Exhibit 4.2
NORTHWEST AIRLINES CORPORATION,
as Issuer,
NORTHWEST AIRLINES, INC.,
as Guarantor,
and
U.S. BANK NATIONAL ASSOCIATION,
as Trustee
7.625% Convertible Senior Notes due
2023
INDENTURE
Dated as of November 4, 2003
CROSS REFERENCE
TABLE*
|
TIA Section
|
|
Indenture Section
|
|
310(a)(1)
|
|
7.10
|
|
(a)(2)
|
|
7.10
|
|
(a)(3)
|
|
N.A.
|
|
(a)(4)
|
|
N.A.
|
|
(b)
|
|
7.08; 7.10
|
|
(c)
|
|
N.A.
|
|
311(a)
|
|
7.11
|
|
(b)
|
|
7.11
|
|
(c)
|
|
N.A.
|
|
312(a)
|
|
2.05
|
|
(b)
|
|
14.03
|
|
(c)
|
|
14.03
|
|
313(a)
|
|
7.06
|
|
(b)(1)
|
|
N.A.
|
|
(b)(2)
|
|
7.06
|
|
(c)
|
|
14.02
|
|
(d)
|
|
7.06
|
|
314(a)
|
|
4.02; 4.03; 14.02
|
|
(b)
|
|
N.A.
|
|
(c)(1)
|
|
14.04
|
|
(c)(2)
|
|
14.04
|
|
(c)(3)
|
|
N.A.
|
|
(d)
|
|
N.A.
|
|
(e)
|
|
14.05
|
|
(f)
|
|
N.A.
|
|
315(a)
|
|
7.01
|
|
(b)
|
|
7.05; 14.02
|
|
(c)
|
|
7.01
|
|
(d)
|
|
7.01
|
|
(e)
|
|
6.11
|
|
316(a) (last sentence)
|
|
2.08
|
|
(a)(1)(A)
|
|
6.05
|
|
(a)(1)(B)
|
|
6.04
|
|
(a)(2)
|
|
N.A.
|
|
(b)
|
|
6.07
|
|
317(a)(1)
|
|
6.08
|
|
(a)(2)
|
|
6.09
|
|
(b)
|
|
2.04
|
|
318(a)
|
|
14.01
|
N.A. means Not Applicable.
*
Note: This Cross Reference
Table shall not, for any purpose, be deemed to be part of the
Indenture.
TABLE OF CONTENTS*
*
Note: This Table of Contents
shall not, for any purpose, be deemed to be part of the
Indenture.
i
ii
iii
iv
v
INDENTURE, dated as of November 4,
2003, among NORTHWEST AIRLINES CORPORATION, a Delaware corporation
(the “ Company ”), NORTHWEST AIRLINES, INC., a
Minnesota corporation (the “ Guarantor ”), and
U.S. BANK NATIONAL ASSOCIATION, as trustee (the “
Trustee ”).
RECITALS OF THE
COMPANY
The Company has duly authorized the
creation of an issue of 7.625% Convertible Senior Notes due 2023
(the “ Notes ”), with the Guarantee (as defined
herein) endorsed thereon by the Guarantor, having the terms, tenor,
amount and other provisions hereinafter set forth, and, to provide
therefor, the Company has duly authorized the execution and
delivery of this Indenture.
All things necessary to make the
Securities, when the Notes and the Guarantee are duly executed by
the Company and the Guarantor, respectively, and the Notes are
authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company and the Guarantor,
and to make this Indenture a valid and binding agreement of the
Company, in accordance with their and its terms, have been
done. In addition, all things necessary to duly authorize the
issuance of the Common Stock of the Company issuable upon the
conversion of the Securities, and to duly reserve for issuance the
number of shares of Common Stock issuable upon such conversion,
have been done.
NOW, THEREFORE, THIS INDENTURE
WITNESSETH:
For and in consideration of the
premises and the purchase of the Securities by the Holders thereof,
it is mutually covenanted and agreed, for the equal and
proportionate benefit of all Holders of the Securities, as
follows:
SECTION
1.01
Definitions.
“ Accreted Principal
Amount ” of a Security means the Original Principal
Amount increased daily by the rate of 7.625% per year. Until
November 15, 2008, the Accreted Principal Amount per $1,000
Original Principal Amount of a Security will be equal to the
Original Principal Amount of $1,000. Commencing November 15,
2008, the Accreted Principal Amount will accrue daily at the rate
of 7.625% per year. The Accreted Principal Amount will
compound semiannually, not daily.
“ 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.
“ Applicable Procedures
” means, with respect to any transfer or transaction
involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, in each
case to the extent applicable to such transaction and as in effect
from time to time.
“ Average Sale Price
” means the average of the Closing Sale Prices of the Common
Stock for the shorter of
(i)
30 consecutive trading days ending
on the last full trading day prior to the Time of Determination
with respect to the rights, warrants or options or distribution in
respect of which the Average Sale Price is being calculated,
or
(ii)
the period (x) commencing on the
date next succeeding the first public announcement of (a) the
issuance of rights, warrants or options or (b) the distribution, in
each case, in respect of which the Average Sale Price is being
calculated and (y) proceeding through the last full trading day
prior to the Time of Determination with respect to the rights,
warrants or options or distribution in respect of which the Average
Sale Price is being calculated (excluding days within such period,
if any, which are not trading days), or
(iii)
the period, if any, (x) commencing
on the date next succeeding the Ex-Dividend Time with respect to
the next preceding (a) issuance of rights, warrants or options or
(b) distribution, in each case, for which an adjustment is required
by the provisions of Section 11.06(c), 11.07 or 11.08 and (y)
proceeding through the last full trading day prior to the Time of
Determination with respect to the rights, warrants or options or
distribution in respect of which the Average Sale Price is being
calculated (excluding days within such period, if any, which are
not trading days).
In the event that the Ex-Dividend
Time (or in the case of a subdivision, combination or
reclassification, the effective date with respect thereto) with
respect to a dividend, subdivision, combination or reclassification
to which Section 11.06(a), (b), (d) or (e) applies occurs during
the period applicable for calculating “ Average Sale
Price ” pursuant to the definition in the preceding
sentence, “ Average Sale Price ” shall be
calculated for such period in a manner determined by the Board of
Directors to reflect the impact of such dividend, subdivision,
combination or reclassification on the Closing Sale Price of the
Common Stock during such period.
“ Board of Directors
” means either the board of directors of the Company or the
Guarantor, as applicable, or any duly authorized committee of such
board.
“ Business Day ”
means each day of the year other than a Saturday or a Sunday or
other day on which banking institutions in The City of New York are
required or authorized to close.
“ Capital Stock ”
for any corporation means any and all shares, interests, rights to
purchase, warrants, options, participations or other equivalents of
or interests in (however designated) stock or other equity issued
by that corporation.
2
“ Certificated
Securities ” means any of the Securities that are in the
form of the Securities attached hereto as Exhibit A-3.
“ Closing Sale Price
” of Capital Stock on any date means (a) the closing per
share sale price (or, if no closing sale price is reported, the
average of the bid and ask prices or, if more than one in either
case, the average of the average bid and the average ask prices) on
such date on the United States principal national securities
exchange on which the Capital Stock is traded or, if the Capital
Stock is not listed on a United States national or regional
securities exchange, as reported by the National Association of
Securities Dealers Automated Quotation System or by the National
Quotation Bureau Incorporated or (b) in the absence of such
quotation, such price as the Company shall determine on the basis
of such quotations as the Company considers appropriate.
“ Common Stock ”
shall mean the shares of common stock, $0.01 par value, of the
Company as it exists on the date of this Indenture or any other
shares of Capital Stock of the Company into which the Common Stock
shall be reclassified or changed.
“ Company ” means
the party named as the “ Company ” in the first
paragraph of this Indenture until a successor replaces it pursuant
to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall
likewise apply to any subsequent such successor or
successors.
“ Company Request
” or “ Company Order ” means a written
request or order signed in the name of the Company by any two
Officers.
“ Corporate Trust
Office ” means the principal office of the Trustee at
which at any time its corporate trust business shall be
administered, which office at the date hereof is located at 1
Federal Street, Boston, Massachusetts 02110, Attention:
Corporate Trust Division, or such other address as the Trustee may
designate from time to time by notice to the Company, or the
principal corporate trust office of any successor Trustee (or such
other address as a successor Trustee may designate from time to
time by notice to the Company).
“ Default ” means
any event which is, or after notice or passage of time or both
would be, an Event of Default.
“ Exchange Act ”
means the Securities Exchange Act of 1934, as amended.
“ Global Securities
” means any of the Securities that are in the form of the
Securities attached hereto as Exhibit A-1, and that are deposited
with and registered in the name of the Depositary, representing
Securities sold in reliance on Rule 144A and Regulation S
under the Securities Act.
“ Guarantee ”
means the guarantee of the Guarantor as endorsed on each Security
authenticated and delivered pursuant to this Indenture and shall
include the Guarantee set forth in Article 13 of this Indenture and
all other obligations and covenants of the Guarantee contained in
this Indenture and the Securities.
3
“ Guarantor ”
means the party named as the “ Guarantor ” in
the first paragraph of this Indenture until a successor replaces it
pursuant to the applicable provisions of this Indenture and,
thereafter, shall mean such successor. The foregoing sentence
shall likewise apply to any subsequent such successor or
successors.
“ Holder ” or
“ Securityholder ” means a person in whose name
a Security is registered on the Registrar’s books.
“ Indenture ”
means this Indenture, as amended or supplemented from time to time
in accordance with the terms hereof, including the provisions of
the TIA that are deemed to be a part hereof.
“ Interest Payment Date
” means May 15 and November 15 of each year, commencing
May 15, 2004 until (subject to Article 10 hereof) November 15,
2008.
“ Issue Date ” of
any Security means the date on which the Security was originally
issued or deemed issued as set forth on the face of the
Security.
“ Issue Price ”
of any Security means, in connection with the original issuance of
such Security, the initial issue price at which the Security is
sold as set forth on the face of the Security.
“ Notes ” means
any of the Company’s 7.625% Convertible Senior Notes due
2023, as amended or supplemented from time to time, issued under
this Indenture.
