<PAGE>
EXHIBIT 4.2
AGCO CORPORATION
as Issuer,
and
SUNTRUST BANK,
as Trustee
FIRST SUPPLEMENTAL INDENTURE
Dated as of
June 23, 2005
1 3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES, SERIES B, DUE
2033
<PAGE>
CROSS-REFERENCE TABLE
<TABLE>
<CAPTION>
TIA Sections
Indenture Sections
------------
------------------
<S>
<C>
Section 310(a)(1).............................................
7.09
(a)(2).................................................
7.09
(a)(3).................................................
N.A.
(a)(4).................................................
N.A.
(a)(5).................................................
7.09
(b)....................................................
7.08, 7.10
(c)....................................................
N.A.
Section 311(a)................................................
7.13
(b)....................................................
7.13
(c)....................................................
N.A.
Section 312(a)................................................
5.01,
5.02(a)
(b)....................................................
5.02(b)
(c)....................................................
5.02(c)
Section 313(a)................................................
5.03(a)
(b)....................................................
5.03(a)
(c)....................................................
5.03(a), 16.03
(d)....................................................
5.03(b)
Section 314(a)................................................
5.04
(b)....................................................
N.A.
(c)(1).................................................
16.05
(c)(2).................................................
16.05
(c)(3).................................................
N.A.
(d)....................................................
N.A.
(e)....................................................
16.05
Section 315(a)................................................
7.01,
7.03(a)
(b)....................................................
7.02, 7.04(i)
(c)....................................................
7.01
(d)....................................................
7.01
(e)....................................................
2.08*
Section 316(a)(last sentence).................................
8.04
(a)(1)(A)..............................................
2.07*
(a)(1)(B)..............................................
2.07*
(a)(2).................................................
N.A.
(b)....................................................
2.04*
</TABLE>
<PAGE>
<TABLE>
<S>
<C>
(c)....................................................
8.01
Section 317(a)(1).............................................
2.02*
(a)(2).................................................
2.02*
(b)....................................................
4.04(a)(1),
(2)
Section 318(a)................................................
16.07
</TABLE>
----------------------------
N.A. means
not applicable.
All
references in the Cross-Reference Table are to Sections in the
Original Indenture, except that those indicated by an "*" are to
Sections in the
First Supplemental Indenture
Note: The
Cross-Reference Table shall not for any purpose be deemed to be
a part of the Indenture.
<PAGE>
TABLE OF CONTENTS
Article I
1 3/4%
Convertible Senior Subordinated Notes, Series B, due 2033
<TABLE>
<CAPTION>
Page
----
<S>
<C>
Section 1.01.
Establishment..................................................................................
2
Section 1.02.
Definitions....................................................................................
2
Section 1.03. Form of Notes; Execution and Authentication of
Notes........................................... 11
Section 1.04. Date and Denomination of Notes; Payments of
Interest........................................... 11
Section 1.05. Exchange and Registration of Transfer of
Notes................................................. 13
Section 1.06. Redemption of Notes at the Option of the
Company............................................... 14
Section 1.07. Notice of Optional Redemption; Selection of
Notes.............................................. 14
Section 1.08. Payment of Notes Called for Redemption by the
Company.......................................... 16
Section 1.09. Conversion Arrangement on Call for
Redemption..................................................
16
Section 1.10. Redemption at Option of Holders upon a Designated
Event........................................ 17
Section 1.11. Repurchase of Notes by the Company at Option of the
Holder..................................... 19
Section 1.12. Procedures for the Repurchase of
Notes.........................................................
20
Section 1.13. Deposit of Purchase
Price......................................................................
22
Section 1.14. Notes Repurchased in
Part......................................................................
22
Section 1.15. Repayment to the
Company.......................................................................
22
Section 1.16. Effect of Repurchase
Notice....................................................................
22
Section 1.17. Right to
Convert...............................................................................
23
Section 1.18. Conversion
Procedures..........................................................................
26
Section 1.19. Cash Payments in Lieu of Fractional
Shares.....................................................
27
Section 1.20. Conversion Rate; Settlement Upon
Conversion....................................................
28
Section 1.21. Adjustment of Conversion
Rate..................................................................
28
Section 1.22. Effect of Fundamental Change, Reclassification,
Consolidation, Merger or Sale.................. 37
Section 1.23. Taxes on Shares
Issued.........................................................................
39
Section 1.24. Notes Subordinated to Senior
Indebtedness......................................................
39
Section 1.25. No Payment on Notes in Certain
Circumstances...................................................
39
Section 1.26. Payment over Proceeds upon Dissolution
Etc.....................................................
40
Section 1.27.
Subrogation....................................................................................
42
Section 1.28. Obligations of Company
Unconditional...........................................................
43
Section 1.29. Notice to
Trustee..............................................................................
43
Section 1.30. Reliance on Judicial Order or Certificate of
Liquidating Agent................................. 44
Section 1.31. Trustee's Relation to Senior
Indebtedness......................................................
44
Section 1.32. Subordination Rights Not Impaired by Acts or
Omissions of the Company or Holders of Senior
Indebtedness...............................................................................
44
Section 1.33. Holders Authorize Trustee to Effectuate Subordination
of Notes................................. 45
Section 1.34. Not to Prevent Events of
Default...............................................................
45
Section 1.35. Trustee's Compensation Not
Prejudiced..........................................................
45
Section 1.36. No Waiver of Subordination
Provisions..........................................................
45
Section 1.37. Payments May Be Paid Prior to
Dissolution......................................................
45
Section 1.38. Consent of Holders of Senior Indebtedness Under the
Bank Credit Agreement...................... 46
</TABLE>
-i-
<PAGE>
<TABLE>
<S>
<C>
Section 1.39. Trust Moneys Not
Subordinated....................................................
46
Section 1.40. Supplemental Indenture with Consent of
Noteholders............................... 46
Section 1.41. Supplemental Indenture without Consent of
Noteholders............................ 47
Article II
Remedies of the Trustee and Noteholders on Event of Default
Section 2.01. Events of Default;
Acceleration..................................................
48
Section 2.02. Payments of Notes on Default; Suite
Therefor..................................... 51
Section 2.03. Application of Monies Collected by
Trustee....................................... 52
Section 2.04. Proceedings by
Noteholder........................................................
53
Section 2.05. Proceedings by
Trustee...........................................................
54
Section 2.06. Remedies Cumulative and
Continuing...............................................
54
Section 2.07. Direction of Proceedings and Waiver of Defaults by
Majority of Noteholders....... 54
Section 2.08. Undertaking to Pay
Costs.........................................................
55
Article III
Remedies of the Trustee and Noteholders on Event of Default
Section 3.01. Governing
Law....................................................................
55
Section 3.02. Execution in
Counterparts........................................................
56
Section 3.03. Compliance with Original
Indenture...............................................
56
Exhibit A
Form of
Note................................................................
A-1
Exhibit B
Trustee's Certificate of
Authentication..................................... B-1
Exhibit C
Table of Additional Shares in Event of Fundamental
......................... C-1
</TABLE>
-ii-
<PAGE>
FIRST SUPPLEMENTAL INDENTURE
FIRST SUPPLEMENTAL INDENTURE dated as of June 23, 2005 between
AGCO
Corporation, a Delaware corporation (hereinafter called the
"COMPANY"), and
SunTrust Bank, a Georgia banking corporation, as trustee hereunder
(hereinafter
called the "TRUSTEE").
WITNESSETH:
WHEREAS, the Company and the Trustee have heretofore entered into
an
Indenture, dated as of December 23, 2003, which is incorporated
herein by this
reference (the "ORIGINAL INDENTURE"), as amended and supplemented,
including by
this First Supplemental Indenture (collectively hereinafter
referred to as the
"INDENTURE");
WHEREAS, under the Indenture, the Company and the Trustee may at
any
time, with the consent of the holders of not less than a majority
in aggregate
principal amount of the Notes, enter into a supplemental indenture
for the
purpose of adding any provisions to or changing in any manner or
eliminating any
of the provisions of the Indenture or of modifying in any manner
the rights of
the holders of the Notes;
WHEREAS, the Company hereby proposes to create and issue under
the
Indenture a new series of Notes to be offered in exchange for all
of the Notes
issued pursuant to the Original Indenture, as described in the
Registration
Statement;
WHEREAS, for its lawful corporate purposes, the Company has
duly
authorized the issue of its Series B Notes, in an aggregate
principal amount not
to exceed $201,250,000 on the date hereof, and, to provide the
terms and
conditions upon which the Series B Notes are to be authenticated,
issued and
delivered, the Company has duly authorized the execution and
delivery of this
First Supplemental Indenture; and
WHEREAS, all acts and things necessary to make the Series B
Notes,
when executed by the Company and authenticated and delivered by the
Trustee or a
duly authorized authenticating agent, as in the Indenture provided,
the valid,
binding and legal obligations of the Company, and to constitute
this First
Supplemental Indenture a valid agreement according to its terms,
have been done
and performed, and the execution of this First Supplemental
Indenture and the
issue hereunder of the Series B Notes have in all respects been
duly authorized.
NOW, THEREFORE, THIS FIRST SUPPLEMENTAL INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which
the
Series B Notes are, and are to be, authenticated, issued and
delivered, and in
consideration of the premises and of the purchase and acceptance of
the Series B
Notes by the holders thereof, the Company covenants and agrees with
the Trustee
for the equal and proportionate benefit of the respective holders
from time to
time of the Series B Notes (except as otherwise provided below), as
follows:
<PAGE>
ARTICLE I
1 3/4% CONVERTIBLE SENIOR SUBORDINATED NOTES, SERIES B, DUE
2033
Section 1.01. Establishment. There is hereby established a new
series of Notes to be issued under the Indenture, to be designated
as the
Company's 1-3/4% Convertible Senior Subordinated Notes, Series B,
due 2033
(hereinafter called the "SERIES B NOTES"). There are to be
authenticated and
delivered up to $201,250,000 principal amount of the Series B
Notes, in an
amount equal to the aggregate original principal amount of the
Company's 1-3/4%
Convertible Senior Subordinated Notes due 2033 (the "ORIGINAL
NOTES") accepted
for exchange in an exchange offer, and no further Original Notes
shall be
authenticated and delivered. The Series B Notes shall be issued in
fully
registered form without coupons.
