining whether any event
contemplated by the second paragraph of the reverse of the Senior
Convertible Notes has occurred which makes the Senior Convertible Notes
eligible for conversion or no longer eligible therefor until the
Corporation has delivered to the Trustee and the Conversion Agent an
Officers' Certificate stating that such event has occurred, on which
Certificate the Trustee and the Conversion Agent may conclusively rely,
and the Corporation agrees to deliver such Officers' Certificate to the
Trustee and the Conversion Agent immediately after the occurrence of any
such event.
In no event shall the Trustee or the Conversion Agent be liable for any
indirect, special, punitive or consequential loss or damage of any kind
whatsoever, including, but not limited to, lost profits, even if the Trustee or
the Conversion Agent have been advised of the likelihood of such loss or damage
and regardless of the form of action.
In no event shall the Trustee or the Conversion Agent be liable for any
failure or delay in the performance of its obligations hereunder because of
circumstances beyond its control, including, but not limited to, acts of God,
flood, war (whether declared or undeclared), terrorism, fire, riot, embargo,
government action, including any laws, ordinances, regulations, governmental
action or the like which delay, restrict or prohibit the providing of the
services contemplated by this Indenture.
(vi) Successive Adjustments. After an adjustment to the
Conversion Rate under Section 1.10(g), any subsequent event requiring an
adjustment under Section 1.10(g) shall cause an adjustment to the
Conversion Rate as so adjusted.
(vii) General Considerations. Whenever successive adjustments
to the Conversion Rate are called for pursuant to Sections 1.10(g) or
1.10(h), such adjustments shall be made to the Current Market Price as
may be necessary or appropriate to effectuate the intent of 1.10(g) or
1.10(h) and to avoid unjust or inequitable results as determined in good
faith by the Board of Directors.
(i) On conversion of a Senior Convertible Note, a Holder shall
receive no payment for that portion of accrued and unpaid interest on the
converted Senior Convertible Note attributable to the period from the most
recent Interest Payment Date (or, if no Interest Payment Date has occurred, from
the Original Issue Date) through the Conversion Date with respect to the
converted Senior Convertible Note.
26
SECTION 1.11 Additional Events of Default; Withholding Notice;
Rescission. (a) In addition to those matters set forth in Section 501 of the
Original Indenture, an "Event of Default" with respect to the Senior Convertible
Notes shall also mean any of the following events:
(i) default in the payment of any interest upon the Senior
Convertible Notes when it becomes due and payable, and continuance of
such default for a period of 30 days; or
(ii) default in the Corporation's obligation to repurchase
Senior Convertible Notes upon the Corporation's exercise of its
repurchase option pursuant to Section 1.06, upon the occurrence of a
Fundamental Change pursuant to Section 1.07 or upon the exercise by a
holder of its option to require the Corporation to repurchase such
holder's Senior Convertible Notes pursuant to Section 1.08; or
(iii) default in the Corporation's obligation to convert the
Senior Convertible Notes upon exercise of a Holder's conversion right.
(b) The Trustee may withhold from the Holders notice of any
continuing default or Event of Default (except a default or Event of Default in
the payment of principal of, interest or liquidated damages, if any, on the
Senior Convertible Notes) if it determines in good faith that withholding notice
is in the Holders' interest.
(c) The Holders of a majority in aggregate principal amount of the
Senior Convertible Notes then outstanding by notice to the Trustee may rescind
any acceleration of the Senior Convertible Notes and its consequences if all
existing Events of Default (other than the nonpayment of principal of, interest
and liquidated damages, if any, on the Senior Convertible Notes that has become
due solely by virtue of such acceleration) have been cured or waived and if the
rescission would not conflict with any judgment or decree of any court of
competent jurisdiction. No such rescission will affect any subsequent default or
Event of Default or impair any right consequent thereto.
SECTION 1.12 Amendment; Supplement; and Waiver. In addition to those
matters set forth in Section 902 of the Original Indenture, with respect to the
Senior Convertible Notes, no amendment or supplemental indenture shall without
the consent of the Holder of each Senior Convertible Note affected thereby:
(a) reduce the percentage of the principal amount of Senior
Convertible Notes whose holders must consent to an amendment, supplement or
waiver;
(b) reduce the principal of or change the fixed Maturity of any
Senior Convertible Note;
(c) reduce the rate of or change the time for payment of interest on
any Senior Convertible Notes;
(d) waive a default or event of default in the payment of principal
of or interest or liquidated damages, if any, on the Senior Convertible Notes
(except a rescission of acceleration of the Senior Convertible Notes by the
Holders of at least a majority in aggregate principal
27
amount of the Senior Convertible Notes and a waiver of the payment default that
resulted from such acceleration);
(e) make any note payable in money other than that stated in the
Indenture and the Senior Convertible Notes;
(f) make any change in the provisions of the Indenture relating to
waivers of past defaults or the rights of Holders of Senior Convertible Notes to
receive payments of principal of or interest or liquidated damages, if any, on
the Senior Convertible Notes;
(g) except as permitted by the Indenture, increase the conversion
price or modify the provisions of the Indenture relating to conversion of the
Senior Convertible Notes in a manner adverse to the Holders;
(h) make any change to the abilities of Holders of Senior
Convertible Notes to enforce their rights under the Indenture or the foregoing
provisions or this provision;
(i) reduce the redemption price, purchase price or Fundamental
Change Purchase Price of the Senior Convertible Notes; or
(j) make any change that adversely affects the right to convert the
Senior Convertible Notes.
Notwithstanding the foregoing, without the consent of any Holder, the
Corporation and the Trustee may amend or supplement the Indenture or the Senior
Convertible Notes to:
(a) cure any ambiguity, defect or inconsistency or make any other
changes in the provisions of the Indenture which they may deem necessary or
desirable, provided such amendment does not materially and adversely affect the
Senior Convertible Notes;
(b) provide for uncertificated Senior Convertible Notes in addition
to or in place of certificated Senior Convertible Notes;
(c) provide for the assumption of the Corporation's obligations to
Holders of Senior Convertible Notes in the circumstances required under the
Indenture;
(d) provide for exchange rights of Holders of Senior Convertible
Notes in certain events;
(e) reduce the conversion price;
(f) evidence and provide for the acceptance of the appointment under
the Indenture of a successor Trustee;
(g) make any change that would provide any additional rights or
benefits to the Holders of Senior Convertible Notes or that does not adversely
affect the legal rights under the Indenture of any such Holder; or
28
(h) comply with requirements of the SEC in order to effect or
maintain the qualification of the Indenture under the Trust Indenture Act of
1939.
