Exhibit 4.2
EXECUTION COPY
FIRST SUPPLEMENTAL INDENTURE
between
CARRIZO OIL & GAS, INC.
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as
Trustee
4.375% Convertible Senior Notes due 2028
May 28, 2008
TABLE OF CONTENTS
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ARTICLE ONE THE
NOTES
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SECTION 101
Designation of Notes; Establishment of Form
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SECTION 102
Amount
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SECTION 103
Interest
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SECTION 104
Denominations
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SECTION 105 Place
of Payment
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SECTION 106
Redemption
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SECTION 107
Conversion
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SECTION 108
Maturity
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SECTION 109 No
Defeasance
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SECTION 110
Repurchase
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SECTION 111 Other
Terms of Notes
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ARTICLE TWO
AMENDMENTS TO THE INDENTURE
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SECTION 201
Definitions
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SECTION 202
Mutilated, Destroyed, Lost and Stolen Securities
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SECTION 203
Payment of Interest; Interest Rights Preserved
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SECTION 204
Limitation on Mergers and Consolidations
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SECTION 205
Supplemental Indentures Without Consent of Holders
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SECTION 206
Supplemental Indenture with Consent of Holder
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SECTION 207
Maintenance of Office or Agency
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SECTION 208
Redemption
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SECTION 209
Possible Future Guarantee
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SECTION 210
Conversion, Repurchase
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SECTION 211
Amendment to Events of Default
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SECTION 212
Calculations
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ARTICLE THREE
MISCELLANEOUS PROVISIONS
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SECTION 301
Integral Part
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SECTION 302
General Definitions
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SECTION 303
Adoption, Ratification and Confirmation
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SECTION 304
Counterparts
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SECTION 305
Governing Law
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i
CARRIZO OIL & GAS, INC.
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE,
dated as of May 28, 2008 (the “First Supplemental
Indenture”), between Carrizo Oil & Gas, Inc., a Texas
corporation (the “Company”), and Wells Fargo Bank,
National Association (the “Trustee”).
W I T N
E S S E
T H :
WHEREAS, the Company has heretofore
executed and delivered to the Trustee an Indenture, dated as of
May 28, 2008, providing for the issuance from time to time of
one or more series of the Company’s Securities;
WHEREAS, Sections 2.01 and
9.01(9) of the Indenture provides that the Company and the Trustee
may from time to time enter into one or more indentures
supplemental thereto to establish the form or terms of Securities
of a new series;
WHEREAS, Section 9.01(6) of the
Indenture permit the execution of supplemental indentures without
the consent of any Holders to add to the covenants of the Company
for the benefit of, and to add any additional Events of Default
with respect to, all or any series of Securities;
WHEREAS, Section 9.01(8) of the
Indenture permits the execution of supplemental indentures without
the consent of any Holders to change or eliminate any of the
provisions of the Indenture; provided that such change or
elimination does not adversely affect any outstanding Security of
any series created prior to the execution of such supplemental
indenture;
WHEREAS, the Company desires to issue
4.375% Convertible Senior Notes due 2028 (the
“Notes”), a new series of Securities the issuance of
which was authorized by or pursuant to resolution of the Board of
Directors of the Company;
WHEREAS, the Company, pursuant to the
foregoing authority, proposes in and by this First Supplemental
Indenture to supplement and amend the Indenture insofar as it will
apply only to Notes in certain respects; and
WHEREAS, all things necessary have
been done to make the Notes, when executed by the Company and
authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this
First Supplemental Indenture a valid agreement of the Company, in
accordance with their and its terms.
NOW, THEREFORE:
In consideration of the premises
provided for herein, the Company and the Trustee mutually covenant
and agree for the equal and proportionate benefit of all Holders of
the Notes as follows:
ARTICLE ONE
THE
NOTES
SECTION
101 Designation of Notes; Establishment of Form.
There shall be a series of Securities
designated “4.375% Convertible Senior Notes due 2028”
of the Company (the “Notes”), the form of which shall
be substantially as set forth in Annex A hereto, which is
incorporated into and shall be deemed a part of this First
Supplemental Indenture, with such appropriate insertions,
omissions, substitutions and other variations as are required or
permitted by the Indenture, and may have such letters, numbers or
other marks of identification and such legends or endorsements
placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined
by the officers of the Company executing such Notes, as evidenced
by their execution of the Notes.
All of the Notes will initially be
issued in permanent global form, substantially in the respective
form set forth in Annex A (the “Global
Securities”). Each Global Security shall represent such of
the 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
reduced to reflect exchanges and redemptions. Any endorsement of a
Global Security to reflect the amount, or any increase or decrease
in the amount, of Outstanding Notes represented thereby shall be
made by the Trustee in accordance with written instructions or such
other written form of instructions as is customary for the
Depositary, from the Depositary or its nominee on behalf of any
Person having the beneficial interest in the Global Security.
The Company initially appoints The
Depository Trust Company to act as Depositary with respect to the
Global Securities.
The Company initially appoints the
Trustee to act as Paying Agent and Conversion Agent with respect to
the Notes.
SECTION
102 Amount.
The Notes may be issued in unlimited
aggregate principal amount. The Trustee shall authenticate and
deliver Notes for original issue in an aggregate Principal Amount
of up to $373,750,000 upon Company Order without any further action
by the Company. Upon Company Request, the Trustee shall
authenticate and deliver additional Notes, provided that
such additional Notes are fungible with the Notes then outstanding
for U.S. Federal income taxation purposes.
