Draft 11/27/06
11:00 a.m.
AGCO CORPORATION
as Issuer,
and
UNION BANK OF CALIFORNIA, N.A.
as Trustee
Dated as of
December __, 2006
___% Convertible Senior Subordinated Notes due 2036
CROSS-REFERENCE TABLE
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TIA Sections |
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Indenture Sections |
§ 310 |
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(a)(1) |
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7.09 |
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(a)(2) |
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7.09 |
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(a)(3) |
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N.A. |
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(a)(4) |
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N.A. |
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(a)(5) |
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7.09 |
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(b) |
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7.08, 7.10 |
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(c) |
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N.A. |
§ 311 |
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(a) |
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7.13 |
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(b) |
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7.13 |
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(c) |
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N.A. |
§ 312 |
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(a) |
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5.01, 5.02(a) |
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(b) |
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5.02(b) |
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(c) |
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5.02(c) |
§ 313 |
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(a) |
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5.03(a) |
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(b) |
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5.03(a) |
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(c) |
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5.03(a), 16.03 |
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(d) |
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5.03(b) |
§ 314 |
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(a) |
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5.04 |
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(b) |
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N.A. |
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(c)(1) |
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16.05 |
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(c)(2) |
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16.05 |
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(c)(3) |
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N.A. |
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(d) |
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N.A. |
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(e) |
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16.05 |
§ 315 |
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(a) |
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7.01, 7.03(a) |
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(b) |
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7.02, 7.04(i) |
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(c) |
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7.01 |
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(d) |
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7.01 |
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(e) |
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6.08 |
§ 316 |
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(a)(last sentence) |
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8.04 |
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(a)(1)(A) |
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6.07 |
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(a)(1)(B) |
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6.07 |
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(a)(2) |
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N.A. |
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(b) |
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6.04 |
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TIA Sections |
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Indenture Sections |
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(c) |
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8.01 |
§ 317 |
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(a)(1) |
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6.02 |
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(a)(2) |
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6.02 |
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(b) |
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4.04(a)(1), (2) |
§ 318 |
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(a) |
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16.07 |
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N.A. means not applicable. |
Note: The Cross-Reference Table shall not for any purpose be deemed to be a part of this
Indenture.
TABLE OF CONTENTS
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ARTICLE I |
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___% Convertible Senior Subordinated Notes Due 2036 |
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Section 1.01. Establishment |
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Section 1.02. Definitions |
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ARTICLE II |
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Issue, Description, Execution, Registration and Exchange of Notes |
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Section 2.01. Designation, Amount and Issue of Notes |
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Section 2.02. Form of Notes; Execution and Authentication of Notes |
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Section 2.03. Date and Denomination of Notes; Payments of Interest |
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Section 2.04. Exchange and Registration of Transfer of Notes |
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Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes |
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Section 2.06. Temporary Notes |
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Section 2.07. Cancellation of Notes |
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Section 2.08. CUSIP Numbers |
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ARTICLE III |
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Redemption and Repurchase of Notes |
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Section 3.01. Redemption of Notes at the Option of the Company |
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Section 3.02. Notice of Optional Redemption; Selection of Notes |
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Section 3.03. Payment of Notes Called for Redemption by the Company |
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Section 3.04. Conversion Arrangement on Call for Redemption |
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Section 3.05. Redemption at Option of Holders upon a Designated Event. |
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Section 3.06. Repurchase of Notes by the Company at Option of the Holder |
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Section 3.07. Procedures for the Repurchase of Notes. |
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Section 3.08. Deposit of Purchase Price |
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Section 3.09. Notes Repurchased in Part |
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Section 3.10. Repayment to the Company |
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Section 3.11. Effect of Election and Repurchase Notice |
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ARTICLE IV |
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Particular Covenants of the Company |
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Section 4.01. Payment of Principal, Premium and Interest |
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Section 4.02. Maintenance of Office or Agency |
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Section 4.03. Appointments to Fill Vacancies in Trustee’s Office |
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Section 4.04. Provisions as to Paying Agent |
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Section 4.05. Existence |
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Section 4.06. Maintenance of Properties |
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Section 4.07. Payment of Taxes and Other Claims |
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- i -
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Section 4.08. Rule 144A Information Requirement |
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Section 4.09. Stay, Extension and Usury Laws |
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Section 4.10. Compliance Certificate; Notice of Default |
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ARTICLE V |
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Noteholders’ Lists and Reports by the Company and the Trustee |
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Section 5.01. Company to Furnish Trustee Names and Addresses of Noteholders |
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Section 5.02. Preservation and Disclosure of Lists. |
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Section 5.03. Reports by Trustee. |
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Section 5.04. Reports by Company |
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ARTICLE VI |
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Remedies of the Trustee and Noteholders on Event of Default |
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Section 6.01. Events of Default; Acceleration |
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Section 6.02. Payments of Notes on Default; Suit Therefor |
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Section 6.03. Application of Monies Collected by Trustee |
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Section 6.04. Proceedings by Noteholder |
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Section 6.05. Proceedings by Trustee |
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Section 6.06. Remedies Cumulative and Continuing |
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Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders |
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Section 6.08. Undertaking to Pay Costs |
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ARTICLE VII |
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The Trustee |
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Section 7.01. Certain Duties and Responsibilities |
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Section 7.02. Notice of Defaults |
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Section 7.03. Certain Rights of the Trustee |
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Section 7.04. Not Responsible for Statements or Issuance of Notes |
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Section 7.05. May Hold Notes |
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Section 7.06. Monies to be Held in Trust |
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Section 7.07. Compensation and Reimbursement |
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Section 7.08. Disqualification; Conflicting Interests |
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Section 7.09. Corporate Trustee Required; Eligibility |
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Section 7.10. Resignation and Removal of Trustee; Appointment of Successor. |
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Section 7.11. Acceptance of Appointment of Successor |
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Section 7.12. Merger, Conversion, Consolidation or Succession to Business |
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Section 7.13. Preferential Collection of Claims Against Company |
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ARTICLE VIII |
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The Noteholders |
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Section 8.01. Action by Noteholders
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Section 8.02. Proof of Execution by Noteholders |
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Section 8.03. Who Are Deemed Absolute Owners |
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Section 8.04. Company-Owned Notes Disregarded |
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Section 8.05. Revocation of Consents, Future Holders Bound |
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ARTICLE IX |
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Meetings of Noteholders |
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Section 9.01. Purpose of Meetings |
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Section 9.02. Call of Meetings by Trustee |
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Section 9.03. Call of Meetings by Company or Noteholders |
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Section 9.04. Qualifications for Voting |
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Section 9.05. Regulations |
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Section 9.06. Voting |
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Section 9.07. No Delay of Rights by Meeting |
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ARTICLE X |
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Section 10.01. Supplemental Indentures With the Consent of Noteholders |
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Section 10.02. Supplemental Indenture Without Consent of Noteholders |
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Section 10.03. Effect of Supplemental Indenture |
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Section 10.04. Notation on Notes |
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Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished
to Trustee |
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ARTICLE XI |
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Merger, Consolidation, Etc. |
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Section 11.01. Mergers, Consolidations and Certain Transfers, Leases and Acquisitions
of Assets |
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Section 11.02. Successor to Be Substituted |
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Section 11.03. Opinion of Counsel to Be Given Trustee |
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ARTICLE XII |
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Section 12.01. Discharge of Indenture |
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Section 12.02. Deposited Monies to Be Held in Trust by Trustee |
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Section 12.03. Paying Agent to Repay Monies Held |
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Section 12.04. Return of Unclaimed Monies |
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Section 12.05. Reinstatement |
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ARTICLE XIII |
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Immunity of Incorporators, Stockholders, Officers and Directors |
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Section 13.01. Indenture and Notes Solely Corporate Obligations |
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ARTICLE XIV |
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Conversion of Notes |
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Section 14.01. Right to Convert |
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Section 14.02. Conversion Procedures |
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Section 14.03. Cash Payments in Lieu of Fractional Shares |
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Section 14.04. Conversion Rate; Settlement Upon Conversion |
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Section 14.05. Adjustment of Conversion Rate |
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Section 14.06. Effect of Fundamental Change, Reclassification, Consolidation,
Merger or Sale |
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Section 14.07. Taxes on Shares Issued |
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Section 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with
Governmental Requirements; Listing of Common Stock |
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Section 14.09. Responsibility of Trustee |
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Section 14.10. Notice to Holders Prior to Certain Actions |
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Section 14.11. Rights Issued in Respect of Common Stock Issued upon Conversion |
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ARTICLE XV |
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Subordination of Notes |
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Section 15.01. Notes Subordinated to Senior Indebtedness |
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Section 15.02. No Payment on Notes in Certain Circumstances. |
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Section 15.03. Payment over Proceeds upon Dissolution Etc. |
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Section 15.04. Subrogation. |
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Section 15.05. Obligations of Company Unconditional. |
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Section 15.06. Notice to Trustee. |
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Section 15.07. Reliance on Judicial Order or Certificate of Liquidating Agent. |
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Section 15.08. Trustee’s Relation to Senior Indebtedness. |
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Section 15.09. Subordination Rights Not Impaired by Acts or Omissions of the Company
or Holders of Senior Indebtedness. |
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Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Notes. |
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Section 15.11. Not to Prevent Events of Default. |
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Section 15.12. Trustee’s Compensation Not Prejudiced. |
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Section 15.13. No Waiver of Subordination Provisions. |
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Section 15.14. Payments May Be Paid Prior to Dissolution. |
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Section 15.15. Consent of Holders of Senior Indebtedness Under the Bank Credit Agreement. |
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Section 15.16. Trust Moneys Not Subordinated. |
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- iv -
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ARTICLE XVI |
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Miscellaneous |
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Section 16.01. Provisions Binding on Company’s Successors |
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Section 16.02. Addresses for Notices, Etc. |
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Section 16.03. Governing Law |
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Section 16.04. Evidence of Compliance with Conditions Precedent, Certificates to Trustee |
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Section 16.05. Legal Holidays |
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Section 16.06. Trust Indenture Act |
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Section 16.07. No Security Interest Created |
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Section 16.08. Benefits of Indenture |
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Section 16.09. Table of Contents, Headings, Etc. |
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Section 16.10. Authenticating Agent |
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Section 16.11. Official Acts by Successor Corporation |
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Section 16.12. Severability |
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Exhibit A Form of Note |
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A-1 |
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Exhibit B Trustee’s Certificate of Authentication |
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B-1 |
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Exhibit C Table of Additional Shares in Event of Fundamental |
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C-1 |
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- v -
INDENTURE
INDENTURE dated as of December ___, 2006 between AGCO Corporation, a Delaware corporation
(hereinafter called the “Company”), and Union Bank of California, N.A., a national banking
association, as trustee hereunder (hereinafter called the “Trustee”).
WITNESSETH:
WHEREAS, for its lawful corporate purposes, the Company has duly authorized the issue of its
___% Convertible Senior Subordinated Notes due 2036 (hereinafter called the “Notes”), in an
aggregate principal amount not to exceed $201,250,000 on the date hereof, and, to provide the terms
and conditions upon which the Notes are to be authenticated, issued and delivered, the Company has
duly authorized the execution and delivery of this Indenture;
WHEREAS, the Notes, the certificate of authentication to be borne by the Notes, a form of
assignment, a form of option to elect redemption upon a fundamental change, a form of purchase
notice, and a form of conversion notice to be borne by the Notes are to be substantially in the
forms hereinafter provided for;
WHEREAS, all acts and things necessary to duly authorize the issuance of the Common Stock
issuable upon the conversion of the Notes, and to duly reserve for issuance the number of shares of
Common Stock issuable upon such conversion, have been done and performed; and
WHEREAS, all acts and things necessary to make the Notes, when executed by the Company and
authenticated and delivered by the Trustee or a duly authorized authenticating agent, as in this
Indenture provided, the valid, binding and legal obligations of the Company, and to constitute this
Indenture a valid agreement according to its terms, have been done and performed, and the execution
of this Indenture and the issue hereunder of the Notes have in all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the Notes are, and are to be,
authenticated, issued and delivered, and in consideration of the premises and of the purchase and
acceptance of the Notes by the holders thereof, the Company covenants and agrees with the Trustee
for the equal and proportionate benefit of the respective holders from time to time of the Notes
(except as otherwise provided below), as follows:
ARTICLE I
___% Convertible Senior Subordinated Notes Due 2036
Section 1.01. Establishment. There is hereby established a new series of Notes to be
issued under this Indenture, to be designated as the Company’s ___% Convertible Senior Subordinated
Notes due 2036 (hereinafter called the “ Notes”). There are to be authenticated and delivered up
to $201,250,000 principal amount of the Notes. The Notes shall be issued in fully registered
form without coupons.
The payment of obligations of the Company under the Notes shall be subordinated to the
Company’s Senior Indebtedness, including the obligation of the Company under the Bank Credit
Agreement and shall rank pari passu with the obligations of the Company under the Senior
Subordinated Notes.
The Notes shall be in substantially the form set out in Exhibit A hereto, and the form of the
Trustee’s Certificate of Authentication for the Notes shall be in substantially the form set forth
in Exhibit B hereto. Each Note shall be dated the date of authentication thereof and shall bear
interest from the date specified on the face of the form of Note attached as Exhibit A hereto.
Section 1.02. Definitions. The terms defined in this Section 1.02 (except as herein
otherwise expressly provided or unless the context otherwise requires) shall have the respective
meanings specified in this Section 1.02 for purposes of the Notes. Capitalized terms used herein
for which no definition is provided herein shall have the meanings set forth in this Indenture.
All other terms used in this Indenture that are defined in the Trust Indenture Act or which are by
reference therein defined in the Securities Act (except as herein otherwise expressly provided or
unless the context otherwise requires) shall have the meanings assigned to such terms in the Trust
Indenture Act and in the Securities Act as in force at the date of the execution of this Indenture.
The words “herein”, “hereof”, “hereunder” and words of similar import refer to this Indenture as a
whole and not to any particular Article, Section or other Subdivision. The terms defined in this
Section 1.02 include the plural as well as the singular.
“Additional Notes” has the meaning specified in Section 2.01.
"Additional Shares” has the meaning specified in Section 14.06(a).
"Adjustment Determination Date” has the meaning specified in Section 14.05(h).
“Administrative Agent” has the meaning specified in Section 15.02(b).
"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.
"
Bank Credit Agreement” means the credit agreement dated April 17, 2001, as amended, among
the Company, certain of its subsidiaries named therein, the lenders named therein, Coöperatieve
Centrale Raiffeisen-Boerenleenbank B.A., “Rabobank, Nederland,”
New York Branch (“Rabobank”),
SunTrust Bank and Credit Suisse First Boston, as Co-Syndication Agents; Rabobank, Cobank, ACB and
Bear Xxxxxxx Corporate Lending, Inc., as Co-Documentation Agents; Coöperatieve Centrale
Raiffeisen-Boerenleenbank B.A., “Rabobank Nederland,” Canadian Branch, as Canadian administrative
agent, and Rabobank as
- 2 -
administrative agent, together with all agreements, instruments and documents executed or
delivered pursuant thereto or in connection therewith, in each case as such agreements, documents
or instruments may be amended, supplemented, extended, renewed, replaced or otherwise modified from
time to time, including, but not limited by, the credit agreement and other documents executed in
connection with the credit facility contemplated by that certain commitment letter dated August 15,
2003 from Rabobank to the Company.
"Board of Directors” means the Board of Directors of the Company or a committee of such Board
of Directors duly authorized to act for it hereunder.
"
Business Day” means each Monday, Tuesday, Wednesday, Thursday and Friday which is not a day
on which the banking institutions in The City of
New York or the city in which the Corporate Trust
Office is located are authorized or obligated by law or executive order to close or be closed.
"Closing Sale Price” means 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 as reported in composite transactions for
the principal United States securities exchange on which the Common Stock is traded or, if the
shares of Common Stock are not listed on a United States national or regional securities exchange,
Closing Sale Price will be the last quoted bid price for the Common Stock in the over-the-counter
market on the relevant date as reported by Pink Sheets LLC or similar organization. If the Common
Stock is not so quoted, the Closing Sale Price will be the average of the mid-point of the last bid
and ask prices for the Common Stock on the relevant date from each of at least three nationally
recognized independent banking firms, which may include the underwriters of the Notes, selected by
the Company for this purpose. Any such determination will be conclusive absent manifest error.
"Commission” means the Securities and Exchange Commission, as from time to time constituted,
created under the Exchange Act, or, if at any time after the execution of this Indenture such
Commission is not existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock” means any stock of any class of the Company which has no preference in respect
of dividends or of amounts payable in the event of any voluntary or involuntary liquidation,
dissolution or winding up of the Company and which is not subject to redemption by the Company.
