Exhibit 4.2
TEXTRON INC.
4.50% Convertible Senior Notes due
2013
as Issuer
SUPPLEMENTAL INDENTURE
Dated as of May 5, 2009
to Indenture
Dated as of September 10, 1999
THE BANK OF NEW YORK MELLON TRUST COMPANY,
N.A.
(as successor to The Bank of New York)
as Trustee
TABLE OF CONTENTS
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Page
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ARTICLE 1 Definitions and Other
Provisions of General Application
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2
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SECTION 1.01. Scope
of Supplemental Indenture
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2
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SECTION 1.02.
Definitions
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2
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SECTION 1.03.
Incorporation by Reference of Trust Indenture Act
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11
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SECTION 1.04.
Rules of Construction
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11
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ARTICLE 2 The Notes
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11
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SECTION 2.01.
Designation, Amount and Issuance of Notes
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11
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SECTION 2.02.
Form of the Notes
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12
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SECTION 2.03. Date
and Denomination of Notes; Payment at Maturity; Payment of
Interest
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13
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SECTION 2.04.
Paying Agent to Hold Money in Trust
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15
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SECTION 2.05.
Outstanding Notes
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16
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SECTION 2.06.
Reporting Requirement
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16
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ARTICLE 3 Repurchase of
Notes
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16
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SECTION 3.01.
Repurchase at Option of the Holder Upon a Fundamental
Change
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16
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SECTION 3.02.
Withdrawal of Fundamental Change Repurchase Notice
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19
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SECTION 3.03.
Deposit of Fundamental Change Repurchase Price
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19
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SECTION 3.04. Notes
Repurchased in Part
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20
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SECTION 3.05.
Covenant to Comply with Securities Laws Upon Repurchase of
Notes
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20
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SECTION 3.06.
Sinking Fund and Redemption
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20
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ARTICLE 4 Covenants
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20
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SECTION 4.01.
Existence
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20
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SECTION 4.02.
Further Instruments and Acts
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20
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SECTION 4.03.
Additional Interest
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20
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SECTION 4.04.
Waiver of Stay, Extension or Usury Laws
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21
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SECTION 4.05.
Repurchase and Cancellation
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21
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i
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ARTICLE 5 Successor
Company
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21
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SECTION 5.01. When
Company May Merge or Transfer Assets
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21
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SECTION 5.02.
Successor to Be Substituted
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22
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SECTION 5.03.
Opinion of Counsel to Be Given Trustee
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22
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ARTICLE 6 Defaults and
Remedies
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22
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SECTION 6.01.
Events of Default
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22
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SECTION 6.02.
Rescission and Annulment
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24
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SECTION 6.03.
Waiver of Past Defaults
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24
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SECTION 6.04.
Failure to Comply with Reporting Covenant
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24
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ARTICLE 7 Discharge
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25
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SECTION 7.01.
Discharge of the Supplemental Indenture
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25
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SECTION 7.02.
Application of Trust Money
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25
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SECTION 7.03.
Repayment to Company
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26
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SECTION 7.04.
Reinstatement
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26
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ARTICLE 8 Amendments
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26
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SECTION 8.01.
Without Consent of Holders
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26
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SECTION 8.02. With
Consent of Holders
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27
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SECTION 8.03.
Revocation and Effect of Consents and Waivers
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27
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ARTICLE 9 Conversion of
Notes
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27
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SECTION 9.01. Right
to Convert
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27
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SECTION 9.02.
Conversion Procedures; Settlement Upon Conversion; No Adjustment
for Interest or Dividends; Cash Payments in Lieu of Fractional
Shares
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30
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SECTION 9.03.
Increased Conversion Rate Applicable to Securities Converted in
Connection With Make-Whole Fundamental Changes
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32
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SECTION 9.04.
Adjustment of Conversion Rate
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34
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SECTION 9.05.
Effect of Reclassification, Consolidation, Merger or
Sale
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42
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SECTION 9.06.
Certain Covenants
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SECTION 9.07.
Notice to Holders Prior to Certain Actions
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43
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SECTION 9.08.
Stockholder Rights Plans
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44
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ii
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SECTION 9.09.
Responsibility of Trustee
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44
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ARTICLE 10 Inapplicable Provisions
of the Original Indenture
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45
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SECTION 10.01.
Limitation Upon Mortgages
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45
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SECTION 10.02.
Limitation Upon Sale and Leaseback Transactions
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45
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ARTICLE 11 Miscellaneous
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45
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SECTION 11.01.
Trust Indenture Act Controls
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45
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SECTION 11.02.
Communication by Holders with Other Holders
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46
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SECTION 11.03.
Rules by Trustee, Paying Agent and Security
Registrar
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46
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SECTION 11.04.
GOVERNING LAW
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46
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SECTION 11.05. No
Recourse Against Others
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46
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SECTION 11.06.
Multiple Originals
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46
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SECTION 11.07.
Severability Clause
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46
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SECTION 11.08.
Calculations
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46
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SECTION 11.09.
Recitals
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46
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SECTION 11.10.
Ratification of Original Indenture
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46
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EXHIBITS
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Exhibit A
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–
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Form of Note
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A-1
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Exhibit B
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–
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Form of Conversion Notice
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B-1
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Exhibit C
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–
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Form of Fundamental Change Repurchase
Notice
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C-1
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Exhibit D
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–
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Form of Assignment
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D-1
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iii
SUPPLEMENTAL INDENTURE dated as of
May 5, 2009 between TEXTRON INC., a Delaware corporation, as
issuer (the “ Company ”), and THE BANK OF NEW
YORK MELLON TRUST COMPANY, N.A. (as successor to The Bank of New
York), a national banking association organized under the laws of
the United States, as trustee (the “ Trustee ”)
under the indenture dated as of September 10, 1999 between the
Company and the Trustee (as amended and supplemented from time to
time in accordance with the terms thereof, the “ Original
Indenture ”).
RECITALS OF THE
COMPANY
WHEREAS, the Company executed and
delivered the Original Indenture to the Trustee to provide, among
other things, for the future issuance of the Company’s
unsecured Securities from time to time in one or more series as
might be determined by the Company under the Original Indenture, in
an unlimited aggregate principal amount which may be authenticated
and delivered as provided in the Original Indenture;
WHEREAS, Section 3.1 of the
Original Indenture provides for the Company to establish Securities
of any series pursuant to an indenture supplemental, and
9.1(6) of the Original Indenture provides for the Company and
the Trustee to enter into such indenture supplemental to establish
the form or terms of Securities of such series as permitted by
Sections 2.1 and 3.1 of the Original Indenture without the consent
of any Holders;
WHEREAS, the Board of Directors has
duly adopted resolutions authorizing the Company to execute and
deliver this Supplemental Indenture;
WHEREAS, pursuant to the terms of
the Original Indenture, the Company desires to provide for the
establishment of a new series of its Securities to be known as its
“4.50% Convertible Senior Notes due 2013” (the “
Notes ”), the form and substance of the Notes and the
terms, provisions and conditions thereof to be set forth as
provided in the Original Indenture and this Supplemental
Indenture;
WHEREAS, the Form of Note, the
certificate of authentication to be borne by each Note, the
Form of Conversion Notice, the Form of Fundamental Change
Repurchase Notice and the Form of Assignment to be borne by
the Notes are to be substantially in the forms hereinafter provided
for; and
WHEREAS, the Company has requested
that the Trustee execute and deliver this Supplemental Indenture,
and all requirements necessary to make (i) this Supplemental
Indenture a valid and legally binding instrument in accordance with
its terms and (ii) the Notes, when executed by the Company and
authenticated and delivered by the Trustee, the valid and legally
binding obligations of the Company, have been performed, and the
execution and delivery of this Supplemental Indenture has been duly
authorized in all respects.