The payment of obligations of the Company under the Series B
Notes
shall be subordinated to the Company's Senior Indebtedness,
including the
obligation of the Company under the Bank Credit Agreement and shall
rank pari
passu with the obligations of the Company under the Senior
Subordinated Notes.
The Series B Notes shall be in substantially the form set out
in
Exhibit A hereto, and the form of the Trustee's Certificate of
Authentication
for the Series B Notes shall be in substantially the form set forth
in Exhibit B
hereto. Each Series B Note shall be dated the date of
authentication thereof and
shall bear interest from the date specified on the face of the form
of Note
attached as Exhibit A hereto.
The Series B Notes issued on the date hereof will be: (i)
offered
and issued by the Company in exchange for the Original Notes issued
pursuant to
the Indenture in accordance with the terms of an issuer tender
offer filed with
the Commission, and (ii) registered for such exchange on a
Registration
Statement on Form S-4 filed with the Commission. Upon completion of
such
exchange and the issue of the Series B Notes therein, we will have
no further or
ongoing obligation to register the Series B Notes or to make any
filings to
facilitate their sale or other transfer or conversion into any
shares of our
Common Stock, including no requirements to timely file reports for
such exchange
offer or conversion under the Exchange Act.
Section 1.02. Definitions. The terms defined in this Section
1.02
(except as herein otherwise expressly provided or unless the
context otherwise
requires) shall have the respective meanings specified in this
Section 1.02 for
purposes of the Series B Notes. Capitalized terms used herein for
which no
definition is provided herein shall have the meanings set forth in
the Original
Indenture. All other terms used in this Indenture that are defined
in the Trust
Indenture Act or which are by reference therein defined in the
Securities Act
(except as herein otherwise expressly provided or unless the
context otherwise
requires) shall have the meanings assigned to such terms in the
Trust Indenture
Act and in the Securities Act as in force at the date of the
execution of this
Indenture. The words "herein", "hereof", "hereunder" and words of
similar import
refer to this Indenture as a whole and not to any particular
Article, Section or
other Subdivision. The terms defined in this Section 1.02 include
the plural as
well as the singular.
"ACCEPTED PURCHASED SHARES" has the meaning specified in
Section
1.21(e)(B).
"ADJUSTMENT EVENT" has the meaning specified in Section
1.21(j).
-2-
<PAGE>
"AFFILIATE" of any specified Person means any other Person
directly
or indirectly controlling or controlled by or under direct or
indirect common
control with such specified Person. For the purposes of this
definition,
"CONTROL", when used with respect to any specified Person means the
power to
direct or cause the direction of the management and policies of
such Person,
directly or indirectly, whether through the ownership of voting
securities, by
contract or otherwise, and the terms "CONTROLLING" and "CONTROLLED"
have
meanings correlative to the foregoing.
"AVERAGE MARKET PRICE" has the meaning specified in Section
1.21(f).
"BANK CREDIT AGREEMENT" means the credit agreement dated April
17,
2001, as amended, among the Company, certain of its subsidiaries
named therein,
the lenders named therein, Cooperatieve Centrale
Raiffeisen-Boerenleenbank B.A.,
"Rabobank, Nederland," New York Branch ("Rabobank"), SunTrust Bank
and Credit
Suisse First Boston, as Co-Syndication Agents; Rabobank, Cobank,
ACB and Bear
Stearns Corporate Lending, Inc., as Co-Documentation Agents;
Cooperatieve
Centrale Raiffeisen-Boerenleenbank B.A., "Rabobank Nederland,"
Canadian Branch,
as Canadian administrative agent, and Rabobank as administrative
agent, together
with all agreements, instruments and documents executed or
delivered pursuant
thereto or in connection therewith, in each case as such
agreements, documents
or instruments may be amended, supplemented, extended, renewed,
replaced or
otherwise modified from time to time, including, but not limited
by, the credit
agreement and other documents executed in connection with the
credit facility
contemplated by that certain commitment letter dated August 15,
2003 from
Rabobank to the Company.
"BOARD OF DIRECTORS" means the Board of Directors of the Company
or
a committee of such Board of Directors duly authorized to act for
it hereunder.
"BUSINESS DAY" means each Monday, Tuesday, Wednesday, Thursday
and
Friday which is not a day on which the banking institutions in The
City of New
York or the city in which the Corporate Trust Office is located are
authorized
or obligated by law or executive order to close or be closed.
"CLOSING SALE PRICE" means, as of any date, the closing sale
price
per share of Common Stock (or, if no closing sale price is
reported, the average
of the closing bid and ask prices or, if more than one in either
case, the
average of the average closing bid and the average closing ask
prices) on such
date as reported in composite transactions for the New York Stock
Exchange or
such other principal United States securities exchange on which
shares of Common
Stock may be traded or, if the shares of Common Stock are not
listed on a United
States national or regional securities exchange, as reported by the
Nasdaq
National Market System or by the National Quotation Bureau
Incorporated. In the
absence of such quotations, the Company shall be entitled to
determine the
Closing Sale Price on the basis of such quotations as it considers
appropriate.
Closing Sale Price shall be determined without reference to
extended or after
hours trading.
"COMMISSION" means the Securities and Exchange Commission, as
from
time to time constituted, created under the Exchange Act, or, if at
any time
after the execution of this
-3-
<PAGE>
Indenture such Commission is not existing and performing the duties
now assigned
to it under the Trust Indenture Act, then the body performing such
duties at
such time.
"COMMON STOCK" means any stock of any class of the Company which
has
no preference in respect of dividends or of amounts payable in the
event of any
voluntary or involuntary liquidation, dissolution or winding up of
the Company
and which is not subject to redemption by the Company. Subject to
the provisions
of Section 1.22, however, shares issuable on conversion of Series B
Notes shall
include only shares of the class designated as common stock of the
Company at
the date of the Original Indenture, including any Rights attached
thereto
(namely, the Common Stock, par value $0.01), or shares of any class
or classes
resulting from any reclassification or reclassifications thereof
and which have
no preference in respect of dividends or of amounts payable in the
event of any
voluntary or involuntary liquidation, dissolution or winding up of
the Company
and which are not subject to redemption by the Company; provided
that if at any
time there shall be more than one such resulting class, the shares
of each such
class then so issuable on conversion shall be substantially in the
proportion
which the total number of shares of such class resulting from all
such
reclassifications bears to the total number of shares of all such
classes
resulting from all such reclassifications.
"COMPANY" means the corporation named as the "Company" in the
first
paragraph hereof, and, subject to the provisions of Article 11 of
the Indenture
and Section 1.22 hereof, shall include its successors and
assigns.
"COMPANY REPURCHASE NOTICE" has the meaning specified in
Section
1.12(c).
"COMPANY REPURCHASE NOTICE DATE" has the meaning specified in
Section 1.12(b).
"CONVERSION AGENT" means the Trustee or any other Person
appointed
by the Company to accept Series B Notes presented for
conversion.
"CONVERSION DATE" has the meaning specified in Section 1.18.
"CONVERSION NOTICE" has the meaning specified in Section 1.18.
"CONVERSION PRICE" as of any date will equal $1,000 divided by
the
Conversion Rate as of such date.
"CONVERSION RATE" has the meaning specified in Section 1.20.
"CONVERSION SETTLEMENT REFERENCE PERIOD" means the five Trading
Day
period beginning on the second Trading Day immediately following
the Conversion
Date, or with respect to any Series B Note which previously has
been selected
for redemption by the Company pursuant to Section 1.07 hereof, the
five Trading
Day period beginning on the second Trading Day immediately
following the related
Redemption Date.
"CONVERSION VALUE" as of any date means, for each $1,000
principal
amount of Series B Notes, the Conversion Rate as of such date
multiplied by the
Average Market Price as of such date.
-4-
<PAGE>
"CORPORATE TRUST OFFICE" means the designated office of the
Trustee,
in the Borough of Manhattan, The City of New York, which office is
at the date
hereof located at c/o SunTrust Robinson Humphrey Capital Markets,
3rd Floor, 125
Broad Street, New York, New York 10004.
"CUSTODIAN" means the Trustee, as custodian with respect to the
Series B Notes in global form, or any successor entity thereto.
"DEFAULT" means any event that is, or after notice or passage
of
time, or both, would be, an Event of Default.
"DEFAULTED INTEREST" has the meaning specified in Section 1.04.
"DEPOSITARY" means the clearing agency registered under the
Exchange
Act that is designated to act as the Depositary for the Global
Notes. The
Depository Trust Company shall be the initial Depositary, until a
successor
shall have been appointed and become such pursuant to the
applicable provisions
of this Indenture, and thereafter, "Depositary" shall mean or
include such
successor.
"DESIGNATED EVENT" means the occurrence of a Fundamental Change or
a
Termination of Trading.
"DESIGNATED EVENT EXPIRATION TIME" has the meaning specified in
Section 1.10(b).
"DESIGNATED EVENT NOTICE" has the meaning specified in Section
1.10(b).
"DESIGNATED EVENT REDEMPTION DATE" has the meaning specified in
Section 1.10(a).
"DESIGNATED SENIOR INDEBTEDNESS" means (i) Indebtedness and all
other monetary obligations (including expenses, fees and other
monetary
obligations) under the Bank Credit Agreement and (ii) any other
Indebtedness
constituting Senior Indebtedness that, at any date of
determination, has an
aggregate principal amount of at least $25 million and is
specifically
designated by the Company in the instrument creating or evidencing
such Senior
Indebtedness as "Designated Senior Indebtedness."