“ Officer ” means
the Chairman of the Board of Directors, the Vice Chairman, the
Chief Executive Officer, the President, any Executive Vice
President, any Senior Vice President, any Vice President, the
Treasurer or the Secretary or any Assistant Treasurer or Assistant
Secretary of the Company or the Guarantor, as
applicable.
“ Officers’
Certificate ” means a written certificate containing the
information specified in Sections 14.04 and 14.05, signed in the
name of the Company or the Guarantor, as applicable, by any two
Officers, and delivered to the Trustee. An Officers’
Certificate given pursuant to Section 4.03 shall be signed by the
principal executive financial or accounting officer of the Company
or the Guarantor, as the case may be, but need not contain the
information specified in Sections 14.04 and 14.05.
“ Opinion of Counsel
” means a written opinion containing the information
specified in Sections 14.04 and 14.05, from legal counsel who is
reasonably acceptable to the Trustee. The counsel may be an
employee of, or counsel to, the Company or the Trustee.
“ Original Principal
Amount ” of each Security means the original principal
amount as set forth on the face of the Security.
“ person ” or
“ Person ” means any individual, corporation,
limited liability company, partnership, joint venture, association,
joint-stock company, trust, unincorporated organization, or
government or any agency or political subdivision
thereof.
4
“ Principal ”,
“ Principal Amount ” or “ principal
amount ” of a Security on any date means the Accreted
Principal Amount of such Security on such date.
“ Redemption Date
” or “ redemption date ” means the date
specified for redemption of the Securities in accordance with the
terms of the Securities and this Indenture.
“ Redemption Price
” or “ redemption price ” shall have the
meaning set forth in paragraph 6 of the Securities.
“ Regular Record Date
” means each May 1 and November 1 (whether or not a Business
Day).
“ Regulation S ”
means Regulation S under the Securities Act (or any successor
regulation having substantially similar provisions), as it may be
amended from time to time.
“ Responsible Officer
” means, when used with respect to the Trustee, any officer
within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary,
trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at
the time shall be such officers, respectively, or to whom any
corporate trust matter is referred because of such person’s
knowledge of and familiarity with the particular subject and who,
in each case, shall have direct responsibility for the
administration of this Indenture.
“ Restricted Security
” means a Security required to bear the restrictive legend
set forth in the form of Security set forth in Exhibits A-1 and A-3
of this Indenture.
“ Rule 144 ”
means Rule 144 under the Securities Act (or any successor rule
having substantially similar provisions), as it may be amended from
time to time.
“ Rule 144A
” means Rule 144A under the Securities Act (or any
successor rule having substantially similar provisions), as it may
be amended from time to time.
“ SEC ” means the
United States Securities and Exchange Commission.
“ Securities ”
means the Notes and the Guarantee collectively.
“ Securities Act
” means the Securities Act of 1933, as amended.
“ Securityholder
” or “ Holder ” means a person in whose
name a Security is registered on the Registrar’s
books.
“ Significant
Subsidiary ” means “significant subsidiary”,
as such term is defined in Rule 1-02 of Regulation S-X under the
Securities Act of 1933, as amended.
“ Special Record Date
” means, with respect to, the payment of any Defaulted
Interest, the date fixed by the Trustee pursuant to Section
12.02.
5
“ Stated Maturity
”, when used with respect to any Security, means the date
specified in such Security as the final fixed date on which the
fully Accreted Principal Amount of such Security is due and
payable.
“ Subsidiary ”
means (i) a corporation, a majority of whose Capital Stock with
voting power, under ordinary circumstances, to elect directors is,
at the date of determination, directly or indirectly owned by the
Company, by one or more Subsidiaries of the Company or by the
Company and one or more Subsidiaries of the Company, (ii) a
partnership in which the Company or a Subsidiary of the Company
holds a majority interest in the equity capital or profits of such
partnership, or (iii) any other person (other than a corporation or
a partnership) in which the Company, a Subsidiary of the Company or
the Company and one or more Subsidiaries of the Company, directly
or indirectly, at the date of determination, has (x) at least a
majority ownership interest or (y) the power to elect or direct the
election of a majority of the directors or other governing body of
such person.
“ Tax Event ”
means that the Company shall have received an opinion from
independent tax counsel experienced in such matters to the effect
that as a result of (a) any amendment to, or change (including any
announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or
taxing authority thereof or therein or (b) any amendment to, or
change in, an interpretation or application of such laws or
regulations by any legislative body, court, governmental agency or
regulatory authority, in each case which amendment or change is
enacted, promulgated, issued or announced or which interpretation
is issued or announced or which action is taken, on or after
November 15, 2008, there is more than an insubstantial risk that
accruals of Accreted Principal Amount payable on the Securities
either (i) would not be deductible on a current accrual basis or
(ii) would not be deductible under any other method, in either case
in whole or in part, by the Company (by reason of deferral,
disallowance, or otherwise) for United States federal income tax
purposes.
“ Tax Original Issue
Discount ” means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for
United States federal income tax purposes.
“ TIA ” or
“ Trust Indenture Act ” means the Trust
Indenture Act of 1939 as in effect on the date of this Indenture,
provided, however, that in the event the TIA is amended after such
date, TIA means, to the extent required by any such amendment, the
TIA as so amended.
“ Time of Determination
” means the time and date of the earlier of (i) the
determination of stockholders entitled to receive rights, warrants
or options or a distribution, in each case, to which Section 11.07
or 11.08 applies and (ii) the time (“ Ex-Dividend Time
”) immediately prior to the commencement of
“ex-dividend” trading for such rights, warrants or
options or distribution on the Nasdaq National Market or such other
national or regional exchange or market on which the Common Stock
is then listed or quoted.
“ trading day ”
means a day during which the New York Stock Exchange is open for
trading or, if the applicable security is quoted on the Nasdaq
National Market, a day on which trades may be made on such market
or, if the applicable security is not so listed, admitted for
trading or quoted, any Business Day.
6
“ Trustee ” means
the party named as the “ Trustee ” in the first
paragraph of this Indenture until a successor replaces it pursuant
to the applicable provisions of this Indenture and, thereafter,
shall mean such successor. The foregoing sentence shall
likewise apply to any subsequent such successor or
successors.
SECTION
1.02
Other Definitions.
|
Term
|
|
Defined in
Section
|
|
|
|
|
|
|
|
“ Act ”
|
|
1.05(a)
|
|
|
“ Agent Members ”
|
|
2.12(f)
|
|
|
“ Bankruptcy Law ”
|
|
6.01
|
|
|
“ Calculation Agent
”
|
|
2.03
|
|
|
“ Company Repurchase Notice
”
|
|
3.09(d)
|
|
|
“ Company Repurchase Notice Date
”
|
|
3.09(b)
|
|
|
“ Conversion Agent
”
|
|
2.03
|
|
|
“ Conversion Date
”
|
|
11.02
|
|
|
“ Conversion Rate
”
|
|
11.01
|
|
|
“ Custodian ”
|
|
6.01
|
|
|
“ Defaulted Interest
”
|
|
12.02
|
|
|
“ Depositary ”
|
|
2.01(a)
|
|
|
“ DTC ”
|
|
2.01(a)
|
|
|
“ Event of Default
”
|
|
6.01
|
|
|
“ Ex-Dividend Date
”
|
|
11.08(b)
|
|
|
“ Ex-Dividend Time
”
|
|
1.01
|
|
|
“ Expiration Time
”
|
|
11.09
|
|
|
“ Fundamental Change
”
|
|
3.14(a)
|
|
|
“ Fundamental Change Expiration
Time ”
|
|
3.14(a)
|
|
|
“ Fundamental Change Redemption
Date ”
|
|
3.14(a)
|
|
|
“ Fundamental Change Notice
”
|
|
3.14(b)
|
|
|
“ Fundamental Change Redemption
Price ”
|
|
3.14(a)
|
|
|
“ Legal Holiday ”
|
|
14.09
|
|
|
“ Legend ”
|
|
2.06(f)
|
|
|
“ Notice of Default
”
|
|
6.01
|
|
|
“ Option Exercise Date
”
|
|
10.01
|
|
|
“ Paying Agent ”
|
|
2.03
|
|
|
“ Purchased Shares
”
|
|
11.09
|
|
|
“ Protected Purchaser
”
|
|
2.07
|
|
|
“ QIBs ”
|
|
2.01(a)
|
|
|
“ Registrar ”
|
|
2.03
|
|
|
“ Repurchase Date
”
|
|
3.08(a)
|
|
|
“ Repurchase Notice
”
|
|
3.08(a)
|
|
|
“ Repurchase Price
”
|
|
3.08(a)
|
|
|
“ Restated Principal Amount
”
|
|
10.01
|
|
|
“ Rights ”
|
|
11.20
|
|
|
“ Rights Agreement
”
|
|
11.20
|
|
7
|
“ Rule 144A Information
”
|
|
4.06
|
|
|
“ Special Record Date
”
|
|
12.02
|
|
|
“ Tax Event Date ”
|
|
10.01
|
|
SECTION
1.03
Incorporation by Reference of Trust Indenture Act .
Whenever this Indenture refers to a provision of the TIA, the
provision is incorporated by reference in and made a part of this
Indenture. The following TIA terms used in this Indenture
have the following meanings:
“ Commission ”
means the SEC.
“ indenture securities
” means the Securities.
“ indenture security
holder ” means a Securityholder.
“ indenture to be
qualified ” means this Indenture.
“ indenture trustee
” or “ institutional trustee ” means the
Trustee.
“ obligor ” on
the indenture securities means the Company and on the Guarantee
means the Guarantor.
All other TIA terms used in this
Indenture that are defined by the TIA, defined by TIA reference to
another statute or defined by SEC rule have the meanings assigned
to them by such definitions.
SECTION
1.04
Rules of Construction . Unless the context otherwise
requires:
(1)
a defined term has the meaning
assigned to it;
(2)
an accounting term not otherwise
defined has the meaning assigned to it in accordance with United
States generally accepted accounting principles as in effect from
time to time;
(3)
“ or ” is not
exclusive;
(4)
“ including ”
means including, without limitation; and
(5)
words in the singular include the
plural, and words in the plural include the singular.