Subject to the provisions of Section 14.06, however, shares issuable on conversion of Notes shall
include only shares of the class designated as common stock of the Company at the date, including
any Rights attached thereto (namely, the Common Stock, par value $0.01), or shares of any class or
classes resulting from any reclassification or reclassifications thereof and which have no
preference in respect of dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and which are not subject to
redemption by the Company; provided that if at any time there shall be more than one such resulting
class, the shares of each such class then so issuable on conversion shall be substantially in the
proportion which the total number of shares of such class resulting from all such reclassifications
bears to the total number of shares of all such classes resulting from all such reclassifications.
- 3 -
"Company” means the corporation named as the “Company” in the first paragraph hereof, and,
subject to the provisions of Article XI and Section 14.06 hereof, shall include its successors and
assigns.
"Company Repurchase Notice” has the meaning specified in Section 3.07(c).
"Company Repurchase Notice Date” has the meaning specified in Section 3.07(b).
"Conversion Agent” means the Trustee or any other Person appointed by the Company to accept
Notes presented for conversion.
"Conversion Date” has the meaning specified in Section 14.02.
"Conversion Notice” has the meaning specified in Section 14.02.
"Conversion Price” as of any date will equal $1,000 divided by the applicable Conversion Rate
as of such date.
"Conversion Rate” has the meaning specified in Section 14.04.
"
Corporate Trust Office” means the designated office of the Trustee, in the Borough of
Manhattan, The City of
New York, which office is at the date hereof located at
.
"Custodian” means the Trustee, as custodian with respect to the Notes in global form, or any
successor entity thereto.
"Daily Conversion Value” means, for each of the ten (10) consecutive Trading Days during the
applicable Observation Period, 1/10 of the product of (1) the applicable Conversion Rate for each
$1,000 principal amount of Notes and (2) the Daily VWAP of the Common Stock, or the consideration
into which the Common Stock has been converted in connection with certain corporate transactions,
on such day. Any such determination shall be conclusive absent manifest error.
"Daily Settlement Amount” means, for each of the ten (10) Trading Days during the Observation
Period:
(i) cash equal to the lesser of (x) $100 (such amount being the principal portion) and (y) the
Daily Conversion Value relating to such day; and
(ii) if such Daily Conversion Value exceeds $100, a number of shares of Common Stock equal to
(A) the difference between such Daily Conversion Value and $100, divided by (B) the Daily VWAP of
the Common Stock for such day (the “Deliverable Stock”).
Any such determination will be conclusive absent manifest error.
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"
Daily VWAP” for the Common Stock means, for each of the ten (10) consecutive trading days
during the applicable Observation Period, the per share volume-weighted average price as displayed
under the heading “Bloomberg VWAP” on Bloomberg page [AG <equity> AQR] in respect of the
period from 9:30 a.m. to 4:00 p.m.,
New York City time, on such trading day, or if such
volume-weighted average price is unavailable, the market value of one share of our common stock on
such trading day as our board of directors determines in good faith using a volume-weighted method.
"default” means any event that is, or after notice or passage of time, or both, would be, an
Event of Default.
"Defaulted Interest” has the meaning specified in Section 2.03.
"Deliverable Stock” has the meaning specified in “Daily Settlement Amount” above.
"Depositary” means the clearing agency registered under the Exchange Act that is designated to
act as the Depositary for the Global Notes. The Depository Trust Company shall be the initial
Depositary, until a successor shall have been appointed and become such pursuant to the applicable
provisions of this Indenture, and thereafter, “Depositary” shall mean or include such successor.
"Designated Event” means the occurrence of a Fundamental Change or a Termination of Trading.
"Designated Event Expiration Time” has the meaning specified in Section 3.05(b).
"Designated Event Notice” has the meaning specified in Section 3.05(b).
"Designated Event Redemption Date” has the meaning specified in Section 3.05(a).
"Designated Senior Indebtedness” means (i) indebtedness and all other monetary obligations
(including expenses, fees and other monetary obligations) under the Bank Credit Agreement and (ii)
any other indebtedness constituting Senior Indebtedness that, at any date of determination, has an
aggregate principal amount of at least $25 million and is specifically designated by the Company in
the instrument creating or evidencing such Senior Indebtedness as “Designated Senior Indebtedness.”
"Distributed Property” has the meaning specified in Section 14.05(c).
"Effective Date” has the meaning specified in Section 14.06(a).
"Events of Default” means any event specified in Section 6.01 as an Event of Default.
"Ex-Dividend Time” has the meaning specified in Section 14.01(b).
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"Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder, as in effect from time to time.
"ex-date” has the meaning specified in Section 14.01(b).
"Ex-Dividend Time” has the meaning specified in Section 14.01(b).
"Fair Market Value” has the meaning specified in Section 14.01(b).
"Fundamental Change” will be deemed to have occurred at the time after the Notes are
originally issued that any of the following occurs:
(1) any Person, including any syndicate or group deemed to be a person under Section
13(d)(3) of the Exchange Act, acquires beneficial ownership, directly or indirectly, through
a purchase, merger or other acquisition transaction or series of transactions, of shares of
the Company’s capital stock entitling the person to exercise 50% or more of the total voting
power of all shares of the Company’s capital stock entitled to vote generally in elections
of directors, other than an acquisition by the Company, any of the Company’s Subsidiaries or
any of the Company’s employee benefit plans;
(2) the Company merges or consolidates with or into any other Person (other than a
Subsidiary), another Person merges with or into the Company, or the Company conveys, sells,
transfers or leases all or substantially all of the Company’s assets to another Person,
other than any transaction:
|
• |
|
that does not result in a reclassification, conversion, exchange or cancellation
of Company’s outstanding Common Stock; |
|
|
• |
|
pursuant to which the holders of the Company’s Common Stock immediately prior to
the transaction have the entitlement to exercise, directly or indirectly, 50% or
more of the voting power of all shares of capital stock entitled to vote generally
in the election of directors of the continuing or surviving corporation immediately
after the transaction; or |
|
|
• |
|
which is effected solely to change the Company’s jurisdiction of incorporation
and results in a reclassification, conversion or exchange of outstanding shares of
the Company’s Common Stock solely into shares of common stock of the surviving
entity. |
However, notwithstanding the foregoing, Noteholders will not have the right to require the
Company to repurchase any Notes under clauses (1) or (2) above (and the Company will not be
required to deliver the Designated Event Notice incidental thereto) if at least 90% of the
consideration paid for the Company’s Common Stock (excluding cash payments for fractional shares
and cash payments made pursuant to dissenters’ appraisal rights) in a merger or consolidation
constituting a Fundamental Change under clause (2) above consists of shares of capital stock or
American Depositary Receipts in resepct of shares of capital stock traded on the
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New York Stock Exchange or another U.S. national securities exchange or quoted on an
established automated over-the-counter trading market in the United States (or will be so traded or
quoted immediately following the completion of the purchase, merger, consolidation, other
acquisition or series of transactions, conveyance, sale, transfer or lease) and, as a result of the
completion of the purchase, merger, consolidation, other acquisition transaction or series of
transactions, conveyance, sale, transfer or lease, the Notes become convertible into such shares of
such capital stock or such American Depositary Receipts.
"GAAP” means United States generally accepted accounting principles.
"Global Note” has the meaning specified in Section 2.02.
"Indenture” has the meaning specified in the recitals hereof.
"interest” means any interest payable under the terms of the Notes.
"
Last Reported Sale Price” means, with respect to the Common Stock or any other security for
which a Last Reported Sale Price must be determined, on any date, the closing sale price per share
of the Common Stock or unit of such other security (or, if no closing sale price is reported, the
average of the last bid and last ask prices or, if more than one in either case, the average of the
average last bid and the average last ask prices) on such date as reported by the
New York Stock
Exchange or if the Common Stock is not then traded on the
New York Stock Exchange, on the principal
U.S. national or regional securities exchange or automated quotation service on which it is then
traded or quoted, if any. If the Common Stock or such other security is not listed for trading on a
United States national or regional securities exchange on the relevant date, the Last Reported Sale
Price shall be the last quoted bid price per share of Common Stock or such other security in the
over-the-counter market on the relevant date, as reported by Pink Sheets LLC or similar
organization. In absence of such quotation, the Last Reported Sale Price shall be the average of
the mid-point of the last bid and asked prices for the Common Stock or such other security on the
relevant date from each of at least three nationally recognized independent investment banking
firms selected from time to time by the Board of Directors of the Company for that purpose. The
Last Reported Sale Price shall be determined without reference to extended or after hours trading.
Any such determination shall be made by the Company and will be conclusive absent manifest error.
"Merger Events” has the meaning specified in Section 14.06(c).
"non-electing share” has the meaning specified in Section 14.06(c).
"Note register” has the meaning specified in Section 2.04.
"Note registrar” has the meaning specified in Section 2.04.
"Noteholder” or “holder” as applied to any Note, or other similar terms (but excluding the
term “beneficial holder”), means any Person in whose name at the time a particular Note is
registered on the Note registrar’s books.
"Notes” has the meaning specified in Section 1.01.
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"Observation Period” means the ten (10) consecutive Trading Day period beginning on and
including the second Trading Day after the related Conversion Date in respect of such Note.
"Offer Expiration Time” has the meaning specified in Section 14.01(e)(B).
"Officer,” when used with respect to the Company, means (i) the Chairman of the Board of
Directors, a Vice Chairman of the Board of Directors, the Chief Executive Officer, the President or
a Vice President or the Chief Financial Officer, and by (ii) the Treasurer, an Assistant Treasurer,
the Secretary or an Assistant Secretary of the Company.
"Officers’ Certificate” of the Company means a certificate signed by (i) the Chairman of the
Board of Directors, a Vice Chairman of the Board of Directors, the Chief Executive Officer, the
President or a Vice President or the Chief Financial Officer, and by (ii) the Treasurer, an
Assistant Treasurer, the Secretary or an Assistant Secretary of the Company, as the case may be,
and delivered to the Trustee. Unless the context otherwise requires, each reference herein to an
“Officers’ Certificate” shall mean an Officers’ Certificate of the Company. References herein, or
in any Note, to any officer of a Person that is a partnership shall mean such officer of the
partnership or, if none, of a general partner of the partnership authorized thereby to act on its
behalf.
"Opinion of Counsel” means an opinion in writing signed by legal counsel, who may be an
employee of or counsel to the Company, or other counsel reasonably acceptable to the Trustee.
"Optional Redemption” has the meaning specified in Section 3.01.
"outstanding,” when used with reference to Notes and subject to the provisions of Section
8.04, means, as of any particular time, all Notes authenticated and delivered by the Trustee under
this First Supplemental Indenture, except:
(a) Notes theretofore canceled by the Trustee or delivered to the Trustee for
cancellation;
(b) Notes, or portions thereof, (i) for the redemption of which monies in the necessary
amount shall have been deposited in trust with the Trustee or with any paying agent (other
than the Company) or (ii) which shall have been otherwise discharged in accordance with
Article XII;
(c) Notes in lieu of which, or in substitution for which, other Notes shall have been
authenticated and delivered pursuant to the terms of Section 2.06; and
(d) Notes converted into Common Stock pursuant to the conversion provisions in this
Article I and Notes deemed not outstanding pursuant to the redemption and repurchase
provisions of this Article I.
"Payment Blockage Period” has the meaning specified in Section 15.02(b).
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"Person” means any individual, partnership, joint venture, firm, corporation, limited
liability company, association, trust or other enterprise or any government or political
subdivision or any agency, department or instrumentality thereof.
"premium” means any premium payable under the terms of the Notes.
"Public Acquirer Change of Control” means any event constituting a Fundamental Change in which
the acquirer, the Person formed by or surviving any merger or consolidation, or any Person that is
a direct or indirect “beneficial owner” (as defined in Rule 13d-3 under the Exchange Act) of more
than 50% of the total voting power of all shares of such acquirer’s or such other Person’s capital
stock that are entitled to vote generally in the election of directors has Public Acquirer Common
Stock; provided that if there is more than one such “beneficial owner,” the relevant “beneficial
owner” will be the one with the most direct beneficial ownership to such acquirer’s or other
Person’s capital stock.
"Public Acquirer Common Stock” means shares of capital stock traded on a United States
national securities exchange or quoted on the Nasdaq Global Market or which will be so traded or
quoted when issued or exchanged in connection with a Fundamental Change.
"Purchased Shares” has the meaning specified in Section 14.01(e)(A).
"record date” has the meaning specified in Section 2.03 with respect to any interest payment
date, and for any other purpose means the record date established by the Company for a specified
purpose.
"Redemption Date” has the meaning specified in Section 3.02.
"Reference Property” has the meaning specified in Section 14.06(c).
"Repurchase Date” has the meaning specified in Section 3.06.
"Repurchase Notice” has the meaning specified in Section 3.06(a).
"Responsible Officer” means, with respect to the Trustee, any vice president, any assistant
vice president, any assistant secretary, any assistant treasurer, any trust officer or assistant
trust officer, the controller or any assistant controller or any other officer of the Trustee
customarily performing functions similar to those performed by any of the above designated officers
and also means, with respect to a particular corporate trust matter, any other officer to whom such
matter is referred because of his or her knowledge of and familiarity with the particular subject.
"Rights” has the meaning specified in Section 14.11.
"Rights Agreement” has the meaning specified in Section 14.11.
"Securities Act” means the Securities Act of 1933, as amended, and the rules and regulations
promulgated thereunder, as in effect from time to time.
- 9 -
"Senior Indebtedness” means the following obligations of the Company, whether outstanding on
the date or thereafter Incurred:
(a) all indebtedness and all other monetary obligations (including, without
limitation, expenses, fees, claims, indemnifications, reimbursements, liabilities and
other monetary obligations and any obligation to deliver cash as collateral security for
contingent reimbursement obligations in respect of outstanding letters of credit of the
Company) under the Bank Credit Agreement, any interest rate agreement or currency
agreement and the Company’s guarantee of any indebtedness or monetary obligation of any
of its Subsidiaries under any interest rate agreement or currency agreement; and
(b) all other indebtedness of the Company (other than the Notes and the Senior
Subordinated Notes), including principal and interest on such indebtedness, unless such
indebtedness, by its terms or by the terms of any agreement or instrument pursuant to
which such indebtedness is issued, is pari passu with, or subordinated in right of
payment to, the Notes;
provided that the term “Senior Indebtedness” shall not include:
(i) any indebtedness of the Company that, when incurred, and without respect to any
election under Section 1111(b) of the United States Bankruptcy Code, was without
recourse to the Company;
(ii) any indebtedness of the Company that by its express terms is not senior to the
Notes or is pari passu or junior to the Notes;
(iii) any indebtedness of the Company to any of its Subsidiaries or to a joint
venture in which the Company has an interest;
(iv) any indebtedness of the Company not permitted by the indentures governing the
Senior Subordinated Notes;
(v) any repurchase, redemption or other obligation in respect of Redeemable Stock
(as defined in the indentures governing the Senior Subordinated Notes);
(vi) any indebtedness of the Company to any employee, officer or director of the
Company or any of its Subsidiaries;
(vii) any liability for federal, state, local or other taxes owed or owing by the
Company; or
(viii) any trade payables of the Company.
Senior Indebtedness will also include interest accruing subsequent to events of bankruptcy of
the Company and its Subsidiaries at the rate provided for in the document
- 10 -
governing such Senior Indebtedness, whether or not such interest is an allowed claim
enforceable against the debtor in a bankruptcy case under federal bankruptcy law or similar laws
relating to insolvency. For purposes of clause (iv) of the immediately preceding proviso, a good
faith determination by the Chief Financial Officer of the Company, evidenced by an Officer’s
Certificate, that any indebtedness was permitted by the indentures governing the Senior
Subordinated Notes shall be conclusive.
"Senior Subordinated Notes” means the 6-7/8% Senior Subordinated Notes due 2014 issued
pursuant to this Indenture, dated as of [___], among the Company and [SunTrust Bank], as
trustee, and the 13/4% Convertible Senior Subordinated Notes due 2033 issued pursuant to this
Indenture, dated December 23, 2003, among the Company and SunTrust Bank, as trustee, as
supplemented by a First Supplemental Indenture, dated June 30, 2005, among the Company and SunTrust
Bank, as trustee.
"Significant Subsidiary” means any subsidiary of the Company that meets the definition of
“significant subsidiary” in Section 1-02(w) of Regulation S-X.
"Spin-Off” has the meaning specified in Section 14.05(c).
"Stock Price” has the meaning specified in Section 14.06(a).
"Stockholder Record Date” has the meaning specified in Section 14.05(e).
"Subsidiary” of any Person means (i) any corporation more than 50% of whose stock of any class
or classes having by the terms of such stock ordinary voting power to elect a majority of the
directors of such corporation (irrespective of whether or not at the time stock of any class or
classes of such corporation shall have or might have voting power by reason of the happening of any
contingency) is at the time owned by such Person and/or by one or more Subsidiaries of such Person
or by such Person and one or more Subsidiaries of such Person and (ii) any partnership,
association, limited liability company, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person or such Person and one or more Subsidiaries of such Person
has more than a 50% equity interest at the time.
"Termination of Trading” means that the Common Stock, or other common stock into which the
Notes are then convertible, is not listed for trading on a United States national securities
exchange.