SECTION
103 Interest.
The Notes shall bear interest at the
rate set forth under the caption “Interest” in the
Notes. Interest on the Notes shall be payable to the persons in
whose name the Notes are registered at the close of business on the
Regular Record Date for such interest payment. Interest on the
Notes shall accrue on the Notes from the date specified in the
Notes. The Interest Payment Dates on which interest on the Notes
shall be payable are June 1 and December 1, commencing
on
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December 1, 2008. The Regular Record Dates for the interest
payable on the Notes on any Interest Payment Date shall be
May 15 or November 15, as the case may be, immediately
preceding such Interest Payment Date.
SECTION
104 Denominations.
The Notes shall be in fully
registered form without coupons in denominations of $1,000 of
Principal Amount or any integral multiple thereof.
SECTION
105 Place of Payment.
The Place of Payment for the Notes
and the place or places where the principal of and interest on the
Notes shall be payable, the Notes may be surrendered for
registration of transfer, the Notes may be surrendered for
exchange, repurchase, redemption or conversion and where notices
may be given to the Company in respect of the Notes is at the
office or agency of the Trustee in Dallas, Texas; provided
that payment of interest may be made at the option of the Company
by check mailed to the address of the person entitled thereto as
such address shall appear in the Security Register (as defined in
the Indenture) or by wire transfer of immediately available funds
to the accounts in the United States specified by the Holder of
such Notes.
SECTION
106 Redemption.
There shall be no sinking fund for
the retirement of the Notes.
The Company, at its option, may
redeem the Notes in accordance with the provisions of and at the
Redemption Prices set forth under the captions “Optional
Redemption” and “Notice of Redemption” in the
Notes and in accordance with the provisions of the Indenture,
including, without limitation, Article Three.
The last sentence of
Section 3.02 of the Indenture, paragraph (8) of
Section 3.04 of the Indenture and the clause “, unless
the redemption of notice thereof is subject to one or more
conditions as specified in the notice,” in Section 3.05
of the Indenture shall not apply to the Notes.
SECTION
107 Conversion.
The Notes shall be convertible in
accordance with the provisions and at the Conversion Rate set forth
under the caption “Conversion” in the Notes and in
accordance with the provisions of the Indenture, including, without
limitation, Article Twelve.
SECTION
108 Maturity.
The date on which the principal of
the Notes is payable, unless accelerated pursuant to the Indenture,
shall be June 1, 2028.
SECTION
109 No Defeasance.
Sections 8.01(a)(1)(B), 8.01(b)
and 8.01(c) of the Indenture shall not apply to the Notes.
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SECTION
110 Repurchase.
(a) The
Notes shall be repurchased by the Company in accordance with the
provisions and at the Repurchase Prices set forth under the caption
“Repurchase by the Company at the Option of the Holder”
in the Notes and in accordance with the provisions of the
Indenture, including, without limitation,
Article Thirteen.
(b) The
Company, at the option of the Holders thereof, shall purchase the
Notes at the Fundamental Change Purchase Price set forth under the
caption “Purchase of Securities at Option of Holder Upon a
Fundamental Change” in the Notes and in accordance with the
provisions of the Indenture, including, without limitation,
Sections 3.12 through 3.18. For the avoidance of doubt, such a
purchase of the Notes shall not be deemed a redemption under the
provisions of Sections 3.01 to 3.11 of the Indenture.
SECTION
111 Other Terms of Notes.
Without limiting the foregoing
provisions of this Article One, the terms of the Notes shall
be as set forth in the form of the Notes set forth in Annex A
hereto and as provided in the Indenture.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall
apply to the Notes only and not to any other series of Security
issued under the Indenture and any covenants provided herein are
expressly being included solely for the benefit of the Notes. These
amendments shall be effective for so long as there remain any Notes
Outstanding.
SECTION
201 Definitions.
Section 1.01 of the Indenture is
amended by inserting or restating, as the case may be, in their
appropriate alphabetical position, the following definitions:
“Additional Interest” has
the meaning specified in Section 6.01.
“Additional Shares” has
the meaning specified in Section 12.02.
“Bid Solicitation Agent”
means the Trustee or, if so appointed, a Company-appointed agent
that performs calculations as set forth in the form of the Notes
attached hereto as Annex A.
“Capital Stock” or
“capital stock” of any Person means any and all shares,
interests, partnership interests, participations, rights or other
equivalents (however designated) of such Person’s equity
interest (however designated) issued by that Person.
“Common Stock” means any
stock of any class of the Company (including, without limitation,
the Company’s common stock of a par value of $0.01 per share)
which has no preference in respect of dividends or of amounts
payable in the event of any voluntary or
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involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
“Company Notice” shall
have the meaning specified in Section 13.02.
“Conversion Agent” shall
be the agent specified in Section 101.
“Conversion Date” has the
meaning specified in Section 12.03.
“Conversion Obligation”
has the meaning specified in Section 12.01.
“Conversion Period” means
(i) with respect to any Note submitted for conversion on or
after (A) the 25 th scheduled
Trading Day prior to a Redemption Date fixed with respect to the
Note or (B) the Stated Maturity of the Note, the 20
consecutive VWAP Trading Day period beginning on, and including,
the 22 nd scheduled
Trading Day prior to such Redemption Date or the Stated Maturity of
the Note, as applicable, and (ii) in all other cases, the
20 consecutive VWAP Trading Day period beginning on, and
including, the third VWAP Trading Day after the Conversion
Date.
“Conversion Price” means
$1,000 divided by the then applicable Conversion Rate.
“Conversion Proceeds” has
the meaning specified in Section 12.01.
“Conversion Rate” means
9.9936, subject to adjustment pursuant to Sections 12.02 and
12.07 hereof.
“Current Market Price”
has the meaning specified in Section 12.07(f).