"DETERMINATION DATE" has the meaning specified in Section
1.21(j).
"DISTRIBUTION" has the meaning specified in Section 1.21(d).
"EVENT OF DEFAULT" means any event specified in Section 2.01 as
an
Event of Default.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations promulgated thereunder, as
in effect from
time to time.
"EX-DIVIDEND TIME" has the meaning specified in Section
1.17(b).
-5-
<PAGE>
"EXPIRATION TIME" has the meaning specified in Section
1.21(e)(A).
"FAIR MARKET VALUE" has the meaning specified in Section
1.21(f).
"FUNDAMENTAL CHANGE" means any transaction or event (whether by
means of an exchange offer, liquidation, tender offer,
consolidation, merger,
combination, reclassification, recapitalization or otherwise) in
connection with
which 50% or more of our common stock is exchanged for, converted
into, acquired
for or constitutes solely the right to receive consideration which
is not at
least 90% common stock that is (or, upon consummation of or
immediately
following such transaction or event, which will be) listed on a
United States
national securities exchange or approved (or, upon consummation of
or
immediately following such transaction or event, which will be
approved) for
quotation on the Nasdaq National Market or any similar United
States system of
automated dissemination of quotations of securities prices.
"GAAP" means United States generally accepted accounting
principles.
"GLOBAL NOTE" has the meaning specified in Section 1.03.
"INDENTURE" has the meaning specified in the recitals hereof.
"INTEREST" means any interest payable under the terms of the
Series
B Notes.
"NET SHARE AMOUNT" has the meaning specified in Section
1.17(a).
"NET SHARES" has the meaning specified in Section 1.20(b).
"NOTE REGISTER" has the meaning specified in Section 2.05(a) of
the
Original Indenture.
"NOTE REGISTRAR" has the meaning specified in Section 2.05(a) of
the
Original Indenture.
"NOTEHOLDER" or "HOLDER" as applied to any Series B Note, or
other
similar terms (but excluding the term "beneficial holder"), means
any Person in
whose name at the time a particular Series B Note is registered on
the Note
registrar's books.
"NONELECTING SHARE" has the meaning specified in Section
1.22(c).
"OFFER EXPIRATION TIME" has the meaning specified in Section
1.21(e)(B).
"OFFICER" means any vice president, any assistant vice
president,
any assistant secretary, any assistant treasurer, any trust officer
or assistant
trust officer, the controller or any assistant controller or any
other officer
of the Trustee customarily performing functions similar to those
performed by
any of the above designated officers and also means, with respect
to a
particular corporate trust matter, any other officer to whom such
matter is
referred because of his or her knowledge of and familiarity with
the particular
subject.
-6-
<PAGE>
"OFFICERS' CERTIFICATE" of the Company means a certificate signed
by
the Chairman of the Board of Directors, a Vice Chairman of the
Board of
Directors, the Chief Executive Officer, the President or a Vice
President or the
Chief Financial Officer, and by the Treasurer, an Assistant
Treasurer, the
Secretary or an Assistant Secretary of the Company, as the case may
be, and
delivered to the Trustee. Unless the context otherwise requires,
each reference
herein to an "Officers' Certificate" shall mean an Officers'
Certificate of the
Company. References herein, or in any Series B Note, to any officer
of a Person
that is a partnership shall mean such officer of the partnership
or, if none, of
a general partner of the partnership authorized thereby to act on
its behalf.
"OPINION OF COUNSEL" means an opinion in writing signed by
legal
counsel, who may be an employee of or counsel to the Company, or
other counsel
reasonably acceptable to the Trustee.
"OPTIONAL REDEMPTION" has the meaning specified in Section
1.06.
"ORIGINAL INDENTURE" has the meaning specified in the recitals
hereof.
"ORIGINAL NOTES" has the meaning specified in Section 1.01.
"OUTSTANDING," when used with reference to Series B Notes and
subject to the provisions of Section 8.04 of the Original
Indenture, means, as
of any particular time, all Series B Notes authenticated and
delivered by the
Trustee under this First Supplemental Indenture, except:
(a) Series B Notes theretofore canceled by the Trustee or
delivered
to the
Trustee for cancellation;
(b) Series B Notes, or portions thereof, (i) for the redemption
of
which
monies in the necessary amount shall have been deposited in
trust
with the
Trustee or with any paying agent (other than the Company) or
(ii)
which
shall have been otherwise discharged in accordance with Article
12
of the
Original Indenture;
(c) Series B Notes in lieu of which, or in substitution for
which,
other
Series B Notes shall have been authenticated and delivered
pursuant
to the
terms of Section 2.06 of the Original Indenture; and
(d) Series B Notes converted into Common Stock pursuant to the
conversion
provisions in this Article 1 and Series B Notes deemed not
outstanding pursuant to the redemption and repurchase provisions of
this
Article
1.
"PERSON" means any individual, partnership, joint venture,
firm,
corporation, limited liability company, association, trust or other
enterprise
or any government or political subdivision or any agency,
department or
instrumentality thereof.
"PREMIUM" means any premium payable under the terms of the Series
B
Notes.
-7-
<PAGE>
"PRINCIPAL CORPORATE TRUST OFFICE" means the designated office
of
the Trustee at which its corporate trust business as it relates to
the Indenture
shall be principally administered at any particular time, which
office at the
date hereof is located at 25 Park Place, NE, 24th Floor, Atlanta,
Georgia 30303.
"PRINCIPAL RETURN" has the meaning specified in Section 1.20.
"PUBLIC ACQUIRER CHANGE OF CONTROL" means any event constituting
a
Fundamental Change in which the acquirer, the Person formed by or
surviving any
merger or consolidation, or any Person that is a direct or indirect
"beneficial
owner" (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of the
total voting power of all shares of such acquirer's or such other
Person's
capital stock that are entitled to vote generally in the election
of directors
has Public Acquirer Common Stock; provided that if there is more
than one such
"beneficial owner," the relevant "beneficial owner" will be the one
with the
most direct beneficial ownership to such acquirer's or other
Person's capital
stock.
"PUBLIC ACQUIRER COMMON STOCK" means shares of capital stock
traded
on a United States national securities exchange or quoted on the
Nasdaq National
Market or which will be so traded or quoted when issued or
exchanged in
connection with a Fundamental Change.
"PURCHASED SHARES" has the meaning specified in Section
1.21(e)(A).
"RECORD DATE" has the meaning specified in Section 1.04 with
respect
to any interest payment date, and for any other purpose means the
record date
established by the Company for a specified purpose.
"RECORD DATE" has the meaning specified in Section 1.21(f).
"REDEMPTION DATE" has the meaning specified in Section 1.07.
"REPURCHASE DATE" has the meaning specified in Section 1.11.
"REPURCHASE NOTICE" has the meaning specified in Section
1.11(a).
"SECURITIES ACT" means the Securities Act of 1933, as amended,
and
the rules and regulations promulgated thereunder, as in effect from
time to
time.
"SENIOR INDEBTEDNESS" means the following obligations of the
Company, whether outstanding on the date of the Indenture or
thereafter
Incurred:
(a) all Indebtedness and all other monetary obligations
(including,
without
limitation, expenses, fees, claims, indemnifications,
reimbursements, liabilities and other monetary obligations and
any
obligation
to deliver cash as collateral security for contingent
reimbursement obligations in respect of outstanding letters of
credit of
the
Company) under the Bank Credit Agreement, any Interest Rate
Agreement
or
Currency Agreement and the Company's Guarantee of any Indebtedness
or
monetary
obligation of any of its Subsidiaries under any Interest Rate
Agreement
or Currency Agreement; and
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<PAGE>
(b) all other Indebtedness of the Company (other than the
Original
Notes and
the Senior Subordinated Notes), including principal and
interest
on such
Indebtedness, unless such Indebtedness, by its terms or by the
terms of
any agreement or instrument pursuant to which such Indebtedness
is issued,
is pari passu with, or subordinated in right of payment to, the
Series B
Notes;
provided that
the term "Senior Indebtedness" shall not include:
(i) any Indebtedness of the Company that, when Incurred, and
without
respect to
any election under Section 1111(b) of the United States
Bankruptcy
Code, was without recourse to the Company;
(ii) any Indebtedness of the Company that by its express terms
is
not senior
to the Series B Notes or is pari passu or junior to the Series
B
Notes;
(iii) any Indebtedness of the Company to any of its Subsidiaries
or
to a joint
venture in which the Company has an interest;
(iv) any Indebtedness of the Company not permitted by the
indenture
governing
the Senior Subordinated Notes;
(v) any repurchase, redemption or other obligation in respect
of
Redeemable
Stock (as defined in the Indenture governing the Senior
Subordinated Notes);
(vi) any Indebtedness of the Company to any employee, officer
or
director
of the Company or any of its Subsidiaries;
(vii) any liability for federal, state, local or other taxes owed
or
owing by
the Company; or
(viii) any Trade Payables of the Company.
Senior Indebtedness will also include interest accruing
subsequent
to events of bankruptcy of the Company and its Subsidiaries at the
rate provided
for in the document governing such Senior Indebtedness, whether or
not such
interest is an allowed claim enforceable against the debtor in a
bankruptcy case
under federal bankruptcy law or similar laws relating to
insolvency. For
purposes of clause (iv) of the immediately preceding proviso, a
good faith
determination by the Chief Financial Officer of the Company,
evidenced by an
officer's certificate, that any Indebtedness was permitted by the
Indenture
governing the Senior Subordinated Notes shall be conclusive.
"SENIOR SUBORDINATED NOTES" means the 8-1/2% Senior
Subordinated
Notes due 2006 issued pursuant to the Indenture, dated as of March
20, 1996,
among the Company and SunTrust Bank, as trustee.
"SERIES B NOTES" has the meaning specified in Section 1.01.
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<PAGE>
"SPINOFF VALUATION PERIOD" has the meaning specified in Section
1.21(d).