In addition, with respect to the Senior Convertible Notes, to the
extent set forth in Section 513 of the Original Indenture, the Holders of at
least a majority in aggregate principal amount of the Outstanding Senior
Convertible Notes may waive an existing default other than: (a) any default by
the Corporation in any payment of the Redemption Price, Purchase Price or
Fundamental Change Purchase Price with respect to any Senior Convertible Notes,
or (b) any default which constitutes a failure to convert any Senior Convertible
Note in accordance with its terms and the Indenture.
SECTION 1.13 Register of Securities; Paying Agent; Conversion Agent.
Initially, the Trustee shall act as Paying Agent, Conversion Agent and Security
Registrar with respect to the Senior Convertible Notes with the Place of Payment
for the Senior Convertible Notes initially being the Corporate Trust Office. The
Corporation may appoint and change any Paying Agent, Conversion Agent, Security
Registrar or co-registrar or approve a change in the office through which any
Paying Agent acts without notice, other than notice to the Trustee. The
Corporation or any of its Subsidiaries or any of their Affiliates may act as
Paying Agent, Conversion Agent, Security Registrar or co-registrar.
SECTION 1.14 Calculations in Respect of the Senior Convertible Notes.
The Corporation will be responsible for making all calculations called for under
the Senior Convertible Notes. These calculations include, but are not limited
to, determination of the Trading Price, Current Market Price, Last Reported Sale
Price, Spin-off Market Price, accrued interest payable on the Senior Convertible
Notes and Conversion Rate of the Senior Convertible Notes. The Corporation will
make these calculations in good faith and, absent manifest error, these
calculations will be final and binding on the Holders. Promptly after the
calculation thereof, the Corporation will provide to each of the Trustee and the
Conversion Agent an Officers' 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 and the Conversion Agent may conclusively rely on such
Officers' Certificate. The Trustee and the Conversion Agent shall not be
responsible for making any calculation or determination referred to in this
Section 1.14. The Trustee will forward the Corporation's calculations to any
Holder upon the request of such Holder.
SECTION 1.15 Tax Treatment. The Corporation, the Guarantor and the
Holders of the Senior Convertible Notes shall treat the Senior Convertibles
Notes as debt for Federal income tax purposes.
SECTION 1.16 Transfer and Exchange.
(a) Transfer and Exchange of Definitive Securities. When definitive
Securities are presented to the Registrar with a request:
(i) to register the transfer of such definitive Securities;
or
(ii) to exchange such definitive Securities for an equal
principal amount of definitive Securities of other authorized
denominations, the Registrar shall register the
29
transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that the
definitive Securities surrendered for transfer or exchange:
(A) 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
(B) are accompanied by the following additional
information and documents, as applicable:
(x) if such definitive Securities are being
delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a
certification from such Holder to that effect (in the
form set forth on the reverse side of the Transfer
Restricted Security); or
(y) if such definitive Securities are being
transferred to the Company, a certification to that
effect (in the form set forth on the reverse side of the
Transfer Restricted Security); or
(C) if such definitive Securities 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, (i) a certification to that effect (in the form
set forth on the reverse side of the Transfer Restricted
Security) and (ii) if the Company so requests, an opinion of
counsel or other evidence reasonably satisfactory to it as to
the compliance with the restrictions set forth in the legend set
forth in Section 1.16(e)(i).
In case of redemption, the Registrar will not be required to register
the transfer or exchange of any Senior Convertible Notes: (i) during a period of
15 days before any selection of Senior Convertible Notes for redemption; (ii) if
the Senior Convertible Notes have been called for redemption in whole or in
part, except the unredeemed portion of any Senior Convertible Notes being
redeemed in part; or (iii) in respect of which a Purchase Notice has been given
and not withdrawn, except the portion of the Senior Convertible Note not
purchased of any Senior Convertible Note being purchased in part.
(b) Restrictions on Transfer of a Definitive Security for a
Beneficial Interest in a Global Security. A definitive Security may not be
exchanged for a beneficial interest in a Global Security except upon
satisfaction of the requirements set forth below. Upon receipt by the Trustee of
a definitive Security, 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 Transfer Restricted Security) that such definitive Security is
being transferred (A) to a QIB in accordance with Rule 144A or (B)
outside the United States in an offshore transaction
30
within the meaning of Regulation S and in compliance with Rule 904 under
the Securities Act; 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 Security to reflect an increase
in the aggregate principal amount of the Securities represented by the
Global Security, such instructions to contain information regarding the
Depositary account to be credited with such increase, then the Trustee
shall cancel such definitive Security 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 Securities
represented by the Global Security to be increased by the aggregate
principal amount of the definitive Security to be exchanged and shall
credit or cause to be credited to the account of the Person specified in
such instructions a beneficial interest in the Global Security equal to
the principal amount of the definitive Security so canceled. If no
Global Securities are then outstanding and the Global Security has not
been previously exchanged for certificated securities pursuant to
Section 1.05(b), the Company shall issue and the Trustee shall
authenticate, upon written order of the Company in the form of an
Officers' Certificate, a new Global Security in the appropriate
principal amount.
(c) Transfer and Exchange of Global Securities.
(i) The transfer and exchange of Global Securities or
beneficial interests therein shall be effected through the Depositary,
in accordance with this Supplemental 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 Security 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 Security or another Global Security and such
account shall be credited in accordance with such order with a
beneficial interest in the applicable Global Security and the account of
the Person making the transfer shall be debited by an amount equal to
the beneficial interest in the Global Security being transferred.
Transfers by an owner of a beneficial interest in a Rule 144A Global
Security to a transferee who takes delivery of such interest through a
Regulation S Global Security, whether before or after the expiration of
the Restricted Period, shall be made only upon receipt by the Trustee of
a certification (in the form set forth on the reverse side of the
Transfer Restricted Security) from the transferor to the effect that
such transfer is being made in accordance with Regulation S or (if
available) Rule 144 under the Securities Act and that, if such transfer
is being made prior to the expiration of the Restricted Period, the
interest transferred shall be held immediately thereafter through
Euroclear or Clearstream.
(ii) If the proposed transfer is a transfer of a beneficial
interest in one Global Security to a beneficial interest in another
Global Security, the Registrar shall reflect on its books and records
the date and an increase in the principal amount of the Global Security
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 reflect on its books and
31
records the date and a corresponding decrease in the principal amount of
Global Security from which such interest is being transferred.