NOW, THEREFORE, THIS SUPPLEMENTAL
INDENTURE WITNESSETH, for and in consideration of the premises and
the purchases of the Notes by the Holders thereof, it is mutually
agreed, for the benefit of the Company and the equal and
proportionate benefit of all Holders of the Notes, as
follows:
ARTICLE 1
Definitions
and Other Provisions of General Application
SECTION 1.01.
Scope of Supplemental Indenture . The changes,
modifications and supplements to the Original Indenture effected by
this Supplemental Indenture shall be applicable only with respect
to, and shall only govern the terms of, the Notes and shall not
apply to any other Securities that may be issued under the Original
Indenture unless a supplemental indenture with respect to such
other Securities specifically incorporates such changes,
modifications and supplements. The provisions of this
Supplemental Indenture shall supersede any corresponding provisions
in the Original Indenture.
SECTION 1.02.
Definitions . For all purposes of the Indenture,
except as otherwise expressly provided or unless the context
otherwise requires:
(i)
the terms defined in this Article 1 shall have the meanings
assigned to them in this Article and include the plural as
well as the singular;
(ii)
all words, terms and phrases defined in the Original Indenture (but
not otherwise defined herein) shall have the same meanings as in
the Original Indenture;
(iii)
all other terms used herein that are defined in the Trust Indenture
Act, either directly or by reference therein, shall have the
meanings assigned to them in the Trust Indenture Act;
(iv)
all accounting terms not otherwise defined herein shall have the
meanings assigned to them in accordance with generally accepted
accounting principles, and, except as otherwise herein expressly
provided, the term “generally accepted accounting
principles” with respect to any computation required or
permitted hereunder shall mean such accounting principles as are
generally accepted at the date of this instrument; and
(v)
the words “herein,” “hereof” and
“hereunder” and other words of similar import refer to
this Supplemental Indenture as a whole and not to any particular
Article, Section or other subdivision.
“ Additional Shares
” has the meaning specified in Section 9.03.
“ Adjustment Event
” has the meaning specified in
Section 9.04(k).
“ Agent Members ”
has the meaning specified in Section 2.03(d)(v).
“ Bid Solicitation
Agent ” means the financial institution appointed by the
Company to solicit bids for the Trading Price of the Notes in
accordance with Section 9.01(a)(2). The Bid Solicitation
Agent appointed by the Company shall initially be the
Trustee.
“ Business Day ”
means, solely for purposes of the Indenture and notwithstanding the
definition thereof in Section 1.1 of the Original Indenture,
each Monday, Tuesday,
2
Wednesday, Thursday and Friday which is not a
day on which banking institutions in New York City are authorized
or obligated by law or executive order to close.
“ Capital Lease
,” as applied to any Person, means any lease of any property
(whether real, personal or mixed) by that Person as lessee which,
in conformity with GAAP, is accounted for as a capital lease on the
balance sheet of that Person.
“ Capital Stock ”
of any Person means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of
or interests in (however designated) equity of such Person,
including any Preferred Stock, but excluding any debt securities
convertible into such equity.
“ close of business
” means 5:00 p.m. (New York City time).
“ Common Equity ”
of any Person means Capital Stock of such Person that is generally
entitled to (i) vote in the election of directors of such
Person or (ii) if such Person is not a corporation, vote or
otherwise participate in the selection of the governing body,
partners, managers or others that will control the management or
policies of such Person.
“ Common Stock ”
means the Common Stock, par value $0.125 per share, of the Company,
or such other Capital Stock into which the Company’s common
stock is reclassified or changed.
“ Continuing Director
” means a director who either was a member of the Board of
Directors on April 29, 2009 or who becomes a member of the
Board of Directors subsequent to that date and whose election,
appointment or nomination for election by the stockholders of the
Company, is duly approved by a majority of the Continuing Directors
on the Board of Directors at the time of such approval, either by a
specific vote or by approval of the proxy statement issued by the
Company on behalf of the entire Board of Directors in which such
individual is named as nominee for director. Solely for purposes of
this definition, the phrase “or any duly authorized committee
of that board” in the definition of “Board of
Directors” shall be disregarded.
“ Conversion Agent
” means the agency appointed by the Company to which Notes
may be presented for conversion. The Conversion Agent
appointed by the Company shall initially be the Trustee.
“ Conversion Date
” has the meaning specified in
Section 9.02(a).
“ Conversion Notice
” has the meaning specified in
Section 9.02(a).
“ Conversion Obligation
” has the meaning specified in
Section 9.01(a).
“ Conversion Price
” on any date of determination means $1,000, divided
by the Conversion Rate as of such date.
“ Conversion Rate
” has the meaning specified in
Section 9.01(a).
3
“ Conversion Value
,” for every $1,000 principal amount of a Note being
converted, means an amount equal to the sum of the Daily Conversion
Values for each of the forty-five (45) Settlement Period Trading
Days in the Settlement Period.
“ Current Market Price
” means the average of the Last Reported Sale Prices of the
Common Stock over the ten (10) consecutive Trading-Day period
ending on the Trading Day immediately preceding the declaration
date for the distribution requiring such computation.
“ Daily Conversion
Value ” for any Settlement Period Trading Day equals
1/45th of (x) the Conversion Rate in effect on that Settlement
Period Trading Day, multiplied by (y) the VWAP of the
Common Stock on that Settlement Period Trading Day.
“ declaration date
” and “ date of declaration ” shall mean,
with respect to a distribution by the Company to all or
substantially all of its holders of Common Stock, the date on which
the distribution has been authorized by the Board of Directors
under applicable law.
“ Default ” means
any event which is, or after notice or passage of time or both
would be, an Event of Default.
“ Depositary ”
has the meaning set forth in the Original Indenture, which shall
initially be DTC until a successor shall have been appointed and
become such pursuant to the applicable provisions of the Indenture,
and thereafter, “ Depositary ” shall mean such
successor.
“ Determination Date
” has the meaning specified in
Section 9.04(k).
“ Distributed Property
” has the meaning specified in
Section 9.04(c).
“ DTC ” means The
Depository Trust Company.
“ Effective Date
” has the meaning specified in Section 9.03.
“ Event of Default
” has the meaning set forth in the Original Indenture, as
supplemented by the events set forth in Section 6.01
hereof.
“ Ex-Dividend Date
” means, in respect of a dividend or distribution to holders
of Common Stock, the first date upon which a sale of the Common
Stock does not automatically transfer the right to receive the
relevant dividend or distribution from the seller of the Common
Stock to its buyer.
“ Expiration Date
” has the meaning specified in
Section 9.04(e).