"SUBSIDIARY" of any Person means (i) any corporation more than
50%
of whose stock of any class or classes having by the terms of such
stock
ordinary voting power to elect a majority of the directors of such
corporation
(irrespective of whether or not at the time stock of any class or
classes of
such corporation shall have or might have voting power by reason of
the
happening of any contingency) is at the time owned by such Person
and/or by one
or more Subsidiaries of such Person or by such Person and one or
more
Subsidiaries of such Person and (ii) any partnership, association,
limited
liability company, joint venture or other entity in which such
Person and/or one
or more Subsidiaries of such Person or such Person and one or more
Subsidiaries
of such Person has more than a 50% equity interest at the time.
"TERMINATION OF TRADING" means that the Common Stock, or other
common stock into which the Series B Notes are then convertible, is
neither
listed for trading on a United States national securities exchange
nor approved
for trading on the Nasdaq National Market.
"TRADING DAY" means (x) if the applicable security is quoted on
the
Nasdaq National Market, a day on which trades may be made thereon
or (y) if the
applicable security is listed or admitted for trading on the New
York Stock
Exchange or such other national securities exchange, a day on which
the New York
Stock Exchange or another national securities exchange is open for
business or
(z) if the applicable security is not so listed, admitted for
trading or quoted,
any day other than a Saturday or Sunday or a day on which banking
institutions
in the State of New York are authorized or obligated by law or
executive order
to close.
"TRADING PRICE" means, on any date, the average of the
secondary
market bid quotations for the Series B Notes obtained by the
Trustee for
$10,000,000 principal amount of Notes at approximately 3:30 p.m.,
New York City
time, on such date from three independent nationally recognized
securities
dealers selected by the Company; provided that if at least three
such bids
cannot reasonably be obtained by the Trustee, but two bids are
obtained, then
the average of the two bids shall be used, and if only one such bid
can
reasonably be obtained by the Trustee, one bid shall be used; and
provided
further that if the Trustee cannot reasonably obtain at least one
bid for
$10,000,000 principal amount of Notes from a nationally recognized
securities
dealer, then the Trading Price per $1,000 principal amount of
Series B Notes
shall be deemed to be less than 98% of the product of the Closing
Sale Price and
the Conversion Rate.
"TRIGGER EVENT" has the meaning specified in Section 1.21(d).
"TRUST INDENTURE ACT" means the Trust Indenture Act of 1939, as
amended, as it was in force at the date of this Indenture; provided
that if the
Trust Indenture Act of 1939 is amended after the date hereof, the
term "Trust
Indenture Act" shall mean, to the extent required by such
amendment, the Trust
Indenture Act of 1939 as so amended.
"TRUSTEE" means SunTrust Bank, a Georgia banking corporation,
and
its successors and any corporation resulting from or surviving any
consolidation
or merger to which it or its successors may be a party and any
successor trustee
at the time serving as successor trustee hereunder.
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<PAGE>
Section 1.03. Form of Notes; Execution and Authentication of
Notes.
So long as the Series B Notes are eligible for book-entry
settlement with the
Depositary, or unless otherwise required by law, or otherwise
contemplated by
Section 2.05(b) of the Original Indenture, all of the Series B
Notes will be
represented by one or more Series B Notes in global form registered
in the name
of the Depositary or the nominee of the Depositary (a "GLOBAL
NOTE"). The
transfer and exchange of beneficial interests in any such Global
Note shall be
effected through the Depositary in accordance with the Indenture
and the
applicable procedures of the Depositary. Except as provided in such
Section
2.05(b), 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 Note shall represent such of the outstanding Series
B
Notes as shall be specified therein and shall provide that it shall
represent
the aggregate amount of outstanding Series B Notes from time to
time endorsed
thereon and that the aggregate amount of outstanding Series B Notes
represented
thereby may from time to time be increased or reduced to reflect
redemptions,
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 Series B Notes represented thereby
shall be made by
the Trustee or the Custodian, at the direction of the Trustee, in
such manner
and upon written instructions given by the holder of such Series B
Notes in
accordance with this Indenture. Payment of principal of and
interest and
premium, if any, on any Global Note shall be made to the holder of
such Global
Note.
The Series B Notes shall be signed in the name and on behalf of
the
Company by the manual or facsimile signature of its Chairman of the
Board of
Directors, Vice Chairman of the Board of Directors, Chief Executive
Officer,
President, Chief Financial Officer or any Vice President . The
signature of any
of these officers on the Series B Notes may be manual or facsimile.
Only such
Series B Notes as shall bear thereon a certificate of
authentication
substantially in the form set forth on the form of Series B Note
attached as
Exhibit A hereto, manually executed by the Trustee (or an
authenticating agent
appointed by the Trustee as provided by Section 16.11 of the
Original
Indenture), shall be entitled to the benefits of the Indenture or
be valid or
obligatory for any purpose. Such certificate by the Trustee (or
such an
authenticating agent) upon any Series B Note executed by the
Company shall be
conclusive evidence that the Series B Note so authenticated has
been duly
authenticated and delivered hereunder and that the holder is
entitled to the
benefits of the Indenture.
In case any Officer of the Company who shall have signed any of
the
Series B Notes shall cease to be such Officer before the Series B
Notes so
signed shall have been authenticated and delivered by the Trustee,
or disposed
of by the Company, such Series B Notes nevertheless may be
authenticated and
delivered or disposed of as though the person who signed such
Series B Notes had
not ceased to be such Officer of the Company, and any Series B Note
may be
signed on behalf of the Company by such persons as, at the actual
date of the
execution of such Series B Note, shall be the proper Officers of
the Company,
although at the date of the execution of the Indenture any such
person was not
such an Officer.
Section 1.04. Date and Denomination of Notes; Payments of
Interest.
Subject to Section 1.03, the Series B Notes shall be issuable in
registered form
without coupons in
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<PAGE>
denominations of $1,000 principal amount and multiples thereof.
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 Series B Note attached as
Exhibit A hereto.
Interest on the Series B Notes shall be computed on the basis of a
360-day year
comprised of twelve 30-day months.
The Person in whose name any Series B Note (or its predecessor
Note)
is registered on the Note register at the close of business on any
record date
with respect to any interest payment date shall be entitled to
receive the
interest payable on such interest payment date, except that the
interest payable
upon redemption or repurchase will be payable to the Person to whom
principal is
payable pursuant to such redemption or repurchase (unless the
redemption date or
the Repurchase Date, as the case may be, is an interest payment
date, in which
case the semi-annual payment of interest becoming due on such date
shall be
payable to the holders of such Series B Notes registered as such on
the
applicable record date). Interest shall be payable at the office of
the Company
maintained by the Company for such purposes in the Borough of
Manhattan, The
City of New York, which shall initially be the Corporate Trust
Office of the
Trustee and may, as the Company shall specify to the paying agent
in writing by
each record date, be paid either (i) by check mailed to the address
of the
Person entitled thereto as it appears in the Note register
(provided that any
holder of Series B Notes with an aggregate principal amount in
excess of
$2,000,000 shall, at the written election of such holder (such
election to be
made prior to the relevant record date and to contain appropriate
wire transfer
information), be paid by wire transfer in immediately available
funds) or (ii)
by transfer to an account maintained by such Person located in the
United
States; provided that payments to the Depositary will be made by
wire transfer
of immediately available funds to the account of the Depositary or
its nominee.
The term "RECORD DATE" with respect to any interest payment date
shall mean the
June 15 or December 15 preceding the applicable June 30 or December
31 interest
payment date, respectively.
Any interest on any Series B Note which is payable, but is not
punctually paid or duly provided for, on any June 30 or December 31
(herein
called "DEFAULTED INTEREST") shall forthwith cease to be payable to
the
Noteholder on the relevant record date by virtue of its, his or her
having been
such Noteholder, and such Defaulted Interest shall be paid by the
Company, at
its election in each case, as provided in clause (1) or (2)
below:
(1) The Company may elect to make payment of any Defaulted
Interest
to the
Persons in whose names the Series B Notes (or their respective
predecessor Notes) are registered at the close of business on a
special
record
date for the payment of such Defaulted Interest, which shall be
fixed in
the following manner. The Company shall provide an Officers'
Certificate to the Trustee specifying the amount of Defaulted
Interest
proposed
to be paid on each Series B Note and the date of the proposed
payment
(which shall be not less than 25 days after the receipt by the
Trustee of
such notice, unless the Trustee shall consent to an earlier
date), and
at the same time the Company shall deposit with the Trustee an
amount of
money equal to the aggregate amount to be paid in respect of
such
Defaulted Interest or shall make arrangements satisfactory to
the
Trustee
for such deposit on or prior to the date of the proposed
payment,
such money
when deposited to be held in trust for the benefit of the
Persons
entitled to such Defaulted Interest as in this clause provided.
Thereupon
the Trustee shall fix a special record date for the payment of
such
Defaulted Interest which shall be not more than 15 days and not
less
than ten
days
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<PAGE>
prior to
the date of the proposed payment, and not less than ten days
after the
receipt by the Trustee of the notice of the proposed payment.
The
Trustee shall promptly notify the Company of such special record
date
and, in
the name and at the expense of the Company, shall cause notice
of
the
proposed payment of such Defaulted Interest and the special
record
date
therefor to be mailed, first-class postage prepaid, to each holder
at
its, his
or her address as it appears in the Note register, not less
than
ten days
prior to such special record date. Notice of the proposed
payment
of such
Defaulted Interest and the special record date therefor having
been so
mailed, such Defaulted Interest shall be paid to the Persons in
whose
names the Series B Notes (or their respective predecessor Notes)
are
registered
at the close of business on such special record date and shall
no longer
be payable pursuant to the following clause (2) of this Section
1.04.