(iii) Notwithstanding any other provisions of this First
Supplemental Indenture (other than the provisions set forth in Section
1.05), a Global Security 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 Security is exchanged for
definitive Securities pursuant to Section 1.05(b) prior to the
effectiveness of a Shelf Registration Statement with respect to such
Securities, such Securities may be exchanged only in accordance with
such procedures as are substantially consistent with the provisions of
this Section 1.16 (including the certification requirements set forth on
the reverse of the Transfer Restricted Security intended to ensure that
such transfers comply with Rule 144A, Regulation S 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) Restrictions on Transfer of Regulation S Global Security.
(i) Prior to the expiration of the Restricted Period,
interests in a Regulation S Global Security may only be held through
Euroclear or Clearstream. During the Restricted Period, beneficial
ownership interests in a Regulation S Global Security may only be sold,
pledged or transferred through Euroclear or Clearstream in accordance
with the Applicable Procedures and only (A) to the Company, (B) so long
as such security is eligible for resale pursuant to Rule 144A, to a
person whom the selling holder reasonably believes is a QIB that
purchases for its own account or for the account of a QIB to whom notice
is given that the resale, pledge or transfer is being made in reliance
on Rule 144A, (C) in an offshore transaction in accordance with
Regulation S, (D) pursuant to an exemption from registration under the
Securities Act provided by Rule 144 (if applicable) under the Securities
Act, or (E) pursuant to an effective registration statement under the
Securities Act, in each case in accordance with any applicable
securities laws of any state of the United States. Prior to the
expiration of the Restricted Period, transfers by an owner of a
beneficial interest in a Regulation S Global Security to a transferee
who takes delivery of such interest through a Rule 144A Global Security
shall be made only in accordance with the Applicable Procedures and upon
receipt by the Trustee of a written certification from the transferor of
the beneficial interest in the form provided on the reverse of the
Transfer Restricted Security to the effect that such transfer is being
made to (i) a person whom the transferor reasonably believes is a QIB
within the meaning of Rule 144A in a transaction meeting the
requirements of Rule 144A. Such written certification shall no longer be
required after the expiration of the Restricted Period.
(ii) Upon the expiration of the Restricted Period, beneficial
ownership interests in a Regulation S Global Security shall be
transferable in accordance with applicable law and the other terms of
the Indenture.
32
(e) Legends for Securities.
(i) Except as permitted by the following paragraphs (ii),
(iii), or (iv), each Security certificate evidencing the Global
Securities and the definitive Securities (and all Securities 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 SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"). THE HOLDER HEREOF,
BY PURCHASING THIS SECURITY, AGREES FOR THE BENEFIT OF MASSEY
ENERGY THAT THIS SECURITY MAY NOT BE RESOLD, PLEDGED OR
OTHERWISE TRANSFERRED (X) PRIOR TO THE SECOND ANNIVERSARY OF THE
ISSUANCE HEREOF (OR ANY APPLICABLE PREDECESSOR SECURITY HERETO)
OR (Y) BY ANY HOLDER THAT WAS AN "AFFILIATE" (WITHIN THE MEANING
OF RULE 144 UNDER THE SECURITIES ACT) OF MASSEY ENERGY AT ANY
TIME DURING THE THREE MONTHS PRECEDING THE DATE OF SUCH
TRANSFER, IN EITHER CASE OTHER THAN (1) TO MASSEY ENERGY, (2) SO
LONG AS THIS SECURITY IS ELIGIBLE FOR RESALE PURSUANT TO RULE
144A UNDER THE SECURITIES ACT ("RULE 144A") TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER
WITHIN THE MEANING OF RULE 144A, PURCHASING FOR ITS OWN ACCOUNT
OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM
NOTICE IS GIVEN THAT THE RESALE, PLEDGE OR OTHER TRANSFER IS
BEING MADE IN RELIANCE ON RULE 144A, (3) IN AN OFFSHORE
TRANSACTION (AS DEFINED IN REGULATION S UNDER THE SECURITIES
ACT) IN ACCORDANCE WITH REGULATION S UNDER THE SECURITIES ACT,
(4) PURSUANT TO AN EXEMPTION FROM REGISTRATION UNDER THE
SECURITIES ACT PROVIDED BY RULE 144 (IF APPLICABLE) UNDER THE
SECURITIES ACT OR (5) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, IN EACH CASE IN ACCORDANCE
WITH ANY APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED
STATES. THE HOLDER HEREOF, BY PURCHASING THIS SECURITY,
REPRESENTS AND AGREES FOR THE BENEFIT OF MASSEY ENERGY THAT IT
IS (1) A QUALIFIED INSTITUTIONAL BUYER OR (2) NOT A U.S. PERSON
AND IS OUTSIDE THE UNITED STATES WITHIN THE MEANING OF (OR AN
ACCOUNT SATISFYING THE REQUIREMENTS OF PARAGRAPH (k)(2) OF RULE
902 UNDER) REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE
THE HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN
ANY HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY
COMMON STOCK ISSUABLE UPON EXCHANGE OF THIS SECURITY EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
33
Each Security evidencing a Global Security offered and sold to QIBs
pursuant to Rule 144A shall bear a legend in substantially the following
form:
EACH PURCHASER OF THIS SECURITY IS HEREBY NOTIFIED THAT THE
SELLER OF THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE
144A THEREUNDER.
Each definitive Security 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
Security that is a definitive Security, the Registrar shall permit the
Holder thereof to exchange such Transfer Restricted Security for a
definitive Security that does not bear the legends set forth above and
rescind any restriction on the transfer of such Transfer Restricted
Security 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 Transfer
Restricted Security).
(iii) After a transfer of any Transfer Restricted Securities
during the period of the effectiveness of a Shelf Registration Statement
with respect to such Transfer Restricted Securities, as the case may be,
all requirements pertaining to the Restricted Securities Legend on such
Transfer Restricted Securities shall cease to apply and the requirements
that any such Transfer Restricted Securities be issued in global form
shall continue to apply.
(iv) Upon a sale or transfer after the expiration of the
Restricted Period of any Transfer Restricted Security acquired pursuant
to Regulation S, all requirements that such Transfer Restricted Security
bear the Restricted Securities Legend shall cease to apply and the
requirements requiring any such Transfer Restricted Security be issued
in global form shall continue to apply.
SECTION 1.17 Guarantee. The Company's obligations under the Senior
Convertible Notes shall be guaranteed by the Guarantor in accordance with
Article Fifteen of the Original Indenture.