“ Expiration Time
” has the meaning specified in
Section 9.04(e).
“ Fair Market Value
” means the amount that a willing buyer would pay to a
willing seller in an arms’ length transaction, as determined
by the Board of Directors.
“ Fixed Cash Amount
” has the meaning specified in
Section 9.02(b).
“ Fixed Dollar Amount
” has the meaning specified in
Section 9.02(b).
4
“ Full Interest Period
” means a period of days during which interest accrues from,
and including, an Interest Payment Date to, but excluding, the next
Interest Payment Date.
“ Fundamental Change
” shall be deemed to have occurred at the time after the
Notes are originally issued 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
Company, its Subsidiaries or the employee benefit plans of the
Company or any such Subsidiary of the Company, 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 Company’s
Common Equity representing more than 50% of the voting power of the
Company’s Common Equity;
(ii)
consummation of (A) any recapitalization, reclassification or
change of the Common Stock (other than changes resulting from a
subdivision or combination) as a result of which the Common Stock
would be converted into, or exchanged for, stock, other securities,
other property or assets or (B) any share exchange,
consolidation or merger of the Company pursuant to which the Common
Stock will be converted into cash, securities or other property or
any conveyance, transfer, sale, lease or other disposition in one
transaction or a series of transactions of all or substantially all
of the consolidated assets of the Company and its Subsidiaries,
taken as a whole, to any Person other than one of the
Company’s Subsidiaries; provided , however
, that a transaction where the holders of more than 50% of
all classes of the Company’s Common Equity immediately prior
to such transaction own, directly or indirectly, more than 50% of
all classes of Common Equity of the continuing or surviving
corporation or transferee immediately after such event shall not be
a Fundamental Change;
(iii)
Continuing Directors cease to constitute at least a majority of the
Board of Directors;
(iv)
the stockholders of the Company approve any plan or proposal for
the liquidation or dissolution of the Company; or
(v)
the Common Stock (or other common stock into which the Notes are
then convertible) ceases to be listed on at least one national
securities exchange;
provided , however , that
a Fundamental Change shall not be deemed to have occurred if 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 Publicly Traded
Securities and as a result of such transaction or transactions the
Notes become convertible into such Publicly Traded Securities in
accordance with Section 9.05, subject to the provisions of
Section 9.02.
For purposes of this definition, whether a
“person” is a “beneficial owner” shall be
determined in accordance with Rule 13d-3 under the Exchange
Act and “person” includes any syndicate or group that
would be deemed to be a “person” under
Section 13(d)(3) of the Exchange Act. In
5
addition, solely for purposes of clause
(iii) above, the phrase “or any duly authorized
committee of that board” in the definition of “Board of
Directors” shall be disregarded.
“ Fundamental Change
Company Notice ” has the meaning specified in
Section 3.01(b).
“ Fundamental Change
Repurchase Date ” has the meaning specified in
Section 3.01(a).
“ Fundamental Change
Repurchase Expiration Time ” has the meaning specified in
Section 3.01(a)(1).
“ Fundamental Change
Repurchase Notice ” has the meaning specified in
Section 3.01(a)(1).
“ Fundamental Change
Repurchase Price ” has the meaning specified in
Section 3.01(a).
“ GAAP ” means
generally accepted accounting principles set forth in the opinions
and pronouncements of the Accounting Principles Board of the
American Institute of Certified Public Accountants and statements
and pronouncements of the Financial Accounting Standards Board as
in effect from time to time.
“ Global Note ”
means any Note that is a Global Security.
“ Indebtedness ”
for purposes of Section 6.01(c) hereof, as applied to any
Person, means, without duplication, (i) all indebtedness for
borrowed money of that Person, (ii) that portion of
obligations with respect to Capital Leases which is properly
classified as a liability on a balance sheet of that Person in
conformity with GAAP, (iii) notes payable of that Person and
drafts accepted by that Person representing extensions of credit
whether or not representing obligations for borrowed money,
(iv) any obligation of that Person owed for all or any part of
the deferred purchase price of property or services which purchase
price is (A) due more than twelve months from the date of
incurrence of the obligation in respect thereof, or
(B) evidenced by a note or similar written instrument,
(v) all non-contingent obligations of such Person to reimburse
any bank or other Person in respect of amounts paid under a letter
of credit or similar instrument, (vi) all indebtedness secured
by any Lien on any property or asset owned or held by that Person
regardless of whether the indebtedness secured thereby shall have
been assumed by that Person or is nonrecourse to the credit of that
Person and (vii) any guarantee of that Person, direct or
indirect, of any indebtedness, note payable, draft accepted, or
obligation described in clauses (i)-(vi) above of any other
Person.
“ Indenture ”
means the Original Indenture, solely to the extent it governs the
Notes, as supplemented by this Supplemental Indenture as originally
executed or as it may from time to time be supplemented or amended
by one or more indentures supplemental hereto entered into pursuant
to the applicable provisions hereof, including, for all purposes of
this instrument and any such supplemental indenture, the provisions
of the Trust Indenture Act that are deemed to be a part of and
govern this Supplemental Indenture and any such supplemental
indenture, respectively.
6
“ Initial Dividend
Threshold ” has the meaning specified in
Section 9.04(d).
“ Interest Payment Date
” has the meaning specified in
Section 2.03(c).
“ Last Reported Sale
Price ” of the Common Stock on any date means:
(i)
the closing sale price per share (or if no closing sale price is
reported, the average of the bid and ask prices or, if more than
one in either case, the average of the average bid and the average
ask prices) on that date as reported by the New York Stock
Exchange; or
(ii)
if the Common Stock is not listed for trading on the New York Stock
Exchange, the closing sale price per share (or if no closing sale
price is reported, the average of the bid and ask prices or, if
more than one in either case, the average of the average bid and
the average ask prices) on that date as reported in composite
transactions for the principal U.S. national or regional securities
exchange on which the Common Stock is traded; or
(iii)
if the Common Stock is not listed for trading on a U.S. national or
regional securities exchange, the closing price per share (or if no
closing sale price is reported, the average of the bid and ask
prices or, if more than one in either case, the average of the
average bid and the average ask prices) for the Common Stock on
that date as reported by the OTC Bulletin Board (or successor
thereto); or
(iv)
if not so reported by the OTC Bulletin Board (or successor
thereto), the last quoted bid price for the Common Stock in the
over-the-counter market on that date as reported by Pink OTC Market
Inc. or similar organization; or
(v)
if the Common Stock is not so quoted by Pink OTC Market Inc. or
similar organization, the average of the mid-point of the last bid
and ask prices for the Common Stock on the relevant date from a
nationally recognized independent investment banking firm selected
by the Company for this purpose.
The Last Reported Sale Price of the
Common Stock will be determined without reference to extended or
after-hours trading. If, during a period applicable for
calculating the Last Reported Sale Price of the Common Stock, an
event occurs that requires an adjustment to the Conversion Rate,
the Last Reported Sale Price shall be calculated for such period in
a manner determined by the Company to appropriately reflect the
impact of such event on the price of the Common Stock during such
period.