(2) The Company may make payment of any Defaulted Interest in
any other
lawful manner not inconsistent with the requirements of any
securities
exchange or automated quotation system on which the Series B
Notes may
be listed or designated for issuance, and upon such notice as
may be
required by such exchange or automated quotation system, if,
after
notice
given by the Company to the Trustee of the proposed payment
pursuant
to this clause, such manner of payment shall be deemed
practicable by the Trustee.
Section 1.05. Exchange and Registration of Transfer of Notes.
Upon
surrender for registration of transfer of any Series B Note to the
Note
registrar or any co-registrar, and satisfaction of the requirements
for such
transfer set forth in this Section 1.05, the Company shall execute,
and the
Trustee shall authenticate and deliver, in the name of the
designated transferee
or transferees, one or more new Series B Notes of any authorized
denominations
and of a like aggregate principal amount and bearing such
restrictive legends as
may be required by the Indenture.
Series B Notes may be exchanged for other Notes of any
authorized
denominations and of a like aggregate principal amount upon
surrender of the
Series B Notes to be exchanged at any such office or agency
maintained by the
Company pursuant to Section 4.02 of the Original Indenture.
Whenever any Series
B Notes are so surrendered for exchange, the Company shall execute,
and the
Trustee shall authenticate and deliver, the Notes which the
Noteholder making
the exchange is entitled to receive bearing registration numbers
not
contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange
of
Series B Notes shall be the valid obligations of the Company,
evidencing the
same debt, and entitled to the same benefits under the Indenture,
as the Series
B Notes surrendered upon such registration of transfer or
exchange.
All Series B Notes presented or surrendered for registration of
transfer or exchange, redemption, repurchase or conversion shall
(if so required
by the Company or the Note registrar) be duly endorsed, or be
accompanied by a
written instrument or instruments of transfer in form satisfactory
to the
Company or the Note registrar, as the case may be, and the Series B
Notes shall
be duly executed by the Noteholder thereof or his attorney duly
authorized in
writing.
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<PAGE>
No service charge shall be made to any holder for any
registration
of transfer or exchange of Series B Notes, but either the Company,
the Trustee
or both may require payment by the holder of a sum sufficient to
cover any tax,
assessment or other governmental charge that may be imposed in
connection with
any registration of transfer or exchange of Series B Notes.
Neither the Company nor the Trustee nor any Note registrar shall
be
required to exchange or register a transfer of (a) any Series B
Notes for a
period of 15 days next preceding any selection of Series B Notes to
be redeemed,
(b) any Series B Notes or portions thereof called for redemption
pursuant to
Section 1.07, (c) any Series B Notes or portions thereof
surrendered for
conversion pursuant to Section 1.17, (d) any Series B Notes or
portions thereof
tendered for redemption (and not withdrawn) pursuant to Section
1.10 or (e) any
Series B Notes or portions thereof tendered for repurchase (and not
withdrawn)
pursuant to Section 1.11.
Section 1.06. Redemption of Notes at the Option of the Company.
Except as otherwise provided in Section 1.10, the Company may not
redeem any
Series B Notes prior to January 1, 2011. At any time on or after
January 1,
2011, the Series B Notes may be redeemed at the option of the
Company (an
"OPTIONAL REDEMPTION"), in whole or in part, in cash, upon notice
as set forth
in Section 1.07, at 100% of the principal amount, together with
accrued and
unpaid interest, if any, to, but excluding the date fixed for
redemption.
Section 1.07. Notice of Optional Redemption; Selection of Notes.
In
case the Company shall desire to exercise the right to redeem all
or, as the
case may be, any part of the Series B Notes pursuant to Section
1.06, it shall
fix a date for redemption and it or, at its written request
received by the
Trustee not fewer than forty-five (45) days prior (or such shorter
period of
time as may be acceptable to the Trustee) to the date fixed for
redemption, the
Trustee in the name of and at the expense of the Company, shall
mail or cause to
be mailed a notice of such redemption not fewer than thirty (30)
nor more than
sixty (60) days prior to the redemption date to each holder of
Series B Notes so
to be redeemed as a whole or in part at its last address as the
same appears on
the Note register; provided that if the Company shall give such
notice, it shall
give substantially concurrent written notice of the redemption date
to the
Trustee. Such mailing shall be by first class mail. The notice, if
mailed in the
manner herein provided, shall be conclusively presumed to have been
duly given,
whether or not the holder receives such notice. In any case,
failure to give
such notice by mail or any defect in the notice to the holder of
any Series B
Note designated for redemption as a whole or in part shall not
affect the
validity of the proceedings for the redemption of any other Series
B Note.
Concurrently with the mailing of any such notice of redemption, the
Company
shall issue a press release announcing such redemption, the form
and content of
which press release shall be determined by the Company in its sole
discretion.
The failure to issue any such press release or any defect therein
shall not
affect the validity of the redemption notice or any of the
proceedings for the
redemption of any Series B Note called for redemption.
Each such notice of redemption shall specify the aggregate
principal
amount of Series B Notes to be redeemed, the CUSIP number or
numbers of the
Series B Notes being redeemed (if then generally in use), the date
(which shall
be a Business Day) fixed for redemption (the "REDEMPTION DATE"),
the redemption
price at which Series B Notes are to be redeemed, the place or
places of
payment, that payment will be made upon presentation and surrender
of such
Series B Notes, that interest accrued to the date fixed for
redemption will be
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<PAGE>
paid as specified in said notice, and that on and after said date
interest
thereon or on the portion thereof to be redeemed will cease to
accrue. Such
notice shall also state the current Conversion Rate and the date on
which the
right to convert such Series B Notes or portions thereof will
expire. Series B
Notes or portions of Series B Notes that are converted in
accordance with the
terms of the Indenture after the delivery of a notice of redemption
set forth
above shall not be subject to redemption. If fewer than all the
Series B Notes
are to be redeemed, the notice of redemption shall identify the
Series B Notes
to be redeemed (including CUSIP numbers, if any). In case any
Series B Note is
to be redeemed in part only, the notice of redemption shall state
the portion of
the principal amount thereof to be redeemed and shall state that,
on and after
the redemption date, upon surrender of such Series B Note, a new
Series B Note
or Series B Notes in principal amount equal to the unredeemed
portion thereof
will be issued.
On or prior to the redemption date specified in the notice of
redemption given as provided in this Section 1.07, the Company will
deposit with
the Trustee or with one or more paying agents (or, if the Company
is acting as
the paying agent, set aside, segregate and hold in trust as
provided in Section
4.04 of the Original Indenture) an amount of money in immediately
available
funds sufficient to redeem on the redemption date all the Series B
Notes (or
portions thereof) so called for redemption (other than those
theretofore
surrendered for conversion in accordance with the Indenture) at the
appropriate
redemption price, together with accrued interest to, but excluding,
the
redemption date; provided that if such payment is made on the
redemption date it
must be received by the Trustee or paying agent, as the case may
be, by 10:00
a.m., New York City time, on such date. The Company shall be
entitled to retain
any interest, yield or gain on amounts deposited with the Trustee
or any paying
agent pursuant to this Section 1.07 in excess of amounts required
hereunder to
pay the redemption price and accrued interest to, but excluding,
the redemption
date. If any Series B Note called for redemption is converted
pursuant to the
Indenture prior to such redemption date, any money deposited with
the Trustee or
any paying agent or so segregated and held in trust for the
redemption of such
Series B Note shall be paid to the Company upon its written
request, or, if then
held by the Company, shall be discharged from such trust. Whenever
any Series B
Notes are to be redeemed pursuant to Section 1.06, the Company will
give the
Trustee written notice in the form of an Officers' Certificate not
fewer than 45
days (or such shorter period of time as may be acceptable to the
Trustee) prior
to the redemption date as to the aggregate principal amount of
Series B Notes to
be redeemed.
If less than all of the outstanding Series B Notes are to be
redeemed, the Trustee shall select the Series B Notes or portions
thereof of the
Global Note or the Series B Notes in certificated form to be
redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro
rata basis or
by another method the Trustee deems fair and appropriate. If any
Series B Note
selected for partial redemption is submitted for conversion in part
after such
selection, the portion of such Series B Note submitted for
conversion shall be
deemed (so far as may be possible) to be the portion to be selected
for
redemption. The Series B Notes (or portions thereof) so selected
shall be deemed
duly selected for redemption for all purposes hereof,
notwithstanding that any
such Series B Note is submitted for conversion in part before the
mailing of the
notice of redemption.
Upon any redemption of less than all of the outstanding Series
B
Notes, the Company and the Trustee may (but need not), solely for
purposes of
determining the pro rata
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<PAGE>
allocation among such Series B Notes as are unconverted and
outstanding at the
time of redemption, treat as outstanding any Series B Notes
surrendered for
conversion during the period of 15 days next preceding the mailing
of a notice
of redemption and may (but need not) treat as outstanding any
Series B Note
authenticated and delivered during such period in exchange for the
unconverted
portion of any Series B Note converted in part during such
period.
Section 1.08. Payment of Notes Called for Redemption by the
Company.
If notice of redemption has been given as provided in Section 1.07,
the Series B
Notes or portion thereof with respect to which such notice has been
given shall,
unless converted pursuant to the terms of the Indenture, become due
and payable
on the date fixed for redemption and at the place or places stated
in such
notice at the applicable redemption price, together with interest
accrued to
(but excluding) the redemption date, and on and after said date
(unless the
Company shall default in the payment of such Series B Notes at the
redemption
price, together with interest accrued to said date) interest on the
Series B
Notes or portion thereof so called for redemption shall cease to
accrue and,
after the close of business on the Business Day immediately
preceding the
redemption date, such Series B Notes shall cease to be convertible
and, except
as provided in Sections 7.06 and 12.04 of the Original Indenture,
to be entitled
to any benefit or security under the Indenture, and the holders
thereof shall
have no right in respect of such Series B Notes except the right to
receive the
redemption price thereof and unpaid interest to (but excluding) the
redemption
date. On presentation and surrender of such Series B Notes at a
place of payment
in said notice specified, the said Series B Notes or the specified
portions
thereof shall be paid and redeemed by the Company at the applicable
redemption
price, together with interest accrued thereon to (but excluding)
the redemption
date; provided that if the applicable redemption date is an
interest payment
date, the interest payable on such interest payment date shall be
payable to the
holders of record of such Series B Notes on the applicable record
date instead
of the holders surrendering such Series B Notes for redemption on
such date.