ARTICLE 2
MISCELLANEOUS PROVISIONS
SECTION 2.01 Recitals by the Corporation. The recitals in this First
Supplemental Indenture are made by the Corporation only and not by the Trustee,
and all of the provisions contained in the Original Indenture in respect of the
rights, privileges, immunities, powers and
34
duties of the Trustee shall be applicable in respect of the Senior Convertible
Notes and of this First Supplemental Indenture as fully and with like effect as
if set forth herein in full.
SECTION 2.02 Ratification and Incorporation of Original Indenture. As
supplemented hereby, the Original Indenture is in all respects ratified and
confirmed, and the Original Indenture and this First Supplemental Indenture
shall be read, taken and construed as one and the same instrument.
SECTION 2.03 Executed in Counterparts. This First Supplemental Indenture
may be executed in several counterparts, each of which shall be deemed to be an
original, and such counterparts shall together constitute but one and the same
instrument.
35
IN WITNESS WHEREOF, each party hereto has caused this instrument to be
signed in its name and behalf by its duly authorized officers, all as of the day
and year first above written.
Massey Energy Company
By:
-----------------------------------
Name: Baxter F. Phillips, Jr.
Title: Vice President and Treasurer
Attest:
- --------------------------------
Name:
Title: Assistant Secretary
A.T. Massey Coal Company, Inc.
By:
-----------------------------------
Name: Baxter F. Phillips, Jr.
Title: Vice President and Treasurer
Attest:
- --------------------------------
Name:
Title: Assistant Secretary
Wilmington Trust Company,
as Trustee
By:
-----------------------------------
Name:
Title:
Attest:
- --------------------------------
Name:
Title:
S-1
EXHIBIT A
FORM OF
4.75% CONVERTIBLE SENIOR NOTE DUE 2023
[If applicable, insert: THIS SENIOR NOTE IS A GLOBAL SECURITY WITHIN THE
MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME
OF A DEPOSITARY OR A NOMINEE THEREOF. THIS SENIOR NOTE MAY NOT BE EXCHANGED IN
WHOLE OR IN PART FOR A SENIOR NOTE REGISTERED, AND NO TRANSFER OF THIS SENIOR
NOTE IN WHOLE OR IN PART MAY BE REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN
SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE.
UNLESS THIS SENIOR NOTE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF
THE DEPOSITORY TRUST COMPANY (55 WATER STREET, NEW YORK, NEW YORK) TO THE ISSUER
OR ITS AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT AND ANY SENIOR
NOTE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR SUCH OTHER NAME AS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY AND
ANY PAYMENT HEREON IS MADE TO CEDE & CO., ANY TRANSFER, PLEDGE OR OTHER USE
HEREOF FOR VALUE OR OTHERWISE BY A PERSON IS WRONGFUL SINCE THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
[Definitive Security Legend, if applicable]
[Restrictive Legend]
[Rule 144A Legend, if applicable]
No. CUSIP No.________
MASSEY ENERGY COMPANY
4.75% CONVERTIBLE SENIOR NOTE DUE 2023
Principal Amount: $____________
Regular Record Date: Close of business on the 15th calendar day prior
to the relevant Interest Payment Date (whether
or not a Business Day)
Original Issue Date: May 29, 2003
Stated Maturity: May 15, 2023
Interest Payment Dates: Semi-annually on May 15 and November 15 of each
year, commencing November 15, 2003
A-1
Interest Rate: 4.75% per annum
Authorized Denomination: $1,000 and any integral multiples thereof
A-2
Massey Energy Company, a Delaware corporation (the "Corporation," which
term includes any successor corporation under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to _____________, or
registered assigns, the principal sum of ______________ DOLLARS ($__________) on
the Stated Maturity shown above and to pay interest thereon from the Original
Issue Date shown above, or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, semi-annually in arrears on each
Interest Payment Date as specified above, commencing on November 15, 2003 and on
the Stated Maturity at the rate per annum shown above (the "Interest Rate")
until the principal hereof is paid or made available for payment and on any
overdue principal and on any overdue installment of interest. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in the Indenture, be paid to the Person in whose name this
4.75% Convertible Senior Note due 2023 (this "Security") is registered on the
Regular Record Date as specified above next preceding such Interest Payment
Date. Except as otherwise provided in the Indenture, any such interest not so
punctually paid or duly provided for will forthwith cease to be payable to the
Holder on such Regular Record Date and may either be paid to the Person in whose
name this Security is registered at the close of business on a Special Record
Date for the payment of such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of Securities of this series not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange, if any, on which the Securities shall be listed, and upon such notice
as may be required by any such exchange, all as more fully provided in the
Indenture.
Payments of interest on this Security will include interest accrued to
but excluding the respective Interest Payment Dates. Payments of interest for
this Security shall be computed and paid on the basis of a 360-day year
consisting of twelve 30-day months and will accrue from May 29, 2003 or from the
most recent Interest Payment Date to which interest has been paid or duly
provided for. In the event that any date on which interest is payable on this
Security is not a Business Day, then payment of the interest payable on such
date will be made on the next succeeding day that is a Business Day (and without
any interest or payment in respect of any such delay) with the same force and
effect as if made on the date the payment was originally payable, and no
additional interest will accrue on that payment from and after the date on which
the interest is payable to the date of that payment on the next succeeding
Business Day. "Business Day" means any day, other than a Saturday or Sunday,
that is neither a legal holiday nor a day on which commercial banks are
authorized or required by law, regulation or executive order to close in The
City of New York.
Payment of principal of and interest on the Securities shall be made in
such coin or currency of the United States of America as at the time of payment
is legal tender for payment of public and private debts or such other form of
consideration as set forth in the Indenture. Payments of principal of and
interest on the Securities of this series represented by a Global Security shall
be made by wire transfer of immediately available funds to the Holder of such
Global Security, provided that, in the case of payments of principal such Global
Security is first surrendered to the Paying Agent. If any of the Securities of
this series are no longer represented by a Global Security, (i) payments of
principal and interest due at the Stated Maturity or earlier redemption or
purchase of such Securities shall be made at the office of the Paying Agent upon
surrender of such Securities to the Paying Agent, and (ii) payments of interest
shall be made, at
A-3
the option of the Corporation, subject to such surrender where applicable, (A)
by check mailed to the address of the Person entitled thereto as such address
shall appear in the Security Register or (B) by wire transfer at such place and
to such account at a banking institution in the United States as may be
designated in writing to the Trustee at least sixteen (16) days prior to the
date for payment by the Person entitled thereto.