“ Lien ” means
any lien, mortgage, pledge, security interest, charge or
encumbrance of any kind (including any conditional sale or other
title retention agreement, any lease in the nature thereof, and any
agreement to give any security interest).
“ Make-Whole Fundamental
Change ” means any transaction or event that constitutes
a Fundamental Change pursuant to clause (i),
(ii) (disregarding the proviso in clause (ii)),
(iv) and (v) under the definition thereof.
7
“ Market Disruption
Event ” means, if the Common Stock is listed for trading
on the New York Stock Exchange or listed on another U.S. national
or regional securities exchange, the occurrence or existence during
the one-half hour period ending on the scheduled close of trading
on any Trading Day of any material suspension or limitation imposed
on trading (by reason of movements in price exceeding limits
permitted by the stock exchange or otherwise) in the Common Stock
or in any options, contracts or future contracts relating to the
Common Stock.
“ Maturity Date ”
means May 1, 2013.
“ Notes ” has the
meaning set forth in the fourth paragraph of the recitals of this
Supplemental Indenture.
“ Officer ” means
the Chairman or Vice Chairman of the Board of Directors, the
President, any Vice President, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the
Company.
“ open of business
” means 9:00 a.m. (New York City time).
“ Paying Agent ”
has the meaning set forth in the Original Indenture, which shall
initially be the Trustee, and shall be the Person authorized by the
Company to pay the principal amount of, interest on, or Fundamental
Change Repurchase Price of, any Notes on behalf of the
Company.
“ Place of Payment
” means, for purposes of the Notes, New York, New
York.
“ Preferred Stock
”, as applied to the Capital Stock of any Person, means
Capital Stock of any class or classes (however designated) that is
preferred as to the payment of dividends, or as to the distribution
of assets upon any voluntary or involuntary liquidation or
dissolution of such Person, over shares of Capital Stock of any
other class of such Person.
“ Publicly Traded
Securities ” means shares of common stock listed on a
national securities exchange, which will be so listed when issued
or exchanged in connection with an event that would be a
Fundamental Change but for the second proviso in the definition of
such term.
“ Record Date ”
means, in respect of any dividend or distribution, the date fixed
for determination of stockholders entitled to receive such
distribution or, if earlier, the first date on which the shares of
the Common Stock trade on the applicable exchange or in the
applicable market, regular way, without the right to receive such
dividend or distribution.
“ Reference Property
” has the meaning specified in Section 9.05.
“ Regular Record Date
” means, with respect to any Interest Payment Date of the
Notes, the April 15 and October 15 preceding the
applicable May 1 and November 1 Interest Payment Date,
respectively.
“ Reorganization Event
” has the meaning specified in Section 9.05.
8
“ Reporting Additional
Interest ” has the meaning specified in
Section 6.04.
“ Schedule TO ”
means a Tender Offer Statement under Section 14(d)(1) or
13(e)(1) of the Exchange Act.
“ Scheduled Trading Day
” means any day on which the primary U.S. national securities
exchange or market on which the Common Stock is listed or admitted
for trading is scheduled to be open for trading.
“ Securities Act
” means the Securities Act of 1933, as amended from time to
time, and any successor legislation.
“ Settlement Period
” means the forty-five (45) consecutive Settlement Period
Trading Days:
(i)
with respect to Conversion Dates occurring during the period
beginning fifty (50) Scheduled Trading Days preceding the Maturity
Date, beginning on and including the forty-seventh (47th) Scheduled
Trading Day immediately preceding the Maturity Date; and
(ii)
in all other cases, beginning on and including the third (3rd)
Trading Day following the Conversion Date.
“ Settlement Period Market
Disruption Event ” means:
(i)
a failure by the primary U.S. national securities exchange or
market on which the Common Stock is listed or admitted to trading
to open for trading during its regular trading session;
or
(ii)
the occurrence or existence prior to 1:00 p.m. on any Trading
Day for the Common Stock of an aggregate one half-hour period, of
any suspension or limitation imposed on trading (by reason of
movements in price exceeding limits permitted by the stock exchange
or otherwise) in the Common Stock or in any options, contracts or
future contracts relating to the Common Stock.
“ Settlement Period Trading
Day ” means a day during which:
(i)
trading in the Common Stock generally occurs on the primary U.S.
national securities exchange or market on which the Common Stock is
listed or admitted for trading; and
(ii)
there is no Settlement Period Market Disruption Event;
provided , however , that if on any Trading Day
the Common Stock is not traded on any market, then that Trading Day
shall nevertheless be a “ Settlement Period Trading
Day ” so long as the Company is able to obtain the market
value per share of the Common Stock on that Trading Day from a
nationally recognized independent investment banking firm retained
by the Company for this purpose.
9
“ Significant
Subsidiary ” means any Subsidiary of the Company that
would be a “significant subsidiary” of the Company
within the meaning of Rule 1-02(w) under
Regulation S-X promulgated by the Commission.
“ Spin-off ” has
the meaning specified in Section 9.04(c).
“ Stock Price ”
means:
(i)
in the case of a Make-Whole Fundamental Change in which holders of
the Common Stock receive only cash as consideration for their
shares of Common Stock, the amount of cash paid per share of the
Common Stock in such Make-Whole Fundamental Change; or
(ii)
in the case of all other Make-Whole Fundamental Changes, the
average of the Last Reported Sale Prices of Common Stock over the
five (5) consecutive Trading-Day period ending on the Trading
Day immediately preceding the Effective Date of such Make-Whole
Fundamental Change.
“ Successor Company
” has the meaning specified in
Section 5.01(a).
“ TFC ” means
Textron Financial Corporation, a Delaware corporation.
“ Trading Day ”
means a day during which:
(i)
the New York Stock Exchange is open for trading, or if the Common
Stock is not listed for trading on the New York Stock Exchange, the
principal U.S. national or regional securities exchange on which
the Common Stock is listed is open for trading, or if the Common
Stock is not so quoted or listed, any Business Day; and
(ii)
there is no Market Disruption Event.
“ Trading Price ”
per $1,000 principal amount of the Notes on any date of
determination shall be calculated based on the average of the
secondary market bid quotations obtained by the Bid Solicitation
Agent for $5,000,000 aggregate principal amount of Notes at
approximately 3:30 p.m., New York City time, on such
determination date from three independent nationally recognized
securities dealers selected by the Company; provided that,
if only two such bids can reasonably be obtained, then the average
of the two bids shall be used, and if only one such bid can
reasonably be obtained, then that one bid shall be used. If the Bid
Solicitation Agent cannot reasonably obtain at least one bid for
$5,000,000 aggregate principal amount of the Notes, then the
Trading Price per $1,000 principal amount of Notes will be deemed
to be less than 98% of the product of the Last Reported Sale Price
of the Common Stock and the applicable Conversion Rate.
“ Trading Price Measurement
Period ” has the meaning specified in
Section 9.01(a)(2).
“ Trigger Event ”
has the meaning specified in Section 9.04(c).
10
“ VWAP ”
for the Common Stock means, with respect to any Settlement Period
Trading Day during the Settlement Period, the per share
volume-weighted average price of the Common Stock as displayed
under the heading “Bloomberg VWAP” on Bloomberg
page TXT.N <equity> AQR in respect of the period from
9:30 a.m. to 4:00 p.m., New York City time, on such
Settlement Period Trading Day; or if such volume-weighted average
price is unavailable, the market value per share of the Common
Stock on such Settlement Period Trading Day as determined by a
nationally recognized independent investment banking firm retained
for this purpose by the Company.