“Daily Conversion Value
Amount” means, for each VWAP Trading Day of the Conversion
Period, the amount equal to 1/20 th of the product
of (a) the VWA Price on such VWAP Trading Day, and
(b) the Conversion Rate in effect on such VWAP Trading Day.
For purposes of the foregoing, the Daily Conversion Value Amount of
Reference Property will be determined by reference to (i) in
the case of Reference Property or part of Reference Property that
is traded on a United States national securities exchange or
automated quotation system, a market price equivalent to the Last
Reported Sale Price of such security, (ii) in the case of any
other property other than cash, the value thereof as determined in
good faith by the Board of Directors and (iii) in the case of
cash, 100% of the amount thereof.
“Daily Settlement Amount”
for each of the VWAP Trading Days of the relevant Conversion Period
means the sum of:
(A) an amount of cash equal to
the lesser of (1) $50.00 and (2) the Daily Conversion
Value Amount relating to such VWAP Trading Day, and
(B) if such Daily Conversion
Value Amount exceeds $50.00, the Daily Share Amount for such VWAP
Trading Day.
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“Daily Share Amount”
means, for any VWAP Trading Day, a number of shares of Common Stock
equal to (A) the difference between the Daily Conversion Value
Amount and $50.00, divided by (B) the VWA Price of the Common
Stock for such VWAP Trading Day.
“Designated Institution”
has the meaning specified in Section 12.03.
“Effective Date” means
the date on which a Fundamental Change occurs or becomes
effective.
“Expiration Date” has the
meaning specified in Section 12.07(e).
“Exchange Act” means the
Securities Exchange Act of 1934, as amended, or any successor
statute.
“Ex-dividend Date” means
(i) with respect to any issuance or distribution, the first
date on which the shares of Common Stock trade on the applicable
exchange or in the applicable market, regular way, without the
right to receive such issuance or distribution, (ii) with
respect to any subdivision or combination of shares of Common
Stock, the first date on which the shares of Common Stock trade
regular way on such exchange or in such market after the time at
which such subdivision or combination thereof become effective, and
(iii) with respect to any tender offer, the first date on
which the shares of Common Stock trade regular way on such exchange
or market after the Expiration Date of such offer.
“Fundamental Change” has
the meaning specified in Section 3.12.
“Fundamental Change Purchase
Date” has the meaning specified in Section 3.12.
“Fundamental Change Purchase
Notice” has the meaning specified in Section 3.12.
“Fundamental Change Purchase
Price” has the meaning specified in Section 3.12.
“Last Reported Sale
Price” on any date means the closing sale price per share of
our Common Stock (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 by the Nasdaq Global Select Market or, if
shares of Common Stock are not listed on the Nasdaq Global Select
Market, as reported in composite transactions for the principal
securities exchange on which the shares of Common Stock are traded
or, if the shares of Common Stock are not traded on such an
exchange, the market value of a share of Common Stock as determined
by a nationally recognized independent investment banking firm
retained for this purpose by the Company. The Last Reported Sale
Price of other securities that constitute Reference Property and
that are traded on a national securities exchange or an automated
quotation system shall be determined in a manner substantially
equivalent to the foregoing as determined in good faith by the
Company.
“Notes” has the meaning
specified in Section 101.
“Outstanding”, when used
with respect to the Notes, means, as of the date of determination,
all Notes theretofore authenticated and delivered under this
Indenture, except:
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(i) Notes
theretofore cancelled by the Trustee or delivered to the Trustee
for cancellation;
(ii) Notes
for whose payment, repurchase or redemption money or shares of
Common Stock in the necessary amount has been theretofore deposited
with the Trustee or any Paying Agent (other than the Company) in
trust or set aside and segregated in trust by the Company (if the
Company shall act as its own Paying Agent) for the Holders of such
Notes; provided that, if such Notes are to be redeemed,
notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has
been made;
(iii) Notes
which have been cancelled pursuant to Section 2.13 or in
exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other than
any such Notes in respect of which there shall have been presented
to the Trustee proof satisfactory to it that such Notes are held by
a bona fide purchaser in whose hands such Notes are valid
obligations of the Company; and
(iv) Notes
converted for cash and shares of Common Stock, if any, pursuant to
Article Twelve;
provided , however , that in determining whether the
Holders of the requisite principal amount of the Outstanding Notes
have given any request, demand, authorization, direction, notice,
consent or waiver hereunder, Notes owned by the Company or any
other obligor upon the Notes or any Affiliate of the Company or of
such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only Notes
which the Trustee knows to be so owned shall be so disregarded.
Notes so owned which have been pledged in good faith may be
regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee’s right so to act
with respect to such Notes and that the pledgee is not the Company
or any other obligor upon the Notes or any Affiliate of the Company
or of such other obligor.
“Payment Default” has the
meaning specified in Section 6.01.
“Principal Amount” of a
Note means the Principal Amount as set forth on the face of the
Note.
“Publicly Traded Debt
Securities” has the meaning specified in
Section 4.08.
“Reference Property” has
the meaning specified in Section 12.11.
“Reorganization Event”
has the meaning specified in Section 12.11.
“Repurchase Date” has the
meaning specified in Section 13.01.
“Repurchase Notice” has
the meaning specified in Section 13.01.
“Repurchase Price” has
the meaning specified in Section 13.01.
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“Securities” has the
meaning stated in the first recital of this Indenture and more
particularly means any Securities authenticated and delivered under
this Indenture, including Notes.
“Securities Act” means
the Securities Act of 1933, as amended, or any successor
statute.
“Share Price” means the
average of the Last Reported Sale Prices of the shares of Common
Stock over a 10 Trading Day period ending on the Trading Day
immediately preceding the Effective Date; provided ,
however , that if holders of shares of Common Stock receive
only cash consideration for their shares of Common Stock in
connection with a Fundamental Change, then the Share Price will be
the cash amount paid per share of Common Stock.