The Securities of this series shall be redeemable, subject to the terms
of the Indenture, in whole or from time to time in part, at the option of the
Corporation on any date on or after May 20, 2009 (a "Redemption Date"), at a
Redemption Price equal to 100% of the principal amount of the Securities of this
series to be redeemed plus any accrued and unpaid interest on the principal
amount to be redeemed to but excluding the Redemption Date.
Notice of any redemption by the Corporation will be mailed at least 30
days but not more than 60 days before any Redemption Date to each Holder of
Securities of this series to be redeemed. If Notice of a redemption is provided
and funds are deposited as required, interest will cease to accrue on and after
the Redemption Date on the Securities of this series or portions of Securities
of this series called for redemption. In the event that any Redemption Date is
not a Business Day, the Corporation will pay the Redemption Price on the next
Business Day without any additional interest or other payment due. If less than
all the Securities of this series are to be redeemed at the option of the
Corporation, the Trustee shall select the Securities to be redeemed by lot, or
on a pro rata basis or by another method the Trustee considers fair and
appropriate. The Trustee shall select for redemption Securities of this series
and portions of the Securities of this series in amounts of whole multiples of
$1,000.
A Holder shall have the option to require the Corporation to purchase,
for such type of consideration as set forth in the Indenture, any or all of the
Securities of this series held by such Holder on May 15, 2009, May 15, 2013 and
May 15, 2018 (each, a "Put Date") at a purchase price (the "Purchase Price")
equal to the principal amount of the Securities of this series to be purchased
plus any accrued and unpaid interest to but excluding the Put Date, upon
delivery of a Put Notice containing the information set forth in the Indenture,
from the opening of business on the date that is 20 Business Days prior to such
Put Date until the close of business on the fifth Business Day prior to such Put
Date and upon delivery of the Securities of this series to the Paying Agent by
the Holder as set forth in the Indenture.
If a Fundamental Change shall occur at any time prior to May 15, 2009,
each Holder shall have the right, at such Holder's option and subject to the
terms and conditions of the Indenture, to require the Corporation to purchase
any or all of such Holder's Securities of this series or any portion of the
principal amount thereof that is equal to $1,000 or an integral multiple of
$1,000 on the day that is 35 days after the date of the Corporation Purchase
Notice of the occurrence of the Fundamental Change (subject to extension to
comply with applicable law) for a Fundamental Change Purchase Price equal to the
principal amount of Securities of this series purchased plus accrued and unpaid
interest to the Fundamental Change Purchase Date upon delivery of a Fundamental
Change Purchase Notice containing the information set forth in the Indenture.
Holders have the right to withdraw any Put Notice or Fundamental Change
Purchase Notice, as the case may be, by delivery to the Paying Agent of a
written notice of withdrawal in accordance with the provisions of the Indenture.
A-4
If consideration sufficient to pay a Fundamental Change Purchase Price
or Purchase Price, as the case may be, of all Securities of this series or
portions thereof to be purchased as of the Fundamental Change Purchase Date or
the Put Date, as the case may be, is deposited with the Paying Agent on the
Business Day following the Fundamental Change Purchase Date or the Put Date, as
the case may be, interest shall cease to accrue on such Securities of this
series (or portions thereof) on and after such date, and the Holder thereof
shall have no other rights as such (other than the right to receive the
Fundamental Change Purchase Price or Purchase Price, as the case may be, upon
surrender of such Note). The term "consideration" as used within this paragraph
shall mean cash when used with respect to the Fundamental Change Purchase Price
and cash, Common Stock or a combination of both when used with respect to the
Purchase Price.
In the event of redemption or purchase of this Security in part only, a
new Security or Securities of this series and of like tenor for the unredeemed
or unpurchased portion hereof will be issued in the name of the Holder hereof
upon the surrender hereof.
The Securities of this series shall not have a sinking fund.
The Securities of this series shall constitute the direct, unsecured
and unsubordinated debt obligations of the Corporation and shall rank equally in
priority with the Corporation's existing and future unsecured and unsubordinated
indebtedness.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS OF THIS SECURITY SET
FORTH ON THE REVERSE HEREOF, WHICH FURTHER PROVISIONS SHALL FOR ALL PURPOSES
HAVE THE SAME EFFECT AS IF SET FORTH AT THIS PLACE.
Unless the certificate of authentication hereon has been executed by
the Trustee by manual signature, this Security shall not be entitled to any
benefit under the Indenture or be valid or obligatory for any purpose.
A-5
IN WITNESS WHEREOF, the Corporation has caused this instrument to be
duly executed under its corporate seal.
Dated:
Massey Energy Company
By:
-----------------------------------
Name:
Title:[Chairman of the Board][President]
[Vice President]
Attest:
- --------------------------------
Name:
Title: [Secretary][Assistant Secretary]
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Wilmington Trust Company,
as Trustee
By:
-----------------------------------
Authorized Officer
A-6
(Reverse Side of Security)
This 4.75% Convertible Senior Note due 2023 is one of a duly authorized
issue of Securities of the Corporation (the "Securities"), issued and issuable
in one or more series under a Senior Indenture, dated as of May 29, 2003, as
supplemented (the "Indenture"), between the Corporation, the Guarantor and
Wilmington Trust Company, a Delaware banking corporation, as Trustee (the
"Trustee," which term includes any successor trustee under the Indenture), to
which Indenture and all indentures supplemental thereto reference is hereby made
for a statement of the respective rights, limitation of rights, duties and
immunities thereunder of the Corporation, the Trustee and the Holders of the
Securities issued thereunder and of the terms upon which said Securities are,
and are to be, authenticated and delivered. This Security is one of the series
designated on the face hereof as 4.75% Convertible Senior Note due 2023
initially in the aggregate principal amount of $____________ (plus up to an
additional $____________ principal amount upon exercise by the Initial
Purchasers of their over-allotment option pursuant to the Purchase Agreement).
Capitalized terms used herein for which no definition is provided herein shall
have the meanings set forth in the Indenture.