SECTION 1.03.
Incorporation by Reference of Trust Indenture Act.
This Indenture is subject to the mandatory provisions of the Trust
Indenture Act, which are incorporated by reference in and made a
part of this Indenture. The following Trust Indenture Act
terms have the following meanings:
“indenture securities”
means the Notes.
“indenture security
holder” means a Holder.
“indenture to be
qualified” means this Indenture.
“indenture trustee” or
“institutional trustee” means the Trustee.
“obligor” on the
indenture securities means the Company and any other obligor on the
indenture securities.
All other Trust Indenture Act terms
used in this Indenture that are defined by the Trust Indenture Act,
defined by Trust Indenture Act reference to another statute or
defined by Commission rule have the meanings assigned to them
by such definitions.
SECTION 1.04.
Rules of Construction . Unless the context
otherwise requires:
(1)
a term has the meaning assigned to it;
(2)
“or” is not exclusive; and
(3)
“including” means including without
limitation.
ARTICLE
2
The Notes
SECTION 2.01.
Designation, Amount and Issuance of Notes . The Notes
shall be designated as “4.50% Convertible Senior Notes due
2013.” The Notes will initially not exceed the
aggregate principal amount of $600,000,000, except for Notes
authenticated and delivered upon registration of transfer of, in
exchange for, or in lieu of, other Notes pursuant to
Section 3.04, 5.02 and 9.02(d) of this Supplemental
Indenture or Section 3.4, 3.5, 3.6 or 9.6 of the Original
Indenture. Upon the execution of this Supplemental Indenture,
or from time to time
11
thereafter, Notes may be executed by the Company
and delivered to the Trustee for authentication.
SECTION 2.02.
Form of the Notes . The Notes and the
Trustee’s certificate of authentication to be borne by such
Notes, the Conversion Notice, Fundamental Change Repurchase Notice
and Assignment shall be substantially in the forms set forth in
Exhibits A, B, C and D, respectively, hereto. The terms
and provisions contained in the form of Notes attached as
Exhibit A hereto shall constitute, and are hereby expressly
made, a part of this Supplemental Indenture and, to the extent
applicable, the Company and the Trustee, by their execution and
delivery of this Supplemental Indenture, expressly agree to such
terms and provisions and to be bound thereby.
Any of the Notes may have such
letters, numbers or other marks of identification and such
notations, legends, endorsements or changes as the officers
executing the same may approve (execution thereof to be conclusive
evidence of such approval) and as are not inconsistent with the
provisions of the Indenture, or as may be required by the custodian
for the Global Notes, the Depositary or as may be required to
comply with any applicable law or with any rule or regulation
made pursuant thereto or with any rule or regulation of any
securities exchange or automated quotation system on which the
Notes may be listed, or to conform to usage, or to indicate any
special limitations or restrictions to which any particular Notes
are subject.
So long as the Notes are eligible
for book-entry settlement with the Depositary, or unless otherwise
required by law, or otherwise contemplated by Section 2.03(d),
all of the Notes will be represented by one or more Global
Notes. The transfer and exchange of beneficial interests in
any such Global Notes shall be effected through the Depositary in
accordance with the Indenture and the applicable procedures of the
Depositary. Except as provided in Section 2.03(d),
beneficial owners of a Global Note shall not be entitled to have
certificates registered in their names, will not receive or be
entitled to receive physical delivery of certificates in definitive
form and will not be considered holders of such Global
Note.
Any Global Notes shall represent
such of the outstanding Notes as shall be specified therein and
shall provide that it shall represent the aggregate amount of
outstanding Notes from time to time endorsed thereon and that the
aggregate amount of outstanding Notes represented thereby may from
time to time be increased or reduced to reflect repurchases,
conversions, transfers or exchanges permitted hereby. Any
endorsement of a Global Note to reflect the amount of any increase
or decrease in the amount of outstanding Notes represented thereby
shall be made by the Trustee or the custodian for the Global Note,
at the direction of the Trustee, in such manner and upon
instructions given by the holder of such Notes in accordance with
this Indenture. Payment of principal of, interest on and
premium, if any, on any Global Notes shall be made to the
Depositary in immediately available funds. The Company has
initially designated the Trustee as its Paying Agent and Security
Registrar in respect of the Notes and the Corporate Trust Office as
a place where Notes may be presented for payment or for
registration of transfer. The Company may, however, change
the Paying Agent or Security Registrar for the Notes without prior
notice to the Holders, and the Company may act as Paying Agent or
Security Registrar for the Notes.
12
SECTION 2.03.
Date and Denomination of Notes; Payment at Maturity; Payment of
Interest .
(a)
Date and Denomination . The Notes initially shall be
issued in the form of one or more Global Notes without interest
coupons in denominations of $1,000 principal amount and integral
multiples thereof (i) registered in the name of
Cede & Co., as nominee of the Depositary and
(ii) delivered to the Trustee as custodian for the
Depositary. Each Note shall be dated the date of its
authentication and shall bear interest from the date specified on
the face of the form of Notes attached as Exhibit A
hereto.
(b)
Payment at Maturity . The Notes shall mature on
May 1, 2013, unless earlier converted or repurchased in
accordance with the provisions hereof. On the Maturity Date,
each Holder shall be entitled to receive on such date $1,000 in
cash for each $1,000 principal amount of Notes, together with
accrued and unpaid interest to, but not including, the Maturity
Date. With respect to Global Notes, principal and interest
will be paid to the Depositary in immediately available
funds. With respect to any certificated Notes, principal and
interest will be payable at the Company’s office or agency in
New York City, which initially will be the Corporate Trust
Office. If the Maturity Date is not a Business Day, payment
shall be made on the next succeeding Business Day, and no
additional interest shall be accrue thereon.
(c)
Payment of Interest . Interest on the Notes will
accrue at the rate of 4.50% per annum, from May 5, 2009 until
the principal thereof is paid or made available for payment.
Interest shall be payable on May 1 and November 1 of each
year (each, an “ Interest Payment Date ”), commencing on
November 1, 2009, to the Person in whose name any Note is
registered on the Security Register at the close of business on any
Regular Record Date with respect to the applicable Interest Payment
Date, except that the interest payable on the Maturity Date will be
paid to the Person to whom the principal amount is paid.
Notwithstanding the foregoing, any Notes or portion thereof
surrendered for conversion after the close of business on the
Regular Record Date for an Interest Payment Date but prior to the
applicable Interest Payment Date shall be accompanied by payment,
in immediately available funds or other funds acceptable to the
Company, of an amount equal to the interest otherwise payable on
such Interest Payment Date on the principal amount being converted;
provided that no such payment need be made:
(i) with
respect to Notes converted after the close of business on
April 15, 2013;
(ii) with
respect to Notes converted during the period commencing on the date
the Company gives notice of a Fundamental Change pursuant to
Section 9.01(a)(4) to, and including, the second Trading
Day immediately preceding the Fundamental Change Repurchase Date;
or
(iii) with
respect to any overdue interest, if overdue interest exists at the
time of conversion with respect to converted Notes.