"
Trading Day” means a day during which trading in securities generally occurs on the
New York
Stock Exchange, or, if our common stock is not then listed on the
New York Stock Exchange, on
another national or regional securities exchange on which our common stock is then listed or quoted
or, if our common stock is not listed on the
New York Stock Exchange or a national or regional
securities exchange or automated quotation service, on the principal other market on which our
common stock is then traded or quoted. If our common stock is not so traded or quoted, “trading
day” means a Business Day.
"
Trading Price” means, on any date of determination, the average of the secondary market bid
quotations for the Notes obtained by the Trustee for $2,000,000 principal amount of Notes at
approximately 3:30 p.m., New York City time, on such determination date
- 11 -
from three independent nationally recognized securities dealers selected by the Company (which
may include any underwriters involved in the sale of the Notes); provided that if at least three
such bids cannot reasonably be obtained by the Trustee, but two bids are obtained, then the average
of the two bids shall be used, and if only one such bid can reasonably be obtained by the Trustee,
one bid shall be used; and provided further that if the Trustee cannot reasonably obtain at least
one bid for $2,000,000 principal amount of Notes from a nationally recognized securities dealer,
then the Trading Price per $1,000 principal amount of Notes shall be deemed to be less than 98% of
the product of the Closing Sale Price and the Conversion Rate.
"Trigger Event” has the meaning specified in Section 14.05(c).
"Trust Indenture Act” means the Trust Indenture Act of 1939, as amended, as it was in force at
the date of this Indenture; provided that if the Trust Indenture Act of 1939 is amended after the
date hereof, the term “Trust Indenture Act” shall mean, to the extent required by such amendment,
the Trust Indenture Act of 1939 as so amended.
"Trustee” means Union Bank of California, N.A., a national banking association, and its
successors and any corporation resulting from or surviving any consolidation or merger to which it
or its successors may be a party and any successor trustee at the time serving as successor trustee
hereunder.
ARTICLE II
Issue, Description, Execution, Registration and Exchange of Notes
Section 2.01. Designation, Amount and Issue of Notes. The Notes shall be designated as “___%
Convertible Senior Subordinated Notes Due 2036”. The payment of obligations of the Company under
the Notes shall be subordinated to the Company’s Senior Indebtedness, including the obligation of
the Company under the Bank Credit Agreement and shall rank
pari passu with the obligations of the
Company under the Senior Subordinated Notes. The aggregate principal amount of Notes that may be
authenticated and delivered under this Indenture is unlimited. Notes not to exceed the aggregate
principal amount of $201,250,000 upon the execution of this Indenture may be executed by the
Company and delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver said Notes to or upon the written order of the Company, signed by its
Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief Executive
Officer, President, Chief Financial Officer or any Vice President, without any further action by
the Company hereunder. In addition, subject to the provisions of Section 16.04, an unlimited
aggregate principal amount of additional Notes (the “
Additional Notes”) may be executed after the
date of this Indenture by the Company and delivered to the Trustee for authentication, and the
Trustee shall, upon receipt of an Officers’ Certificate specifying the amount of Notes to be
authenticated and the date on which such Notes are to be authenticated and certifying that all
conditions precedent to the issuance of the Additional Notes contained herein have been complied
with and that no default or Event of Default would occur as a result of the issuance of such
Additional Notes, authenticate and deliver said Additional Notes to or upon the written order of
the Company, signed as set forth in the preceding sentence;
provided that Additional Notes may be
issued under this Indenture only if such Additional Notes and the Notes constitute one series for
United States Federal income tax purposes. The Notes and the Additional Notes, if any, shall
constitute
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one series for all purposes under this Indenture, including, without limitation, amendments,
waivers and redemptions.
Section 2.02. Form of Notes; Execution and Authentication of Notes. So long as the Notes
are eligible for book-entry settlement with the Depositary, or unless otherwise required by law, or
otherwise contemplated by Section 2.04, all of the Notes will be represented by one or more Notes
in global form registered in the name of the Depositary or the nominee of the Depositary (a “Global
Note”). The transfer and exchange of beneficial interests in any such Global Note shall be
effected through the Depositary in accordance with this Indenture and the applicable procedures of
the Depositary. Except as provided in such Section 2.04, beneficial owners of a Global Note shall
not be entitled to have certificates registered in their names, will not receive or be entitled to
receive physical delivery of certificates in definitive form and will not be considered holders of
such Global Note.
Any Global Note shall represent such of the outstanding Notes as shall be specified therein
and shall provide that it shall represent the aggregate amount of outstanding Notes from time to
time endorsed thereon and that the aggregate amount of outstanding Notes represented thereby may
from time to time be increased or reduced to reflect redemptions, repurchases, conversions,
transfers or exchanges permitted hereby. Any endorsement of a Global Note to reflect the amount of
any increase or decrease in the amount of outstanding Notes represented thereby shall be made by
the Trustee or the Custodian, at the direction of the Trustee, in such manner and upon written
instructions given by the holder of such Notes in accordance with this Indenture. Payment of
principal of and interest and premium, if any, on any Global Note shall be made to the holder of
such Global Note.
The Notes shall be signed in the name and on behalf of the Company by the manual or facsimile
signature of its Chairman of the Board of Directors, Vice Chairman of the Board of Directors, Chief
Executive Officer, President, Chief Financial Officer or any Vice President . The signature of any
of these officers on the Notes may be manual or facsimile. Only such Notes as shall bear thereon
a certificate of authentication substantially in the form set forth on the form of Note attached
as Exhibit A hereto, manually executed by the Trustee (or an authenticating agent appointed by the
Trustee as provided by Section 16.11), shall be entitled to the benefits or be valid or obligatory
for any purpose. Such certificate by the Trustee (or such an authenticating agent) upon any Note
executed by the Company shall be conclusive evidence that the Note so authenticated has been duly
authenticated and delivered hereunder and that the holder is entitled to the benefits.
In case any Officer of the Company who shall have signed any of the Notes shall cease to be
such Officer before the Notes so signed shall have been authenticated and delivered by the
Trustee, or disposed of by the Company, such Notes nevertheless may be authenticated and delivered
or disposed of as though the person who signed such Notes had not ceased to be such Officer of the
Company, and any Note may be signed on behalf of the Company by such persons as, at the actual
date of the execution of such Note, shall be the proper Officers of the Company, although at the
date of the execution any such person was not such an Officer.
Section 2.03. Date and Denomination of Notes; Payments of Interest. Subject to Section 2.02,
the Notes shall be issuable in registered form without coupons in denominations of
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$1,000 principal amount and multiples thereof. Each Note shall be dated the date of its
authentication and shall bear interest from the date specified on the face of the form of Note
attached as Exhibit A hereto. Interest on the Notes shall be computed on the basis of a 360-day
year comprised of twelve 30-day months.
The Person in whose name any Note (or its predecessor Note) is registered on the Note
register at the close of business on any record date with respect to any interest payment date
shall be entitled to receive the interest payable on such interest payment date, except that the
interest payable upon redemption or repurchase will be payable to the Person to whom principal is
payable pursuant to such redemption or repurchase (unless the redemption date or the Repurchase
Date, as the case may be, is an interest payment date, in which case the semi-annual payment of
interest becoming due on such date shall be payable to the holders of such Notes registered as
such on the applicable record date). Interest shall be payable at the office of the Company
maintained by the Company for such purposes in the Borough of Manhattan, The City of New York,
which shall initially be the Corporate Trust Office of the Trustee and may, as the Company shall
specify to the paying agent in writing by each record date, be paid either (i) by check mailed to
the address of the Person entitled thereto as it appears in the Note register (provided that any
holder of Notes with an aggregate principal amount in excess of $2,000,000 shall, at the written
election of such holder (such election to be made prior to the relevant record date and to contain
appropriate wire transfer information), be paid by wire transfer in immediately available funds) or
(ii) by transfer to an account maintained by such Person located in the United States; provided
that payments to the Depositary will be made by wire transfer of immediately available funds to the
account of the Depositary or its nominee. The term “record date” with respect to any interest
payment date shall mean the December 1 or June 1 preceding the applicable December 15 or June 15
interest payment date, respectively.
Any interest on any Note which is payable, but is not punctually paid or duly provided for,
on any December 15 or June 15 (herein called “Defaulted Interest”) shall forthwith cease to be
payable to the Noteholder on the relevant record date by virtue of its, his or her having been such
Noteholder, and such Defaulted Interest shall be paid by the Company, at its election in each case,
as provided in clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted Interest to the Persons in
whose names the Notes (or their respective predecessor Notes) are registered at the close
of business on a special record date for the payment of such Defaulted Interest, which shall
be fixed in the following manner. The Company shall provide an Officers’ Certificate to the
Trustee specifying the amount of Defaulted Interest proposed to be paid on each Note and
the date of the proposed payment (which shall be not less than 25 days after the receipt by
the Trustee of such notice, unless the Trustee shall consent to an earlier date), and at the
same time the Company shall deposit with the Trustee an amount of money equal to the
aggregate amount to be paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit on or prior to the date of the proposed
payment, such money when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this clause provided. Thereupon the Trustee shall
fix a special record date for the payment of such Defaulted Interest which shall be not more
than 15 days and not less than ten days prior to the date of the proposed payment, and not
less than ten days after the receipt by the
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Trustee of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such special record date and, in the name and at the expense of the Company,
shall cause notice of the proposed payment of such Defaulted Interest and the special record
date therefor to be mailed, first-class postage prepaid, to each holder at its, his or her
address as it appears in the Note register, not less than ten days prior to such special
record date. Notice of the proposed payment of such Defaulted Interest and the special
record date therefor having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Notes (or their respective predecessor Notes) are registered at
the close of business on such special record date and shall no longer be payable pursuant to
the following clause (2) of this Section 2.03.
(2) The Company may make payment of any Defaulted Interest in any other lawful manner
not inconsistent with the requirements of any securities exchange or automated quotation
system on which the Notes may be listed or designated for issuance, and upon such notice as
may be required by such exchange or automated quotation system, if, after notice given by
the Company to the Trustee of the proposed payment pursuant to this clause, such manner of
payment shall be deemed practicable by the Trustee.
Section 2.04. Exchange and Registration of Transfer of Notes. The Company shall cause to
be kept at the Corporate Trust Office a register (the register maintained in such office and in any
other office or agency of the Company designated pursuant to Section 4.02 being herein sometimes
collectively referred to as the “Note register”) in which, subject to such reasonable regulations
as it may prescribe, the Company shall provide for the registration of Notes and of transfers of
Notes. The Note register shall be in written form or in any form capable of being converted into
written form within a reasonably prompt period of time. The Trustee is hereby appointed “Note
registrar” for the purpose of registering Notes and transfers of Notes as herein provided. The
Company may appoint one or more co-registrars in accordance with Section 4.02.
Upon surrender for registration of transfer of any Note to the Note registrar or any
co-registrar, and satisfaction of the requirements for such transfer set forth in this Section
2.04, the Company shall execute, and the Trustee shall authenticate and deliver, in the name of the
designated transferee or transferees, one or more new Notes of any authorized denominations and of
a like aggregate principal amount and bearing such restrictive legends as may be required by this
Indenture.
Notes may be exchanged for other Notes of any authorized denominations and of a like aggregate
principal amount upon surrender of the Notes to be exchanged at any such office or agency
maintained by the Company pursuant to Section 4.02. Whenever any Notes are so surrendered for
exchange, the Company shall execute, and the Trustee shall authenticate and deliver, the Notes
which the Noteholder making the exchange is entitled to receive bearing registration numbers not
contemporaneously outstanding.
All Notes issued upon any registration of transfer or exchange of Notes shall be the valid
obligations of the Company, evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Notes surrendered upon such registration of transfer or exchange.
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All Notes presented or surrendered for registration of transfer or exchange, redemption,
repurchase or conversion shall (if so required by the Company or the Note registrar) be duly
endorsed, or be accompanied by a written instrument or instruments of transfer in form satisfactory
to the Company or the Note registrar, as the case may be, and the Notes shall be duly executed by
the Noteholder thereof or his attorney duly authorized in writing.
No service charge shall be made to any holder for any registration of transfer or exchange of
Notes, but either the Company, the Trustee or both may require payment by the holder of a sum
sufficient to cover any tax, assessment or other governmental charge that may be imposed in
connection with any registration of transfer or exchange of Notes.
Neither the Company nor the Trustee nor any Note registrar shall be required to exchange or
register a transfer of (a) any Notes for a period of 15 days next preceding any selection of
Notes to be redeemed, (b) any Notes or portions thereof called for redemption pursuant to Section
3.02, (c) any Notes or portions thereof surrendered for conversion pursuant to Section 14.01, (d)
any Notes or portions thereof tendered for redemption (and not withdrawn) pursuant to Section 3.05
or (e) any Notes or portions thereof tendered for repurchase (and not withdrawn) pursuant to
Section 3.06.
Section 2.05. Mutilated, Destroyed, Lost or Stolen Notes. In case any Note shall become
mutilated or be destroyed, lost or stolen, the Company in its discretion may execute, and upon its
written request the Trustee or an authenticating agent appointed by the Trustee shall authenticate
and make available for delivery, a new Note, bearing a number not contemporaneously outstanding, in
exchange and substitution for the mutilated Note, or in lieu of and in substitution for the Note so
destroyed, lost or stolen. In every case, the applicant for a substituted Note shall furnish to
the Company, to the Trustee and, if applicable, to such authenticating agent such security or
indemnity as may be required by them to save each of them harmless for any loss, liability, cost
or expense caused by or connected with such substitution, and, in every case of destruction, loss
or theft, the applicant shall also furnish to the Company, to the Trustee and, if applicable, to
such authenticating agent evidence to their satisfaction of the destruction, loss or theft of such
Note and of the ownership thereof.
Following receipt by the Trustee or such authenticating agent, as the case may be, of
satisfactory security or indemnity and evidence, as described in the preceding paragraph, the
Trustee or such authenticating agent may authenticate any such substituted Note and make available
for delivery such Note. Upon the issuance of any substituted Note, either the Company, the Trustee
or both may require the payment by the holder of a sum sufficient to cover any tax, assessment or
other governmental charge that may be imposed in relation thereto and any other expenses connected
therewith. In case any Note which has matured or is about to mature or has been called for
redemption or has been tendered for redemption upon a Fundamental Change (and not withdrawn) or has
been surrendered for repurchase on a Repurchase Date (and not withdrawn) or is to be converted into
Common Stock shall become mutilated or be destroyed, lost or stolen, the Company may, instead of
issuing a substitute Note, pay or authorize the payment of or convert or authorize the conversion
of the same (without surrender thereof except in the case of a mutilated Note), as the case may be,
if the applicant for such payment or conversion shall furnish to the Company, to the Trustee and,
if applicable, to such authenticating agent such security or indemnity as may be required by them
to save each of them harmless for
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any loss, liability, cost or expense caused by or in connection with such substitution, and,
in every case of destruction, loss or theft, the applicant shall also furnish to the Company, the
Trustee and, if applicable, any paying agent or Conversion Agent evidence to their satisfaction of
the destruction, loss or theft of such Note and of the ownership thereof.
Every substitute Note issued pursuant to the provisions of this Section 2.06 by virtue of the
fact that any Note is destroyed, lost or stolen shall constitute an additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note shall be found at any
time, and shall be entitled to all the benefits of (but shall be subject to all the limitations set
forth in) this Indenture equally and proportionately with any and all other Notes duly issued
hereunder. To the extent permitted by law, all Notes shall be held and owned upon the express
condition that the foregoing provisions are exclusive with respect to the replacement or payment or
conversion or redemption or repurchase of mutilated, destroyed, lost or stolen Notes and shall
preclude any and all other rights or remedies notwithstanding any law or statute existing or
hereafter enacted to the contrary with respect to the replacement or payment or conversion or
redemption or repurchase of negotiable instruments or other securities without their surrender.
Section 2.06. Temporary Notes. Pending the preparation of Notes in certificated form, the
Company may execute and the Trustee or an authenticating agent appointed by the Trustee shall, upon
the written request of the Company, authenticate and deliver temporary Notes (printed or
lithographed). Temporary Notes shall be issuable in any authorized denomination, and substantially
in the form of the Notes in certificated form, but with such omissions, insertions and variations
as may be appropriate for temporary Notes, all as may be determined by the Company. Every such
temporary Note shall be executed by the Company and authenticated by the Trustee or such
authenticating agent upon the same conditions and in substantially the same manner, and with the
same effect, as the Notes in certificated form. Without unreasonable delay, the Company will
execute and deliver to the Trustee or such authenticating agent Notes in certificated form and
thereupon any or all temporary Notes may be surrendered in exchange therefor, at each office or
agency maintained by the Company pursuant to Section 4.02 and the Trustee or such authenticating
agent shall authenticate and make available for delivery in exchange for such temporary Notes an
equal aggregate principal amount of Notes in certificated form. Such exchange shall be made by the
Company at its own expense and without any charge therefor. Until so exchanged, the temporary
Notes shall in all respects be entitled to the same benefits and subject to the same limitations
under this Indenture as Notes in certificated form authenticated and delivered hereunder.