(a)
Any request,
demand, authorization, direction, notice, consent, waiver or other
action provided by this Indenture to be given or taken by Holders
may be embodied in and evidenced by one or more instruments (which
may take the form of an electronic writing or messaging or
otherwise be in accordance with customary procedures of the
Depositary or the Trustee) of substantially similar tenor signed by
such Holders in person or by their agent duly
8
appointed in writing (which
may be in electronic form); and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, when it
is hereby expressly required, to the Company or the
Guarantor. Such instrument or instruments (and the action
embodied therein and evidenced thereby) are herein sometimes
referred to as the “ Act ” of Holders signing
such instrument or instruments. Proof of execution of any
such instrument or of a writing appointing any such agent (either
of which may be in electronic form) shall be sufficient for any
purpose of this Indenture and conclusive in favor of the Trustee,
the Company and the Guarantor, if made in the manner provided in
this Section.
(b)
The fact and date
of the execution by any Person of any such instrument or writing
may be proved by the affidavit of a witness of such execution (or
electronic delivery) or by a certificate of a notary public or
other officer authorized by law to take acknowledgments of deeds,
certifying that the individual signing or delivering such
instrument or writing acknowledged to such officer the execution
(or electronic delivery) thereof. When such execution is by a
signer acting in a capacity other than such signer’s
individual capacity, such certificate or affidavit shall also
constitute sufficient proof of such signer’s authority.
The fact and date of the execution of any such instrument or
writing (electronic or otherwise), or the authority of the Person
executing the same, may also be proved in any other manner that the
Trustee deems sufficient.
(c)
The ownership of
Securities shall be proved by the register maintained by the
Registrar.
(d)
Any request,
demand, authorization, direction, notice, consent, waiver or other
Act of the Holder of any Security shall bind every future Holder of
the same Security and the holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done
by the Trustee, the Company or the Guarantor in reliance thereon,
whether or not notation of such action is made upon such
Security.
(e)
If the Company
shall solicit from the Holders any request, demand, authorization,
direction, notice, consent, waiver or other Act, the Company may,
at its option, by or pursuant to a resolution of the Board of
Directors, fix in advance a record date for the determination of
Holders entitled to give such request, demand, authorization,
direction, notice, consent, waiver or other Act, but the Company
shall have no obligation to do so. If such a record date is
fixed, such request, demand, authorization, direction, notice,
consent, waiver or other Act may be given before or after such
record date, but only the Holders of record at the close of
business on such record date shall be deemed to be Holders for the
purposes of determining whether Holders of the requisite proportion
of outstanding Securities have authorized or agreed or
consented to such request, demand, authorization, direction,
notice, consent, waiver or other Act, and for that purpose the
outstanding Securities shall be computed as of such record date;
provided that no such authorization, agreement or consent by the
Holders on such record date shall be deemed effective unless it
shall become effective pursuant to the provisions of this Indenture
within six months after the record date.
9
SECTION
2.01 Form
and Dating . The Securities and the Trustee’s
certificate of authentication shall be substantially in the form of
Exhibits A-1 and A-3, which are a part of this Indenture. The
Securities may have notations, legends or endorsements required by
law, stock exchange rule or usage (provided that any such notation,
legend or endorsement required by usage is in a form acceptable to
the Company). The Company shall provide any such notations,
legends or endorsements to the Trustee in writing. Each
Security shall be dated the date of its authentication.
(a)
Global
Securities . Securities offered
and sold within the United States to “qualified institutional
buyers” as defined in Rule 144A (“ QIBs
”) in reliance on Rule 144A or in offshore transactions
in reliance on Regulation S shall be issued, initially in the form
of a Global Security, which shall be deposited with the Trustee at
its Corporate Trust Office, as custodian for the Depositary and
registered in the name of The Depository Trust Company (“
DTC ”) or the nominee thereof (such depositary, or any
successor thereto, and any such nominee being hereinafter referred
to as the “ Depositary ”) duly executed by the
Company and authenticated by the Trustee as hereinafter
provided. The aggregate Original Principal Amount of the
Global Securities may from time to time be increased or decreased
by adjustments made on the records of the Trustee and the
Depositary as hereinafter provided.
(b)
Global
Securities in General . Except as provided in
this Section 2.01, 2.06 or 2.12, owners of beneficial interests in
Global Securities will not be entitled to receive physical delivery
of Certificated Securities. Each Global Security shall
represent such of the outstanding Securities as shall be specified
therein and each shall provide that it shall represent the
aggregate Original Principal Amount of outstanding Securities from
time to time endorsed thereon and that the aggregate Original
Principal Amount of outstanding Securities represented thereby may
from time to time be reduced or increased, as appropriate, to
reflect exchanges, redemptions and conversions.
Any adjustment of the aggregate
Original Principal Amount of a Global Security to reflect the
amount of any increase or decrease in the Original Principal Amount
of outstanding Securities represented thereby shall be made by the
Trustee in accordance with instructions given by the Holder thereof
as required by Section 2.12 hereof and shall be made on the records
of the Trustee and the Depositary.
(c)
Book-Entry
Provisions . This Section 2.01(c)
shall apply only to Global Securities deposited with or on behalf
of the Depositary.
The Company shall execute, the
Guarantor shall endorse and the Trustee shall, in accordance with
this Section 2.01(c), authenticate and deliver initially one or
more Global Securities that (a) shall be registered in the name of
the Depositary, (b) shall be delivered by the Trustee to the
Depositary or pursuant to the Depositary’s instructions or
held by the Trustee as custodian for such Depositary and (c) shall
bear legends substantially to the following effect:
10
UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR THE INDIVIDUAL NOTES REPRESENTED HEREBY, THIS
SECURITY MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO
THE DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.
UNLESS THIS CERTIFICATE IS PRESENTED
BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY, A
NEW YORK CORPORATION (“DTC”), TO THE ISSUER OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE, OR PAYMENT, AND ANY
CERTIFICATE ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR
IN SUCH OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE
OF DTC (AND ANY PAYMENT IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC), ANY
TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER HEREOF,
CEDE & CO., HAS AN INTEREST HEREIN.
THIS SECURITY HAS NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933, AS
AMENDED (THE “SECURITIES ACT”), AND ACCORDINGLY, MAY
NOT BE OFFERED OR SOLD EXCEPT AS SET FORTH IN THE FOLLOWING
SENTENCE. BY ITS ACQUISITION HEREOF, THE HOLDER (1)
REPRESENTS THAT (A) IT IS A “QUALIFIED INSTITUTIONAL
BUYER” (AS DEFINED IN RULE 144A ADOPTED UNDER THE SECURITIES
ACT) OR (B) IT IS NOT A U.S. PERSON AND IS ACQUIRING THIS SECURITY
IN AN OFFSHORE TRANSACTION IN COMPLIANCE WITH REGULATION S ADOPTED
UNDER THE SECURITIES ACT; (2) AGREES THAT IT WILL NOT WITHIN TWO
YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT (A) TO THE
ISSUER OR A SUBSIDIARY THEREOF; (B) TO A QUALIFIED INSTITUTIONAL
BUYER IN COMPLIANCE WITH RULE 144A ADOPTED UNDER THE SECURITIES ACT
(IF AVAILABLE); (C) TO PERSONS OTHER THAN U.S. PERSONS OUTSIDE THE
UNITED STATES IN COMPLIANCE WITH REGULATION S UNDER THE SECURITIES
ACT, (D) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY
RULE 144 ADOPTED UNDER THE SECURITIES ACT OR ANOTHER AVAILABLE
EXEMPTION UNDER THE SECURITIES ACT (IF AVAILABLE), OR (E) PURSUANT
TO AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT;
AND (3) AGREES THAT IT WILL, PRIOR TO ANY TRANSFER OF THIS SECURITY
WITHIN TWO YEARS AFTER THE ORIGINAL ISSUANCE OF THIS SECURITY,
FURNISH TO THE TRUSTEE AND THE ISSUER SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS MAY BE REQUIRED PURSUANT TO THE
INDENTURE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO
AN EXEMPTION FROM, OR IN A TRANSACTION
11
NOT SUBJECT TO, THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT. AS USED HEREIN, THE TERMS
“OFFSHORE TRANSACTION,” “UNITED STATES” AND
“U.S. PERSON” HAVE THE MEANINGS GIVEN TO THEM BY
REGULATION S UNDER THE SECURITIES ACT. IN ANY CASE, THE
HOLDER HEREOF WILL NOT, DIRECTLY OR INDIRECTLY, ENGAGE IN ANY
HEDGING TRANSACTION WITH REGARD TO THIS SECURITY OR ANY COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY, EXCEPT AS
PERMITTED BY THE SECURITIES ACT.
(d)
Certificated
Securities . Securities not issued
as interests in the Global Securities will be issued in
certificated form substantially in the form of Exhibit A-3 attached
hereto.
(e)
U.S. Tax
Legend . All Securities shall
bear the following legend:
FOR PURPOSES OF SECTIONS 1272, 1273
AND 1275 OF THE UNITED STATES INTERNAL REVENUE CODE OF 1986, AS
AMENDED, THIS SECURITY IS ISSUED WITH ORIGINAL ISSUE DISCOUNT FOR
UNITED STATES FEDERAL INCOME TAX PURPOSES. THE ISSUE DATE IS
NOVEMBER 4, 2003, AND THE YIELD TO MATURITY FOR PURPOSES OF
ACCRUING ORIGINAL ISSUE DISCOUNT IS 7.625% PER ANNUM.
SECTION
2.02
Execution and Authentication . The Notes shall be
executed on behalf of the Company by any Officer and the Guarantee
endorsed thereon on behalf of the Guarantor by an Officer.
The signature of the Officer of the Company on the Notes and of the
Guarantor on the Guarantee may be manual or facsimile.
Securities bearing the manual or
facsimile signatures of an individual who was at the time of the
execution of the Securities the proper Officer of the Company or
the Guarantor, as the case may be, shall bind the Company and the
Guarantor, notwithstanding that such individual has ceased to hold
such office prior to the authentication and delivery of such
Securities or did not hold such office at the date of
authentication of such Securities.
No Security shall be entitled to any
benefit under this Indenture or be valid or obligatory for any
purpose unless there appears on such Security a certificate of
authentication substantially in the form provided for herein duly
executed by the Trustee by manual signature of an authorized
signatory of the Trustee and such certificate upon any Security
shall be conclusive evidence, and the only evidence, that such
Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and
deliver Securities for original issue in an aggregate Original
Principal Amount of up to $270,000,000 upon one or more Company
Orders without any further action by the Company. The
aggregate Original Principal Amount of Securities outstanding at
any time may not exceed the amount set forth in the foregoing
sentence, except as provided in Section 2.07.