Interest on the Notes for a Full
Interest Period will be computed on the basis of a three hundred
sixty (360)-day year comprised of twelve (12) thirty (30)-day
months. Interest on the Notes for any period other than a
Full Interest Period will be computed on the basis of the actual
number of days elapsed during the period and a three hundred
sixty-five (365)-day year.
13
The Company shall pay interest
on:
(i) any Global Notes by wire
transfer of immediately available funds to the account of the
Depositary or its nominee;
(ii) any Notes in certificated
form having a principal amount of less than $5,000,000, by check
mailed to the address of the Person entitled thereto as it appears
in the Security Register, provided , however
, on the Maturity Date, interest will be payable as
described in Section 2.03(b); and
(iii) any Notes in
certificated form having a principal amount of $5,000,000 or more,
by wire transfer in immediately available funds at the election of
the Holders of such Notes duly delivered to the Trustee at least
five (5) Business Days prior to the relevant Interest Payment
Date, provided , however , on the Maturity Date,
interest will be payable as described in
Section 2.03(b).
If an Interest Payment Date is not a
Business Day, payment shall instead be made on the next succeeding
Business Day, and no additional interest shall accrue
thereon.
All references to
“interest” in this Indenture shall be deemed to include
Reporting Additional Interest, if any, that accrues in connection
with the Company’s failure to comply with Section 2.06,
if applicable, as provided by Section 6.04.
(d)
The following provisions shall apply only to Global
Notes:
(i)
Notwithstanding any other provision in the Indenture, no Global
Note may be exchanged in whole or in part for Notes registered, and
no transfer of a Global Note in whole or in part may be registered,
in the name of any Person other than the Depositary or a nominee
thereof unless (A) the Depositary (x) has notified the
Company that it is unwilling or unable to continue as Depositary
for such Global Note or (y) has ceased to be a clearing agency
registered under the Exchange Act, and in each case a successor
Depositary has not been appointed by the Company within ninety (90)
calendar days, or (B) the Company, at its option, notifies the
Trustee in writing that it no longer wishes to have all the Notes
represented by Global Notes. Any Global Note exchanged
pursuant to this Section 2.03(d)(i) shall be so exchanged
in whole and not in part.
(ii)
In addition, certificated Notes will be issued in exchange for
beneficial interests in a Global Note upon request by or on behalf
of the Depositary in accordance with customary procedures following
the request of a beneficial owner seeking to enforce its rights
under the Notes or the Indenture, including its rights following
the occurrence of an Event of Default.
(iii)
Notes issued in exchange for a Global Note or any portion thereof
pursuant to clause (i) or (ii) above shall be issued in
definitive, fully registered form, without interest coupons, shall
have an aggregate principal amount equal to that of such Global
Notes or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as
the
14
Depositary shall designate and
shall bear any legends required hereunder. Any Global Notes
to be exchanged shall be surrendered by the Depositary to the
Trustee, as Registrar; provided that pending completion of
the exchange of a Global Note, the Trustee acting as custodian for
the Global Notes for the Depositary or its nominee with respect to
such Global Notes, shall reduce the principal amount thereof, by an
amount equal to the portion thereof to be so exchanged, by means of
an appropriate adjustment made on the records of the Trustee.
Upon any such surrender or adjustment, the Trustee shall
authenticate and make available for delivery the Notes issuable on
such exchange to or upon the written order of the Depositary or an
authorized representative thereof.
(iv)
In the event of the occurrence of any of the events specified in
clause (i) above or upon any request described in clause
(ii) above, the Company will promptly make available to the
Trustee a sufficient supply of certificated Notes in definitive,
fully registered form, without interest coupons.
(v)
Neither any members of, or participants in, the Depositary (the
“ Agent Members ”) nor any other Persons on whose behalf
Agent Members may act shall have any rights under this Indenture
with respect to any Global Notes registered in the name of the
Depositary or any nominee thereof, and the Depositary or such
nominee, as the case may be, may be treated by the Company, the
Trustee and any agent of the Company or the Trustee as the absolute
owner and holder of such Global Notes for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein
shall prevent the Company, the Trustee or any agent of the Company
or the Trustee from giving effect to any written certification,
proxy or other authorization furnished by the Depositary or such
nominee, as the case may be, or impair, as between the Depositary,
its Agent Members and any other Person on whose behalf an Agent
Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any
Notes.
(vi)
At such time as all interests in a Global Note have been
repurchased, converted, cancelled or exchanged for Notes in
certificated form, such Global Note shall, upon receipt thereof, be
canceled by the Trustee in accordance with standing procedures and
instructions existing between the Depositary and the custodian for
the Global Note. At any time prior to such cancellation, if
any interest in a Global Note is repurchased, converted, cancelled
or exchanged for Notes in certificated form, the principal amount
of such Global Note shall, in accordance with the standing
procedures and instructions existing between the Depositary and the
custodian for the Global Note, be appropriately reduced, and an
endorsement shall be made on such Global Note, by the Trustee or
the custodian for the Global Note, at the direction of the Trustee,
to reflect such reduction.
SECTION 2.04.
Paying Agent to Hold Money in Trust . Notwithstanding
Section 3.7 of the Original Indenture to the contrary, prior
to each due date of the principal and interest on any Note, the
Company shall deposit with the Paying Agent (or if the Company or
a
15
Subsidiary of the Company is acting as Paying
Agent, segregate and hold in trust for the benefit of the Persons
entitled thereto) a sum sufficient to pay such principal and
interest when so becoming due. The Company shall require each
Paying Agent (other than the Trustee) to agree in writing that the
Paying Agent shall hold in trust for the benefit of Holders or the
Trustee all money held by the Paying Agent for the payment of
principal of or interest on the Notes and shall notify the Trustee
of any Default by the Company in making any such payment. If
the Company or a Subsidiary of the Company acts as Paying Agent, it
shall segregate the money held by it as Paying Agent and hold it as
a separate trust fund. The Company at any time may require a
Paying Agent to pay all money held by it to the Trustee and to
account for any funds disbursed by the Paying Agent. Upon
complying with this Section, the Paying Agent shall have no further
liability for the money delivered to the Trustee.
SECTION 2.05.
Outstanding Notes . Notwithstanding anything in the
definition of “Outstanding” in Section 1.1 of the
Original Indenture to the contrary, if the Paying Agent segregates
and holds in trust, in accordance with the Indenture, on a
Fundamental Change Repurchase Date or Maturity Date cash sufficient
to pay all principal and interest payable on that date with respect
to the Notes (or portions thereof) to be repurchased or maturing,
as the case may be, and the Paying Agent is not prohibited from
paying such money to the Noteholders on that date pursuant to the
terms of the Indenture, then on and after that date such Notes (or
portions thereof) cease to be “Outstanding” for
purposes of the Indenture and interest on them ceases to
accrue.
SECTION 2.06.