Subject to the procedures set forth in the Indenture, a Holder may
convert Securities of this series into Common Stock of the Corporation on or
before the close of business on May 14, 2023 during the periods and upon
satisfaction of at least one of the conditions set forth below:
(a) in any calendar quarter after the quarter ended June 30,
2003 (and only during such calendar quarter) if the Last Reported Sale
Price for the Common Stock for at least 20 Trading Days during the
period of 30 consecutive Trading Days ending on the last Trading Day of
the previous calendar quarter equals or exceeds 120% of the Conversion
Price on such last Trading Day;
(b) in the event that the Corporation calls any Securities
of this series for redemption, at any time prior to the close of
business on the second Business Day immediately preceding the Redemption
Date, even if the Securities are not otherwise convertible at such time;
provided, however, that if a Holder has already delivered a Put Notice
or Fundamental Change Purchase Notice, as applicable, with respect to a
Security, the Holder may not surrender such Security for conversion
until the Holder has withdrawn the Put Notice or Fundamental Change
Purchase Notice, as applicable, in accordance with the Indenture;
(c) if the Corporation (1) elects to (A) distribute to all
holders of Common Stock rights entitling them to purchase, for a period
expiring within 45 days after the date of such distribution, shares of
Common Stock at less than the Last Reported Sale Price on the Trading
Day immediately preceding the declaration date of such distribution or
(B) distribute to all holders of Common Stock assets, debt securities or
rights to purchase securities of the Corporation, which distribution has
a per share value as determined by the Corporation's Board of Directors
and set forth in a Board Resolution exceeding 15% of the Last Reported
Sale Price of a share of the Common Stock on the Trading Day immediately
preceding the declaration date for such distribution. In the case of the
foregoing clauses (A) and (B), the Corporation must notify the Holders
of the Securities of this series at least 20 Business Days prior to the
ex-
A-7
dividend date for such distribution. Once the Corporation has given such
notice, Holders of the Securities of this series may surrender such
Securities for conversion at any time thereafter until the earlier of
the close of business on the Business Day prior to the ex-dividend date
or the Corporation's announcement that such distribution will not take
place, even if the Securities are not otherwise convertible at such
time. Notwithstanding the foregoing, a Holder of the Securities of this
series may not exercise the foregoing right to convert if the Holder may
participate in the distribution without converting its Securities. As
used herein, the term "ex-dividend date" shall mean the first date upon
which a sale of the Common Stock does not automatically transfer the
right to receive the relevant distribution from the seller of the Common
Stock to its buyer; or (2) in the event that the Corporation becomes a
party to a consolidation, merger or binding share exchange pursuant to
which the Common Stock would be converted into cash or property (other
than securities), at any time from and after the date which is 15 days
prior to the anticipated effective date of the transaction until 15 days
after the actual effective date of such transaction; or
(d) after the earlier of (1) the date the Senior Convertible
Notes are rated by Moody's Investor Services, Inc. and Standard & Poor's
Rating Services and (2) June 30, 2003, the Senior Convertible Notes may
be surrendered for conversion into Common Stock prior to Maturity during
any period that (1) the long-term credit rating assigned to the
Securities of this series by both Moody's Investors Service, Inc. and
Standard & Poor's Ratings Services is lower than B3 and B-,
respectively; (2) both Moody's Investors Service, Inc. and Standard &
Poor's Ratings Services no longer rate the Securities of this series or
have withdrawn their ratings with respect to the Securities of this
series; or (3) either Moody's Investors Service, Inc. or Standard &
Poor's Ratings Services no longer rates the Securities of this series or
has withdrawn or suspended such rating and the remaining rating is lower
than B3 or B-, as applicable (references to Moody's Investors Service,
Inc. and Standard & Poor's Ratings Services include any successors to
those entities).
Securities of this series in respect of which a Holder has delivered a
notice of exercise of the option to require the Corporation to purchase such
Securities of this series may be converted only if the notice of exercise is
withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 51.573 shares of Common Stock per $1,000
principal amount, subject to adjustment in certain events described in the
Indenture. The Corporation shall deliver cash or a check in lieu of any
fractional share of Common Stock.
Holders of Securities of this series at the close of business on a
Regular Record Date will receive payment of interest payable on the
corresponding Interest Payment Date notwithstanding the conversion of such
Securities of this series at any time after the close of business on such
Regular Record Date. Securities of this series surrendered for conversion by a
Holder during the period from the close of business on any Regular Record Date
to the opening of business on the corresponding Interest Payment Date must be
accompanied by payment of an amount equal to the interest that the Holder is to
receive on the Securities of this series (except with respect to Securities of
this series in respect of which a Redemption Date or Fundamental Change Purchase
Date has been set that falls within this period or on such Interest Payment Date
or to the extent
A-8
any overdue interest exists at the time of such conversion). Except as described
above, no payment or adjustment will be made for accrued interest on converted
Securities of this series. Upon conversion of Senior Convertible Notes, a Holder
will not receive any cash payment of interest (unless such conversion occurs
between a Regular Record Date and the Interest Payment Date to which it relates)
and the Corporation will not adjust the Conversion Rate to account for accrued
and unpaid interest.
To convert the Securities of this series a Holder must (1) complete and
manually sign the irrevocable conversion notice on the back of the Securities of
this series (or complete and manually sign a facsimile of such notice) and
deliver such notice to the Conversion Agent at the office maintained by the
Conversion Agent for such purpose, (2) surrender the Securities of this series
to the Conversion Agent, (3) furnish appropriate endorsements and transfer
documents if required by the Conversion Agent, the Corporation or the Trustee
and (4) pay any transfer or similar tax, if required.
A Holder may convert a portion of the Securities of this series only if
the principal amount of such portion is $1,000 or an integral multiple of
$1,000. No payment or adjustment shall be made for dividends on the Common Stock
except as provided in the Indenture. On conversion of Securities of this series,
that portion of accrued and unpaid interest if any, on such Securities
attributable to the period from the most recent Interest Payment Date (or, if no
Interest Payment Date has occurred, from the Original Issue Date) through the
Conversion Date with respect to such converted Securities shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in
full to the Holder thereof through delivery of the Common Stock (together with
any cash payment in lieu of fractional shares) in exchange for such Securities
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 accrued and 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 the principal amount of such Securities being
converted pursuant to the provisions hereof.
If an Event of Default (other than an Event of Default resulting from
certain events of bankruptcy, insolvency and reorganization) with respect to the
Securities of this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the manner, with
the effect and subject to the conditions provided in the Indenture; provided,
however, that if an Event of Default, resulting from certain events of
bankruptcy, insolvency and reorganization, shall occur and be continuing, such
principal amount shall become due and payable without any declaration or other
act on the part of the Trustee or any Holder.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Corporation and the rights of the Holders of the Securities of all series
affected under the Indenture at any time by the Corporation and the Trustee with
the consent of the Holders of not less than a majority in principal amount of
the Outstanding Securities of all series affected thereby (voting as one class).