The Securities shall be issued only
in registered form without coupons and only in denominations of
$1,000 of Original Principal Amount and any integral multiple
thereof.
12
SECTION
2.03
Registrar, Paying Agent and Conversion Agent. The
Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange (“
Registrar ”), an office or agency where Securities may
be presented for purchase or payment (“ Paying Agent
”), an office or agency where all calculations in respect of
the Securities shall be made (“ Calculation Agent
”), and an office or agency where Securities may be presented
for conversion (“ Conversion Agent ”). The
Registrar shall keep a register of the Securities and of their
transfer and exchange. The Company may have one or more
co-registrars, one or more additional paying agents and one or more
additional conversion agents. The term Paying Agent includes
any additional paying agent, including any named pursuant to
Section 4.05. The term Conversion Agent includes any
additional conversion agent, including any named pursuant to
Section 4.05.
The Company shall enter into an
appropriate agency agreement with any Registrar or co-registrar,
Paying Agent or Conversion Agent (other than the Trustee).
The agreement shall implement the provisions of this Indenture that
relate to such agent. The Company shall notify the Trustee of
the name and address of any such agent. If the Company fails
to maintain a Registrar, Paying Agent or Conversion Agent, the
Trustee shall act as such and shall be entitled to appropriate
compensation therefor pursuant to Section 7.07. The Company
or any Subsidiary or an Affiliate of either of them may act as
Paying Agent, Registrar, Conversion Agent or
co-registrar.
The Company initially appoints the
Trustee as Calculation Agent, Registrar, Conversion Agent and
Paying Agent in connection with the Securities.
SECTION
2.04
Paying Agent to Hold Money and Securities in Trust .
Except as otherwise provided herein, not later than 10:00 a.m., New
York City time, on each due date of payments in respect of any
Security, the Company shall deposit with the Paying Agent a sum of
money (in immediately available funds if deposited on the due date)
or Common Stock sufficient to make such payments when so becoming
due. The Company shall require each Paying Agent (other than
the Trustee) to agree in writing that the Paying Agent shall hold
in trust for the benefit of Securityholders or the Trustee all
money and Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee
of any default by the Company in making any such payment. At
any time during the continuance of any such default, the Paying
Agent shall, upon the written request of the Trustee, forthwith pay
to the Trustee all money and Common Stock so held in trust.
If the Company, a Subsidiary or an Affiliate of either of them acts
as Paying Agent, it shall segregate the money and Common Stock held
by it as Paying Agent and hold it as a separate trust fund.
The Company at any time may require a Paying Agent to pay all money
and Common Stock held by it to the Trustee and to account for any
funds and Common Stock disbursed by it. Upon doing so, the
Paying Agent shall have no further liability for the money or
Common Stock.
SECTION
2.05
Securityholder Lists . The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list
available to it of the names and addresses of
Securityholders. If the Trustee is not the Registrar, the
Company shall cause to be furnished to the Trustee at least
semiannually on May 1 and November 1 a listing of Securityholders
dated within 15 days of the date on which the list is furnished and
at such other times as the Trustee
13
may request in writing a list in such form and
as of such date as the Trustee may reasonably require of the names
and addresses of Securityholders.
SECTION
2.06
Transfer and Exchange .
(a)
Subject to
Section 2.12 hereof, upon surrender for registration of transfer of
any Security, together with a written instrument of transfer
satisfactory to the Registrar duly executed by the Securityholder
or such Securityholder’s attorney duly authorized in writing,
at the office or agency of the Company designated as Registrar or
co-registrar pursuant to Section 2.03, the Company shall execute,
the Guarantor shall endorse and the Trustee upon receipt of a
Company Order shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Securities of
any authorized denomination or denominations, of a like aggregate
Original Principal Amount. The Company shall not charge a
service charge for any registration of transfer or exchange, but
the Company may require payment of a sum sufficient to pay all
taxes, assessments or other governmental charges that may be
imposed in connection with the registration of transfer or exchange
of the Securities from the Securityholder requesting such
registration of transfer or exchange.
Subject to Section 2.12 hereof, at
the option of the Holder, Securities may be exchanged for other
Securities of any authorized denomination or denominations, of a
like aggregate Original Principal Amount, upon surrender of the
Securities to be exchanged, together with a written instrument of
transfer satisfactory to the Registrar duly executed by the
Securityholder or such Securityholder’s attorney duly
authorized in writing, at such office or agency. Whenever any
Securities are so surrendered for exchange, the Company shall
execute, the Guarantor shall endorse and the Trustee upon receipt
of a Company Order shall authenticate and deliver, the Securities
that the Holder making the exchange is entitled to
receive.
The Company shall not be required to
make, and the Registrar need not register, transfers or exchanges
of Securities selected for redemption (except, in the case of
Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Repurchase Notice
or Fundamental Change Notice has been given and not withdrawn by
the Holder thereof in accordance with the terms of this Indenture
(except, in the case of Securities to be purchased in part, the
portion thereof not to be purchased) or any Securities for a period
of 15 days before the mailing of a notice of redemption of
Securities to be redeemed.
(b)
Notwithstanding
any provision to the contrary herein, so long as a Global Security
remains outstanding and is held by or on behalf of the Depositary,
transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.12 and this Section
2.06(b). Transfers of a Global Security shall be limited to
transfers of such Global Security in whole, or in part, to nominees
of the Depositary or to a successor of the Depositary or such
successor’s nominee.
(c)
Successive
registrations and registrations of transfers and exchanges as
aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the
Securities.
14
(d)
Any Registrar
appointed pursuant to Section 2.03 hereof shall provide to the
Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon
registration of transfer or exchange of Securities.
(e)
No Registrar
shall be required to make registrations of transfer or exchange of
Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such
registration of transfers and exchanges need not be
made.
(f)
If Securities are
issued upon the registration of transfer, exchange or replacement
of Securities subject to restrictions on transfer and bearing the
legends set forth on the form of Security attached hereto as
Exhibits A-1 and A-3 setting forth such restrictions (collectively,
the “ Legend ”), or if a request is made to
remove the Legend on a Security, the Securities so issued shall
bear the Legend, or the Legend shall not be removed, as the case
may be, unless there is delivered to the Company and the Registrar
such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the
Registrar, that neither the Legend nor the restrictions on transfer
set forth therein are required to ensure that transfers thereof
comply with the provisions of Rule 144A or Rule 144 or
that such Securities are not “restricted” within the
meaning of Rule 144. Upon (i) provision of such
satisfactory evidence or (ii) notification by the Company to the
Trustee and Registrar of the sale of such Security pursuant to a
registration statement that is effective at the time of such sale,
the Trustee, upon receipt of a Company Order, shall authenticate
and deliver a Security that does not bear the Legend. If the
Legend is removed from the face of a Security and the Security is
subsequently held by an Affiliate of the Company, the Company shall
use its reasonable best efforts to reinstate the
Legend.
The Trustee and the Registrar shall
have no obligation or duty to monitor, determine or inquire as to
compliance with any restrictions on transfer imposed under this
Indenture or under applicable law with respect to any transfer of
any interest in any Security (including any transfers between or
among Depositary participants or beneficial owners of interests in
any Global Security) other than to require delivery of such
certificates and other documentation or evidence as are expressly
required by, and to do so if and when expressly required by the
terms of, this Indenture, and to examine the same to determine
substantial compliance as to form with the express requirements
hereof.
SECTION
2.07
Replacement Securities . If (a) any mutilated Security
is surrendered to the Trustee or (b) the Company and the Trustee
receive evidence to their satisfaction of the destruction, loss or
theft of any Security, and there is delivered to the Company and
the Trustee such security or indemnity as may be required by them
to save each of them harmless, then, in the absence of notice to
the Company or the Trustee that such Security has been acquired by
a protected purchaser within the meaning of Article 8 of the
Uniform Commercial Code (a “ Protected Purchaser
”), the Company shall execute, the Guarantor shall endorse
and upon receipt of a Company Order, the Trustee shall authenticate
and deliver, in exchange for any such mutilated Security or in lieu
of any such destroyed, lost or stolen Security, a new Security of
like tenor and Original Principal Amount, bearing a number not
contemporaneously outstanding.
15
In case any such mutilated,
destroyed, lost or stolen Security has become or is about to become
due and payable, or is about to be purchased by the Company
pursuant to Article 3 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security,
as the case may be.
Upon the issuance of any new
Securities under this Section, the Company may require the payment
of a sum sufficient to cover any tax or other governmental charge
that may be imposed in relation thereto and any other expenses
(including the fees and expenses of the Trustee) in connection
therewith.
Every new Security issued pursuant
to this Section in lieu of any mutilated, destroyed, lost or stolen
Security shall constitute an original additional contractual
obligation of the Company and the Guarantor, whether or not the
destroyed, lost or stolen Security shall be at any time enforceable
by anyone, and shall be entitled to all benefits of this Indenture
equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are
exclusive and shall preclude (to the extent lawful) all other
rights and remedies with respect to the replacement or payment of
mutilated, destroyed, lost or stolen Securities.
SECTION
2.08
Outstanding Securities; Determinations of Holders’
Action . Securities outstanding at any time are all the
Securities authenticated by the Trustee, except for those cancelled
by it, those paid pursuant to Section 2.10 and delivered to it for
cancellation and those described in this Section 2.08 as not
outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security;
provided, however, that in determining whether the Holders of the
requisite Original Principal Amount of Securities have given or
concurred in any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any
other obligor upon the Securities or any Affiliate of the Company
or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall
be protected in relying upon any such request, demand,
authorization, direction, notice, consent or waiver, only
Securities which a Responsible Officer of the Trustee actually
knows to be so owned shall be so disregarded. Subject to the
foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination
(including, without limitation, determinations pursuant to Articles
6 and 9).
If a Security is replaced pursuant
to Section 2.07, the replaced Security ceases to be outstanding
unless the Trustee and the Company receive proof satisfactory to
each of them that the replaced Security is held by a Protected
Purchaser unaware that such Security has been replaced, in which
case the replacement security shall be deemed not to be
outstanding.