Section 2.07. Cancellation of Notes. If the Company shall acquire any of the Notes, such
acquisition shall not operate as a redemption, repurchase or satisfaction of the indebtedness
represented by such Notes unless and until the same are delivered to the Trustee for cancellation.
All Notes surrendered for the purpose of payment, redemption, repurchase, conversion, exchange or
registration of transfer shall, if surrendered to the Company or any paying agent or any Note
registrar or any Conversion Agent, be surrendered to the Trustee and promptly canceled by it, or,
if surrendered to the Trustee, shall be promptly canceled by it, and no Notes shall be issued in
lieu thereof except as expressly permitted by any of the provisions of this Indenture. The Trustee
shall dispose of such canceled Notes in accordance with its customary procedures. Any Notes
surrendered by the Company to the Trustee for cancellation
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shall be accompanied by an Officers’ Certificate requesting the Trustee to effect such
cancellation.
Section 2.08. CUSIP Numbers. The Company in issuing the Notes 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 Noteholders; provided that any such notice may state that no representation is
made as to the correctness of such numbers either as printed on the Notes or as contained in any
notice of a redemption and that reliance may be placed only on the other identification numbers
printed on the Notes, and any such redemption shall not be affected by any defect in or omission of
such numbers. The Company will promptly notify the Trustee in writing of any change in the “CUSIP”
numbers.
ARTICLE III
Redemption and Repurchase of Notes
Section 3.01. Redemption of Notes at the Option of the Company. Except as otherwise provided
in Section 3.05, the Company may not redeem any Notes prior to December 19, 2013. At any time on
or after December 19, 2013, the Notes may be redeemed at the option of the Company (an “Optional
Redemption”), in whole or in part, in cash, upon notice as set forth in Section 3.02, at 100% of
the principal amount, together with accrued and unpaid interest, if any, to, but excluding the date
fixed for redemption.
Section 3.02. Notice of Optional Redemption; Selection of Notes. In case the Company shall
desire to exercise the right to redeem all or, as the case may be, any part of the Notes pursuant
to Section 3.01, it shall fix a date for redemption and it or, at its written request received by
the Trustee not fewer than forty-five (45) days prior (or such shorter period of time as may be
acceptable to the Trustee) to the date fixed for redemption, the Trustee in the name of and at the
expense of the Company, shall mail or cause to be mailed a notice of such redemption not fewer than
thirty (30) nor more than sixty (60) days prior to the redemption date to each holder of Notes so
to be redeemed as a whole or in part at its last address as the same appears on the Note register;
provided that if the Company shall give such notice, it shall give substantially concurrent written
notice of the redemption date to the Trustee. Such mailing shall be by first class mail. The
notice, if mailed in the manner herein provided, shall be conclusively presumed to have been duly
given, whether or not the holder receives such notice. In any case, failure to give such notice by
mail or any defect in the notice to the holder of any Note designated for redemption as a whole or
in part shall not affect the validity of the proceedings for the redemption of any other Note.
Concurrently with the mailing of any such notice of redemption, the Company shall issue a press
release announcing such redemption, the form and content of which press release shall be determined
by the Company in its sole discretion. The failure to issue any such press release or any defect
therein shall not affect the validity of the redemption notice or any of the proceedings for the
redemption of any Note called for redemption.
Each such notice of redemption shall specify the aggregate principal amount of Notes to be
redeemed, the CUSIP number or numbers of the Notes being redeemed (if then generally in use), the
date (which shall be a Business Day) fixed for redemption (the “
Redemption Date”), the redemption
price at which Notes are to be redeemed, the place or places of payment, that payment will be made
upon presentation and surrender of such Notes,
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that interest accrued to the date fixed for redemption will be paid as specified in said
notice, and that on and after said date interest thereon or on the portion thereof to be redeemed
will cease to accrue. Such notice shall also state the current Conversion Rate and the date on
which the right to convert such Notes or portions thereof will expire. Notes or portions of
Notes that are converted in accordance with the terms after the delivery of a notice of redemption
set forth above shall not be subject to redemption. If fewer than all the Notes are to be
redeemed, the notice of redemption shall identify the Notes to be redeemed (including CUSIP
numbers, if any). In case any Note is to be redeemed in part only, the notice of redemption shall
state the portion of the principal amount thereof to be redeemed and shall state that, on and after
the redemption date, upon surrender of such Note, a new Note or Notes in principal amount equal
to the unredeemed portion thereof will be issued.
On or prior to the redemption date specified in the notice of redemption given as provided in
this Section 3.02, the Company will deposit with the Trustee or with one or more paying agents (or,
if the Company is acting as the paying agent, set aside, segregate and hold in trust as provided in
Section 4.04) an amount of money in immediately available funds sufficient to redeem on the
redemption date all the Notes (or portions thereof) so called for redemption (other than those
theretofore surrendered for conversion in accordance with this Indenture) at the appropriate
redemption price, together with accrued interest to, but excluding, the redemption date; provided
that if such payment is made on the redemption date it must be received by the Trustee or paying
agent, as the case may be, by 10:00 a.m., New York City time, on such date. The Company shall be
entitled to retain any interest, yield or gain on amounts deposited with the Trustee or any paying
agent pursuant to this Section 3.02 in excess of amounts required hereunder to pay the redemption
price and accrued interest to, but excluding, the redemption date. If any Note called for
redemption is converted pursuant to this Indenture prior to such redemption date, any money
deposited with the Trustee or any paying agent or so segregated and held in trust for the
redemption of such Note shall be paid to the Company upon its written request, or, if then held by
the Company, shall be discharged from such trust. Whenever any Notes are to be redeemed pursuant
to Section 3.01, the Company will give the Trustee written notice in the form of an Officers’
Certificate not fewer than 45 days (or such shorter period of time as may be acceptable to the
Trustee) prior to the redemption date as to the aggregate principal amount of Notes to be
redeemed.
If less than all of the outstanding Notes are to be redeemed, the Trustee shall select the
Notes or portions thereof of the Global Note or the Notes in certificated form to be redeemed (in
principal amounts of $1,000 or multiples thereof) by lot, on a pro rata basis or by another method
the Trustee deems fair and appropriate. If any Note selected for partial redemption is submitted
for conversion in part after such selection, the portion of such Note submitted for conversion
shall be deemed (so far as may be possible) to be the portion to be selected for redemption. The
Notes (or portions thereof) so selected shall be deemed duly selected for redemption for all
purposes hereof, notwithstanding that any such Note is submitted for conversion in part before the
mailing of the notice of redemption.
Upon any redemption of less than all of the outstanding Notes, the Company and the Trustee
may (but need not), solely for purposes of determining the pro rata allocation among such Notes as
are unconverted and outstanding at the time of redemption, treat as outstanding any Notes
surrendered for conversion during the period of 15 days next preceding the mailing of
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a notice of redemption and may (but need not) treat as outstanding any Note authenticated and
delivered during such period in exchange for the unconverted portion of any Note converted in part
during such period.
Section 3.03. Payment of Notes Called for Redemption by the Company. If notice of
redemption has been given as provided in Section 3.02, the Notes or portion thereof with respect
to which such notice has been given shall, unless converted pursuant to the terms of this
Indenture, become due and payable on the date fixed for redemption and at the place or places
stated in such notice at the applicable redemption price, together with interest accrued to (but
excluding) the redemption date, and on and after said date (unless the Company shall default in the
payment of such Notes at the redemption price, together with interest accrued to said date)
interest on the Notes or portion thereof so called for redemption shall cease to accrue and, after
the close of business on the Business Day immediately preceding the redemption date, such Notes
shall cease to be convertible and, except as provided in Sections 7.06 and 12.04, to be entitled to
any benefit or security under this Indenture, and the holders thereof shall have no right in
respect of such Notes except the right to receive the redemption price thereof and unpaid interest
to (but excluding) the redemption date. On presentation and surrender of such Notes at a place of
payment in said notice specified, the said Notes or the specified portions thereof shall be paid
and redeemed by the Company at the applicable redemption price, together with interest accrued
thereon to (but excluding) the redemption date; provided that if the applicable redemption date is
an interest payment date, the interest payable on such interest payment date shall be payable to
the holders of record of such Notes on the applicable record date instead of the holders
surrendering such Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall execute and the
Trustee shall authenticate and make available for delivery to the holder thereof, at the expense of
the Company, a new Note or Notes, of authorized denominations, in principal amount equal to the
unredeemed portion of the Notes so presented.
Notwithstanding the foregoing, the Trustee shall not redeem any Notes or mail any notice of
redemption during the continuance of a default in payment of interest or premium, if any, on the
Notes. If any Note called for redemption shall not be so paid upon surrender thereof for
redemption, the principal and premium, if any, shall, until paid or duly provided for, bear
interest from the redemption date at a rate equal to 1% per annum plus the rate borne by the Note
(without duplication of the 1% increase provided for under Section 6.02) and such Note shall
remain convertible under this Indenture until the principal and premium, if any, and interest shall
have been paid or duly provided for.
Section 3.04. Conversion Arrangement on Call for Redemption. In connection with any
redemption of Notes, the Company may arrange for the purchase and conversion of any Notes by an
agreement with one or more investment banks or other purchasers to purchase such Notes by paying to
the Trustee in trust for the Noteholders, on or before the date fixed for redemption, an amount not
less than the applicable redemption price, together with interest accrued to (but excluding) the
date fixed for redemption, of such Notes. Notwithstanding anything to the contrary contained in
this Article III, the obligation of the Company to pay the redemption price of such Notes,
together with interest accrued to (but excluding) the date fixed for redemption, shall be deemed to
be satisfied and discharged to the extent such amount is so
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paid by such purchasers. If such an agreement is entered into, a copy of which will be filed
with the Trustee prior to the date fixed for redemption, any Notes not duly surrendered for
conversion by the holders thereof may, at the option of the Company, be deemed, to the fullest
extent permitted by law, acquired by such purchasers from such holders and (notwithstanding
anything to the contrary contained in this Article III) surrendered by such purchasers for
conversion, all as of immediately prior to the close of business on the date fixed for redemption
(and the right to convert any such Notes shall be extended through such time), subject to payment
of the above amount as aforesaid. At the written direction of the Company, the Trustee shall hold
and dispose of any such amount paid to it in the same manner as it would monies deposited with it
by the Company for the redemption of Notes. Without the Trustee’s prior written consent, no
arrangement between the Company and such purchasers for the purchase and conversion of any Notes
shall increase or otherwise affect any of the powers, duties, responsibilities, liabilities or
obligations of the Trustee as set forth in this Indenture.
Section 3.05. Redemption at Option of Holders upon a Designated Event.
(a) If there shall occur a Designated Event at any time prior to maturity of the Notes, then
each Noteholder shall have the right, at such holder’s option, to require the Company to redeem all
of such holder’s Notes, or any portion thereof that is a multiple of $1,000 principal amount, on a
date (the “Designated Event Redemption Date”) to be selected by the Company that is not less than
30 nor more than 60 days after the date of the Designated Event Notice (as defined in Section
3.05(b)) of such Designated Event (or, if such date is not a Business Day, the next succeeding
Business Day) at a redemption price equal to 100% of the principal amount thereof, together with
accrued interest to, but excluding, the Designated Event Redemption Date; provided that if such
Designated Event Redemption Date is an interest payment date, then the interest payable on such
interest payment date shall be paid to the holders of record of the Notes on the applicable record
date instead of the holders surrendering the Notes for redemption on such date.
Upon presentation of any Note redeemed in part only, the Company shall execute and, upon the
Company’s written direction to the Trustee, the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or Notes, of authorized
denominations, in aggregate principal amount equal to the unredeemed portion of the Note
presented.
(b) On or before the tenth day after the occurrence of a Designated Event, the Company or at
its written request (which must be received by the Trustee at least five Business Days prior to the
date the Trustee is requested to give notice as described below, unless the Trustee shall agree in
writing to a shorter period), the Trustee, in the name of and at the expense of the Company, shall
mail or cause to be mailed to all holders of record on the date of the Designated Event a notice
(the “
Designated Event Notice”) of the occurrence of such Designated Event and of the redemption
right at the option of the holders arising as a result thereof. If the Trustee does not mail the
Designated Event Notice to the holders of record, the Company shall also mail the Designated Event
Notice to the Trustee on or before the tenth day after the occurrence of the Designated Event.
Such notice shall be mailed in the manner and with the effect set forth in the first paragraph of
Section 3.02 (without regard for the time limits set forth therein). If the Company shall give
such notice, the Company shall also deliver a copy
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of the Designated Event Notice to the Trustee at such time as it is mailed to Noteholders.
Concurrently with the mailing of any Designated Event Notice, the Company shall issue a press
release announcing such Designated Event referred to in the Designated Event Notice, the form and
content of which press release shall be determined by the Company in its sole discretion. The
failure to issue any such press release or any defect therein shall not affect the validity of the
Designated Event Notice or any proceedings for the redemption of any Note which any Noteholder may
elect to have the Company redeem as provided in this Section 3.05.
Each Designated Event Notice shall specify the circumstances constituting the Designated
Event, the Designated Event Redemption Date, the price at which the Company shall be obligated to
redeem Notes, that the holder must exercise the redemption right on or prior to the close of
business on the Designated Event Redemption Date (the “Designated Event Expiration Time”), that the
holder shall have the right to withdraw any Notes surrendered prior to the Designated Event
Expiration Time, a description of the procedure which a Noteholder must follow to exercise such
redemption right and to withdraw any surrendered Notes, the amount of interest accrued on each
Note to (but excluding) the Designated Event Redemption Date and the CUSIP number or numbers of the
Notes (if then generally in use).
No failure of the Company to give the foregoing notices and no defect therein shall limit the
Noteholders’ redemption rights or affect the validity of the proceedings for the redemption of the
Notes pursuant to this Section 3.05.
(c) Redemption of Notes under this Section 3.05 shall be made, at the option of the holder
thereof, upon:
(i) delivery to the office or agency of the Company maintained for that purpose
pursuant to Section 4.02 on or before the Designated Event Expiration Time of the form
entitled “Option to Elect Repayment Upon A Designated Event” on the reverse of the Note
duly completed and signed; and
(ii) book-entry transfer of the Notes to such office or agency of the Company on or
before the Designated Event Expiration Time, such delivery being a condition to receipt by
the holder of the purchase price therefor; provided that the redemption price shall be so
paid pursuant to this Section 3.05 only if the Note so delivered to the Trustee (or other
paying agent appointed by the Company) shall conform in all respects to the description
thereof in the election form.
All questions as to the validity, eligibility (including time of receipt) and acceptance of
any Note for redemption shall be determined by the Company, whose determination shall be final and
binding absent manifest error. Notwithstanding anything herein to the contrary, any holder
delivering to the office or agency of the Company the election notice contemplated by paragraph (i)
of this Section 3.05(c) shall have the right to withdraw such election notice at any time prior to
the close of business on the Designated Event Redemption Date by delivery of a written notice of
withdrawal to such office or agency of the Company in accordance with Section 3.11.
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(d) On or prior to the Designated Event Redemption Date, the Company will deposit with the
Trustee or with one or more paying agents (or, if the Company is acting as the paying agent, set
aside, segregate and hold in trust as provided in Section 4.04) an amount of money sufficient to
redeem on the Designated Event Redemption Date all the Notes to be redeemed on such date at the
appropriate redemption price, together with accrued interest to (but excluding) the Designated
Event Redemption Date; provided that if such payment is made on the Designated Event Redemption
Date it must be received by the Trustee or paying agent, as the case may be, by 10:00 a.m., New
York City time, on such date. Payment for Notes surrendered for redemption (and not withdrawn)
prior to the Designated Event Expiration Time will be made promptly (but in no event more than five
Business Days) following the Designated Event Redemption Date by mailing checks for the amount
payable to the holders of such Notes entitled thereto as they shall appear in the Note register.
(e) In the case of a reclassification, change, consolidation, merger, combination, sale or
conveyance to which Section 14.06 applies, in which the Common Stock of the Company is changed or
exchanged as a result into the right to receive stock, securities or other property or assets
(including cash), which includes shares of Common Stock of the Company or shares of common stock of
another Person that are, or upon issuance will be, traded on a United States national securities
exchange or approved for trading on an established automated over-the-counter trading market in the
United States and such shares constitute at the time such change or exchange becomes effective in
excess of 50% of the aggregate fair market value of such stock, securities or other property or
assets (including cash) (as determined by the Company, which determination shall be conclusive and
binding), then the Person formed by such consolidation or resulting from such merger or which
acquires such assets, as the case may be, shall execute and deliver to the Trustee a supplemental
indenture (accompanied by an Opinion of Counsel that such supplemental indenture complies with the
provision and the Trust Indenture Act as in force at the date of execution of such supplemental
indenture) modifying the provisions relating to the right of holders of the Notes to cause the
Company to repurchase the Notes following a Designated Event, including without limitation the
applicable provisions of this Section 3.05 and the definitions of Common Stock and Designated
Event, as appropriate, as determined in good faith by the Company (which determination shall be
conclusive and binding), to make such provisions apply to such other Person if different from the
Company and the common stock issued by such Person (in lieu of the Company and the Common Stock of
the Company).