“Spin-off” has the
meaning specified in Section 12.07(c).
“Spin-off Valuation
Period” has the meaning specified in
Section 12.07(c).
“Termination of Trading”
has the meaning specified in Section 3.12.
“Trading Day” means a day
during which trading in securities generally occurs on the Nasdaq
Global Select Market or, if the shares of Common Stock are not
listed on the Nasdaq Global Select Market, on the principal other
national or regional securities exchange on which the shares of
Common Stock are then listed or, if the shares of Common Stock are
not listed on a national or regional securities exchange, on the
principal other market on which the shares of Common Stock are then
traded.
“Trading Price” has the
meaning specified in the form of the Notes attached hereto as
Annex A.
“Trading Price Condition”
has the meaning specified in the form of the Notes attached hereto
as Annex A.
“Voting Stock” means any
class or classes of Capital Stock pursuant to which the holders
thereof under ordinary circumstances have the power to vote in the
election of the board of directors, managers or trustees of any
Person (or other Persons performing similar functions),
irrespective of whether or not, at the time, Capital Stock of any
other class or classes shall have, or might have, voting power by
reason of the happening of any contingency.
“VWA Price” means, for
each of the 20 consecutive VWAP Trading Days during the Conversion
Period, the per share volume-weighted average price of the shares
of Common Stock as displayed under the heading “Bloomberg
VWAP” on Bloomberg page CRZO <equity> AQR (or any
equivalent successor page, or, if no such page is available, any
other equivalent publication) in respect of the period from the
scheduled open of trading on the principal securities exchange or
trading market for shares of the Common Stock to the scheduled
close of trading on such exchange or market on such VWAP Trading
Day or, if such volume-weighted average price is unavailable, the
market value of one share of Common Stock on such VWAP Trading Day
using a volume-weighted method as determined by a nationally
recognized independent investment banking firm retained for this
purpose by the Company.
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“VWAP Market Disruption
Event” means (1) a failure by the principal securities
exchange or trading market on which the shares of Common Stock are
listed or admitted to trading to open for trading during its
regular trading session or (2) the occurrence or existence
prior to 1:00 p.m. on any scheduled Trading Day for shares of
Common Stock for 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 securities exchange or
trading market or otherwise) in the shares of Common Stock or in
any options contracts or futures contracts relating to the shares
of Common Stock.
“VWAP Trading Day” means
a day during which (1) trading in shares of Common Stock
generally occurs on the principal securities exchange or trading
market on which the shares of Common Stock are listed or admitted
for trading and (2) there is no VWAP Market Disruption Event.
If the shares of Common Stock are not so listed or traded, then
VWAP Trading Day means a Business Day.
SECTION
202 Mutilated, Destroyed, Lost and Stolen Securities.
The Indenture shall be amended by
replacing the second sentence of Section 2.09 with the
following sentence:
If any such mutilated, destroyed,
lost or stolen Security has become or is about to become due and
payable, or is about to be redeemed or purchased by the Company
upon a Fundamental Change pursuant to Article Three or
purchased by the Company on a Repurchase Date pursuant to
Article Thirteen, the Company in its discretion may, instead
of issuing a new Security, pay such Security.
SECTION
203 Payment of Interest; Interest Rights Preserved.
The Indenture shall be amended by
inserting the following paragraph before the final paragraph in
Section 2.14:
In the case of any Note or portion
thereof which is surrendered for conversion after the close of
business on the Regular Record Date immediately preceding any
Interest Payment Date and prior to the opening of business on such
next succeeding Interest Payment Date, interest whose Stated
Maturity is on such Interest Payment Date shall be payable on such
Interest Payment Date notwithstanding such conversion, and such
interest (whether or not punctually paid or duly provided for)
shall be paid to the Person in whose name that Note is registered
at the close of business on such Regular Record Date. Notes so
surrendered for conversion must be accompanied by a payment of an
amount equal to the amount of such interest; provided, that
no such payment need be made (1) if the Company has specified
a Fundamental Change Purchase Date following a Fundamental Change
that is after the Regular Record Date and on or prior to the next
succeeding Interest Payment Date, (2) only to the extent of
overdue interest, if any overdue interest exists at the date of
conversion with respect to a Note, (3) if the Note is
surrendered for conversion after the Regular Record Date
immediately preceding the Stated Maturity of the Note, or
(4) if the
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Note is
surrendered in connection with a call for redemption with a
Redemption Date that is after the Regular Record Date and on or
prior to the next succeeding Interest Payment Date. Except as
otherwise provided in the immediately preceding sentence, in the
case of any Note which is converted, interest whose Stated Maturity
is after the date of conversion of such Note shall not be
payable.
SECTION
204 Limitation on Mergers and Consolidations.
Section 5.01 shall be amended by
inserting the following paragraph immediately following paragraph
(1) therein and renumbering paragraphs (2) and
(3) therein to (3) and (4) therein,
respectively:
(2) the Successor (if any) in the
case of a consolidation or merger as to which the Company is a
constituent party or a sale, transfer or disposition of all or
substantially all the assets by the Company is organized under the
laws of the United States of America or any State thereof
(including the District of Columbia);
SECTION
205 Supplemental Indentures Without Consent of
Holders.
Section 9.01 of the Indenture
shall be amended by inserting the following paragraph after
paragraph (11):
(12) to make provision with respect
to the conversion rights, if any, of Holders of Notes pursuant to
and in accordance with the requirements of Article Twelve
hereof.