If the Paying Agent holds, in
accordance with this Indenture, on a Redemption Date, or on the
Business Day following the Repurchase Date or a Fundamental Change
Redemption Date, or on Stated Maturity, money or securities, if
permitted hereunder, sufficient to pay Securities payable on that
date, then immediately after such Redemption Date, Repurchase Date,
Fundamental Change Redemption Date or Stated Maturity, as the case
may be, such Securities shall cease to be outstanding and the
Accreted Principal Amount of such
16
Securities, shall cease to increase, and cash
interest (if any) on such Securities shall cease to accrue;
provided, that if such Securities are to be redeemed, notice of
such redemption has been duly given pursuant to this
Indenture.
If a Security is converted in
accordance with Article 11, then from and after the time of
conversion on the Conversion Date, such Security shall cease to be
outstanding and the Accreted Principal Amount of such Security
shall cease to increase, and cash interest (if any) shall cease to
accrue on such Security.
SECTION
2.09
Temporary Securities . Pending the preparation of
definitive Securities, the Company may execute, the Guarantor may
endorse and, upon Company Order, the Trustee shall authenticate and
deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized
denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such
appropriate insertions, omissions, substitutions and other
variations as the officers executing such Securities may determine,
as conclusively evidenced by their execution of such
Securities.
If temporary Securities are issued,
the Company will cause definitive Securities to be prepared without
unreasonable delay. After the preparation of definitive
Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at
the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities
the Company shall execute, the Guarantor shall endorse and, upon
Company Order, the Trustee shall authenticate and deliver in
exchange therefor a like Original Principal Amount of definitive
Securities of authorized denominations. Until so exchanged
the temporary Securities shall in all respects be entitled to the
same benefits under this Indenture as definitive
Securities.
SECTION
2.10
Cancellation . All Securities surrendered for payment,
purchase by the Company pursuant to Article 3, conversion,
redemption or registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to
the Trustee and shall be promptly cancelled by it. The
Company may at any time deliver to the Trustee for cancellation any
Securities previously authenticated and delivered hereunder which
the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly cancelled by the
Trustee. The Company may not issue new Securities to replace
Securities it has paid or delivered to the Trustee for cancellation
or that any Holder has converted pursuant to Article 11. No
Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as
expressly permitted by this Indenture. All cancelled
Securities held by the Trustee shall be disposed of by the
Trustee.
SECTION
2.11
Persons Deemed Owners . Prior to due presentment of a
Security for registration of transfer, the Company, the Trustee and
any agent of the Company or the Trustee may treat the Person in
whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of the
Security or the payment of any Redemption Price, Repurchase Price
or Fundamental Change Redemption Price in respect thereof or cash
interest thereon, for the purpose of conversion and for all other
purposes
17
whatsoever, whether or not such Security be
overdue, and neither the Company, the Trustee nor any agent of the
Company or the Trustee shall be affected by notice to the
contrary.
SECTION
2.12
Global Securities .
(a)
Notwithstanding
any other provisions of this Indenture or the Securities, (A)
transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.06 and Section 2.12(b)(i) below,
(B) transfer of a beneficial interest in a Global Security for a
Certificated Security shall comply with Section 2.06 and Section
2.12(b)(i) below, and (C) transfers of a Certificated Security
shall comply with Section 2.06 and Section 2.12(b)(ii) and transfer
of a Certificated Security for a Beneficial Interest in a Global
Security shall comply with Section 2.06 and Section 2.12(b)(iii)
below.
(b)
Transfer of Global Security. A
Global Security may not be transferred, in whole or in part, to any
Person other than the Depositary or a nominee or any successor
thereof, and no such transfer to any such other Person may be
registered; provided that this Section 2.12(b)(i) shall not
prohibit any transfer of a Security that is issued in exchange for
a Global Security but is not itself a Global Security. No
transfer of a Security to any Person shall be effective under this
Indenture or the Securities unless and until such Security has been
registered in the name of such Person. Nothing in this
Section 2.12(b)(i) shall prohibit or render ineffective any
transfer of a beneficial interest in a Global Security effected in
accordance with the other provisions of this Section
2.12(b).
(i)
Restrictions
on Transfer of a Beneficial Interest in a Global Security for a
Certificated Security . A beneficial interest
in a Global Security may not be exchanged for a Certificated
Security except upon satisfaction of the requirements set forth
below. Upon receipt by the Trustee of a request for transfer
of a beneficial interest in a Global Security in accordance with
Applicable Procedures for a Certificated Security in the form
satisfactory to the Trustee, together with:
(A)
so long as the Securities are
Restricted Securities, certification, in the form set forth in
Exhibit B;
(B)
written instructions to the Trustee
to make, or direct the Registrar to make, an adjustment on its
books and records with respect to such Global Security to reflect a
decrease in the aggregate Original Principal Amount of the
Securities represented by the Global Security, such instructions to
contain information regarding the Depositary account to be credited
with such decrease; and
(C)
if the Company or Registrar so
requests, an Opinion of Counsel or other evidence reasonably
satisfactory to them as to the compliance with the restrictions set
forth in the Legend,
then the Trustee shall cause, or
direct the Registrar to cause, in accordance with the standing
instructions and procedures existing between the Depositary and the
Registrar, the aggregate Original Principal Amount of Securities
represented by the Global Security to be decreased by the aggregate
Original Principal Amount of the Certificated Security
18
to be issued, shall authenticate and
deliver such Certificated Security and shall debit or cause to be
debited to the account of the Person specified in such instructions
a beneficial interest in the Global Security equal to the Original
Principal Amount of the Certificated Security so issued.
(ii)
Transfer and
Exchange of Certificated Securities . When Certificated
Securities are presented to the Registrar with a
request:
(x)
to register the transfer of such
Certificated Securities; or
(y)
to exchange such Certificated
Securities for an equal Original Principal Amount of Certificated
Securities of other authorized denominations,
the Registrar shall register the
transfer or make the exchange as requested if its reasonable
requirements for such transaction are met; provided, however, that
the Certificated Securities surrendered for registration of
transfer or exchange:
(A)
shall be duly endorsed or
accompanied by a written instrument of transfer in form reasonably
satisfactory to the Company and the Registrar, duly executed by the
Holder thereof or his attorney duly authorized in writing;
and
(B)
so long as such Securities are
Restricted Securities, such Securities are being transferred or
exchanged pursuant to an effective registration statement under the
Securities Act or, if being transferred pursuant to clause (1), (2)
or (3) below, are accompanied by the additional information and
documents specified in each clause, as applicable:
(1)
if such Certificated Securities
are being delivered to the Registrar by a Holder for registration
in the name of such Holder, without transfer, a certification from
such Holder to that effect; or
(2)
if such Certificated Securities
are being transferred to the Company, a certification to that
effect; or
(3)
if such Certificated Securities
are being transferred pursuant to an exemption from registration
(i) a certification to that effect (in the form set forth in
Exhibit B, if applicable) and (ii) if the Company or Registrar so
requests, an opinion of counsel or other evidence reasonably
satisfactory to them as to the compliance with the restrictions set
forth in the Legend.
(iii)
Restrictions
on Transfer of a Certificated Security for a Beneficial Interest in
a Global Security . A Certificated
Security may not be exchanged for a beneficial interest in a Global
Security except upon satisfaction of the requirements set forth
below.
19
Upon receipt by the Trustee of a
Certificated Security, duly endorsed or accompanied by appropriate
instruments of transfer, in form satisfactory to the Trustee,
together with:
(A)
so long as the Securities are
Restricted Securities, certification, in the form set forth in
Exhibit B, that such Certificated Security is being transferred to
a QIB in accordance with Rule 144A; and
(B)
written instructions directing the
Trustee to make, or to direct the Registrar to make, an adjustment
on its books and records with respect to such Global Security to
reflect an increase in the aggregate Original Principal Amount of
the Securities represented by the Global Security, such
instructions to contain information regarding the Depositary
account to be credited with such increase,
then the Trustee shall cancel such
Certificated Security and cause, or direct the Registrar to cause,
in accordance with the standing instructions and procedures
existing between the Depositary and the Registrar, the aggregate
Original Principal Amount of Securities represented by the Global
Security to be increased by the aggregate Original Principal Amount
of the Certificated Security to be exchanged, and shall credit or
cause to be credited to the account of the Person specified in such
instructions a beneficial interest in the Global Security equal to
the Original Principal Amount of the Certificated Security so
cancelled. If no Global Securities are then outstanding, the
Company shall issue and the Trustee, upon receipt of a Company
Order, shall authenticate a new Global Security in the appropriate
Original Principal Amount.
(c)
Subject to the
succeeding paragraph, every Security shall be subject to the
restrictions on transfer provided in the Legend including the
requirement of the delivery of an Opinion of Counsel, if so
provided. Whenever any Restricted Security is presented or
surrendered for registration of transfer or for exchange for a
Security registered in a name other than that of the Holder, such
Security must be accompanied by a certificate in substantially the
form set forth in Exhibit B, dated the date of such surrender and
signed by the Holder of such Security, as to compliance with such
restrictions on transfer. The Registrar shall not be required
to accept for such registration of transfer or exchange any
Security not so accompanied by a properly completed
certificate.
(d)
The restrictions
imposed by the Legend upon the transferability of any Security
shall cease and terminate when such Security has been sold pursuant
to an effective registration statement under the Securities Act or
transferred in compliance with Rule 144 or, if earlier, upon
the expiration of the holding period applicable to sales thereof
under paragraph (k) of Rule 144. Any Security as to
which such restrictions on transfer shall have expired in
accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in
accordance with the provisions of this Section 2.12 (accompanied,
in the event that such restrictions on transfer have terminated by
reason of a transfer in compliance with Rule 144, by an
opinion of counsel having substantial experience in practice under
the Securities Act and otherwise reasonably acceptable to the
Company, addressed to the
20
Company, the Trustee and the
Registrar and in form acceptable to the Company, to the effect that
the transfer of such Security has been made in compliance with
Rule 144), be exchanged for a new Security, of like tenor and
aggregate Original Principal Amount, which shall not bear the
restrictive Legend. The Company shall inform the Trustee of
the effective date of any registration statement registering the
Securities under the Securities Act. The Trustee and the
Registrar shall not be liable for any action taken or omitted to be
taken by it in good faith in accordance with the aforementioned
opinion of counsel or registration statement.
(e)
As used in the
preceding two paragraphs of this Section 2.12, the term
“transfer” encompasses any sale, pledge, transfer,
hypothecation or other disposition of any Security.