Upon presentation of any Series B Note redeemed in part only,
the
Company shall execute and the Trustee shall authenticate and make
available for
delivery to the holder thereof, at the expense of the Company, a
new Series B
Note or Series B Notes, of authorized denominations, in principal
amount equal
to the unredeemed portion of the Series B Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any
Series B Notes or mail any notice of redemption during the
continuance of a
default in payment of interest or premium, if any, on the Series B
Notes. If any
Series B Note called for redemption shall not be so paid upon
surrender thereof
for redemption, the principal and premium, if any, shall, until
paid or duly
provided for, bear interest from the redemption date at a rate
equal to 1% per
annum plus the rate borne by the Series B Note (without duplication
of the 1%
increase provided for under Section 2.02) and such Series B Note
shall remain
convertible under the Indenture until the principal and premium, if
any, and
interest shall have been paid or duly provided for.
Section 1.09. Conversion Arrangement on Call for Redemption. In
connection with any redemption of Series B Notes, the Company may
arrange for
the purchase and conversion of any Series B Notes by an agreement
with one or
more investment banks or other purchasers to purchase such Notes by
paying to
the Trustee in trust for the Noteholders, on or before the date
fixed for
redemption, an amount not less than the applicable redemption
price,
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<PAGE>
together with interest accrued to (but excluding) the date fixed
for redemption,
of such Series B Notes. Notwithstanding anything to the contrary
contained in
this Article 1, the obligation of the Company to pay the redemption
price of
such Series B Notes, together with interest accrued to (but
excluding) the date
fixed for redemption, shall be deemed to be satisfied and
discharged to the
extent such amount is so paid by such purchasers. If such an
agreement is
entered into, a copy of which will be filed with the Trustee prior
to the date
fixed for redemption, any Series B Notes not duly surrendered for
conversion by
the holders thereof may, at the option of the Company, be deemed,
to the fullest
extent permitted by law, acquired by such purchasers from such
holders and
(notwithstanding anything to the contrary contained in this Article
1)
surrendered by such purchasers for conversion, all as of
immediately prior to
the close of business on the date fixed for redemption (and the
right to convert
any such Series B Notes shall be extended through such time),
subject to payment
of the above amount as aforesaid. At the written direction of the
Company, the
Trustee shall hold and dispose of any such amount paid to it in the
same manner
as it would monies deposited with it by the Company for the
redemption of Series
B Notes. Without the Trustee's prior written consent, no
arrangement between the
Company and such purchasers for the purchase and conversion of any
Series B
Notes shall increase or otherwise affect any of the powers,
duties,
responsibilities, liabilities or obligations of the Trustee as set
forth in the
Indenture.
Section 1.10. Redemption at Option of Holders upon a Designated
Event.
(a) If there shall occur a Designated Event at any time prior
to
maturity of the Series B Notes, then each Noteholder shall have the
right, at
such holder's option, to require the Company to redeem all of such
holder's
Series B Notes, or any portion thereof that is a multiple of $1,000
principal
amount, on the date (the "DESIGNATED EVENT REDEMPTION DATE") that
is not less
than 30 nor more than 60 days after the date of the Designated
Event Notice (as
defined in Section 1.10(b)) of such Designated Event (or, if such
date is not a
Business Day, the next succeeding Business Day) at a redemption
price equal to
100% of the principal amount thereof, together with accrued
interest to, but
excluding, the Designated Event Redemption Date; provided that if
such
Designated Event Redemption Date is an interest payment date, then
the interest
payable on such interest payment date shall be paid to the holders
of record of
the Series B Notes on the applicable record date instead of the
holders
surrendering the Series B Notes for redemption on such date.
Upon presentation of any Series B Note redeemed in part only,
the
Company shall execute and, upon the Company's written direction to
the Trustee,
the Trustee shall authenticate and make available for delivery to
the holder
thereof, at the expense of the Company, a new Series B Note or
Series B Notes,
of authorized denominations, in aggregate principal amount equal to
the
unredeemed portion of the Series B Note presented.
(b) On or before the tenth day after the occurrence of a
Designated
Event, the Company or at its written request (which must be
received by the
Trustee at least five Business Days prior to the date the Trustee
is requested
to give notice as described below, unless the Trustee shall agree
in writing to
a shorter period), the Trustee, in the name of and at the expense
of the
Company, shall mail or cause to be mailed to all holders of record
on the date
of the Designated Event a notice (the "DESIGNATED EVENT NOTICE") of
the
occurrence of such Designated Event and of the redemption right at
the option of
the holders arising as a result
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<PAGE>
thereof. Such notice shall be mailed in the manner and with the
effect set forth
in the first paragraph of Section 1.07 (without regard for the time
limits set
forth therein). If the Company shall give such notice, the Company
shall also
deliver a copy of the Designated Event Notice to the Trustee at
such time as it
is mailed to Noteholders. Concurrently with the mailing of any
Designated Event
Notice, the Company shall issue a press release announcing such
Designated Event
referred to in the Designated Event Notice, the form and content of
which press
release shall be determined by the Company in its sole discretion.
The failure
to issue any such press release or any defect therein shall not
affect the
validity of the Designated Event Notice or any proceedings for the
redemption of
any Series B Note which any Noteholder may elect to have the
Company redeem as
provided in this Section 1.10.
Each Designated Event Notice shall specify the circumstances
constituting the Designated Event, the Designated Event Redemption
Date, the
price at which the Company shall be obligated to redeem Series B
Notes, that the
holder must exercise the redemption right on or prior to the close
of business
on the Designated Event Redemption Date (the "DESIGNATED EVENT
EXPIRATION
TIME"), that the holder shall have the right to withdraw any Series
B Notes
surrendered prior to the Designated Event Expiration Time, a
description of the
procedure which a Noteholder must follow to exercise such
redemption right and
to withdraw any surrendered Series B Notes, the amount of interest
accrued on
each Series B Note to (but excluding) the Designated Event
Redemption Date and
the CUSIP number or numbers of the Series B Notes (if then
generally in use).
No failure of the Company to give the foregoing notices and no
defect therein shall limit the Noteholders' redemption rights or
affect the
validity of the proceedings for the redemption of the Series B
Notes pursuant to
this Section 1.10.
(c) Redemption of Series B Notes under this Section 1.10 shall
be
made, at the option of the holder thereof, upon:
(i) delivery to the office or agency of the Company maintained
for
that
purpose pursuant to Section 4.02 of the Original Indenture on
or
before the
Designated Event Expiration Time of the form entitled "Option
to Elect
Repayment Upon A Designated Event" on the reverse of the Series
B
Note duly
completed and signed; and
(ii) book-entry transfer of the Series B Notes to such office
or
agency of
the Company on or before the Designated Event Expiration Time,
such
delivery being a condition to receipt by the holder of the
purchase
price
therefor; provided that the redemption price shall be so paid
pursuant
to this Section 1.10 only if the Series B Note so delivered to
the
Trustee (or other paying agent appointed by the Company) shall
conform
in all
respects to the description thereof in the election form.
All questions as to the validity, eligibility (including time
of
receipt) and acceptance of any Series B Note for redemption shall
be determined
by the Company, whose determination shall be final and binding
absent manifest
error. Notwithstanding anything herein to the contrary, any holder
delivering to
the office or agency of the Company the election notice
contemplated by
paragraph (i) of this Section 1.10(c) shall have the right to
withdraw such
election notice at any time prior to the close of business on the
Designated
Event Redemption
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<PAGE>
Date by delivery of a written notice of withdrawal to such office
or agency of
the Company in accordance with Section 1.16.
(d) On or prior to the Designated Event Redemption Date, the
Company
will deposit with the Trustee or with one or more paying agents
(or, if the
Company is acting as the paying agent, set aside, segregate and
hold in trust as
provided in Section 4.04 of the Original Indenture) an amount of
money
sufficient to redeem on the Designated Event Redemption Date all
the Series B
Notes to be redeemed on such date at the appropriate redemption
price, together
with accrued interest to (but excluding) the Designated Event
Redemption Date;
provided that if such payment is made on the Designated Event
Redemption Date it
must be received by the Trustee or paying agent, as the case may
be, by 10:00
a.m., New York City time, on such date. Payment for Series B Notes
surrendered
for redemption (and not withdrawn) prior to the Designated Event
Expiration Time
will be made promptly (but in no event more than five Business
Days) following
the Designated Event Redemption Date by mailing checks for the
amount payable to
the holders of such Series B Notes entitled thereto as they shall
appear in the
Note register.
(e) In the case of a reclassification, change, consolidation,
merger, combination, sale or conveyance to which Section 1.22
applies, in which
the Common Stock of the Company is changed or exchanged as a result
into the
right to receive stock, securities or other property or assets
(including cash),
which includes shares of Common Stock of the Company or shares of
common stock
of another Person that are, or upon issuance will be, traded on a
United States
national securities exchange or approved for trading on an
established automated
over-the-counter trading market in the United States and such
shares constitute
at the time such change or exchange becomes effective in excess of
50% of the
aggregate fair market value of such stock, securities or other
property or
assets (including cash) (as determined by the Company, which
determination shall
be conclusive and binding), then the Person formed by such
consolidation or
resulting from such merger or which acquires such assets, as the
case may be,
shall execute and deliver to the Trustee a supplemental indenture
(accompanied
by an Opinion of Counsel that such supplemental indenture complies
with the
provision of the Indenture and the Trust Indenture Act as in force
at the date
of execution of such supplemental indenture) modifying the
provisions of the
Indenture relating to the right of holders of the Series B Notes to
cause the
Company to repurchase the Series B Notes following a Designated
Event, including
without limitation the applicable provisions of this Section 1.10
and the
definitions of Common Stock and Designated Event, as appropriate,
as determined
in good faith by the Company (which determination shall be
conclusive and
binding), to make such provisions apply to such other Person if
different from
the Company and the common stock issued by such Person (in lieu of
the Company
and the Common Stock of the Company).