SECTION
206 Supplemental Indenture with Consent of Holder.
The Indenture shall be amended by
inserting “, or adversely affect the right to convert any
Note as provided in Article Twelve, or reduce the amount
payable upon redemption or repurchase of any Note (including the
Fundamental Change Purchase Price of any Note)” at the end of
Section 9.02(3).
SECTION
207 Maintenance of Office or Agency.
The first paragraph of
Section 4.02 of the Indenture is amended by changing the first
paragraph thereof to read in its entirety as follows:
The Company will maintain in each
Place of Payment for the Notes an office or agency (which may be an
office of the Trustee, the Registrar or the Paying Agent) where
Notes may be presented or surrendered for payment, where Notes may
be surrendered for registration of transfer or exchange, where
Notes may be surrendered for conversion and where notices and
demands to or upon the Company in respect of the Notes and this
Indenture may be served. Unless otherwise designated by the Company
by written notice to the Trustee, such office or agency shall be
the office of the Trustee at 1445 Ross Avenue, 2 nd Floor, MAC
T5303-02J, Dallas, Texas 75202. The Company will give prompt
written notice to the Trustee of the location, and any change in
the location, of such office or
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agency. If at
any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the
address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent
to receive all such presentations, surrenders, notices and
demands.
SECTION
208 Redemption.
Article Three shall be amended
by inserting the following Sections 3.12 through 3.18:
Section 3.12 Purchase of
Securities at Option of the Holder Upon Fundamental
Change
(a) If at any time that Notes remain
Outstanding there shall occur a Fundamental Change, the Notes shall
be purchased by the Company at the option of the Holders thereof as
of a date selected by the Company that is not less than 20 Business
Days and not more than 35 Business Days (or a longer period if
required by applicable law) after the Company mails the written
notice of the Fundamental Change referred to below (the
“Fundamental Change Purchase Date”) at a purchase price
equal to the Principal Amount plus accrued and unpaid interest up
to but excluding the Fundamental Change Purchase Date (the
“Fundamental Change Purchase Price”), subject to
satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (c) of this Section 3.12;
provided that if the Fundamental Change Purchase Date is
after a Regular Record Date and on or prior to the corresponding
Interest Payment Date, the interest will be paid on the Interest
Payment Date to the holder of record on such Regular Record Date
and will not be included in the Fundamental Change Purchase
Price.
A “Fundamental Change”
shall be deemed to have occurred if any of the following occurs
after the Issue Date:
(i) any “person” or
“group” (as such terms are defined below)
(A) becomes the “beneficial owner” (as defined
below), directly or indirectly, of shares of Voting Stock of the
Company representing 50% or more of the total voting power of all
outstanding classes of Voting Stock of the Company or (B) has
the power, directly or indirectly, to elect a majority of the
members of the board of directors of the Company;
(ii) the Company consolidates with,
or merges with or into, another person or the Company sells,
assigns, conveys, transfers, leases or otherwise disposes of all or
substantially all of the consolidated assets of the Company, or any
person consolidates with, or merges with or into, the Company, or
the Company completes a binding share exchange with another
person;
(iii) the shares of Common Stock or
equivalent Capital Stock in respect of shares of Common Stock or
equivalent Capital Stock into which the Notes are convertible
pursuant to the provisions of Article Twelve are not listed
for trading
11
on the Nasdaq
Global Select Market or the New York Stock Exchange, or any
successor to any such market, that may exist from time to time, for
a period of 20 consecutive Trading Days (a “Termination
of Trading”); or
(iv) the Company is liquidated or
dissolved or holders of shares of Common Stock approve any plan or
proposal for the Company’s liquidation or dissolution.
Notwithstanding the foregoing, a
transaction described in clause (ii) above will not constitute
a Fundamental Change (and a change in or acquisition of beneficial
ownership or power to elect a majority of the Board of Directors,
Termination of Trading or liquidation or dissolution, in each case
arising out of such a transaction, will not constitute a
Fundamental Change) if (A) the persons that beneficially own
Voting Stock in the Company immediately prior to the relevant
transaction beneficially own shares with a majority of the total
voting power of all outstanding Voting Stock of the surviving or
transferee person or the parent entity thereof, (B) the shares
of Common Stock or equivalent Capital Stock in respect of shares of
Common Stock (in the event the Company is a surviving entity in the
transaction) or of such successor or transferee person or parent
entity thereof are listed for trading on the Nasdaq Global Select
Market or the New York Stock Exchange, or any successor to any
such market that may exist from time to time, immediately following
such transaction, and (C) as a result of such transaction, the
Notes are or become convertible, upon the satisfaction of the
conditions for conversion and actual conversion in accordance with
the terms of the Notes, into such shares of Common Stock or
equivalent capital stock of the Company or such successor or
transferee person or parent entity thereof.
Also, notwithstanding the foregoing,
it will not constitute a Fundamental Change if at least 90% of the
consideration for the shares of Common Stock (excluding cash
payments for fractional shares) in the transaction or transactions
constituting the Fundamental Change consists of common stock or
equivalent Capital Stock traded on the Nasdaq Global Select Market
or the New York Stock Exchange, or any successor to any such
market, or which will be so traded when issued or exchanged in
connection with the Fundamental Change, and as a result of such
transaction or transactions the Notes become convertible, upon the
satisfaction of the conditions for conversion and actual conversion
in accordance with the terms of the Notes, into such common stock
or equivalent Capital Stock.