The Indenture contains provisions permitting the Holders of not less than a
majority in principal amount of the Outstanding Securities of all series with
respect to which a default under the Indenture shall have
A-9
occurred and be continuing (voting as one class), on behalf of the Holders of
the Securities of all such series, to waive, with certain exceptions, such
default under the Indenture and its consequences. The Indenture also permits the
Holders of not less than a majority in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of all Securities
of such series, to waive compliance by the Corporation with certain provisions
of the Indenture affecting such series. Any such consent or waiver by the Holder
of this Security shall be conclusive and binding upon such Holder and upon all
future Holders of this Security and of any Security issued upon the registration
of transfer hereof or in exchange hereof or in lieu hereof, whether or not
notation of such consent or waiver is made upon this Security.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligation of the Corporation,
which is absolute and unconditional, to pay the principal of and interest on
this Security at the times, place and rate, and in the coin, currency or other
form of consideration, herein prescribed.
As provided in the Indenture and subject to certain limitations therein
set forth, the transfer of this Security is registrable in the Security
Register, upon surrender of this Security for registration of transfer at the
office or agency of the Corporation for such purpose, duly endorsed by, or
accompanied by a written instrument of transfer in form satisfactory to the
Corporation and the Security Registrar and duly executed by, the Holder hereof
or his attorney duly authorized in writing, and thereupon one or more new
Securities of this series, of authorized denominations and of like tenor and for
the same aggregate principal amount, will be issued to the designated transferee
or transferees. No service charge shall be made for any such registration of
transfer or exchange, but the Corporation may require payment of a sum
sufficient to cover any tax or other governmental charge payable in connection
therewith.
The Trustee, Paying Agent, Conversion Agent and Security Registrar under
the Indenture, each in its individual or any other capacity, may become the
owner or pledgee of Securities and may otherwise deal with and collect
obligations owed to it by the Corporation or its Affiliates and may otherwise
deal with the Corporation or its Affiliates with the same rights it would have
if it were not Trustee, Paying Agent, Conversion Agent or Security Registrar.
The Corporation will be responsible for making all calculations called
for under the Securities of this series. These calculations include, but are not
limited to, determination of the Trading Price, Current Market Price, Last
Reported Sale Price, Spin-off Market Price, accrued interest payable on the
Securities of this series and Conversion Rate of the Securities of this series.
The Corporation will make these calculations in good faith and, absent manifest
error, these calculations will be final and binding on the Holders of the
Securities of this series. Promptly after the calculation thereby, the
Corporation will provide to each of the Trustee and the Conversion Agent an
Officers' Certificate setting forth a schedule of its calculations and each of
the Trustee and the Conversion Agent is entitled to rely upon the accuracy of
such calculations without independent verification. The Trustee will forward the
Corporation's calculations to any Holder upon the request of such Holder.
Prior to due presentment of this Security for registration of transfer,
the Corporation, the Trustee and any agent of the Corporation or the Trustee may
treat the Person in whose name this Security is registered as the owner hereof
for all purposes, whether or not this Security be
A-10
overdue, and neither the Corporation, the Trustee nor any such agent shall be
affected by notice to the contrary.
The Securities of this series are issuable only in registered form
without coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to the limitations therein set forth,
Securities of this series are exchangeable for a like aggregate principal amount
of Securities of this series of a different authorized denomination, as
requested by the Holder surrendering the same upon surrender of the Security or
Securities to be exchanged at the office or agency of the Corporation.
THIS SECURITY SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH,
THE LAWS OF THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAW.
A-11
ABBREVIATIONS
The following abbreviations, when used in the inscription on the face of
this instrument, shall be construed as though they were written out in full
according to applicable laws or regulations:
TEN COM-- as tenants in common
UNIF GIFT MIN ACT- ______ Custodian ______
(Cust) (Minor)
under Uniform Gifts to Minors Act
TEN ENT-- as tenants by the entireties
JT TEN-- as joint tenants with rights of
survivorship and not as tenants in
common ________________ (State)
Additional abbreviations may also be used though not on the above list.
A-12
CERTIFICATE TO BE DELIVERED UPON EXCHANGE
OR REGISTRATION OF TRANSFER OF SECURITIES
This Certificate relates to $_____________ principal amount of
Securities held in (check applicable space) ___ book-entry or ___ definitive
form by _________________________ (the "Transferor").
The Transferor (check one box below):
has requested the Trustee by written order to deliver in exchange for
its beneficial interest in the Global Security held by the Depositary a
Security or Securities in definitive, registered form of authorized
denominations in an aggregate principal amount equal to its beneficial
interest in such Global Security (or the portion thereof indicated
above); or
has requested the Trustee by written order to exchange or register the
transfer of a Security or Securities.
In connection with any transfer of any of the Securities evidenced by
this certificate occurring prior to the expiration of the period referred to in
Rule 144(k) under the Securities Act of 1933, the undersigned confirms that such
Securities are being transferred in accordance with its terms:
CHECK ONE BOX BELOW
(1) [_] to the Company; or
(2) [_] pursuant to an effective registration statement under
the Securities Act of 1933; or
(3) [_] inside the United States to a "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act
of 1933) that purchases for its own account or for the
account of a qualified institutional buyer to whom
notice is given that such transfer is being made in
reliance on Rule 144A, in each case pursuant to and in
compliance with Rule 144A under the Securities Act of
1933; or
(4) [_] outside the United States in an offshore transaction
within the meaning of Regulation S under the Securities
Act in compliance with Rule 904 under the Securities Act
of 1933; or
(5) [_] pursuant to another available exemption from \
registration provided by Rule 144 under the Securities
Act of 1933.
Prior to the expiration of the period referred to in Rule 144(k), unless
one of the boxes is checked, the Trustee will refuse to register any of the
Securities evidenced by this certificate in the name of any Person other than
the registered holder thereof; provided, however, that if box (4) or (5) is
checked, the Trustee may require, prior to registering any such transfer of the
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Securities, such legal opinions, certifications and other information
satisfactory to the Company and the Trustee to confirm that such transfer is
being made pursuant to an exemption from, or in a transaction not subject to,
the registration requirements of the Securities Act of 1933.
_______________________________
[INSERT NAME OF TRANSFEROR]
Dated:
-------------------------
By:
-------------------------------
A-14
SIGNATURE GUARANTEE
Signatures must be guaranteed by an "eligible guarantor institution"
meeting the requirements of the Security 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 Security Registrar in addition to, or in substitution for, STAMP, all in
accordance with the Securities Exchange Act of 1934, as amended.