(f) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules
under the Exchange Act to the extent then applicable in connection with the redemption rights of
the holders of Notes upon the occurrence of a Designated Event.
Section 3.06. Repurchase of Notes by the Company at Option of the Holder. Each holder of
Notes shall have the right, on each of December 15, 2013, December 15, 2016, December 15, 2021,
December 15, 2026 and December 15, 2031 (each, a “Repurchase Date”) to require the Company to
repurchase the Notes or any portion thereof held by such holder, in cash, at a purchase price of
100% of the principal amount of such Notes to be repurchased, plus any accrued and unpaid
interest, in each case, to (but excluding) such Repurchase Date, subject to the provisions of
Section 3.07. Repurchases of Notes under this Section 3.06 shall be made, at the option of the
holder thereof, upon:
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(a) delivery to the Trustee (or other paying agent appointed by the Company) by a
holder of a duly completed and signed Repurchase Notice (a “Repurchase Notice”) in the form
set forth on the reverse of the Note during the period beginning at any time from the
opening of business on the date that is 20 Business Days prior to the applicable Repurchase
Date until the close of business on such Repurchase Date; and
(b) book-entry transfer of the Notes to the Trustee (or other paying agent appointed
by the Company) at any time after delivery of the applicable Repurchase Notice (together
with all necessary endorsements) at the Corporate Trust Office (or the office of another
paying agent appointed by the Company), such delivery being a condition to receipt by the
holder of the purchase price therefor; provided that such purchase price shall be so paid
pursuant to this Section 3.06 only if the Note so delivered to the Trustee (or other paying
agent appointed by the Company) shall conform in all respects to the description thereof in
the related Repurchase Notice.
The Company shall purchase from the holder thereof, pursuant to this Section 3.06, a portion
of a Note, if the principal amount of such portion is $1,000 or an integral multiple of $1,000.
Provisions that apply to the purchase of all of a Note also apply to the purchase of such portion
of such Note.
Any purchase by the Company contemplated pursuant to the provisions of this Section 3.06 shall
be consummated by the delivery of the consideration to be received by the holder within two
business days after the later of the Repurchase Date and the time of the book-entry transfer or
delivery of the Note.
Notwithstanding anything herein to the contrary, any holder delivering to the Trustee (or
other paying agent appointed by the Company) the Repurchase Notice contemplated by this Section
3.06 shall have the right to withdraw such Repurchase Notice at any time prior to the close of
business on the Repurchase Date by delivery of a written notice of withdrawal to the Trustee (or
other paying agent appointed by the Company) in accordance with Section 3.11.
The Trustee (or other paying agent appointed by the Company) shall promptly notify the Company
of the receipt by it of any Repurchase Notice or written notice of withdrawal thereof.
Section 3.07. Procedures for the Repurchase of Notes.
(a) At least five Business Days before each Company Repurchase Notice Date, the Company shall
deliver an Officers’ Certificate to the Trustee specifying:
(i) the information required by this Section 3.07(c) in the Company Repurchase
Notice, and
(ii) whether the Company desires the Trustee to give the Company Repurchase
Notice required by this Section 3.07(c).
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(b) The Company Repurchase Notice, as provided in this Section 3.07(c), shall be sent to
holders not less than 20 Business Days prior to such Repurchase Date (the “Company Repurchase
Notice Date”).
(c) In connection with any repurchase of Notes under Section 3.06, the Company shall, no less
than 20 Business Days prior to each Repurchase Date, give notice to holders (with a copy provided
substantially concurrently to the Trustee) setting forth information specified in this Section
3.07(c) (the “Company Repurchase Notice”).
Each Company Repurchase Notice shall:
(1) state the repurchase price and the Repurchase Date to which the Company Repurchase
Notice relates;
(2) include a form of Repurchase Notice;
(3) state the name and address of the Trustee (or other paying agent or Conversion
Agent appointed by the Company);
(4) state that Notes must be surrendered to the Trustee (or other paying agent
appointed by the Company) to collect the purchase price;
(5) if the Notes are then convertible, state that Notes as to which a Repurchase
Notice has been given may be converted only if the Repurchase Notice is withdrawn in
accordance with the terms; and
(6) state the CUSIP number of the Notes (if then generally in use).
Company Repurchase Notices may be given by the Company or, at the Company’s written request, the
Trustee shall give such Company Repurchase Notice in the Company’s name and at the Company’s
expense.
(d) The Company will comply with the provisions of Rule 13e-4 and any other tender offer rules
under the Exchange Act to the extent then applicable in connection with the repurchase rights of
the holders of Notes.
Section 3.08. Deposit of Purchase Price. Prior to 10:00 a.m. (New York City Time) on the
Business Day immediately following the Repurchase Date, the Company shall deposit with the Trustee
(or other paying agent appointed by the Company; or, if the Company is acting as the paying agent,
shall segregate and hold in trust as provided in Section 4.04) an amount of cash (in immediately
available funds if deposited on such Business Day) sufficient to pay the aggregate purchase price
of all the Notes or portions thereof that are to be purchased as of the Repurchase Date.
Section 3.09. Notes Repurchased in Part. Upon presentation of any Note repurchased only
in part, the Company shall execute and the Trustee shall authenticate and make available for
delivery to the holder thereof, at the expense of the Company, a new Note or
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Notes, of any authorized denomination, in aggregate principal amount equal to the
unrepurchased portion of the Notes presented.
Section 3.10. Repayment to the Company. Subject to the requirements of applicable law and
this Indenture, the Trustee (or other paying agent appointed by the Company) shall return to the
Company any cash that remains unclaimed for two years after any Repurchase Date, together with
interest, if any, thereon, held by it for the payment of the purchase price for the Notes or
portions thereof that are to be purchased as of such Repurchase Date; provided that to the extent
that the aggregate amount of cash deposited by the Company pursuant to Section 3.08 exceeds the
aggregate purchase price of the Notes or portions thereof which the Company is obligated to
purchase as of the Repurchase Date then, unless otherwise agreed in writing with the Company,
promptly after the Business Day following the Repurchase Date, the Trustee shall return any such
excess to the Company together with interest, if any, thereon.
Section 3.11. Effect of Election and Repurchase Notice. Upon receipt of the election
notice in Section 3.05 by the office of agency of the Company or upon receipt by the Trustee (or
other paying agent appointed by the Company) of the Repurchase Notice specified in Section 3.06, as
applicable, the holder of the Note in respect of which such notice was given shall (unless such
notice is validly withdrawn) thereafter be entitled to receive solely the applicable redemption or
purchase price with respect to such Note. Such consideration shall be paid to such holder in the
manner and subject to the conditions set forth in Sections 3.05 and 3.06, respectively. Notes in
respect of which such notice has been given by the holder thereof may not be converted pursuant to
this Article III on or after the date of the delivery of such notice unless such notice has first
been validly withdrawn.
An redemption election notice or Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the Company’s designated representative in accordance with the
provisions of, respectively, Section 3.05 and 3.06 at any time prior to the close of business on
the Designated Event Redemption Date or the Repurchase Date, as applicable, specifying:
(a) the certificate number and CUSIP number, if any, of the Note in respect of which
such notice of withdrawal is being submitted, or the appropriate Depositary information if
the Note in respect of which such notice of withdrawal is being submitted is represented by
a Global Note,
(b) the principal amount of the Note with respect to which such notice of withdrawal
is being submitted, and
(c) the principal amount, if any, of such Note which remains subject to the original
redemption election notice or Repurchase Notice, as applicable, and which has been or will
be delivered for redemption or purchase by the Company.
If the Trustee or other paying agent appointed by the Company, or the Company or a subsidiary
or Affiliate of either of them if such entity is acting as the paying agent, holds cash sufficient
to pay the aggregate redemption or purchase price of all the Notes, or portions thereof that are
to be redeemed or purchased as of the Designated Event Redemption Date or the
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Repurchase Date in accordance with Sections 3.05 and 3.06, as applicable, on the Business Day
following such date (i) the Notes will cease to be outstanding, (ii) interest on the Notes will
cease to accrue, and (iii) all other rights of the holders of such Notes will terminate, whether
or not book-entry transfer of the Notes has been made or the Notes have been delivered to the
Trustee or other paying agent, other than the right to receive the redemption or purchase price
upon delivery of the Notes.
ARTICLE IV
Particular Covenants of the Company
Section 4.01. Payment of Principal, Premium and Interest. The Company covenants and agrees
that it will duly and punctually pay or cause to be paid the principal of and premium, if any
(including the redemption price upon redemption or the repurchase price upon repurchase, in each
case pursuant to Article III), and interest, on each of the Notes and Additional Shares at the
places, at the respective times and in the manner provided herein and in the Notes.
Section 4.02. Maintenance of Office or Agency. The Company will maintain an office or agency
in the Borough of Manhattan, The City of New York, where the Notes may be surrendered for
registration of transfer or exchange or for presentation for payment or for conversion, redemption
or repurchase and where notices and demands to or upon the Company in respect of the Notes and this
Indenture may be served. The Company will give prompt written notice to the Trustee of the
location, and any change in the location, of such office or agency not designated or appointed by
the Trustee. If at any time the Company shall fail to maintain any such required office or agency
or shall fail to furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the Trustee or at the
address of the Trustee’s designee, in either case, as agent of the Company.
The Company may also from time to time designate co-registrars and one or more offices or
agencies where the Notes may be presented or surrendered for any or all such purposes and may from
time to time rescind such designations. The Company will give prompt written notice to the Trustee
of any such designation or rescission and of any change in the location of any such other office or
agency.
The Company hereby initially designates the Trustee as paying agent, Note registrar, Custodian
and Conversion Agent and the Corporate Trust Office shall be considered as one such office or
agency of the Company for each of the aforesaid purposes.
So long as the Trustee is the Note registrar, the Trustee agrees to mail, or cause to be
mailed, the notices set forth in Section 7.10(b) and the third paragraph of Section 7.11. If
co-registrars have been appointed in accordance with this Section, the Trustee shall mail such
notices only to the Company and the holders of Notes it can identify from its records.
Section 4.03. Appointments to Fill Vacancies in Trustee’s Office. The Company, whenever
necessary to avoid or fill a vacancy in the office of Trustee, will appoint, in the manner provided
in Section 7.10, a Trustee, so that there shall at all times be a Trustee hereunder.
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Section 4.04. Provisions as to Paying Agent
(a) If the Company shall appoint a paying agent other than the Trustee, or if the Trustee
shall appoint such a paying agent, the Company will cause such paying agent to execute and deliver
to the Trustee an instrument in which such agent shall agree with the Trustee, subject to the
provisions of this Section 4.04:
(1) that it will hold all sums held by it as such agent for the payment of the
principal of, or premium, if any, or interest on, the Notes (whether such sums have been
paid to it by the Company or by any other obligor on the Notes) in trust for the benefit of
the holders of the Notes;
(2) that it will give the Trustee written notice of any failure by the Company (or by
any other obligor on the Notes) to make any payment of the principal of, or premium, if any,
or interest on, the Notes when the same shall be due and payable; and
(3) that at any time during the continuance of an Event of Default, upon request of the
Trustee, it will forthwith pay to the Trustee all sums so held in trust.
The Company shall, on or before each due date of the principal of, or premium if any, or
interest on, the Notes, deposit with the paying agent a sum (in funds which are immediately
available on the due date for such payment) sufficient to pay such principal, premium, if any, or
interest, and (unless such paying agent is the Trustee) the Company will promptly notify the
Trustee in writing of any failure to take such action; provided that if such deposit is made on the
due date, such deposit shall be received by the paying agent by 10:00 a.m. New York City time, on
such date.
(b) If the Company shall act as the paying agent, it will, on or before each due date of the
principal of, or premium, if any, or interest on, the Notes, set aside, segregate and hold in trust
for the benefit of the holders of the Notes a sum sufficient to pay such principal, premium, if
any, or interest so becoming due, will account for any funds disbursed by it and will promptly
notify the Trustee in writing of any failure to take such action and of any failure by the Company
(or any other obligor under the Notes) to make any payment of the principal of, or premium, if any,
or interest on, the Notes when the same shall become due and payable.
(c) Anything in this Section 4.04 to the contrary notwithstanding, the Company may, at any
time, for the purpose of obtaining a satisfaction and discharge of this Indenture, or for any other
reason, pay or cause to be paid to the Trustee all sums held in trust by the Company or any paying
agent hereunder as required by this Section 4.04, such sums to be held by the Trustee upon the
trusts herein contained and upon such payment by the Company or any paying agent to the Trustee,
the Company or such paying agent shall be released from all further liability with respect to such
sums.
(d) Anything in this Section 4.04 to the contrary notwithstanding, the agreement to hold sums
in trust as provided in this Section 4.04 is subject to Sections 12.03 and 12.04.
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The Trustee shall not be responsible for the actions of any other paying agents (including the
Company if acting as the paying agent) and shall have no control of any funds held by such other
paying agents.
Section 4.05. Existence. Subject to Article XI, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate existence.
Section 4.06. Maintenance of Properties. The Company will cause all properties used or
useful in the conduct of its business or the business of any Significant Subsidiary to be
maintained and kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals, replacements, betterments and
improvements thereof, all as in the judgment of the Company may be necessary so that the business
carried on in connection therewith may be properly and advantageously conducted at all times;
provided that nothing in this Section shall prevent the Company from discontinuing the operation or
maintenance of, or disposing of, any of such properties if such discontinuance or disposal is, in
the judgment of the Company, desirable in the conduct of its business or the business of any
Significant Subsidiary and not disadvantageous in any material respect to the Noteholders.
Section 4.07. Payment of Taxes and Other Claims. The Company will pay or discharge, or cause
to be paid or discharged, before the same may become delinquent, (i) all taxes, assessments and
governmental charges levied or imposed upon the Company or any of its Significant Subsidiaries or
upon the income, profits or property of the Company or any of its Significant Subsidiaries, (ii)
all claims for labor, materials and supplies which, if unpaid, might by law become a lien or charge
upon the property of the Company or any of its Significant Subsidiaries and (iii) all stamp taxes
and other duties, if any, which may be imposed by the United States or any political subdivision
thereof or therein in connection with the issuance, transfer, exchange, conversion, redemption or
repurchase of any Notes or with respect to this Indenture; provided that, in the case of clauses
(i) and (ii), the Company shall not be required to pay or discharge or cause to be paid or
discharged any such tax, assessment, charge or claim whose amount, applicability or validity is
being contested in good faith and for which adequate reserves have been established in accordance
with generally accepted accounting principles and which if unpaid would reasonably not be expected
to result in a material adverse effect on the business, results of operations, or financial
condition of the Company and its Significant Subsidiaries, taken as a whole.
Section 4.08. Rule 144A Information Requirement. Within the period prior to the expiration
of the holding period applicable to sales thereof under Rule 144(k) under the Securities Act (or
any successor provision), the Company covenants and agrees that it shall, during any period in
which it is not subject to Section 13 or 15(d) under the Exchange Act, provide to the Trustee and
make available to any holder or beneficial holder of Notes or any Common Stock issued upon
conversion thereof which continue to be Restricted Securities in connection with any sale thereof
and any prospective purchaser of Notes or such Common Stock designated by such holder or beneficial
holder, the information required pursuant to Rule 144A(d)(4) under the Securities Act upon the
request of any holder or beneficial holder of the Notes or such Common Stock and it will take such
further action as any holder or beneficial holder of such Notes or such Common Stock may reasonably
request, all to the extent required
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from time to time to enable such holder or beneficial holder to sell its Notes or Common Stock
without registration under the Securities Act within the limitation of the exemption provided by
Rule 144A, as such Rule may be amended from time to time. Upon the request of any holder or any
beneficial holder of the Notes or such Common Stock, the Company will deliver to such holder a
written statement as to whether it has complied with such requirements. Delivery of such
information to the Trustee is for informational purposes only and the Trustee’s receipt of such
shall not constitute constructive notice of any information contained therein or determinable from
information contained therein, including the Company’s compliance with any of its covenants
hereunder (as to which the Trustee is entitled to rely exclusively on Officers’ Certificates).
Section 4.09. Stay, Extension and Usury Laws. The Company covenants (to the extent that it
may lawfully do so) that it shall not at any time insist upon, plead, or in any manner whatsoever
claim or take the benefit or advantage of, any stay, extension or usury law or other law which
would prohibit or forgive the Company from paying all or any portion of the principal of, or
premium, if any, or interest on the Notes as contemplated herein, wherever enacted, now or at any
time hereafter in force, or which may affect the covenants or the performance of this Indenture and
the Company (to the extent it may lawfully do so) hereby expressly waives all benefit or advantage
of any such law, and covenants that it will not, by resort to any such law, hinder, delay or impede
the execution of any power herein granted to the Trustee, but will suffer and permit the execution
of every such power as though no such law had been enacted.