For the purpose of the definition of
“Fundamental Change”, (i) “person” and
“group” have the meanings given such terms under
Section 13(d) and 14(d) of the Exchange Act or any successor
provision to either of the foregoing, and the term
“group” includes any group acting for the purpose of
acquiring, holding or disposing of securities within the meaning of
Rule 13d-5(b)(1) under the Exchange Act (or any successor
provision thereto), (ii) a “beneficial owner”
shall be determined in accordance with Rule 13d-3 under the
Exchange Act, as in effect on May 28, 2008, and (iii) the
terms “beneficially owned” and “beneficially
own” shall have meanings correlative to that of
“beneficial owner”.
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(b) Within 15 Business Days after the
occurrence of a Fundamental Change described in subsection (a)(ii)
or (a)(iv) of Section 3.12 and, in the case of a Fundamental
Change described in subsection (a)(i) or (a)(iii) of
Section 3.12, no later than the later of (x) one Business
Day following the Effective Date or (y) two Business Days
following the date on which officers of the Company first learned
of such Fundamental Change following the Effective Date of such
Fundamental Change, the Company shall mail a written notice of the
Fundamental Change to the Trustee and to each Holder. The notice
shall include the form of a Fundamental Change Purchase Notice to
be completed by the Holder and shall state:
(1) the date of such Fundamental
Change and, briefly, the events causing such Fundamental
Change;
(2) the date by which the Fundamental
Change Purchase Notice pursuant to this Section 3.12 must be
given;
(3) the Fundamental Change Purchase
Date;
(4) the Fundamental Change Purchase
Price;
(5) briefly, the conversion rights of
the Notes;
(6) the name and address of each
Paying Agent and Conversion Agent;
(7) the Conversion Rate and any
adjustments thereto (including the adjustment for any Additional
Shares);
(8) that the Notes as to which a
Fundamental Change Purchase Notice has been given may be converted
pursuant to Article Twelve only to the extent that the
Fundamental Change Purchase Notice has been withdrawn in accordance
with the terms of this Indenture;
(9) the procedures that the Holder
must follow to exercise rights under this Section 3.12;
(10) the procedures for withdrawing a
Fundamental Change Purchase Notice, including a form of notice of
withdrawal; and
(11) that the Holder must satisfy the
requirements set forth in the Notes in order to convert the
Notes.
If any of the Notes is in the form of
a Global Security, then the Company shall modify such notice to the
extent necessary to accord with the procedures of the Depositary
applicable to the repurchase of Global Securities.
(c) A Holder may exercise its rights
specified in subsection (a) of this Section 3.12 upon
delivery of a written notice (which shall be in substantially
the
13
form included
as an attachment to the Security and which may be delivered by
letter, overnight courier, hand delivery, facsimile transmission or
in any other written form) of the exercise of such rights (a
“Fundamental Change Purchase Notice”) to any Paying
Agent at any time prior to the close of business on the Business
Day next preceding the Fundamental Change Purchase Date.
The delivery of such Note to any
Paying Agent (together with all necessary endorsements) at the
office of such Paying Agent shall be a condition to the receipt by
the Holder of the Fundamental Change Purchase Price therefor.
The Company shall purchase from the
Holder thereof, pursuant to this Section 3.12, a portion of a Note
if the Principal Amount of such portion is $1,000 or an integral
multiple of $1,000. Provisions of this Indenture that apply to the
purchase of all of a Note pursuant to Sections 3.12 through
3.18 also apply to the purchase of such portion of such Note.
Notwithstanding anything herein to
the contrary, any Holder delivering to a Paying Agent the
Fundamental Change Purchase Notice contemplated by this subsection
(c) shall have the right to withdraw such Fundamental Change
Purchase Notice in whole or in a portion thereof that is a
Principal Amount of $1,000 or in an integral multiple thereof at
any time prior to the close of business on the Business Day next
preceding the Fundamental Change Purchase Date by delivery of a
written notice of withdrawal to the Paying Agent in accordance with
Section 3.13.
A Paying Agent shall promptly notify
the Company of the receipt by it of any Fundamental Change Purchase
Notice or written withdrawal thereof.
Anything herein to the contrary
notwithstanding, in the case of Global Securities, any Fundamental
Change Purchase Notice may be delivered or withdrawn and such Notes
may be surrendered or delivered for purchase in accordance with the
applicable procedures of the Depositary as in effect from time to
time.
Section 3.13 Effect of
Fundamental Change Purchase Notice
Upon receipt by any Paying Agent of
the Fundamental Change Purchase Notice specified in
Section 3.12(c), the Holder of the Note in respect of which
such Fundamental Change Purchase Notice was given shall (unless
such Fundamental Change Purchase Notice is withdrawn as specified
below) thereafter be entitled to receive the Fundamental Change
Purchase Price with respect to such Note. Such Fundamental Change
Purchase Price shall be paid to such Holder promptly following the
later of (a) the Fundamental Change Purchase Date with respect
to such Note (provided the conditions in Section 3.12(c) have
been satisfied) and (b) the time of delivery of such Note to a
Paying Agent by the Holder thereof in the manner required by
Section 3.12(c). Notes in respect of which a Fundamental Change
Purchase Notice has been given by the Holder
14
thereof may not
be converted into shares of Common Stock on or after the date of
the delivery of such Fundamental Change Purchase Notice unless such
Fundamental Change Purchase Notice has first been validly
withdrawn.
A Fundamental Change Purchase Notice
may be withdrawn by means of a written notice (which may be
delivered by letter, overnight courier, hand delivery, facsimile
transmission or in any other written form and, in the case of
Global Securities, may be delivered electronically or by other
means in accordance with the Depositary’s customary
procedures) of withdrawal delivered by the Holder to a Paying Agent
at any time prior to the close of business on the Business Day
immediately preceding the Fundamental Change Purchase Date,
specifying the Principal Amount of the Security or portion thereof
(which must be a Principal Amount of $1,000 or an integral multiple
of $1,000 in excess thereof) with respect to which such notice of
withdrawal is being submitted.