Reporting Requirement . Section 7.4 of the
Original Indenture shall not apply to the Notes. Instead, the
Company shall deliver to the Trustee, within fifteen (15) calendar
days after it would have been required to file them with the
Commission (giving effect to any grace period provided by
Rule 12b-25 under the Exchange Act), copies of the
Company’s annual reports on Form 10-K and of the
information, documents and other reports (or copies of such
portions of any of the foregoing as the Commission may by
rules and regulations prescribe) which the Company is required
to file with the Commission pursuant to Section 13 or
15(d) of the Exchange Act. Documents filed by the
Company with the Commission via its EDGAR system (or any successor
thereto) will be deemed to be filed with the Trustee as of the time
such documents are so filed. In the event the Company is at
any time no longer subject to the reporting requirements of
Section 13 or 15(d) of the Exchange Act, the Company
shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to
be filed with the Commission had it continued to have been subject
to such reporting requirements. In such event, such reports
shall be provided at the times the Company would have been required
to provide reports had the Company continued to have been subject
to such reporting requirements. The Company also shall comply
with the other provisions of Section 314(a) of the Trust
Indenture Act.
ARTICLE 3
Repurchase of
Notes
SECTION 3.01.
Repurchase at Option of the Holder Upon a Fundamental
Change. (a) If there shall occur a Fundamental
Change at any time prior to the Maturity Date, then each Holder
shall have the right, at such Holder’s option, to require the
Company to
16
repurchase for cash any or all of such
Holder’s Notes, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple of $1,000,
on a date (the “ Fundamental Change Repurchase Date
”) of the Company’s choosing that is not less than
twenty (20) Business Days or more than thirty-five (35) Business
Days after the date of the Fundamental Change Company Notice at a
repurchase price equal to 100% of the principal amount of the Notes
to be repurchased, plus accrued and unpaid interest thereon to, but
excluding, the Fundamental Change Repurchase Date (the “
Fundamental Change Repurchase Price ”). If such
Fundamental Change Repurchase Date falls between a Regular Record
Date and on or prior to the Interest Payment Date to which it
relates, the Company shall instead pay the full amount of accrued
and unpaid interest payable on such Interest Payment Date to the
holder of record on the close of business on the corresponding
Regular Record Date and the Fundamental Change Repurchase Price
shall be equal to 100% of the principal amount of the Notes to be
repurchased. Repurchases of Notes under this
Section 3.01 shall be made, at the option of the holder
thereof, upon:
(1)
delivery to the Paying Agent by a Holder of a duly completed notice
(the “ Fundamental
Change Repurchase Notice ”) in the form set
forth on the reverse of the Note by the close of business on the
Business Day immediately preceding the Fundamental Change
Repurchase Date (the “ Fundamental Change Repurchase Expiration
Time ”); and
(2)
delivery or book-entry transfer of the Notes to the Paying Agent by
the Fundamental Change Repurchase Expiration Time (together with
all necessary endorsements) at the Corporate Trust Office of the
Paying Agent in New York City, such delivery being a condition to
receipt by the Holder of the Fundamental Change Repurchase Price
therefor.
The Fundamental Change Repurchase
Notice shall state:
(i)
if certificated Notes have been issued, the certificate numbers of
the Notes to be delivered for repurchase, or if certificated Notes
have not been issued, such Fundamental Change Repurchase Notice
must comply with appropriate Depositary procedures;
(ii)
the portion of the principal amount of Notes to be repurchased,
which must be $1,000 or an integral multiple thereof;
and
(iii)
that the Notes are to be repurchased by the Company pursuant to the
applicable provisions of the Notes and this Indenture.
Any purchase by the Company
contemplated pursuant to the provisions of this Section 3.01
shall be consummated by the payment of the Fundamental Change
Purchase Price to the relevant Holders promptly following the later
of the Fundamental Change Repurchase Date and the time of the
book-entry transfer or delivery of the Note.
All questions as to the validity,
eligibility (including time of receipt) and acceptance of any Notes
for repurchase shall be determined by the Company, whose
determination shall be final and binding absent manifest
error.
17
Notwithstanding anything herein to
the contrary, any Holder delivering to the Paying Agent the
Fundamental Change Repurchase Notice contemplated by this
Section 3.01 shall have the right to withdraw, in whole or in
part, such Fundamental Change Repurchase Notice at any time prior
to the close of business on the Business Day immediately preceding
the Fundamental Change Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with
Section 3.02 below.
The Paying Agent shall promptly
notify the Company of the receipt by it of any Fundamental Change
Repurchase Notice or written notice of withdrawal
thereof.
(b)
On or before the tenth (10th) calendar day after the occurrence of
a Fundamental Change, the Company shall mail or cause to be mailed
to all Holders of the Notes, and to beneficial owners as required
by applicable law, a notice (the “ Fundamental Change Company Notice
”) of the
occurrence of the Fundamental Change and of the repurchase right at
the option of the Holders arising as a result thereof. Such
mailing shall be by first class mail. The Company shall also
deliver a copy of the Fundamental Change Company Notice to the
Trustee, the Paying Agent and the Conversion Agent.
Simultaneously with providing such notice, the Company will issue a
press release containing the information set forth in the
Fundamental Change Company Notice and make this information
available on its website.
Each Fundamental Change Company
Notice shall specify:
(i)
the events causing the Fundamental Change;
(ii)
the date of the Fundamental Change;
(iii)
the last date on which a Holder may exercise the repurchase right
pursuant to this Article 3;
(iv)
the Fundamental Change Repurchase Price;
(v)
the Fundamental Change Repurchase Date;
(vi)
the name and address of the Paying Agent and the Conversion
Agent;
(vii)
that the Notes are eligible to be converted, the applicable
Conversion Rate and any adjustments to the applicable Conversion
Rate resulting from such Fundamental Change transaction and
expected changes in the cash, shares or other property deliverable
upon conversion of the Notes as a result of the occurrence of the
Fundamental Change, and the settlement method the Company has
chosen to satisfy the related Conversion Obligation, if
any;
(viii)
that the Notes with respect to which a Fundamental Change
Repurchase Notice has been delivered by a Holder may be converted
only if the Holder withdraws the Fundamental Change Repurchase
Notice in accordance with the terms of this Supplemental
Indenture;
18
(ix)
that a Holder must exercise its repurchase right by the Fundamental
Change Repurchase Expiration Time;
(x)
that the Holder shall have the right to withdraw any Notes tendered
prior to the Fundamental Change Repurchase Expiration
Time;
(xi)
the CUSIP number of the Notes; and
(xii)
the procedures that Holders must follow to require the Company to
repurchase their Notes pursuant to this Article 3.
No failure of the
Company to give the foregoing notices and no defect therein shall
limit the repurchase rights of Holders or affect the validity of
the proceedings for the repurchase of the Notes pursuant to this
Section 3.01.
(c)
Notwithstanding the foregoing, no Notes may be repurchased by the
Company at the option of the Holders upon 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 Repurchase Price.
SECTION 3.02.
Withdrawal of Fundamental Change Repurchase Notice .