A-15
[TO BE ATTACHED TO GLOBAL SECURITIES]
SCHEDULE OF INCREASES OR DECREASES IN GLOBAL SECURITY
The following increases or decreases in this Global Security have been made:
Principal Amount of Signature of
Amount of decrease in Amount of increase in this Global Security authorized signatory
Principal Amount of Principal Amount of following such decrease of Trustee or
Date this Global Security this Global Security or increase Securities Custodian
- ---------- --------------------- --------------------- ----------------------- ---------------------
------- ------- ------- ------- -------
A-16
ASSIGNMENT FORM
To assign this Security, fill in the form below:
I or we assign and transfer this Security to
________________________________________________________________________________
(Print or type assignee's name, address and zip code)
________________________________________________________________________________
(Insert assignee's soc. sec. or tax I.D. No.)and irrevocably
appoint _____________________________________agent to transfer this Security on
the books of the Company. The agent may substitute another to act for him.
Date: ______________________ Your Signature:
----------------------------------
________________________________________________________________________________
Sign exactly as your name appears on the other side of this Security.
A-17
FORM OF CONVERSION NOTICE
To: Massey Energy Company
The undersigned registered holder of this Security hereby exercises the
option to convert this Security, or portion hereof (which is $1,000 principal
amount or an integral multiple thereof) designated below, for shares of Common
Stock of Massey Energy Company in accordance with the terms of the Indenture
referred to in this Security, and directs that the shares, if any, issuable and
deliverable upon such conversion, together with any check for cash deliverable
upon such conversion, and any Securities representing any unconverted principal
amount hereof, be issued and delivered to the registered holder hereof unless a
different name has been indicated below. If shares or any portion of this
Security not converted are to be issued in the name of a Person other than the
undersigned, the undersigned shall pay all transfer taxes payable with respect
thereto.
This notice shall be deemed to be an irrevocable exercise of the option
to convert this Security.
Dated:
----------------------------------------
----------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange if
shares of Common Stock are to be issued,
or Securities to be delivered, other
than to or in the name of the registered
holder.
----------------------------------------
Signature Guarantee
Fill in for registration of shares if to
be delivered, and Securities if to be
issued other than to and in the name of
registered holder:
________________________________________ Certificate No(s) of Securities
(Name) (not required for Global Securities)
____________________
_______________________________________ Principal amount to be converted
(Street Address) (if less than all): $______,000
________________________________________ ____________________________________
(City state and zip code) Social Security or Other Taxpayer
Please print name and address Number
A-18
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: Massey Energy Company
The undersigned registered holder of this Security hereby acknowledges
receipt of a notice from Massey Energy Company (the "Corporation") as to the
occurrence of a Fundamental Change with respect to the Corporation and requests
and instructs the Corporation to repurchase this Security, or the portion hereof
(which is $1,000 principal amount or a integral multiple thereof) designated
below, in accordance with the terms and conditions specified in this Security
and the Indenture referred to in this Security and directs that the check in
payment for this Security or the portion thereof and any Securities representing
any unrepurchased principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
any portion of this Security not repurchased is to be issued in the name of a
Person other than the undersigned, the undersigned shall pay all transfer taxes
payable with respect thereto.
Dated:
----------------------------------------
----------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange
if Securities are to be delivered,
other than to or in the name of the
registered holder.
----------------------------------------
Signature Guarantee
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of registered holder:
________________________________________ Certificate No(s) of Securities
(Name) (not required for Global Securities)
____________________
_______________________________________ Principal amount to be purchased
(Street Address) (if less than all): $______,000
________________________________________ ____________________________________
(City state and zip code) Social Security or Other Taxpayer
Please print name and address Number
A-19
FORM OF PUT NOTICE
To: Massey Energy Company
The undersigned registered holder of this Security hereby acknowledges
receipt of a notice from Massey Energy Company (the "Corporation") as to the
holder's option to require the Corporation to repurchase this Security and
requests and instructs the Corporation to repurchase this Security, or the
portion hereof (which is $1,000 principal amount or a integral multiple thereof)
designated below, in accordance with the terms and conditions specified in this
Security and the Indenture referred to in this Security and directs that the
consideration in payment for this Security or the portion thereof and any
Securities representing any unrepurchased principal amount hereof, be issued and
delivered to the registered holder hereof unless a different name has been
indicated below. The Senior Convertible Notes shall be purchased as of the Put
Date pursuant to the terms and conditions specified in the Senior Convertible
Notes and in the Indenture. In the event the Corporation elected, pursuant to
the notice that it is required to give, to pay the Purchase Price in shares of
Common Stock, in whole or in part, but the Purchase Price is ultimately paid to
the Holder entirely in cash because any of the conditions to payment of the
Purchase Price, or any portion of the Purchase Price, in shares of Common Stock
is not satisfied prior to the close of business on the last Business Day prior
to the Put Date, the undersigned elects/1/ [strike out the inapplicable
election]: (A) to withdraw the purchase notice as to $_________ in aggregate
principal amount of the Senior Convertible Notes to which it relates; or (B) to
receive cash in respect of the entire Purchase Price for all Senior Convertible
Notes subject to the purchase notice. If any portion of this Security not
repurchased is to be issued in the name of a Person other than the undersigned,
the undersigned shall pay all transfer taxes payable with respect thereto. The
term "consideration" as used within this paragraph shall mean cash, Common Stock
or a combination of both.
Dated:
----------------------------------------
----------------------------------------
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange if
Securities are to be delivered, other
than to or in the name of the registered
holder.
----------------------------------------
Signature Guarantee
Fill in for registration of Securities if to be issued other than to and in the
name of registered holder:
________________________________________ Certificate No(s) of Securities
(Name) (not required for Global Securities)
____________________
________________________________________ Principal amount to be purchased
(Street Address) (if less than all): $______,000
________________________________________ ____________________________________
(City state and zip code) Social Security or Other Taxpayer
Please print name and address Number
- ----------
/1/ If a Holder fails to indicate its choice with respect to this election, such
Holder will be deemed to have elected to receive cash in respect of the entire
Purchase Price for all Senior Convertible Notes subject to the Corporation
Purchase Notice in these circumstances.
A-20
EXHIBIT B
CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred
to in the within-mentioned Indenture.
Wilmington Trust Company,
as Trustee
By:
------------------------------------
Authorized Officer