Section 3.14 Deposit of
Fundamental Change Purchase Price
On or before 11:00 a.m.
New York City time on the Fundamental Change Purchase Date,
the Company shall deposit with the Trustee or with a Paying Agent
(other than the Company or an Affiliate of the Company) an amount
of money (in immediately available funds if deposited on such
Fundamental Change Purchase Date) sufficient to pay the aggregate
Fundamental Change Purchase Price of all the Notes or portions
thereof that are to be purchased as of such Fundamental Change
Purchase Date. The manner in which the deposit required by this
Section 3.14 is made by the Company shall be at the option of
the Company, provided that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have
immediately available funds on the Fundamental Change Purchase
Date.
If a Paying Agent holds, in
accordance with the terms hereof, money sufficient to pay the
Fundamental Change Purchase Price of any Note for which a
Fundamental Change Purchase Notice has been tendered and not
withdrawn in accordance with this Indenture then, on the
Fundamental Change Purchase Date, such Note will cease to be
Outstanding and the rights of the Holder in respect thereof shall
terminate (other than the right to receive the Fundamental Change
Purchase Price as aforesaid). The Company shall publicly announce
the Principal Amount of Notes purchased as a result of such
Fundamental Change on or as soon as practicable after the
Fundamental Change Purchase Date.
Section 3.15 Securities
Purchased In Part
Any Note that is to be purchased only
in part shall be surrendered at the office of a Paying Agent and
promptly after the Fundamental Change Purchase Date the Company
shall execute and the Trustee shall authenticate and deliver to the
Holder of such Note, without service charge, a new Note or Notes,
of such authorized denomination or denominations as may be
requested by such Holder,
15
in aggregate
Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the Note so surrendered that is not
purchased.
Section 3.16 Compliance With
Securities Laws Upon Purchase of Securities
In connection with any offer to
purchase or purchase of Notes under Section 3.12, the Company shall
(a) comply with Rule 13e-4 under the Exchange Act (or any
successor to such Rule), if applicable, and (b) file the
related Schedule TO (or any successor or similar schedule,
form or report) if required under the Exchange Act.
Section 3.17 Repayment to the
Company
To the extent that the aggregate
amount of cash deposited by the Company pursuant to
Section 3.14 exceeds the aggregate Fundamental Change Purchase
Price together with interest, if any, thereon of the Notes or
portions thereof that the Company is obligated to purchase, then
promptly after the Fundamental Change Purchase Date the Trustee or
a Paying Agent, as the case may be, shall return any such excess to
the Company.
Section 3.18 No Purchase on
Fundamental Change if Event of Default
There shall be no purchase of any
Notes pursuant to this Article Three if there has occurred
(prior to, on or after, as the case may be, the giving, by the
Holders of such Notes, of the required Fundamental Change Purchase
Notice) and is continuing an Event of Default (other than a default
in the payment of the Fundamental Change Purchase Price with
respect to such Notes). The Paying Agent will promptly return to
the respective Holders thereof any Notes (x) with respect to
which a Fundamental Change Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it during the
continuance of an Event of Default (other than a default in the
payment of the Fundamental Change Purchase Price with respect to
such Notes) in which case, upon such return, the Fundamental Change
Purchase Notice with respect thereto shall be deemed to have been
withdrawn.
SECTION
209 Possible Future Guarantee.
Article Four is amended by
adding the following section:
Section 4.08. Obligation to
Guarantee .
If at any time the Company issues
debt securities that are publicly traded (“Publicly Traded
Debt Securities”), and any Subsidiary Guarantor provides a
Guarantee with respect to such Publicly Traded Debt Securities,
then the Company will cause such Subsidiary Guarantor to guarantee
the Notes as provided in Article Ten. In addition to the
circumstances under which a Guarantee may be released that are
described in Article Ten, any such Guarantee may be released
if such Subsidiary Guarantor no longer guarantees the
Publicly
16
Traded Debt
Securities (and, notwithstanding the provisions of
Section 10.04(a) of the Indenture, such Guarantee may not be
released until no other Securities issued under the Indenture are
guaranteed by such Subsidiary Guarantor; provided, that the
foregoing shall not restrict the release of a Guarantee of one or
more series of Securities if the release of each such Guarantee
occurs on a substantially simultaneous basis). For purposes of the
foregoing, “publicly traded” includes securities that
have been designated as eligible for trading in the PORTAL market
in accordance with the applicable rules of the PORTAL market or
issued and sold in a public offering registered under the
Securities Act.
SECTION
210 Conversion, Repurchase.
The Indenture is amended by adding
the following Articles Twelve and Thirteen to the Indenture:
ARTICLE TWELVE
CONVERSION
Section 12.01 Conversion
Privilege
The Notes shall be convertible in
accordance with their terms and in accordance with this Article.
The obligation of the Company to convert the Notes is referred to
as the “Conversion Obligation.”
A Holder of a Note may convert the
Principal Amount of such Note (or any portion thereof equal to a
Principal Amount of $1,000 or any integral multiple of a Principal
Amount of $1,000 in excess thereof) into, for each $1,000 Principal
Amount of Notes converted, cash and shares of Common Stock, if any,
equal to the sum of the Daily Settlement Amounts (such sum, the
“Conversion Proceeds”) for each of the 20 VWAP Trading
Days during the relevant Conversion Period, at any time that one or
more of the conditions set forth under the caption
“Conversion” in the Notes are satisfied;
provided , however , that the Company will pay cash
in lieu of fractional
shares
based upon the VWA Price on the last VWAP Trading Day in the
Conversion Period as described in Section 12.04.