Section 4.10. Compliance Certificate; Notice of Default. The Company shall deliver to the
Trustee, within ninety (90) days after the end of each fiscal year of the Company, an Officers’
Certificate stating whether or not to the best knowledge of the signers thereof the Company is in
default in the performance and observance of any of the terms, provisions and conditions of this
Indenture (without regard to any period of grace or requirement of notice provided hereunder) and,
if the Company shall be in default, specifying all such defaults and the nature and the status
thereof of which the signer may have knowledge.
The Company will deliver to the Trustee, as soon as possible after the Company becomes aware
of any Event of Default or an event which, with notice or the lapse of time or both, would
constitute an Event of Default, an Officers’ Certificate setting forth the details of such default
or Event of Default and the action that the Company has taken, is taking or proposes to take with
respect thereto.
Any notice required to be given under this Section 4.10 shall be delivered to a Responsible
Officer of the Trustee at its Corporate Trust Office.
ARTICLE V
Noteholders’ Lists and Reports by the Company and the Trustee
Section 5.01. Company to Furnish Trustee Names and Addresses of Noteholders. The Company
covenants and agrees that it will furnish or cause to be furnished to the Trustee, semiannually,
not more than fifteen (15) days after each December 15 and June 15 in each year beginning with June
15, 2007, and at such other times as the Trustee may request in writing, within thirty (30) days
after receipt by the Company of any such request (or such lesser time as
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the Trustee may reasonably request in order to enable it to timely provide any notice to be
provided by it hereunder), a list in such form as the Trustee may reasonably require of the names
and addresses of the registered holders of Notes as of a date not more than fifteen (15) days (or
such other date as the Trustee may reasonably request in order to so provide any such notices)
prior to the time such information is furnished, except that no such list need be furnished by the
Company to the Trustee so long as the Trustee is acting as the sole Note registrar.
Section 5.02. Preservation and Disclosure of Lists.
(a) The Trustee shall preserve, in as current a form as is reasonably practicable, all
information as to the names and addresses of the holders of Notes contained in the most recent list
furnished to it as provided in Section 5.01 or maintained by the Trustee in its capacity as Note
registrar or co-registrar in respect of the Notes, if so acting. The Trustee may destroy any list
furnished to it as provided in Section 5.01 upon receipt of a new list so furnished.
(b) The rights of Noteholders to communicate with other holders of Notes with respect to their
rights under this Indenture or under the Notes, and the corresponding rights and duties of the
Trustee, shall be as provided by the Trust Indenture Act.
(c) Every Noteholder, by receiving and holding the same, agrees with the Company and the
Trustee that neither the Company nor the Trustee nor any agent of either of them shall be held
accountable by reason of any disclosure of information as to names and addresses of holders of
Notes made pursuant to the Trust Indenture Act.
Section 5.03. Reports by Trustee.
(a) Within sixty (60) days after December 30 of each year commencing with the year 2006, the
Trustee shall transmit to holders of Notes such reports dated as of December 30 of the year in
respect of which such reports are made concerning the Trustee and its actions under this Indenture
as shall be required, if any, pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
(b) A copy of such report shall, at the time of such transmission to holders of Notes, be
filed by the Trustee with each stock exchange and automated quotation system upon which the Notes
are listed and with the Company. The Company will promptly notify the Trustee in writing when the
Notes are listed on any stock exchange or automated quotation system or delisted therefrom.
Section 5.04. Reports by Company. The Company shall file with the Trustee and transmit to
holders of the Notes, such information, documents and other reports as it is required to file with
the Commission pursuant to Section 13 or 15(d) of the Exchange Act within 15 days after the same is
so required to be filed with the Commission; provided, however, that the filing of any such
information, documents or other reports with the Commission on its XXXXX system (or any successor
system on which filings are publicly accessible) shall be deemed to satisfy such requirement.
Delivery of such reports, information and documents to the Trustee is for informational purposes
only and the Trustee’s receipt of such shall not constitute constructive notice of any information
contained therein or determinable from information contained therein,
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including the Company’s compliance with any of its covenants hereunder (as to which the
Trustee is entitled to rely exclusively on Officers’ Certificates).
ARTICLE VI
Remedies of the Trustee and Noteholders on Event of Default
Section 6.01. Events of Default; Acceleration. In case one or more of the following “Events
of Default” (whatever the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental body) shall have
occurred and be continuing:
(a) default in the payment of any installment of interest with respect to any of the
Notes as and when the same shall become due and payable, and continuance of such default for
a period of thirty (30) days, whether or not such payment is prohibited by the subordination
provisions of Article XV; or
(b) default in the payment of the principal of or premium, if any, on any of the Notes
as and when the same shall become due and payable either at maturity or in connection with
any redemption or repurchase, in each case pursuant to Article III hereof, by acceleration
or otherwise, whether or not such payment is prohibited by the subordination provisions of
Article XV; or
(c) failure on the part of the Company duly to observe or perform the covenants in
Article XIV with respect to the Company’s obligations to convert the Notes into cash or a
combination of cash and Common Stock, as applicable, upon exercise of a holder’s conversion
right or to observe and perform the covenants in Section 3.05 and Section 3.06 hereof
(including failure on the part of the Company to issue a Designated Event Notice when due)
or Article XI, whether or not such payment is prohibited by the subordination provisions of
Article XV; or
(d) failure on the part of the Company duly to observe or perform any other of the
covenants or agreements on the part of the Company in the Notes or in this Indenture (other
than a covenant or agreement a default in whose performance or whose breach is elsewhere in
this Section 6.01 specifically dealt with) continued for a period of sixty (60) days after
the date on which written notice of such failure, requiring the Company to remedy the same,
shall have been given to the Company by the Trustee, or the Company and a Responsible
Officer of the Trustee by the holders of at least twenty-five percent (25%) in aggregate
principal amount of the Notes at the time outstanding determined in accordance with Section
8.04; or
(e) a default or defaults under the terms of any bond(s), debenture(s), note(s) or
other evidence(s) of, or under any mortgage(s), indenture(s), agreement(s) or instrument(s)
under which there may be issued or by which there may be secured or evidenced, any
indebtedness of the Company or any of its Subsidiaries with a principal amount then
outstanding, individually or in the aggregate, of at least $10 million, whether such
indebtedness now exists or is hereafter incurred, which default or defaults (i) shall
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have resulted in such indebtedness becoming or being declared due and payable prior to
the date on which it would otherwise have become due and payable or (ii) shall constitute
the failure to pay such indebtedness at the final stated maturity thereof (after expiration
of any applicable grace period) and such default shall not have been rescinded or such
Indebtedness shall not have been discharged within 30 days; or
(f) any final judgment or order (not covered by insurance) for the payment of money in
excess of $10 million in the aggregate for all such final judgments or orders against all
such Persons (treating any deductibles, self-insurance or retention as not so covered) shall
be rendered against the Company or any Subsidiary and shall not be paid or discharged, and
there shall be any period of 30 consecutive days following entry of the final judgment or
order that causes the aggregate amount for all such final judgments or orders outstanding
and not paid or discharged against all such Persons to exceed $10 million during which a
stay of enforcement of such final judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) the entry by a court having jurisdiction in the premises of (A) a decree or order
for relief in respect of the Company or any Significant Subsidiary in an involuntary case or
proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or (B) a decree or order adjudging the Company or any Significant
Subsidiary a bankrupt or insolvent, or approving as properly filed a petition seeking
reorganization, arrangement, adjustment or composition of or in respect of the Company or
any Significant Subsidiary under any applicable Federal or State law, or appointing a
custodian, receiver, liquidator, assignee, trustee, sequestrator or other similar official
of the Company or any Significant Subsidiary or of any substantial part of the property of
the Company or any Significant Subsidiary, or ordering the winding up or liquidation of the
affairs of the Company or any Significant Subsidiary, and the continuance of any such decree
or order for relief or any such other decree or order unstayed and in effect for a period of
30 consecutive days; or
(h) the commencement by the Company or any Significant Subsidiary of a voluntary case
or proceeding under any applicable Federal or State bankruptcy, insolvency, reorganization
or other similar law or of any other case or proceeding to be adjudicated a bankrupt or
insolvent, or the consent by the Company or any Significant Subsidiary to the entry of a
decree or order for relief in respect of the Company or any Significant Subsidiary in an
involuntary case or proceeding under any applicable Federal or State bankruptcy, insolvency,
reorganization or other similar law or to the commencement of any bankruptcy or insolvency
case or proceeding against the Company or any Significant Subsidiary or the filing by the
Company or any Significant Subsidiary of a petition or answer or consent seeking
reorganization or relief under any applicable Federal or State law, or the consent by the
Company or any Significant Subsidiary to the filing of such a petition or to the appointment
of or taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or any Significant Subsidiary or of any
substantial part of the property of the Company or any Significant Subsidiary, or the making
by the Company or any Significant Subsidiary of an assignment for the benefit of creditors,
or the admission by the Company or any Significant Subsidiary in writing of its inability to
pay its debts generally as they become
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due, or the taking of corporate action by the Company or any Significant Subsidiary in
furtherance of any such action;
then, and in each and every such case (other than an Event of Default specified in 6.01(g) or
6.01(h) above that occurs with respect to the Company), unless the principal of all of the Notes
shall have already become due and payable, either the Trustee or the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Notes then outstanding hereunder
determined in accordance with Section 8.04, by notice in writing to the Company (and to the Trustee
if given by Noteholders) specifying the respective Event of Default and stating that it is a
“notice of acceleration,” may declare the principal of and premium, if any, on all the Notes and
the interest accrued thereon to be due and payable immediately, and upon receipt of such notice the
same shall become and shall be immediately due and payable; provided that for so long as a Bank
Credit Agreement is in effect, such declaration shall not become effective until the earlier of (i)
five business days after receipt of the acceleration notice by the agent(s) under any outstanding
Bank Credit Agreement and the Company and (ii) acceleration of the indebtedness under the Bank
Credit Agreement. If an Event of Default specified in 6.01(g) or 6.01(h) above involving the
Company occurs, the principal of all the Notes and the interest accrued, if any, thereon shall be
immediately and automatically due and payable without necessity of further action. This provision,
however, is subject to the conditions that if, at any time after the principal of the Notes shall
have been so declared due and payable, and before any judgment or decree for the payment of the
monies due shall have been obtained or entered as hereinafter provided, the Company shall pay or
shall deposit with the Trustee a sum sufficient to pay all matured installments of interest upon
all Notes and the principal of, and premium, if any, on any and all Notes which shall have become
due otherwise than by acceleration (with interest on overdue installments of interest (to the
extent that payment of such interest is enforceable under applicable law) and on such principal and
premium, if any, at the rate borne by the Notes plus one percent (1%), to the date of such payment
or deposit) and amounts due to the Trustee pursuant to Section 7.07, and if any and all defaults
under this Indenture, other than the nonpayment of principal of, and premium, if any, and accrued
interest on, Notes which shall have become due by acceleration, shall have been cured or waived
pursuant to Section 6.07, then and in every such case the holders of a majority in aggregate
principal amount of the Notes then outstanding, by written notice to the Company and to the
Trustee, may waive all defaults or Events of Default and rescind and annul such declaration and its
consequences; but no such waiver or rescission and annulment shall extend to or shall affect any
subsequent default or Event of Default, or shall impair any right consequent thereon. In
accordance with Section 4.10, the Company shall notify in writing a Responsible Officer of the
Trustee, promptly upon becoming aware thereof, of any Event of Default or any event which, with
notice or the lapse of time or both, would constitute an Event of Default.
In case the Trustee shall have proceeded to enforce any right under this Indenture and such
proceedings shall have been discontinued or abandoned because of such waiver or rescission and
annulment or for any other reason or shall have been determined adversely to the Trustee, then and
in every such case the Company, the holders of Notes, and the Trustee shall be restored
respectively to their several positions and rights hereunder, and all rights, remedies and powers
of the Company, the holders of Notes, and the Trustee shall continue as though no such proceeding
had been taken.
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Notwithstanding the foregoing, at the election of the Company, the sole remedy for an Event of
Default specified in Section 6.01(d) relating to the failure by the Company to comply with Section
5.04 (the “Company’s SEC filing obligations”) and for any failure by the Company to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act, shall for the first 60 days after the
occurrence of such an Event of Default consist exclusively of the right to receive an extension fee
on the notes at an annual rate equal to 0.25% of the principal amount of the notes. This extension
fee will accrue on the notes from and including the date on which an Event of Default relating to a
failure to comply with the Company’s SEC filing obligations or the failure to comply with the
requirements of Section 314(a)(1) of the Trust Indenture Act first occurs to but not including the
60th day thereafter (or such earlier date on which the Event of Default relating to such
obligations shall have been cured or waived pursuant to Section 6.07). On such 60th day
(or earlier, if such Event of Default is cured or waived pursuant to Section 6.07 prior to such
60th day), such additional interest will cease to accrue and, if such Event of Default
has not been cured or waived pursuant to Section 6.07 prior to such 60th day, then the
Trustee or the holders of not less than 25% in principal amount of the notes may declare the
principal of and accrued and unpaid interest and additional interest on all such notes to be due
and payable immediately. This provision shall not affect the rights of holders in the event of the
occurrence of any other Event of Default. If the Company elects to pay the extension fee as the
sole remedy for an Event of Default specified in Section 6.01(d) relating to the failure by the
Company to comply with the Company’s SEC filing obligations and for any failure by the Company to
comply with the requirements of Section 314(a)(1) of the Trust Indenture Act, the Company shall
notify, in the manner provided for in Section 16.03, the holders and the Trustee of such election
at any time on or before the close of business on the date on which such Event of Default first
occurs. If the extension fee is payable under this Section 6.01, the Company shall deliver to the
Trustee a certificate to that effect stating the date on which additional interest is payable.
Unless and until a Responsible Officer of the Trustee receives at the Corporate Trust Office such a
certificate, the Trustee may assume without inquiry that no extension fee is payable. If the
extension fee has been paid by the Company directly to the persons entitled to them, the Company
shall deliver to the Trustee a certificate setting forth the particulars of such payment.
Section 6.02. Payments of Notes on Default; Suit Therefor. The Company covenants that (a)
in case default shall be made in the payment of any installment of interest upon any of the Notes
as and when the same shall become due and payable, and such default shall have continued for a
period of 30 days, or (b) in case default shall be made in the payment of the principal of or
premium, if any, on any of the Notes as and when the same shall have become due and payable,
whether at maturity of the Notes or in connection with any redemption or repurchase, by or under
this Indenture or otherwise, then, upon demand of the Trustee, the Company will pay to the Trustee,
for the benefit of the holders of the Notes, the whole amount that then shall have become due and
payable on all such Notes for principal, premium, if any, or interest, as the case may be, with
interest upon the overdue principal and premium, if any, and (to the extent that payment of such
interest is enforceable under applicable law) upon the overdue installments of interest at the rate
borne by the Notes, plus one percent (1%) and, in addition thereto, such further amount as shall
be sufficient to cover the costs and expenses of collection, including reasonable compensation to
the Trustee, its agents, attorneys and counsel, and all other amounts due the Trustee under Section
7.07. Until such demand by the Trustee, the
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Company may pay the principal of, and premium, if any, and interest on, the Notes to the
registered holders, whether or not the Notes are overdue.
In case the Company shall fail forthwith to pay such amounts upon such demand, the Trustee, in
its own name and as trustee of an express trust, shall be entitled and empowered to institute any
actions or proceedings at law or in equity for the collection of the sums so due and unpaid, and
may prosecute any such action or proceeding to judgment or final decree, and may enforce any such
judgment or final decree against the Company or any other obligor on the Notes and collect in the
manner provided by law out of the property of the Company or any other obligor on the Notes
wherever situated the monies adjudged or decreed to be payable.
In case there shall be pending proceedings for the bankruptcy or for the reorganization of the
Company or any other obligor on the Notes under Title 11 of the United States Code, or any other
applicable law, or in case a receiver, assignee or trustee in bankruptcy or reorganization,
liquidator, sequestrator or similar official shall have been appointed for or taken possession of
the Company or such other obligor, the property of the Company or such other obligor, or in the
case of any other judicial proceedings relative to the Company or such other obligor upon the
Notes, or to the creditors or property of the Company or such other obligor, the Trustee,
irrespective of whether the principal of the Notes shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the Trustee shall have made
any demand pursuant to the provisions of this Section 6.02, shall be entitled and empowered, by
intervention in such proceedings or otherwise, to file and prove a claim or claims for the whole
amount of principal, premium, if any, and interest owing and unpaid in respect of the Notes, and,
in case of any judicial proceedings, to file such proofs of claim and other papers or documents as
may be necessary or advisable in order to have the claims of the Trustee, its agents and its
counsel and of the Noteholders allowed in such judicial proceedings relative to the Company or any
other obligor on the Notes, its or their creditors, or its or their property, and to collect and
receive any monies or other property payable or deliverable on any such claims, and to distribute
the same after the deduction of any amounts due the Trustee under Section 7.07, and any receiver,
assignee or trustee in bankruptcy or reorganization, liquidator, custodian or similar official is
hereby authorized by each of the Noteholders to make such payments to the Trustee, and, in the
event that the Trustee shall consent to the making of such payments directly to the Noteholders, to
pay to the Trustee any amount due it for reasonable compensation, expenses, advances and
disbursements, including counsel fees and expenses incurred by it up to the date of such
distribution.