(f)
The provisions of
clauses (1), (2), (3), (4) and (5) below shall apply only to Global
Securities:
(1)
Notwithstanding any other provisions
of this Indenture or the Securities, except as provided in Section
2.12(b)(i), a Global Security shall not be exchanged in whole or in
part for a Security registered in the name of any Person other than
the Depositary or one or more nominees thereof, provided that a
Global Security may be exchanged for Securities registered in the
names of any person designated by the Depositary in the event that
(i) the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or such
Depositary has ceased to be a “ clearing agency
” registered under the Exchange Act, and a successor
Depositary is not appointed by the Company within 90 days or (ii)
the Company elects to discontinue use of the system of book-entry
transfer through DTC (or any successor depositary). Any
Global Security exchanged pursuant to clause (i) of this
sub-section shall be so exchanged in whole and not in part, and any
Global Security exchanged pursuant to clause (ii) of this
sub-section may be exchanged in whole or from time to time in part
as directed by the Depositary. Any Security issued in
exchange for a Global Security or any portion thereof shall be a
Global Security; provided that any such Security so issued that is
registered in the name of a person other than the Depositary or a
nominee thereof shall not be a Global Security.
(2)
Securities issued in exchange for a
Global Security or any portion thereof shall be issued in
definitive, fully registered form, without interest coupons, shall
have an aggregate Original Principal Amount equal to that of such
Global Security or portion thereof to be so exchanged, shall be
registered in such names and be in such authorized denominations as
the Depositary shall designate and shall bear the applicable
legends provided for herein. Any Global Security to be
exchanged in whole shall be surrendered by the Depositary to the
Trustee, as Registrar. With regard to any Global Security to
be exchanged in part, either such Global Security shall be so
surrendered for exchange or, if the Trustee is acting as custodian
for the Depositary or its nominee with respect to such
Global
21
Security, the Original Principal
Amount thereof shall be reduced, by an amount equal to the portion
thereof to be so exchanged, by means of an appropriate adjustment
made on the records of the Trustee. Upon any such surrender
or adjustment, the Trustee shall authenticate and deliver the
Security issuable on such exchange to or upon the order of the
Depositary or an authorized representative thereof.
(3)
Subject to the provisions of clause
(5) below, the registered Holder may grant proxies and otherwise
authorize any Person, including Agent Members (as defined below)
and persons that may hold interests through Agent Members, to take
any action which a holder is entitled to take under this Indenture
or the Securities.
(4)
In the event of the occurrence of
any of the events specified in clause (1) above, the Company will
promptly make available to the Trustee a reasonable supply of
Certificated Securities in definitive, fully registered form,
without interest coupons.
(5)
Neither any members of, or
participants in, the Depositary (collectively, the “ Agent
Members ”) nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with
respect to any Global Security registered in the name of the
Depositary or any nominee thereof, or under any such Global
Security, and the Depositary or such nominee, as the case may be,
may be treated by the Company, the Guarantor, the Trustee and any
agent of the Company or the Trustee as the absolute owner and
holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or such nominee, as the
case may be, or impair, as between the Depositary, its Agent
Members and any other person on whose behalf an Agent Member may
act, the operation of customary practices of such Persons governing
the exercise of the rights of a holder of any Security.
SECTION
2.13
CUSIP Numbers . The Company in issuing the Securities
may use “CUSIP” numbers (if then generally in use),
and, if so, the Trustee shall use “CUSIP” numbers in
notices of redemption as a convenience to Holders; provided that
any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or
as contained in any notice of a redemption and that reliance may be
placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any
defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP
numbers.
22
SECTION
3.01
Right to Redeem; Notices to Trustee . The Company, at
its option, may redeem the Securities in accordance with the
provisions of paragraphs 6 and 8 of the Securities. Prior to
November 15, 2006, the Company cannot redeem the Securities.
Beginning on November 15, 2006, the Company may redeem the
Securities for cash in whole at any time, or in part from time to
time. If the Company elects to redeem Securities pursuant to
paragraph 6 of the Securities, it shall notify the Trustee in
writing of the Redemption Date, the Original Principal Amount of
Securities to be redeemed, the Redemption Price and the amount of
accrued and unpaid cash interest, if any, payable on the Redemption
Date.
The Company shall give the notice to
the Trustee provided for in this Section 3.01 by a Company Order,
at least 45 days before the Redemption Date (unless a shorter
notice shall be satisfactory to the Trustee). If fewer than
all the Securities are to be redeemed, the record date relating to
such redemption shall be selected by the Company and given to the
Trustee, which record date shall not be less than 10 days after the
date of notice to the Trustee.
SECTION
3.02
Selection of Securities to Be Redeemed . If less than
all the Securities are to be redeemed, the Trustee shall select the
Securities to be redeemed pro rata or by lot or by any other method
the Trustee considers fair and appropriate (so long as such method
is not prohibited by the rules of any stock exchange on which the
Securities are then listed). The Trustee shall make the
selection at least 30 days but not more than 60 days before the
Redemption Date from outstanding Securities not previously called
for redemption.
Securities and any portions thereof
that the Trustee selects shall be in Original Principal Amounts of
$1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to Securities called for redemption also apply
to portions of Securities called for redemption. The Trustee
shall notify the Company promptly of the Securities or portions of
Securities to be redeemed.
If any Security selected for partial
redemption is converted in part before termination of the
conversion right with respect to the portion of the Security so
selected, the converted portion of such Security shall be deemed
(so far as may be) to be the portion selected for redemption.
Securities which have been converted during a selection of
Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection.
SECTION
3.03
Notice of Redemption . At least 30 days but not more
than 60 days before a Redemption Date, the Company shall mail a
notice of redemption by first-class mail, postage prepaid, to each
Holder of Securities to be redeemed.
The notice shall identify the
Securities to be redeemed and shall state:
(1)
the Redemption Date;
23
(2)
the Redemption Price and accrued and
unpaid cash interest, if any, payable on the Redemption
Date;
(3)
the Conversion Rate;
(4)
the name and address of the Paying
Agent and Conversion Agent;
(5)
that Securities called for
redemption may be converted at any time before the close of
business on the second Business Day immediately preceding the
Redemption Date, even if not otherwise convertible at such
time;
(6)
that Holders who want to convert
Securities must satisfy the requirements set forth in paragraph 9
of the Securities;
(7)
that Securities called for
redemption must be surrendered to the Paying Agent to collect the
Redemption Price and accrued and unpaid cash interest, if
any;
(8)
if fewer than all the outstanding
Securities are to be redeemed, the certificate number and Original
Principal Amounts of the particular Securities to be
redeemed;
(9)
that, unless the Company defaults in
making payment of such Redemption Price and any cash interest which
is due and payable, the Accreted Principal Amount will cease to
increase and cash interest (if any) will cease to accrue on and
after the Redemption Date;
(10)
the CUSIP number of the Securities;
and
(11)
any other information the Company
wants to present.
At the Company’s request, the
Trustee shall give the notice of redemption to Holders in the
Company’s name and at the Company’s expense, provided
that the Company makes such request at least five Business Days
(unless a shorter period shall be satisfactory to the Trustee)
prior to the date such notice of redemption must be
mailed.
SECTION
3.04
Effect of Notice of Redemption . Once notice of
redemption is given, Securities called for redemption become due
and payable on the Redemption Date and at the Redemption Price
(together with accrued and unpaid cash interest, if any, to but not
including the date of redemption) stated in the notice except for
Securities which are converted in accordance with the terms of this
Indenture. Upon surrender to the Paying Agent, such
Securities shall be paid at the Redemption Price (together with
accrued and unpaid cash interest, if any, to but not including the
date of redemption) stated in the notice.
SECTION
3.05
Deposit of Redemption Price . Prior to 10:00 a.m. (New
York City time), on any Redemption Date, the Company shall deposit
with the Paying Agent (or if the Company or a Subsidiary or an
Affiliate of either of them is the Paying Agent, shall segregate
and hold in trust) money sufficient to pay the Redemption Price of,
and any accrued and unpaid
24
interest to but not including the date of
redemption with respect to, all Securities to be redeemed on that
date other than Securities or portions of Securities called for
redemption which on or prior thereto have been delivered by the
Company to the Trustee for cancellation or have been
converted. The Paying Agent shall as promptly as practicable
return to the Company any money not required for that purpose
because of conversion of Securities pursuant to Article 11.
If such money is then held by the Company in trust and is not
required for such purpose, it shall be discharged from such
trust.
SECTION
3.06
Securities Redeemed in Part . Upon surrender of a
Security that is redeemed in part, the Company shall execute, the
Guarantor shall endorse and the Trustee shall authenticate and
deliver to the Holder a new Security in an authorized denomination
equal in Original Principal Amount to the unredeemed portion of the
Security surrendered.
SECTION
3.07
Conversion Arrangement on Call for Redemption . In
connection with any redemption of Securities, the Company may
arrange for the purchase and conversion of any Securities called
for redemption by an agreement with one or more investment banks or
other purchasers to purchase such Securities by paying to the
Trustee in trust for the Securityholders, on or prior to 10:00 a.m.
New York City time on the Redemption Date, an amount that, together
with any amounts deposited with the Trustee by the Company for the
redemption of such Securities, is not less than the Redemption
Price of, and any accrued and unpaid interest with respect to, such
Securities. Notwithstanding anything to the contrary
contained in this Article 3, the obligation of the Company to pay
the Redemption Prices of such Securities 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, any
Securities 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 Article 11 surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on
the second Business Day prior to the Redemption Date, subject to
payment of the above amount as aforesaid. The Trustee shall
hold and pay to the Holders whose Securities are selected for
redemption any such amount paid to it for purchase and conversion
in the same manner as it would moneys deposited with it by the
Company for the redemption of Securities. Without the
Trustee’s prior written consent, no arrangement between the
Company and such purchasers for the purchase and conversion of any
Securities shall increase or otherwise affect any of the powers,
duties, responsibilities or obligations of the Trustee as set forth
in this Indenture, and the Company agrees to indemnify the Trustee
from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the
purchase and conversion of any Securities between the Company and
such purchasers, including the costs and expenses incurred by the
Trustee in the defense of any claim or liability arising out of or
in connection with the exercise or performance of any of its
powers, duties, responsibilities or obligations under this
Indenture.