A Fundamental Change Repurchase Notice may be withdrawn by
means of a written notice of withdrawal delivered to the Corporate
Trust Office of the Paying Agent in accordance with the Fundamental
Change Repurchase Notice at any time prior to the Fundamental
Change Repurchase Expiration Time, specifying:
(1)
if certificated Notes have been issued, the certificate numbers of
the Notes in respect of which such notice of withdrawal is being
submitted, or if certificated Notes have not been issued, such
notice of withdrawal must comply with appropriate Depositary
procedures;
(2)
the principal amount of the Note with respect to which such notice
of withdrawal is being submitted, which portion must be in
principal amount of $1,000 or an integral multiple thereof;
and
(3)
the principal amount, if any, of such Note that remains subject to
the original Fundamental Change Repurchase Notice, which portion
must be in principal amount of $1,000 or an integral multiple
thereof.
SECTION 3.03.
Deposit of Fundamental Change Repurchase Price . Prior
to 10:00 a.m., New York City time, on the Fundamental Change
Repurchase Date, the Company shall deposit with the Paying Agent
or, if the Company or a Subsidiary of the Company is acting as the
Paying Agent, shall segregate and hold in trust as provided herein,
an amount of cash (in immediately available funds if deposited on
the Fundamental Change Repurchase Date), sufficient to pay the
aggregate Fundamental Change Repurchase Price of all the Notes or
portions thereof that are to be repurchased as of the Fundamental
Change Repurchase Date.
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If on the Fundamental Change
Repurchase Date the Paying Agent holds cash sufficient to pay the
Fundamental Change Repurchase Price of the Notes that Holders have
elected to require the Company to repurchase in accordance with
Section 3.01, then, on the Fundamental Change Repurchase Date,
such Notes will cease to be outstanding, interest will cease to
accrue (whether or not book-entry transfer of the Notes is made or
the Note is transferred or delivered to the Paying Agent, as the
case may be) and all other rights of the Holders of such Notes will
terminate (other than the right to receive the Fundamental Change
Repurchase Price upon delivery or book-entry transfer of the
Notes). This will be the case whether or not book-entry
transfer of the Notes has been made or the Notes have been
delivered to the Paying Agent.
SECTION 3.04.
Notes Repurchased in Part . Upon presentation of any
Notes repurchased only in part, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the
Holder thereof, at the expense of the Company, a new Note or Notes,
of any authorized denomination, in aggregate principal amount equal
to the unrepurchased portion of the Notes presented.
SECTION 3.05.
Covenant to Comply with Securities Laws Upon Repurchase of
Notes . The Company will, to the extent applicable,
comply with the provisions of Rule 13e-4 and any other tender
offer rules under the Exchange Act that may be applicable at
the time of the offer to repurchase the Notes, file the related
Schedule TO or any other schedule required in connection with any
offer by the Company to repurchase the Notes and comply with all
other federal and state securities laws in connection with any
offer by the Company to repurchase the Notes.
SECTION 3.06.
Sinking Fund and Redemption . The Notes are not
subject to the provisions of Articles XI or XII of the Original
Indenture.
ARTICLE
4
Covenants
SECTION 4.01.
Existence . Subject to Article 5, the Company
will do or cause to be done all things necessary to preserve and
keep in full force and effect its existence and rights (charter and
statutory); provided that the Company shall not be required to
preserve any such right if the Company shall determine that the
preservation thereof is no longer desirable in the conduct of the
business of the Company and that the loss thereof is not
disadvantageous in any material respect to the holders of
Notes.
SECTION 4.02.
Further Instruments and Acts . The Company shall
execute and deliver such further instruments and do such further
acts as may be reasonably necessary or proper to carry out more
effectively the purpose of this Supplemental Indenture.
SECTION 4.03.
Additional Interest . If Reporting Additional Interest
is payable by the Company, the Company shall deliver to the Trustee
an Officers’ Certificate to that effect stating (i) the
amount of such Reporting Additional Interest that is payable and
(ii) the date on which such Reporting Additional Interest is
payable. Unless and until a Responsible Officer
20
receives such a certificate, the Trustee may
assume without inquiry that no Reporting Additional Interest is
payable.
SECTION 4.04.
Waiver of Stay, Extension or Usury Laws . The Company
covenants (to the extent it may lawfully do so) that it shall not
at any time insist upon, plead, or in any manner whatsoever claim
or take benefit or advantage of, any stay, extension or usury law
or other law which would prohibit or forgive the Company from
paying all or any portion of the principal of or interest on the
Notes as contemplated herein, wherever enacted, now or at any time;
the Company (to the extent it may lawfully do so) hereby expressly
waives all benefit or advantage of any such law, and covenants that
it will not, by resort to any such law, hinder, delay or impede the
execution of any power herein granted to the Trustee, but will
suffer and permit the execution of every such power as though no
such law had been enacted.
SECTION 4.05.
Repurchase and Cancellation . To the extent permitted
by law, the Company may repurchase any Notes in the open-market or
by tender offer at any price or by private agreement. Neither
the Company nor its Affiliates shall resell such Notes unless such
resale is registered under the Securities Act or such resale is
pursuant to an exemption from the registration requirements of the
Securities Act that results in such Notes not being
“restricted securities,” as such term is defined in
Rule 144(a)(3) under the Securities Act. Any Notes
repurchased by the Company may, at the Company’s option, be
surrendered to the Trustee for cancellation as provided by
Section 3.9 of the Original Indenture. Any Notes
surrendered for cancellation by the Company shall not be reissued
or resold.
ARTICLE
5
Successor
Company
SECTION 5.01.
When Company May Merge or Transfer Assets . The
Company shall not consolidate with or merge with or into, or sell,
convey, transfer or lease all or substantially all of its
properties and assets to, another Person, unless:
(a)
either (i) the Company is the surviving corporation, or
(ii) if the Company is not the surviving corporation, the
resulting, surviving or transferee Person (the “
Successor Company
”) is a
corporation organized and existing under the laws of the United
States, any state thereof or the District of Columbia and such
Successor Company expressly assumes, by a supplemental indenture,
all of the Company’s obligations under the Notes and the
Indenture;
(b)
immediately after giving effect to the transaction described above,
no Default or Event of Default, has occurred and is continuing
under the Indenture;
(c)
if as a result of such transaction, the Notes become convertible
into common stock or other securities issued by a third party, such
third party fully and unconditionally guarantees all obligations of
the Company or the Successor Company, as applicable, under the
Notes and the Indenture; and
(d)
the Company has delivered to the Trustee the Officers’
Certificate and Opinion of Counsel pursuant to
Section 5.03.
21
SECTION 5.02.
Successor to Be Substituted . In case of any such
consolidation, merger, sale, conveyance, transfer or lease in which
the Company is not the surviving corporation and upon the
assumption by the Successor Company, by supplemental indenture,
executed and delivered to the Trustee, of the due and punctual
payment of the principal of and interest on all of the Notes, and
the due and punctual performance and observance of all of the
covenants and conditions of the Indenture to be performed or
satisfied by the Company, except in the case of a lease of all or
substantially all of the Company’s properties and assets,
such Successor Company shall succeed to, and be substituted for,
and may exercise every right and power of, the Company, with the
same effect as if it had been named herein as the party of this
first part, and Textron Inc. shall be discharged from its
obligations under the Notes and the Indenture. Such Successor
Company thereupon may cause to be signed, and may issue either in
its own name or in the name of Textron Inc. any or all of the
Notes