If an event requiring an adjustment
pursuant to Section 12.07 hereof occurs during the Conversion
Period, the Company will make proportional adjustments to the Daily
Settlement Amount for each VWAP Trading Day during the portion of
the Conversion Period preceding the effective date of the
adjustment event.
Notes shall be convertible only until
the close of business on the Business Day prior to the Stated
Maturity. In case a Note or portion thereof is called for
redemption pursuant to Article Three, such conversion right
shall terminate at the close of business on the Business Day
immediately prior to the earlier of (a) June 1, 2028 and
(b) the date on which such Note (or portion thereof) is
redeemed (unless the Company shall default in making the redemption
payment when due,
17
in which case
the conversion right shall terminate at the close of business on
the date such default is cured and such Note is redeemed).
Provisions of this Indenture that apply to conversion of all of a
Note also apply to conversion of a portion of a Note.
A Note in respect of which a Holder
has delivered a Repurchase Notice or Fundamental Change Purchase
Notice exercising the option of such Holder to require the Company
to purchase such Note may be converted only if such notice of
exercise is withdrawn in accordance with the terms of the
Indenture. A Holder of Notes entitled to receive any shares of
Common Stock upon conversion of Notes is not entitled to any rights
of a Holder of shares of Common Stock until such Holder has
converted its Notes to shares of Common Stock, and only to the
extent such Notes are deemed to have been converted into shares of
Common Stock pursuant to this Article Twelve.
Section 12.02 Conversion
Rate
(a) If the Effective Date (or
anticipated Effective Date in the case of a transaction described
in subsection (a)(ii) of Section 3.12) of a Fundamental Change
occurs on or prior to June 1, 2013, and a Holder elects to
convert Notes during the period commencing on such Effective Date
(or during the period commencing 15 days prior to the
anticipated Effective Date in the case of a transaction described
in subsection (a)(ii) of Section 3.12) and ending on the later
of (A) the day before the Fundamental Change Purchase Date
with respect to such Fundamental Change and (B) 30 days
following the Effective Date (but in any event prior to the close
of business on the Business Day prior to the Stated Maturity), the
Conversion Rate applicable to each $1,000 Principal Amount of Notes
so converted shall be increased by an additional number of shares
of the Common Stock (the “Additional Shares”) as
specified in subsection (b) below; provided that, in
the case of a transaction described in subsection (a)(ii) of
Section 3.12, if a Holder converts its Notes prior to the
anticipated Effective Date, and such Fundamental Change does not
occur as anticipated, such Holder will not be entitled to an
increased Conversion Rate as described in subsection (b) of
this Section 12.02. The Company shall give written notice (the
“Fundamental Change Notice”) to Holders and the Trustee
of any such Fundamental Change and the anticipated Effective Date,
if applicable, and issue a press release providing the same
information no later than 15 days prior to the anticipated
Effective Date of a Fundamental Change described in subsection
(a)(ii) or (a)(iv) of Section 3.12 and, in the case of a
Fundamental Change described in subsection (a)(i) or (a)(iii) of
Section 3.12, no later than the later of (x) one business
day following the Effective Date or (y) two business days
following the date on which officers of the Company first learned
of such Fundamental Change following the Effective Date of such
Fundamental Change. If a Fundamental Change does not occur as
anticipated, the Company shall issue a press release and notify
Holders who have elected to convert their Notes promptly after the
Company determines not to increase the Conversion Rate, and each
such Holder may elect to withdraw any election to convert by a
written notice of withdrawal delivered to the Conversion
18
Agent within
ten Business Days after the Company announces that the Fundamental
Change will not occur as anticipated.
(b) The number of Additional Shares
by which the Conversion Rate will be increased shall be determined
by reference to the table attached as Schedule A hereto, based
on the Effective Date and the Share Price; provided ,
however , that if the actual Share Price is between two
Share Prices in the table or the relevant Effective Date is between
two Effective Dates in the table, the number of Additional Shares
shall be determined by a straight-line interpolation between the
number of Additional Shares set forth for the next higher and next
lower Share Prices and the two Effective Dates, as applicable,
based on a 365-day year; and provided further ,
however , that (1) if the Share Price is in excess of
$190.00 per share, subject to adjustment as described in
subsection (c) of this Section 12.02, no Additional
Shares will be added to the Conversion Rate, and (2) if the
Share Price is less than $67.84 per share, subject to adjustment as
described in subsection (c) of this Section 12.02, no
Additional Shares will be added to the Conversion Rate.
Notwithstanding the foregoing, in no event will the Conversion Rate
exceed 14.7406 per $1,000 Principal Amount of Notes, subject to
adjustment in the same manner as the Conversion Rate as set forth
in Section 12.07.
(c) The Share Prices set forth in the
first row of each table in Schedule A shall be adjusted as of
any date on which the Conversion Rate is adjusted. The adjusted
Share Prices shall equal the Share Prices applicable immediately
prior to such adjustment, multiplied by a fraction, the numerator
of which is the Conversion Rate in effect immediately prior to the
Share Price adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares
within the table in Schedule A hereto shall be adjusted in the
same manner as the Conversion Rate as set forth in
Section 12.07.
Section 12.03 Conversion
Procedure
To convert a Note, a Holder must
satisfy the requirements set forth under the caption
“Conversion” in the Note. The date on which the Holder
satisfies all of those requirements is the “Conversion
Date.” The Company shall deliver the Conversion Proceeds to
the Holder through a Conversion Agent on the third Trading Day
following the final VWAP Trading Day of the Conversion Period;
provided, that if the Holder converts in connection with a
Reorganization Event, the Company will deliver the Conversion
Proceeds to the Holder through a Conversion Agent on the later to
occur of (i) the
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