(f) The Company will comply with the provisions of Rule 13e-4
and
any other tender offer rules under the Exchange Act to the extent
then
applicable in connection with the redemption rights of the holders
of Series B
Notes upon the occurrence of a Designated Event.
Section 1.11. Repurchase of Notes by the Company at Option of
the
Holder. Each holder of Series B Notes shall have the right, on each
of December
31, 2010, December 31, 2013, December 31, 2018, December 31, 2023
and December
31, 2028 (each, a "REPURCHASE
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<PAGE>
DATE") to require the Company to repurchase the Series B Notes or
any portion
thereof held by such holder, in cash, at a purchase price of 100%
of the
principal amount of such Series B Notes to be repurchased, plus any
accrued and
unpaid interest, in each case, to (but excluding) such Repurchase
Date, subject
to the provisions of Section 1.12. Repurchases of Series B Notes
under this
Section 1.11 shall be made, at the option of the holder thereof,
upon:
(a) delivery to the Trustee (or other paying agent appointed by
the
Company)
by a holder of a duly completed and signed Repurchase Notice (a
"REPURCHASE NOTICE") in the form set forth on the reverse of the
Series B
Note
during the period beginning at any time from the opening of
business
on the
date that is 20 Business Days prior to the applicable
Repurchase
Date until
the close of business on such Repurchase Date; and
(b) book-entry transfer of the Series B Notes to the Trustee
(or
other
paying agent appointed by the Company) at any time after delivery
of
the
applicable Repurchase Notice (together with all necessary
endorsements) at the Corporate Trust Office (or the office of
another
paying
agent appointed by the Company), such delivery being a condition
to
receipt by
the holder of the purchase price therefor; provided that such
purchase
price shall be so paid pursuant to this Section 1.11 only if
the
Series B
Note so delivered to the Trustee (or other paying agent
appointed
by the
Company) shall conform in all respects to the description
thereof
in the
related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant to
this
Section 1.11, a portion of a Series B Note, if the principal amount
of such
portion is $1,000 or an integral multiple of $1,000. Provisions of
the Indenture
that apply to the purchase of all of a Series B Note also apply to
the purchase
of such portion of such Series B Note.
Any purchase by the Company contemplated pursuant to the
provisions
of this Section 1.11 shall be consummated by the delivery of the
consideration
to be received by the holder promptly following the later of the
Repurchase Date
and the time of the book-entry transfer or delivery of the Series B
Note.
Notwithstanding anything herein to the contrary, any holder
delivering to the Trustee (or other paying agent appointed by the
Company) the
Repurchase Notice contemplated by this Section 1.11 shall have the
right to
withdraw such Repurchase Notice at any time prior to the close of
business on
the Repurchase Date by delivery of a written notice of withdrawal
to the Trustee
(or other paying agent appointed by the Company) in accordance with
Section
1.16.
The Trustee (or other paying agent appointed by the Company)
shall
promptly notify the Company of the receipt by it of any Repurchase
Notice or
written notice of withdrawal thereof.
Section 1.12. Procedures for the Repurchase of Notes.
(a) At least five Business Days before each Company Repurchase
Notice Date, the Company shall deliver an Officers' Certificate to
the Trustee
specifying:
(i) the information required by Section 1.12(c) in the Company
Repurchase
Notice, and
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<PAGE>
(ii) whether the Company desires the Trustee to give the
Company Repurchase Notice required by Section 1.12(c).
(b) The Company Repurchase Notice, as provided in Section
1.12(c),
shall be sent to holders not less than 20 Business Days prior to
such Repurchase
Date (the "COMPANY REPURCHASE NOTICE DATE").
(c) In connection with any repurchase of Series B Notes under
Section 1.11, the Company shall, no less than 20 Business Days
prior to each
Repurchase Date, give notice to holders (with a copy provided
substantially
concurrently to the Trustee) setting forth information specified in
this Section
1.12(c) (the "COMPANY REPURCHASE NOTICE").
Each Company Repurchase Notice shall:
(1) state the repurchase price and the Repurchase Date to
which the
Company Repurchase Notice relates;
(2) include a form of Repurchase Notice;
(3) state the name and address of the Trustee (or other paying
agent or
Conversion Agent appointed by the Company);
(4) state that Series B Notes must be surrendered to the
Trustee
(or other paying agent appointed by the Company) to collect the
purchase
price;
(5) if the Series B Notes are then convertible, state that
Series B
Notes as to which a Repurchase Notice has been given may be
converted
only if the Repurchase Notice is withdrawn in accordance with
the terms
of the Indenture; and
(6) state the CUSIP number of the Series B Notes (if then
generally
in use).
Company Repurchase Notices may be given by the Company or, at the
Company's
written request, the Trustee shall give such Company Repurchase
Notice in the
Company's name and at the Company's expense.
(d) The Company will comply with the provisions of Rule 13e-4
and
any other tender offer rules under the Exchange Act to the extent
then
applicable in connection with the repurchase rights of the holders
of Series B
Notes.
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<PAGE>
Section 1.13. Deposit of Purchase Price. Prior to 10:00 a.m.
(New
York City Time) on the Business Day immediately following the
Repurchase Date,
the Company shall deposit with the Trustee (or other paying agent
appointed by
the Company; or, if the Company is acting as the paying agent,
shall segregate
and hold in trust as provided in Section 4.04 of the Original
Indenture) an
amount of cash (in immediately available funds if deposited on such
Business
Day) sufficient to pay the aggregate purchase price of all the
Series B Notes or
portions thereof that are to be purchased as of the Repurchase
Date.
Section 1.14. Notes Repurchased in Part. Upon presentation of
any
Series B Note 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 Series B Note or
Series B Notes,
of any authorized denomination, in aggregate principal amount equal
to the
unrepurchased portion of the Series B Notes presented.
Section 1.15. Repayment to the Company. Subject to the
requirements
of applicable law and the Indenture, the Trustee (or other paying
agent
appointed by the Company) shall return to the Company any cash that
remains
unclaimed for two years after any Repurchase Date, together with
interest, if
any, thereon, held by it for the payment of the purchase price for
the Series B
Notes or portions thereof that are to be purchased as of such
Repurchase Date;
provided that to the extent that the aggregate amount of cash
deposited by the
Company pursuant to Section 1.13 exceeds the aggregate purchase
price of the
Series B Notes or portions thereof which the Company is obligated
to purchase as
of the Repurchase Date then, unless otherwise agreed in writing
with the
Company, promptly after the Business Day following the Repurchase
Date, the
Trustee shall return any such excess to the Company together with
interest, if
any, thereon.
Section 1.16. Effect of Election and Repurchase Notice. Upon
receipt
of the election notice in Section 1.10 by the office of agency of
the Company or
upon receipt by the Trustee (or other paying agent appointed by the
Company) of
the Repurchase Notice specified in Section 1.11, as applicable, the
holder of
the Series B Note in respect of which such notice was given shall
(unless such
notice is validly withdrawn) thereafter be entitled to receive
solely the
applicable redemption or purchase price with respect to such Series
B Note. Such
consideration shall be paid to such holder in the manner and
subject to the
conditions set forth in Sections 1.10 and 1.11, respectively.
Series B Notes in
respect of which such notice has been given by the holder thereof
may not be
converted pursuant to this Article 1 on or after the date of the
delivery of
such notice unless such notice has first been validly
withdrawn.
An redemption election notice or Repurchase Notice may be
withdrawn
by means of a written notice of withdrawal delivered to the
Company's designated
representative in accordance with the provisions of, respectively,
Section 1.10
and 1.11 at any time prior to the close of business on the
Designated Event
Redemption Date or the Repurchase Date, as applicable,
specifying:
(a) the certificate number, if any, of the Series B Note in
respect
of which
such notice of withdrawal is being submitted, or the
appropriate
Depositary
information if the Series B Note in respect of which such
notice of
withdrawal is being submitted is represented by a Global Note,
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<PAGE>
(b) the principal amount of the Series B Note with respect to
which
such
notice of withdrawal is being submitted, and
(c) the principal amount, if any, of such Series B Note which
remains
subject to the original redemption election notice or
Repurchase
Notice, as
applicable, and which has been or will be delivered for
redemption
or purchase by the Company.
If the Trustee or other paying agent appointed by the Company,
or
the Company or a subsidiary or Affiliate of either of them if such
entity is
acting as the paying agent, holds cash sufficient to pay the
aggregate
redemption or purchase price of all the Series B Notes, or portions
thereof that
are to be redeemed or purchased as of the Designated Event
Redemption Date or
the Repurchase Date in accordance with Sections 1.10 and 1.11, as
applicable, on
the Business Day following such date (i) the Series B Notes will
cease to be
outstanding, (ii) interest on the Series B Notes will cease to
accrue, and (iii)
all other rights of the holders of such Series B Notes will
terminate, whether
or not book-entry transfer of the Series B Notes has been made or
the Series B
Notes have been delivered to the Trustee or other paying agent,
other than the
right to receive the redemption or purchase price upon delivery of
the Series B
Notes.