All rights of action and of asserting claims under this Indenture, or under any of the Notes,
may be enforced by the Trustee without the possession of any of the Notes, or the production
thereof at any trial or other proceeding relative thereto, and any such suit or proceeding
instituted by the Trustee shall be brought in its own name as trustee of an express trust, and any
recovery of judgment shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be for the ratable
benefit of the holders of the Notes.
In any proceedings brought by the Trustee (and in any proceedings involving the interpretation
of any provision to which the Trustee shall be a party) the Trustee shall be held to
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represent all the holders of the Notes, and it shall not be necessary to make any holders of
the Notes parties to any such proceedings.
Section 6.03. Application of Monies Collected by Trustee. Any monies or other compensation
collected by the Trustee pursuant to this Article VI shall be applied in the order following, at
the date or dates fixed by the Trustee for the distribution of such monies or other compensation,
upon presentation of the several Notes, and stamping thereon the payment, if only partially paid,
and upon surrender thereof, if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 7.07;
SECOND: To the holders of Senior Indebtedness, as and to the extent required
by the subordination provisions of Article XV hereof;
THIRD: In case the principal of the outstanding Notes shall not have become
due and be unpaid, to the payment of interest on the Notes in default in the order
of the maturity of the installments of such interest, with interest (to the extent
that such interest has been collected by the Trustee) upon the overdue installments
of interest at the rate borne by the Notes plus one percent (1%), such payments to
be made ratably to the Persons entitled thereto;
FOURTH: In case the principal of the outstanding Notes shall have become due,
by declaration or otherwise, and be unpaid to the payment of the whole amount then
owing and unpaid upon the Notes for principal and premium, if any, and interest,
with interest on the overdue principal and premium, if any, and (to the extent that
such interest has been collected by the Trustee) upon overdue installments of
interest at the rate borne by the Notes plus one percent (1%) to the Persons
entitled thereto, and in case such monies shall be insufficient to pay in full the
whole amounts so due and unpaid upon the Notes, then to the payment of such
principal, premium, if any, and interest without preference or priority of principal
and premium, if any, over interest, or of interest over principal and premium, if
any, or of any installment of interest over any other installment of interest, or of
any Note over any other Note, ratably to the aggregate of such principal and
premium, if any, and accrued and unpaid interest; and
FIFTH: To the payment of the remainder, if any, to the Company or any other
Person lawfully entitled thereto.
Section 6.04. Proceedings by Noteholder. No holder of any Note shall have any right by
virtue of or by reference to any provision to institute any suit, action or proceeding in equity or
at law upon or under or with respect to this Indenture, or for the appointment of a receiver,
trustee, liquidator, custodian or other similar official, or for any other remedy hereunder, unless
such holder previously shall have given to the Trustee written notice of an Event of Default and of
the continuance thereof, as hereinbefore provided, and unless also the holders of not less than
twenty-five percent (25%) in aggregate principal amount of the Notes
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then outstanding shall have made written request upon the Trustee to institute such action,
suit or proceeding in its own name as Trustee hereunder and shall have offered indemnity reasonably
satisfactory to the Trustee against the costs, expenses and liabilities to be incurred therein or
thereby, and the Trustee for sixty 60 days after its receipt of such notice, request and offer of
indemnity, shall have neglected or refused to institute any such action, suit or proceeding and no
direction inconsistent with such written request shall have been given to the Trustee pursuant to
Section 6.07 hereof; it being understood and intended, and being expressly covenanted by the taker
and holder of every Note with every other taker and holder and the Trustee, that no one or more
holders of Notes shall have any right in any manner whatever by virtue of or by reference to any
provision to affect, disturb or prejudice the rights of any other holder of Notes, or to obtain or
seek to obtain priority over or preference to any other such holder, or to enforce any right under
this Indenture, except in the manner herein provided and for the equal, ratable and common benefit
of all holders of Notes (except as otherwise provided herein). For the protection and enforcement
of this Section 6.04, each and every Noteholder and the Trustee shall be entitled to such relief as
can be given either at law or in equity.
Notwithstanding any other provision and any provision of any Note, the right of any holder of
any Note to receive payment of the principal of, and premium, if any (including the redemption or
repurchase price upon redemption or repurchase pursuant to Article III hereof), and accrued
interest on, such Note, on or after the respective due dates expressed in such Note or in the
case of a redemption or repurchase, on the redemption date or Repurchase Date, as the case may be,
or to institute suit for the enforcement of any such payment on or after such respective dates
against the Company shall not be impaired or affected without the consent of such holder.
Anything in this Indenture or the Notes to the contrary notwithstanding, the holder of any
Note, without the consent of either the Trustee or the holder of any other Note, in its own behalf
and for its own benefit, may enforce, and may institute and maintain any proceeding suitable to
enforce, its rights of conversion as provided herein.
Section 6.05. Proceedings by Trustee. In case of an Event of Default, the Trustee may, in
its discretion, but shall not be required to, proceed to protect and enforce the rights vested in
it by this Indenture by such appropriate judicial proceedings as are necessary to protect and
enforce any of such rights, either by suit in equity or by action at law or by proceeding in
bankruptcy or otherwise, whether for the specific enforcement of any covenant or agreement
contained in this Indenture or in aid of the exercise of any power granted in this Indenture, or to
enforce any other legal or equitable right vested in the Trustee by this Indenture or by law.
Section 6.06. Remedies Cumulative and Continuing. Except as provided in this Section 6.06,
all powers and remedies given by this Article VI to the Trustee or to the Noteholders shall, to the
extent permitted by law, be deemed cumulative and not exclusive of any thereof or of any other
powers and remedies available to the Trustee or the holders of the Notes, by judicial proceedings
or otherwise, to enforce the performance or observance of the covenants and agreements contained in
this Indenture, and no delay or omission of the Trustee or of any holder of any of the Notes to
exercise any right or power accruing upon any default or Event of Default occurring and continuing
as aforesaid shall impair any such right or power, or
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shall be construed to be a waiver of any such default or any acquiescence therein, and,
subject to the provisions of Section 6.04 hereof, every power and remedy given by this Article VI
or by law to the Trustee or to the Noteholders may be exercised from time to time, and as often as
shall be deemed expedient, by the Trustee or by the Noteholders.
Section 6.07. Direction of Proceedings and Waiver of Defaults by Majority of Noteholders.
The holders of a majority in aggregate principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04 shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee; provided that (a) such direction shall not be in conflict with
any rule of law or with this Indenture, (b) the Trustee may take any other action which is not
inconsistent with such direction and (c) the Trustee may decline to take any action that the
Trustee determines in its reasonable discretion would benefit some Noteholder to the detriment of
other Noteholders or of the Trustee. The holders of a majority in aggregate principal amount of
the Notes at the time outstanding determined in accordance with Section 8.04 may, on behalf of the
holders of all of the Notes, waive any past or existing default or Event of Default hereunder and
its consequences except (i) a past or existing default in the payment of interest or premium, if
any, on, or the principal of, the Notes (including in connection with an offer to purchase);
provided however that holders of a majority in aggregate principal amount of the then outstanding
Notes may rescind an acceleration and its consequences, including any related payment default that
resulted from such acceleration in accordance with Section 6.01 hereof, (ii) a failure by the
Company to convert any Notes into Common Stock, (iii) a default in the payment of the redemption
price or the purchase price pursuant to Article III hereof, or (iv) a default in respect of a
covenant or any provision which under Article X cannot be modified or amended without the consent
of the holders of each or all Notes then outstanding or affected thereby. Upon any such waiver,
the Company, the Trustee and the holders of the Notes shall be restored to their former positions
and rights hereunder; but no such waiver shall extend to any subsequent or other default or Event
of Default or impair any right consequent thereon. Whenever any default or Event of Default
hereunder shall have been cured or waived as permitted by this Section 6.07, said default or Event
of Default shall for all purposes of the Notes and this Indenture be deemed to have been cured and
to be not continuing for every purpose; but no such waiver shall extend to any subsequent or other
default or Event of Default or impair any right consequent thereon.
Section 6.08. Undertaking to Pay Costs. All parties to this Indenture agree, and each
holder of any Note by its, his or her acceptance thereof shall be deemed to have agreed, that any
court may, in its discretion, require, in any suit for the enforcement of any right or remedy under
this Indenture, or in any suit against the Trustee for any action taken or omitted by it as
Trustee, the filing by any party litigant in such suit of an undertaking to pay the costs of such
suit and that such court may in its discretion assess reasonable costs, including reasonable
attorneys’ fees and expenses, against any party litigant in such suit, having due regard to the
merits and good faith of the claims or defenses made by such party litigant; provided that the
provisions of this Section 6.08 (to the extent permitted by law) shall not apply to any suit
instituted by the Trustee, to any suit instituted by any Noteholder, or group of Noteholders,
holding in the aggregate more than 10% in principal amount of the Notes at the time outstanding
determined in accordance with Section 8.04, or to any suit instituted by any Noteholder for the
enforcement of the payment of the principal of, or premium, if any, or interest on, any Note on
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or after the due date expressed in such Note or to any suit for the enforcement of the right
to convert any Note in accordance with the provisions of Article XIV.
ARTICLE VII
The Trustee
Section 7.01. Certain Duties and Responsibilities. The duties and responsibilities of the
Trustee shall be as provided by the Trust Indenture Act (as if such Act applied). Notwithstanding
the foregoing, no provision of this Indenture shall require the Trustee to expend or risk its own
funds or otherwise incur any financial liability in the performance of any of its duties hereunder,
or in the exercise of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not therein expressly so provided, every provision of this
Indenture relating to the conduct or affecting the liability of or affording protection to the
Trustee shall be subject to the provisions of this Section 7.01.
Section 7.02. Notice of Defaults. Subject to the provisions of Section 7.03(i), the Trustee
shall give the Noteholders notice of any default hereunder known to the Trustee as and to the
extent provided by the Trust Indenture Act (as if such Act applied); provided, however, that except
in the case of default in the payment of the principal of, or premium, if any, or interest on, any
of the Notes, the Trustee shall be protected in withholding such notice if and so long as a trust
committee of directors and/or Officers of the Trustee in good faith determines that the withholding
of such notice is in the interests of the Noteholders.
Section 7.03. Certain Rights of the Trustee. Subject to the provisions of Section 7.01:
(a) the Trustee may conclusively rely and shall be protected in acting upon any
resolution, certificate, statement, instrument, opinion, report, notice, request, consent,
order, bond, debenture, note, other evidence of indebtedness or other paper or document
believed by it in good faith to be genuine and to have been signed or presented by the
proper party or parties;
(b) any request or direction of the Company mentioned herein shall be sufficiently
evidenced by an Officers’ Certificate (unless other evidence in respect thereof be herein
specifically prescribed); and any resolution of the Board of Directors may be evidenced to
the Trustee by a copy thereof certified by the Secretary or an Assistant Secretary of the
Company;
(c) whenever in the administration of this Indenture the Trustee shall deem it
desirable that a matter be proved or established prior to taking, suffering or omitting any
action hereunder, the Trustee (unless other evidence be herein specifically prescribed) may,
in the absence of bad faith on its part, rely conclusively upon an Officers’ Certificate as
to such matter that is reasonably satisfactory to the Trustee;
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(d) the Trustee may consult with counsel of its selection and any advice or Opinion of
Counsel shall be full and complete authorization and protection in respect of any action
taken, suffered or omitted by it hereunder in good faith and in reliance thereon;
(e) the Trustee shall be under no obligation to exercise any of the rights or powers
vested in it by this Indenture at the request or direction of any of the Noteholders
pursuant to the provisions of this Indenture, unless such Noteholders shall have offered to
the Trustee security or indemnity reasonably satisfactory to it against the costs, expenses
(including reasonable attorney’s fees and expenses) and liabilities which might be incurred
by it in compliance with such request or direction; any permissive right or power available
to the Trustee under this Indenture shall not be construed to be a mandatory duty or
obligation;
(f) the Trustee shall not be bound to make any investigation into the facts or matters
stated in any resolution, certificate, statement, instrument, opinion, report, notice,
request, direction, consent, order, bond, debenture note, other evidence of indebtedness or
other paper or document, but the Trustee, in its discretion, may, but shall not be required
to, make such further inquiry or investigation into such facts or matters as it may see fit,
and, if the Trustee shall determine to make such further inquiry or investigation, it shall
be entitled to examine the books, records and premises of the Company, personally or by
agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or perform any duties
hereunder either directly or by or through agents or attorneys and the Trustee shall not be
responsible for any misconduct or negligence on the part of any agent or attorney appointed
by it with due care hereunder;
(h) the Trustee shall not be liable for any action taken, suffered, or omitted to be
taken by it in good faith, in reliance on an Officers’ Certificate or otherwise, and
reasonably believed by it to be authorized or within the discretion or rights or powers
conferred upon it by this Indenture or for any action it takes or omits to take in
accordance with the direction of the holders of a majority in principal amount of the
outstanding Notes; in no event shall the Trustee be liable to any person for special,
indirect, consequential or punitive damages or any damages for lost profits;
(i) the Trustee shall not be deemed to have knowledge of any default or Event of
Default unless a Responsible Officer of the Trustee has actual knowledge thereof or unless
written notice of any event which is in fact such a default is received by the Trustee at
the Corporate Trust Office of the Trustee, and such notice references the Notes and this
Indenture; and
(j) the rights, privileges, protections, immunities and benefits given to the Trustee,
including, without limitation, its right to be indemnified, are extended to, and shall be
enforceable by, the Trustee in each of its capacities hereunder, and to each agent,
custodian and other Person employed to act hereunder.
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Section 7.04. Not Responsible for Statements or Issuance of Notes. The statements contained
herein and in the Notes, except in the Trustee’s certificate of authentication, shall be taken as
the statements of the Company and the Trustee assumes no responsibility for their correctness. The
Trustee makes no representations as to the validity or sufficiency of this Indenture and the Notes
or any offering or registration documents related thereto. The Trustee shall not be accountable
for the use or application by the Company of any Notes or the proceeds thereof.
Section 7.05. May Hold Notes. The Trustee, any authentication agent, any paying agent, any
Conversion Agent, any Note registrar or any other agent of the Company or the Trustee, in its
individual or any other capacity, may become the owner or pledgee of Notes, and, subject to
Sections 7.08 and 7.13, may otherwise deal with the Company and any other obligor upon the Notes
with the same rights it would have if it were not Trustee, authentication agent, paying agent,
Conversion Agent or Note registrar.
Section 7.06. Monies to be Held in Trust. Money held by the Trustee in trust hereunder need
not be segregated from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as otherwise agreed in
writing with the Company.
Section 7.07. Compensation and Reimbursement. The Company agrees (1) to pay to the Trustee
from time to time such compensation as shall be agreed in writing between the Company and the
Trustee, including the compensation described herein, for all services rendered by it hereunder
(which compensation shall not be limited by any provision of law in regard to the compensation of a
trustee of an express trust); (2) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements and advances incurred or made
by the Trustee in accordance with any provision of this Indenture (including the reasonable
compensation and the expenses and disbursements of its agents and counsel), except any such
expense, disbursement or advance as may be attributable to its negligence or willful misconduct;
and (3) to indemnify each of the Trustee and any predecessor Trustee for, and to hold it harmless
against, any and all loss, liability, damage, claim or expense, including taxes (other than taxes
based on the income of the Trustee) incurred without negligence or willful misconduct on its part,
arising out of or in connection with the acceptance or administration of this trust, including the
costs and expenses, including reasonable attorney’s fees and expenses, of defending itself against
any claim (whether asserted by the Company, a Noteholder or any other Person) or liability, or of
complying with any process served upon it or any of its officers, in connection with the exercise
or performance of any of its powers or duties hereunder. The Company shall defend the claim and
the Trustee shall cooperate in the defense. The Trustee may have separate counsel and the Company
shall pay the reasonable fees and expenses of such counsel.
The Trustee shall have a lien prior to the Notes as to all property and funds held by it
hereunder for any amount owing it or any predecessor Trustee pursuant to this Section 7.07, except
with respect to funds held in trust for the benefit of the holders of particular Notes.
When the Trustee incurs expenses or renders services in connection with an Event of Default
specified in Section 6.01(e) or 6.01(f), the expenses (including the reasonable charges
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and expenses of its counsel) and the compensation for the services are intended to constitute
expenses of administration under any applicable Federal or State bankruptcy, insolvency or other
similar law.
Section 7.08. Disqualification; Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by, and subject to the
provisions of, this Indenture.