SECTION
3.08
Repurchase of Securities at Option of the Holder.
(a)
Securities shall
be purchased by the Company pursuant to the terms of the Securities
at the option of the Holder on November 15, 2008, November 15, 2013
and November 15, 2018 (each, a “ Repurchase Date
”), at a purchase price of 100% of the Accreted Principal
Amount plus any accrued and unpaid interest (the “
Repurchase Price ”), in each case, to, but
25
excluding, such Repurchase
Date, subject to the provisions of Section 3.09. Beginning
November 15, 2008, the Accreted Principal Amount of a Security will
be equal to the Original Principal Amount of $1,000 increased daily
by the rate of 7.625% per year, compounded semiannually.
Repurchases of Securities under this Section 3.08 shall be made, at
the option of the Holder thereof, upon:
(1)
delivery to the Paying Agent by a
Holder of a written notice (a “ Repurchase Notice
”) during the period beginning at any time from the opening
of business on the date that is 25 Business Days prior to the
applicable relevant Repurchase Date until the close of business on
the third Business Day prior to such Repurchase Date
stating:
(A)
the certificate numbers of the
Securities which the Holder will deliver to be
purchased,
(B)
the portion of the Original
Principal Amount of the Securities which the Holder will deliver to
be purchased, which portion must be an Original Principal Amount of
$1,000 or an integral multiple thereof,
(C)
that such Security shall be
purchased as of the Repurchase Date pursuant to the terms and
conditions specified in paragraph 7 of the Securities and in this
Indenture, and
(D)
in the event the Company elects,
pursuant to Section 3.09, to pay the Repurchase Price to be paid as
of such Repurchase Date, in whole or in part, in shares of Common
Stock but such portion of the Repurchase Price shall ultimately be
payable to such Holder entirely in cash because any of the
conditions to payment of the Repurchase Price in Common Stock is
not satisfied prior to the close of business on such Repurchase
Date, as set forth in Section 3.09(c), whether such Holder elects
(i) to withdraw such Repurchase Notice as to some or all of the
Securities to which such Repurchase Notice relates (stating the
Original Principal Amount and certificate numbers of the Securities
as to which such withdrawal shall relate), or (ii) to receive cash
in respect of the entire Repurchase Price for all Securities (or
portions thereof) to which such Repurchase Notice relates;
and
(2)
delivery or book-entry transfer of
the Securities to the Paying Agent at any time after delivery of
the applicable Repurchase Notice (together with all necessary
endorsements) at the office of the Paying Agent, such delivery
being a condition to receipt by the Holder of the Repurchase Price
therefor; provided that such Repurchase Price shall be so paid
pursuant to this Section 3.08 only if the Security so delivered to
Paying Agent shall conform in all respects to the description
thereof in the related Repurchase Notice.
If the Company has elected to pay
the Repurchase Price in whole or in part in shares of Common Stock,
but is unable to deliver the shares of Common Stock, a Holder, in
such
26
Holder’s Repurchase Notice and in any
written notice of withdrawal delivered by such Holder pursuant to
the terms of Section 3.10, may elect to withdraw the Repurchase
Notice or to receive cash. If a Holder fails to indicate in
its Repurchase Notice its election to receive cash or Common Stock,
the Holder shall be deemed to have elected to receive cash in
respect of the entire Repurchase Price for all Securities subject
to such Repurchase Notice.
The Company shall purchase from the
Holder thereof, pursuant to this Section 3.08, a portion of a
Security, if the Original Principal Amount of such portion is
$1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also
apply to the purchase of such portion of such Security.
Any purchase by the Company
contemplated pursuant to the provisions of this Section 3.08 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
Security.
Notwithstanding anything herein to
the contrary, any Holder delivering to the Paying Agent the
Repurchase Notice contemplated by this Section 3.08 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 Paying Agent in accordance with Section
3.10.
The Paying Agent shall promptly
notify the Company of the receipt by it of any Repurchase Notice or
written notice of withdrawal thereof.
SECTION
3.09
Company’s Right to Elect Manner of Payment of Repurchase
Price.
(a)
The Securities to
be repurchased on any Repurchase Date pursuant to Section 3.08 may
be paid for, in whole or in part, at the election of the Company,
in cash or Common Stock or any combination of cash and Common
Stock, subject to the conditions set forth in Sections 3.09(c) and
(d). The Company shall designate, in the Company Repurchase
Notice delivered pursuant to Section 3.09(d), whether the Company
will repurchase the Securities for cash or shares of Common Stock,
or, if a combination thereof, the percentages of the Repurchase
Price of Securities in respect of which it will pay in cash or
shares of Common Stock; provided that the Company will pay cash for
fractional interests in shares of Common Stock. For purposes
of determining the existence of potential fractional interests, all
Securities subject to repurchase by the Company held by a Holder
shall be considered together (no matter how many separate
certificates are to be presented). Each Holder whose
Securities are repurchased pursuant to Section 3.08 shall receive
the same percentage of cash or shares of Common Stock in payment of
the Repurchase Price for such Securities, except with regard to the
payment of cash in lieu of fractional shares of Common Stock.
The Company may not change its election with respect to the
consideration (or components or percentages of components thereof)
to be paid once the Company has given its Company Repurchase Notice
to Holders except pursuant to Section 3.09(c) in the event of a
failure to satisfy, prior to the close of business on the Business
Day immediately preceding the Repurchase Date, any condition to the
payment of the Repurchase Price, in whole or in part, in shares of
Common Stock.
27
At least three Business Days before
each Company Repurchase Notice Date, the Company shall deliver an
Officers’ Certificate to the Trustee specifying:
(i)
the manner of payment selected by
the Company,
(ii)
the information required by Section
3.09(d) in the Company Repurchase Notice,
(iii)
if the Company elects to pay the
Repurchase Price, or a specified percentage thereof, in shares of
Common Stock, that the conditions to such manner of payment set
forth in Section 3.09(c) have been or will be complied with,
and
(iv)
whether the Company desires the
Trustee to give the Company Repurchase Notice required by Section
3.09(d).
(b)
At the option of
the Company, the Repurchase Price of Securities in respect of which
a Repurchase Notice pursuant to Section 3.08 has been given, or a
specified percentage thereof, may be paid by the Company with
cash. The Company Repurchase Notice, as provided in Section
3.09(d), shall be sent to Holders not less than 25 Business Days
prior to such Repurchase Date (the “ Company Repurchase
Notice Date ”).
(c)
At the option of
the Company, the Repurchase Price of Securities in respect of which
a Repurchase Notice pursuant to Section 3.08 has been given, or a
specified percentage thereof, may be paid by the Company by the
issuance of a number of shares of Common Stock equal to the
quotient obtained by dividing (i) the portion of the Repurchase
Price to be paid in shares of Common Stock by (ii) 97.5% of the
average of the Closing Sale Price of the shares of Common Stock for
the five-trading day period immediately preceding but ending on the
third Business Day prior to the applicable Repurchase Date,
appropriately adjusted to take into account the occurrence, during
the period commencing on the first of the trading days during the
five-trading day period and ending on the Repurchase Date, of any
event described in Section 11.15, subject to the next succeeding
paragraph.
The Company will not issue
fractional shares of Common Stock in payment of the Repurchase
Price. Instead, the Company will pay cash based on the
Closing Sale Price as of the applicable Repurchase Date for all
fractional shares. It is understood that if a Holder elects
to have more than one Security purchased, the number of shares of
Common Stock shall be based on the aggregate Original Principal
Amount of Securities to be purchased.
If the Company elects to purchase
the Securities by the issuance of shares of Common Stock or in any
combination of cash and Common Stock, the Company Repurchase
Notice, as provided in Section 3.09(d), shall be sent to the
Holders not later than the Company Repurchase Notice
Date.
The Company’s right to
exercise its election to purchase Securities through the issuance
of shares of Common Stock shall be conditioned upon:
28
(i)
the Company’s giving a timely
Company Repurchase Notice containing an election to purchase all or
a specified percentage of the Securities with shares of Common
Stock as provided herein;
(ii)
the registration of such shares of
Common Stock under the Securities Act and the Exchange Act, if
required;
(iii)
the listing of such shares of Common
Stock on a United States national securities exchange or the
quotation of such shares of Common Stock in an inter-dealer
quotation system of any registered United States national
securities association, in each case, if the Common Stock is then
listed on a national securities exchange or quoted in an
inter-dealer quotation system;
(iv)
any necessary qualification or
registration of such shares of Common Stock under applicable state
securities laws or the availability of an exemption from such
qualification and registration; and
(v)
the receipt by the Trustee of an
(A) Officers’ Certificate stating that the terms of the
issuance of the shares of Common Stock are in conformity with this
Indenture, (B) an Opinion of Counsel to the effect that the
shares of Common Stock to be issued by the Company in payment of
the Repurchase Price in respect of the Securities have been duly
authorized and, when issued and delivered pursuant to the terms of
this Indenture in payment of the Repurchase Price in respect of the
Securities, will be validly issued, fully paid and non-assessable
and, to the best of such counsel’s knowledge, free from
preemptive rights under applicable state law or known material
contracts and (c) an Officer’s Certificate, stating that
the conditions to the issuance of the shares of Common Stock have
been satisfied.
Such Officers’ Certificate
shall also set forth the number of shares of Common Stock to be
issued for each $1,000 Original Principal Amount of Securities and
the Closing Sale Price of a share of Common Stock on each trading
day during the period commencing on the fifth trading day
immediately preceding but ending on the third Business Day prior to
the applicable Repurchase Date. If the foregoing conditions
are not satisfied prior to the close of business on the last day
prior to the Repurchase Date and the Company has elected to
repurchase the Securities through the issuance of shares of Common
Stock, the Company shall pay the entire Repurchase Price of the
Securities in cash.
Promptly after determination of the
actual number of shares of Common Stock to be issued upon
repurchase of Securities, the Company shall be required to
disseminate a press release through Dow Jones & Company, Inc.
or Bloomberg Business News containing this information or publish
the information on the Company’s website or through such
other public medium as the Company may use at that time.