Section 1.17. Right to Convert
(a) Subject to and upon compliance with the provisions of the
Indenture, the holder of any Series B Note shall have the right to
convert the
principal amount of the Series B Note, or any portion of such
principal amount
which is a multiple of $1,000, into cash or a combination of cash
and fully paid
and non-assessable shares of Common Stock (as such shares shall
then be
constituted) by surrender of the Series B Note so to be converted
in whole or in
part, together with any required funds under the circumstances
described in this
Section 1.17, in the manner provided in Section 1.18. Each $1,000
of principal
amount of Series B Notes shall be convertible for cash equal to the
Principal
Return and, if the aggregate Conversion Value of the Series B Notes
being
converted exceeds the aggregate principle amount of Series B Notes
being
converted (such difference, the "NET SHARE AMOUNT"), the number of
whole shares
of Common Stock equal to the Net Share Amount divided by the
Average Market
Price, as determined by the Company and confirmed in writing to the
Trustee and
the Conversion Agent, all payable as set forth in Section 1.20. The
Series B
Notes shall be convertible only upon the occurrence of one of the
following
events:
(i) during any fiscal quarter commencing after March 31, 2005,
if the
Closing Sale Price exceeds 120% of the Conversion Price for at
least 20
Trading Days in the 30 consecutive Trading Day period ending on
the last
Trading Day of the immediately preceding fiscal quarter (it
being
understood
for purposes of this Section 1.17(a)(i) that the Conversion
Price in
effect at the close of business on each of the 30 consecutive
Trading
Days should be used and such calculation shall give effect to
any
event
referred to in Section 1.21 or 1.22 occurring during such 30
Trading
Day
period);
(ii) during the five Business Day period immediately after any
five
consecutive Trading Day period in which the Trading Price per
$1,000
principal
amount of the Series B Notes for each day of such five Trading
Day period
was less than 98% of
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<PAGE>
the
product of the Closing Sale Price on the applicable date and
the
Conversion
Rate; provided, however, the Series B Notes shall not be
convertible pursuant to this Section 1.17(a)(ii) after December 31,
2028
if on any
Trading Day during such five Trading Day period the Closing
Sale
Price was
between 100% and 120% of the then current Conversion Price (it
being
understood for purposes of this Section 1.17(a)(ii) that the
Conversion
Rate in effect at the close of business on each of the five
consecutive Trading Days should be used and such calculation shall
give
effect to
any event referred to in Section 1.21 or 1.22 occurring during
such five
Trading Day period);
(iii) if such Series B Note has been called for redemption, at
any time
on or after the date the notice of redemption has been given
until the
close of business on the Business Day immediately preceding the
redemption
date; or
(iv) as provided in Section (b) of this Section 1.17.
Upon receipt by the Conversion Agent of a demand for conversion
from
a Noteholder pursuant to clause (i) of this Section 1.17, the
Conversion Agent
shall inform the Company of such request and the Company shall
thereupon furnish
to the Conversion Agent an Officer's Certificate stating whether
the Series B
Notes are then convertible pursuant to clause (i) of this Section
and setting
forth in reasonable detail the Company's basis for such
determination. Upon
receipt of such Officer's Certificate, then the Conversion Agent
shall promptly
deliver written notice thereof to the Company (and, if the
Conversion Agent is
other than the Trustee, to the Trustee). In any event, the Company
shall be
obligated at all times to determine whether the Series B Notes
shall be
convertible as a result of the occurrence of an event specified in
clause (i) of
this Section 1.17. Whenever the Series B Notes shall become
convertible pursuant
to this Section 1.17, the Company or, at the Company's written
request, the
Trustee in the name and at the expense of the Company, shall notify
the holders
of the event triggering such convertibility in the manner provided
in Section
16.03 of the Original Indenture, and the Company shall also
publicly announce
such information and publish it on the Company's web site. Any
notice so given
shall be conclusively presumed to have been duly given, whether or
not the
holder receives such notice.
The Trustee (or other Conversion Agent appointed by the
Company)
shall have no obligation to determine the Trading Price under
clause (a)(ii) of
this Section 1.17 unless the Company has requested in writing such
a
determination; and the Company shall have no obligation to make
such request
unless a holder provides it with reasonable evidence that the
Trading Price per
$1,000 principal amount of Notes would be less than 98% of the
product of the
Closing Sale Price and the Conversion Rate. If such evidence is
provided, the
Company shall request in writing that the Trustee (or other
Conversion Agent)
determine the Trading Price of the Series B Notes beginning on the
next Trading
Day and on each successive Trading Day until the Trading Price per
$1,000
principal amount of Notes is greater than or equal to 98% of the
product of the
Closing Sale Price and the Conversion Rate. The Trustee shall not
be liable for
its determination of the Trading Price in compliance with the
methodology set
forth in this Section 1.17, except for any negligence or willful
misconduct of
the Trustee in making such determination.
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<PAGE>
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common
Stock rights or warrants entitling them (for a period expiring
within 45 days of the record date for the determination of the
stockholders entitled to receive such distribution) to subscribe
for
or purchase shares of Common Stock, at a price per share less
than
the average of the Closing Sale Price for the ten Trading Days
immediately preceding, but not including, the date such
distribution
is first publicly announced by the Company, or
(B) the Company distributes to all holders of its Common
Stock, assets (including cash), debt securities or rights to
purchase its securities, where the Fair Market Value of such
distribution per share of Common Stock exceeds 5% of the
Closing
Sale Price on the Trading Day immediately preceding the date
such
distribution is first publicly announced by the Company,
then, in
either case, the Series B Notes may be surrendered for
conversion
at any
time on and after the date that the Company gives notice to the
holders of
such distribution, which shall be not less than ten days prior
to the
Ex-Dividend Time for such distribution, until the earlier of
the
close of
business on the Business Day immediately preceding, but not
including,
the Ex-Dividend Time or the date the Company publicly announces
that such
distribution will not take place; provided that no adjustment
to
the
Conversion Rate or the ability of a holder of a Series B Note
to
convert
will be made if the holder will otherwise participate in such
distribution without conversion; or
(ii) the Company consolidates with, or merges with or into,
another
Person or is a party to a binding share exchange or conveys,
transfers,
sells, leases or otherwise disposes of all or substantially all
of its
properties and assets, in each case, pursuant to which the
Common
Stock
would be converted into cash, securities or other property, then
the
Series B
Notes may be surrendered for conversion at any time from and
after the
date 15 days prior to the anticipated effective date of the
transaction and ending on and including the date 15 days after
the
consummation of the transaction. The Board of Directors shall
determine
the
anticipated effective date of the transaction, and such
determination
shall be
conclusive and binding on the holders and shall be publicly
announced
by the Company and posted on its web site not later than two
Business
Days prior to such 15th day.
"EX-DIVIDEND TIME" means, with respect to any distribution on
shares
of Common Stock, the first date on which the Common Stock trades,
regular way,
on the principal securities market on which the Common Stock are
then traded
without the right to receive such distribution.
(c) A Series B Note in respect of which a holder is electing to
exercise its option to require redemption upon a Designated Event
pursuant to
Section 1.10(a) or repurchase pursuant to Section 1.11 may be
converted only if
such holder withdraws its election in accordance with Section 1.16.
A holder of
Series B Notes is not entitled to any rights of a holder of Common
Stock until
such holder has converted its, his or her Series B Notes to
Common
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<PAGE>
Stock, and only to the extent such Series B Notes are deemed to
have been
converted to Common Stock under this Article 1.
Section 1.18. Conversion Procedures. To convert a Series B Note,
a
holder must (a) furnish appropriate endorsements and transfer
documents if
required by the Note registrar or the Conversion Agent, (b) pay any
transfer or
similar tax, if required, (c) except as set forth in the final
paragraph of this
Section 1.18, pay funds equal to the interest payable on the next
interest
payment date, and (d) comply with DTC's procedures for converting a
beneficial
interest in a Global Note. The date, within the time periods set
forth in
Section 1.17, on which the holder satisfies all of those
requirements is the
"CONVERSION DATE." Except as provided in Section 1.21(j), the
Company shall
deliver to the holder through the Conversion Agent, as promptly as
practicable
following the Conversion Date, but in no event later than the third
Business Day
following the Company's determination of the Average Market Price,
cash or a
combination of cash and certificates for the number of whole shares
of Common
Stock issued pursuant to the settlement provisions in Section
1.20.
In the event that the Company calls the Series B Notes for
redemption under Section 1.06, holders may convert their Series B
Notes only
until the close of business on the Business Day immediately
preceding the
Redemption Date; provided that in the event that the Company does
not pay the
consideration for such redemption in accordance with the Indenture,
such Series
B Notes shall remain convertible in accordance with Section 1.08.
Any holder who
has delivered its Series B Notes for redemption or repurchase may
only convert
such Series B Notes, or portions thereof, after withdrawing its
redemption
election or Repurchase Notice in accordance with Section 1.16.
The Conversion Notice shall be completed by a Depositary
participant
on behalf of the beneficial holder. Conversion Notices may be
delivered and such
Series B Notes may be surrendered for conversion in accordance with
the
applicable procedures of the Depositary as in effect from time to
time. In order
to cause a Depositary participant to complete a Conversion Notice,
a beneficial
holder must complete, or cause to be completed, the appropriate
instruction form
for conversion pursuant to the Depositary's book-entry conversion
program. The
Person in whose name the Common Stock certificate, if any, is
registered shall
be deemed to be a shareholder of record at the close of business on
the
applicable Conversion Date; provided, however, that if any such
date is a date
when the stock transfer books of the Company are closed, such
Person shall be
deemed a shareholder of record as of the next Business Day on which
the stock
transfer books of the Company are open.
The Company's delivery to holders of the Conversion Value will
be
deemed to satisfy its obligation to pay thereto the principal
amount of the
Series B Notes and any accrued but unpaid interest attributable to
the period
from the most recent interest payment date to the Conversion
Date.
No payment or adjustment shall be made for dividends on, or
other
distributions with respect to, any Common Stock except as provided
in this
Article 1. Notwithstanding any provision to the contrary in the
Indenture,
Holders converting Series B Shares will not receive any cash
payment of interest
unless such conversion occurs between the applicable record date
and the
interest payment date to which it relates. On conversion of a
Series B Note,
except for
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<PAGE>
conversion during the period from the close of business on any
record date
immediately preceding any interest payment da