(d)
In connection
with any repurchase of Securities, the Company shall, no less than
25 Business Days prior to each Repurchase Date, give notice to
Holders (with a copy to
29
the Trustee) setting forth
information specified in this Section 3.09(d) (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)
state whether the Repurchase Price
will be paid in cash, shares of Common Stock or a combination
thereof, specifying the percentage of each;
(3)
if shares of Common Stock will be
used to pay all or part of the Repurchase Price, state:
(a) the method for valuing the
shares of Common Stock to be delivered in connection with the
repurchase; and
(b) that Holders of the Securities
will bear the market risk with respect to the value of the shares
of Common Stock to be delivered from the date the number of shares
is determined;
(4)
include a form of Repurchase
Notice;
(5)
the Conversion Rate;
(6)
state the name and address of the
Conversion Agent;
(7)
state that Securities must be
surrendered to the Paying Agent to collect the Repurchase
Price;
(8)
if the Securities are then
convertible, state that Securities 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 this Indenture;
and
(9)
state the CUSIP number of the
Securities.
Company Repurchase Notices may be given by the
Company or, at the Company’s request, the Trustee shall give
such Company Repurchase Notice in the Company’s name and at
the Company’s expense.
(e)
All shares of
Common Stock delivered upon repurchase of the Securities shall be
newly issued shares or treasury shares, shall be duly authorized,
validly issued, fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim created by
the Company.
(f)
If a Holder of a
repurchased Security is paid in shares of Common Stock, the Company
shall pay any documentary, stamp or similar issue or transfer tax
due on such issue of Common Stock. However, the Holder shall
pay any such tax which is due because the Holder
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requests the Common Stock to
be issued in a name other than the Holder’s name. The
Paying Agent may refuse to deliver the certificates representing
the shares of Common Stock being issued in a name other than the
Holder’s name until the Paying Agent receives a sum
sufficient to pay any tax which will be due because the shares of
Common Stock are to be issued in a name other than the
Holder’s name. Nothing herein shall preclude any income
tax withholding required by law or regulations.
(g)
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
Securities.
SECTION
3.10
Effect of Repurchase Notice . Upon receipt by the
Paying Agent of the Repurchase Notice specified in Section 3.08,
the Holder of the Security in respect of which such Repurchase
Notice was given shall (unless such Repurchase Notice is validly
withdrawn) thereafter be entitled to receive solely the Repurchase
Price with respect to such Security. Such Repurchase Price
shall be paid to such Holder, subject to receipt of funds and/or
Securities by the Paying Agent, promptly following the later of
(x) the Repurchase Date with respect to such Note (provided
the Holder has satisfied the conditions in Section 3.08) and
(y) the time of delivery of such Security to the Paying Agent
by the Holder thereof in the manner required by Section 3.08.
Securities in respect of which a Repurchase Notice has been given
by the Holder thereof may not be converted pursuant to Article 11
hereof on or after the date of the delivery of such Repurchase
Notice unless such Repurchase Notice has first been validly
withdrawn.
A Repurchase Notice may be withdrawn
by means of a written notice of withdrawal delivered to the office
of the Paying Agent in accordance with the Repurchase Notice at any
time prior to the close of business on the Repurchase Date,
specifying:
(1)
the certificate number, if any, of
the Security in respect of which such notice of withdrawal is being
submitted, or the appropriate Depositary information if the
Security in respect of which such notice of withdrawal is being
submitted is represented by a Global Security,
(2)
the Original Principal Amount of the
Security with respect to which such notice of withdrawal is being
submitted, and
(3)
the Original Principal Amount, if
any, of such Security which remains subject to the original
Repurchase Notice and which has been or will be delivered for
purchase by the Company.
A written notice of withdrawal of a
Repurchase Notice may be in the form set forth in the preceding
paragraph or may be in the form of a conditional withdrawal
contained in a Repurchase Notice pursuant to the terms of Section
3.08(a)(1)(D).
SECTION
3.11
Deposit of Repurchase Price . Prior to 10:00 a.m. (New
York City Time) on the Business Day following the Repurchase Date,
the Company shall deposit with the Paying Agent (or, if the Company
or a Subsidiary or an Affiliate of either of them is acting as the
Paying Agent, shall segregate and hold in trust as provided in
Section 2.04) an amount of
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cash (in immediately available funds if
deposited on such Business Day) or Common Stock, if permitted
hereunder, sufficient to pay the aggregate Repurchase Price of all
the Securities or portions thereof that are to be purchased as of
the Repurchase Date.
As soon as practicable after the
Repurchase Date the Company shall deliver to each Holder entitled
to receive shares of Common Stock through the Paying Agent, a
certificate for the number of full shares of Common Stock issuable
in payment of the Repurchase Price and cash in lieu of any
fractional interests. The person in whose name the
certificate for the shares of Common Stock is registered shall be
treated as a Holder of record of Common Stock on the Business Day
following the Repurchase Date. No payment or adjustment will
be made for dividends on the shares of Common Stock the record date
for which occurred on or prior to the Repurchase Date.
SECTION
3.12
Securities Repurchased in Part . Upon presentation of
any Security repurchased only in part, the Company shall execute,
the Guarantor shall endorse and the Trustee shall authenticate and
make available for delivery to the Holder thereof, at the expense
of the Company, a new Security or Securities, of any authorized
denomination, in aggregate Original Principal Amount equal to the
unrepurchased portion of the Securities presented.
SECTION
3.13
Repayment to the Company . The Paying Agent shall
return to the Company any cash or shares of Common Stock that
remain unclaimed, together with interest or dividends, if any,
thereon, held by them for the payment of the Repurchase Price;
provided that to the extent that the aggregate amount of cash or
shares of Common Stock deposited by the Company pursuant to Section
3.11 exceeds the aggregate Repurchase Price of the Securities 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 Paying Agent shall return any such excess to
the Company together with interest or dividends, if any,
thereon.
SECTION
3.14 Redemption of Securities at Option of the
Holder upon Fundamental Change .
(a)
If there shall
occur a Fundamental Change at any time prior to the Stated Maturity
of the Securities, then each Securityholder shall have the right,
at such Holder’s option, to require the Company to redeem all
of such Holder’s Securities, or any portion thereof that is a
multiple of $1,000 Original Principal Amount, on the date (the
“ Fundamental Change Redemption Date ”) that is
30 days after the date of the Fundamental Change Notice (as defined
in Section 3.14(b)) of such Fundamental Change (or, if such 30th
day is not a Business Day, the next succeeding Business Day) at a
redemption price (the “ Fundamental Change Redemption
Price ”) equal to 100% of the Accreted Principal Amount
thereof, together with accrued interest to, but excluding, the
Fundamental Change Redemption Date; provided that if such
Fundamental Change 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 Securities on the applicable
Regular Record Date instead of the Holders surrendering the
Securities for redemption on such date. Beginning November
15, 2008, the Accreted Principal Amount of a Security will be equal
to the
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Original Principal Amount of
$1,000 increased daily by the rate of 7.625% per year, compounded
semiannually.
Upon presentation of any Security
redeemed in part only, the Company shall execute, the Guarantor
shall endorse and, upon Company’s Order, the Trustee shall
authenticate and make available for delivery to the Holder thereof,
at the expense of the Company, a new Security or Securities, of
authorized denominations, in aggregate Original Principal Amount
equal to the unredeemed portion of the Securities
presented.
A “ Fundamental Change
” means the occurrence of any transaction or event (whether
by means of an exchange offer, liquidation, tender offer,
consolidation, merger, combination, reclassification,
recapitalization or otherwise) in connection with which all or
substantially all of the Common Stock shall be exchanged for,
converted into, acquired for or constitutes solely the right to
receive consideration which is not all or substantially all 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.
(b)
On or before the
10 th day after the occurrence of a Fundamental Change,
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
Fundamental Change a notice (the “ Fundamental Change
Notice ”) of the occurrence of such Fundamental Change
and of the redemption right at the option of the Holders arising as
a result thereof. Such notice shall be mailed in the manner
and with the effect set forth in Section 3.03 (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
Fundamental Change Notice to the Trustee at such time as it is
mailed to Securityholders. Concurrently with the mailing of
any Fundamental Change Notice, the Company shall issue a press
release announcing such Fundamental Change referred to in the
Fundamental Change 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 Fundamental
Change Notice or any proceedings for the redemption of any Note
which any Securityholder may elect to have the Company redeem as
provided in this Section 3.14.
Each Fundamental Change Notice shall
specify the circumstances constituting the Fundamental Change, the
redemption right at the option of the Holders arising as a result
of the Fundamental Change, the Fundamental Change Redemption Date,
the Fundamental Change Redemption Price, that the Holder must
exercise the redemption right on or prior to the close of business
on the Fundamental Change Redemption Date (the “
Fundamental Change Expiration Time ”), that the Holder
shall have the right to withdraw any Securities surrendered prior
to the Fundamental Change Expiration Time, a description of the
procedure which a Securityholder must follow to exercise such
redemption right and to withdraw any surrendered Securities, the
place or places where the Holder is to surrender such
Holder’s Securities, the amount of interest
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accrued on each Security to (but excluding) the
Fundamental Change Redemption Date and the CUSIP number or numbers
of the Securities (if then generally in use).
No failure of the Company to give
the foregoing notices and no defect therein shall limit the
Securityholders’ redemption rights or affect the validity of
the proceedings for the redemption of the Securities pursuant to
this Section 3.14.
(c)
For a Security,
other than a Global Security, to be so redeemed at the option of
the Holder, the Company must receive at the office or agency of the
Company maintained for that purpose or, at the option of such
Holder, the Corporate Trust Office, such Security with a written
notice elect repayment upon a Fundamental Change
stating:
(1)
the certificate number of the
Security which the Holder will deliver to be purchased;
(2)
the portion of the Original
Principal Amount of the Security which the Holder will deliver to
be purchased, which portion must be $1,000 or an integral multiple
thereof; and
(3)
that such Security shall be
purchased pursuant to the terms and conditions specified in
paragraph 7 of the Securities.
together with such Securities duly endorsed for
transfer, on or before the Fundamental Change Expiration
Time. All questions as to the validity, eligibility
(including time of receipt) and acceptance of any Security for
redemption shall be determined by the Company, whose determination
shall be final and binding absent manifest error.
(d)
Prior to 10:00 am
(New York City Time) on the Business Day following the Fundamental
Change Redemption Date, the Company will deposit with the Paying
Agent (or, if the Company or a Subsidiary or an Affiliate of either
of them is acting as Paying Agent, shall s