Section 7.09. Corporate Trustee Required; Eligibility. There shall at all times be a Trustee
hereunder which shall be a Person that is eligible pursuant to the Trust Indenture Act to act as
such and has a combined capital and surplus of at least $150,000,000 and has its Corporate Trust
Office located in the Borough of Manhattan, The City of New York. If such Person publishes reports
of condition at least annually, pursuant to law or to the requirements of its supervising or
examining authority, then for the purposes of this Section 7.09, the combined capital and surplus
of such Person shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section 7.09, it shall resign immediately in the manner and
with the effect hereinafter specified in this Article VII.
Section 7.10. Resignation and Removal of Trustee; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a successor Trustee
pursuant to this Article VII shall become effective until the acceptance of appointment by the
successor Trustee under Section 7.11.
(b) The Trustee may resign at any time by giving written notice thereof to the Company. If an
instrument of acceptance by a successor Trustee shall not have been delivered to the Trustee within
30 days after the giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by act of the holders of a majority in principal
amount of the outstanding Notes, delivered to the Trustee and the Company. If an instrument of
acceptance by a successor Trustee shall not have been delivered to the Trustee within 30 days after
the giving of such notice of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor.
(d) If at any time:
(i) the Trustee shall fail to comply with Section 7.08 after written request therefor
by the Company or by any Noteholder who has been a bona fide holder of a Note for at least
six months, or
(ii) the Trustee shall cease to be eligible under Section 7.09 and shall fail to resign
after written request therefor by the Company or by any such Noteholder, or
(iii) the Trustee shall become incapable of acting or shall be adjudged a bankrupt or
insolvent or a receiver of the Trustee or of its property shall be appointed or
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any public officer shall take charge or control of the Trustee or of its property or
affairs for the purpose of rehabilitation, conservation or liquidation,
then, in any such case, the Company may remove the Trustee and appoint a successor trustee by
written instrument, in duplicate, executed by order of the Board of Directors, one copy of which
instrument shall be delivered to the Trustee so removed and one copy to the successor trustee, or,
subject to the provisions of Section 6.08, any Noteholder who has been a bona fide holder of a Note
or Notes for at least six (6) months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the removal of the Trustee and the appointment of
a successor trustee.
(e) If the Trustee shall resign, be removed or become incapable of acting, or if a vacancy
shall occur in the office of Trustee for any cause, the Company, by a resolution of the Board of
Directors, shall promptly appoint a successor Trustee. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a successor Trustee shall be appointed
by act of the holders of a majority in principal amount of the outstanding Notes delivered to the
Company and the retiring Trustee, the successor Trustee so appointed shall, forthwith upon its
acceptance of such appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed by the Company or
the holders and accepted appointment in the manner hereinafter provided, any Noteholder who has
been a bona fide holder of a Note for at least six months may, on behalf of himself and all others
similarly situated, petition any court of competent jurisdiction for the appointment of a successor
Trustee.
(f) The Company shall give notice of each resignation and each removal of the Trustee and each
appointment of a successor Trustee to all holders in the manner provided in Section 16.03. Each
notice shall include the name of the successor Trustee and the address of its Corporate Trust
Office.
(g) Notwithstanding replacement of the Trustee pursuant to this Section 7.10, the Company’s
obligations under Section 7.07 shall continue for the benefit of the retiring Trustee.
Section 7.11. Acceptance of Appointment of Successor. Every successor Trustee appointed
hereunder shall execute, acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further act, deed or
conveyance, shall become vested with all the rights, powers, trusts and duties of the retiring
Trustee; but, on written request of the Company or the successor Trustee, such retiring Trustee
shall, upon payment of its charges, execute and deliver an instrument transferring to such
successor Trustee all the rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by such retiring Trustee
hereunder. Upon request of any such successor Trustee, the Company shall execute any and all
instruments for more fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
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No successor Trustee shall accept its appointment unless at the time of such acceptance such
successor Trustee shall be qualified and eligible under this Article VII.
Upon acceptance of appointment by a successor Trustee as provided in this Section 7.11, the
Company (or the former Trustee, at the written direction and expense of the Company) shall mail or
cause to be mailed notice of the succession of such Trustee hereunder to the holders of Notes at
their addresses as they shall appear on the Note register, which notice shall include the address
of the Corporate Trust Office of such successor Trustee. If the Company fails to mail such notice
within ten (10) days after acceptance of appointment by the successor Trustee, the successor
Trustee shall cause such notice to be mailed at the expense of the Company.
Section 7.12. Merger, Conversion, Consolidation or Succession to Business. Any corporation
into which the Trustee may be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate trust business of
the Trustee, shall be the successor of the Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article VII, without the execution or filing of any
paper or any further act on the part of any of the parties hereto. In case any Notes shall have
been authenticated, but not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such authentication and
deliver the Notes so authenticated with the same effect as if such successor Trustee had itself
authenticated such Notes.
Section 7.13. Preferential Collection of Claims Against Company. If and when the Trustee
shall be or become a creditor of the Company or any other obligor upon the Notes, the Trustee shall
be subject to the provisions of the Trust Indenture Act (as if such Act applied) regarding the
collection of the claims against the Company or any such other obligor.
ARTICLE VIII
The Noteholders
Section 8.01. Action by Noteholders. Whenever in this Indenture it is provided that the
holders of a specified percentage in aggregate principal amount of the Notes may take any action
(including the making of any demand or request, the giving of any notice, consent or waiver or the
taking of any other action), the fact that at the time of taking any such action, the holders of
such specified percentage have joined therein may be evidenced (a) by any instrument or any number
of instruments of similar tenor executed by Noteholders in person or by agent or proxy appointed in
writing, or (b) by the record of the holders of Notes voting in favor thereof at any meeting of
Noteholders duly called and held in accordance with the provisions of Article IX, or (c) by a
combination of such instrument or instruments and any such record of such a meeting of Noteholders.
Whenever the Company or the Trustee solicits the taking of any action by the holders of the Notes,
the Company or the Trustee may fix in advance of such solicitation, a date as the record date for
determining holders entitled to take such action. The record date shall be not more than fifteen
(15) days prior to the date of commencement of initial solicitation of such action without giving
effect to any extension or amendment of such action or solicitation.
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Section 8.02. Proof of Execution by Noteholders. Subject to the provisions of Sections 7.03
and 9.05, proof of the execution of any instrument by a Noteholder or its agent or proxy shall be
sufficient if made in accordance with such reasonable rules and regulations as may be prescribed by
the Trustee or in such manner as shall be satisfactory to the Trustee. The holding of Notes shall
be proved by the registry of such Notes or by a certificate of the Note registrar.
The record of any Noteholders’ meeting shall be proved in the manner provided in Section 9.06.
Section 8.03. Who Are Deemed Absolute Owners. The Company, the Trustee, any authenticating
agent, any paying agent, any Conversion Agent and any Note registrar may deem the Person in whose
name such Note shall be registered upon the Note register to be, and may treat it as, the absolute
owner of such Note (whether or not such Note shall be overdue and notwithstanding any notation of
ownership or other writing thereon made by any Person other than the Company or any Note registrar)
for the purpose of receiving payment of or on account of the principal of, and premium, if any, and
interest on, such Note, for conversion of such Note and for all other purposes; and neither the
Company nor the Trustee nor any authenticating agent, any paying agent nor any Conversion Agent nor
any Note registrar shall be affected by any notice to the contrary. All such payments so made to
any holder for the time being, or upon his order, shall be valid, and, to the extent of the sum or
sums so paid, effectual to satisfy and discharge the liability for monies payable upon any such
Note.
Section 8.04. Company-Owned Notes Disregarded. In determining whether the holders of the
requisite aggregate principal amount of Notes have concurred in any direction, consent, waiver or
other action under this Indenture, Notes which are owned by the Company or any other obligor on the
Notes or any Affiliate of the Company or any other obligor on the Notes shall be disregarded and
deemed not to be outstanding for the purpose of any such determination; provided that for the
purposes of determining whether the Trustee shall be protected in relying on any such direction,
consent, waiver or other action, only Notes which a Responsible Officer actually knows are so owned
shall be so disregarded. Notes so owned which have been pledged in good faith may be regarded as
outstanding for the purposes of this Section 8.04 if the pledgee shall establish to the
satisfaction of the Trustee the pledgee’s right to vote such Notes and that the pledgee is not the
Company, any other obligor on the Notes or any Affiliate of the Company or any such other obligor.
In the case of a dispute as to such right, any good faith decision by the Trustee taken upon the
advice of counsel shall be full protection to the Trustee. Upon request of the Trustee, the
Company shall furnish to the Trustee promptly an Officers’ Certificate listing and identifying all
Notes, if any, known by the Company to be owned or held by or for the account of any of the above
described Persons, and, subject to Section 7.03, the Trustee shall be entitled to accept such
Officers’ Certificate as conclusive evidence of the facts therein set forth and of the fact that
all Notes not listed therein are outstanding for the purpose of any such determination.
Section 8.05. Revocation of Consents, Future Holders Bound. At any time prior to (but not
after) the evidencing to the Trustee, as provided in Section 8.01, of the taking of any action by
the holders of the percentage in aggregate principal amount of the Notes specified in this
Indenture in connection with such action, any holder of a Note which is shown by the
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evidence to be included in the Notes the holders of which have consented to such action may,
by filing written notice with the Trustee at its Corporate Trust Office and upon proof of holding
as provided in Section 8.02, revoke such action so far as concerns such Note. Except as aforesaid,
any such action taken by the holder of any Note shall be a continuing action and conclusive and
binding upon such holder and upon all future holders and owners of such Note and of any Notes
issued in exchange or substitution therefor, irrespective of whether any notation in regard thereto
is made upon such Note or any Note issued in exchange or substitution therefor. An amendment,
supplement or waiver becomes effective in accordance with its terms and thereafter binds every
holder.
ARTICLE IX
Meetings of Noteholders
Section 9.01. Purpose of Meetings. A meeting of Noteholders may be called at any time and
from time to time pursuant to the provisions of this Article IX for any of the following purposes:
(1) to give any notice to the Company or to the Trustee or to give any directions to
the Trustee permitted under this Indenture, or to consent to the waiving of any default or
Event of Default hereunder and its consequences, or to take any other action authorized to
be taken by Noteholders pursuant to any of the provisions of Article VI;
(2) to remove the Trustee and nominate a successor Trustee pursuant to the provisions
of Article VII;
(3) to consent to the execution of an indenture or indentures supplemental hereto
pursuant to the provisions of Section 10.01; or
(4) to take any other action authorized to be taken by or on behalf of the holders of
any specified aggregate principal amount of the Notes under any other provision of this
Indenture or under applicable law.
Section 9.02. Call of Meetings by Trustee. At the Company’s expense, the Trustee may at any
time call a meeting of Noteholders to take any action specified in Section 9.01, to be held at such
time and at such place as the Trustee shall determine. Notice of every meeting of the Noteholders,
setting forth the time and the place of such meeting and in general terms the action proposed to be
taken at such meeting and the establishment of any record date pursuant to Section 8.01, shall be
mailed to holders of Notes at their addresses as they shall appear on the Note register. Such
notice shall also be mailed to the Company. Such notices shall be mailed not less than twenty (20)
nor more than ninety (90) days prior to the date fixed for the meeting.
Any meeting of Noteholders shall be valid without notice if the holders of all Notes then
outstanding are present in person or by proxy or if notice is waived before or after the meeting by
the holders of all Notes outstanding, and if the Company and the Trustee are either present by duly
authorized representatives or have, before or after the meeting, waived notice.
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Section 9.03. Call of Meetings by Company or Noteholders. In case at any time the Company,
pursuant to a resolution of its Board of Directors, or the holders of at least twenty-five (25%) in
aggregate principal amount of the Notes then outstanding, shall have requested the Trustee to call
a meeting of Noteholders, by written request setting forth in reasonable detail the action proposed
to be taken at the meeting, and the Trustee shall not have mailed the notice of such meeting within
twenty (20) days after receipt of such request, then the Company or such Noteholders may determine
the time and the place for such meeting and may call such meeting to take any action authorized in
Section 9.01, by mailing notice thereof as provided in Section 9.02.
Section 9.04. Qualifications for Voting. To be entitled to vote at any meeting of
Noteholders a person shall (a) be a holder of one or more Notes on the record date pertaining to
such meeting or (b) be a person appointed by an instrument in writing as proxy by a holder of one
or more Notes on the record date pertaining to such meeting. The only persons who shall be
entitled to be present or to speak at any meeting of Noteholders shall be the persons entitled to
vote at such meeting and their counsel and any representatives of the Trustee and its counsel and
any representatives of the Company and its counsel.
Section 9.05. Regulations. Notwithstanding any other provisions of this Indenture, the
Trustee may make such reasonable regulations as it may deem advisable for any meeting of
Noteholders, in regard to proof of the holding of Notes and of the appointment of proxies, and in
regard to the appointment and duties of inspectors of votes, the submission and examination of
proxies, certificates and other evidence of the right to vote, and such other matters concerning
the conduct of the meeting as it shall think fit.
The Trustee shall, by an instrument in writing, appoint a temporary chairman of the meeting,
unless the meeting shall have been called by the Company or by Noteholders as provided in Section
9.03, in which case the Company or the Noteholders calling the meeting, as the case may be, shall
in like manner appoint a temporary chairman. A permanent chairman and a permanent secretary of the
meeting shall be elected by vote of the holders of a majority in principal amount of the Notes
represented at the meeting and entitled to vote at the meeting except that any meeting called by
the Company shall be chaired by a representative of the Company and any meeting called by the
Trustee may, at the Trustee’s election, be chaired by the Trustee.
Subject to the provisions of Section 8.04, at any meeting each Noteholder or proxyholder shall
be entitled to one vote for each $1,000 principal amount of Notes held or represented by him. If
any vote cast or counted or proposed to be cast or counted is challenged on the ground that such
Note is not outstanding, or does not comply with the provisions of Section 9.04, the chairman of
the meeting shall determine whether the holder of such Note is authorized to act. The chairman of
the meeting shall have no right to vote other than by virtue of Notes held by him or instruments in
writing as aforesaid duly designating him as the proxy to vote on behalf of other Noteholders. Any
meeting of Noteholders duly called pursuant to the provisions of Section 9.02 or 10.02 may be
adjourned from time to time by the holders of a majority of the aggregate principal amount of Notes
represented at the meeting, whether or not constituting a quorum, and the meeting may be held as so
adjourned without further notice.
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Section 9.06. Voting. The vote upon any resolution submitted to any meeting of
Noteholders shall be by written ballot on which shall be subscribed the signatures of the holders
of Notes or of their representatives by proxy and the outstanding principal amount of the Notes
held or represented by them. The permanent chairman of the meeting shall appoint two inspectors of
votes who shall be representatives of the Trustee, and who shall count all votes cast at the
meeting for or against any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A record in
duplicate of the proceedings of each meeting of Noteholders shall be prepared by the secretary of
the meeting and there shall be attached to said record the original reports of the inspectors of
votes on any vote by ballot taken thereat and affidavits by one or more persons having knowledge of
the facts setting forth a copy of the notice of the meeting and showing that said notice was mailed
as provided in Section 9.02. The record shall show the principal amount of the Notes voting in
favor of or against any resolution. The record shall be signed and verified by the affidavits of
the permanent chairman and secretary of the meeting and one of the duplicates shall be delivered to
the Company and the other to the Trustee to be preserved by the Trustee, the latter to have
attached thereto the ballots voted at the meeting.
Any record so signed and verified shall be conclusive evidence of the matters therein stated,
absent manifest error.
Section 9.07. No Delay of Rights by Meeting. Nothing contained in this Article IX shall be
deemed or construed to authorize or permit, by reason of any call of a meeting of Noteholders or
any rights expressly or impliedly conferred hereunder to make such call, any hindrance or delay in
the exercise of any right or rights conferred upon or reserved to the Trustee or to the Noteholders
under any of the provisions of this Indenture or of the Notes.
ARTICLE X
Supplemental Indentures
Section 10.01. Supplemental Indenture with the Consent of Noteholders. With the consent
(evidenced as provided in Article VIII) of the holders of not less than a majority in aggregate
principal amount of the Notes at the time outstanding, the Company, when authorized by the
resolutions of the Board of Directors, and the Trustee may, from time to time and at any time,
enter into an indenture or indentures supplemental to this Indenture for the purpose of adding any
provisions to or changing in any manner or eliminating any of the provisions of this Indenture or
any supplemental indenture or of modifying in any manner the rights of the holders of the Notes;
provided that no such supplemental indenture shall (i) extend the fixed maturity of any Note or
reduce the rate or extend the time of payment of interest thereon or reduce the principal amount
thereof or premium, if any, thereon or reduce any amount payable on redemption or repurchase
thereof or impair the right of any Noteholder to institute suit for the payment thereof or make the
principal thereof or interest or premium, if any, thereon payable in any coin or currency or
payable at any place other than that provided in this Indenture or the Notes, or change the
obligation of the Company to redeem any Note on a redemption date in a manner adverse to the
holders of Notes or change the obligation of the Company to redeem any Note upon the happening of
a Designated Event in a manner adverse to the holders of Notes or change the obligation of the
Company to repurchase any Note on a Repurchase Date in a manner adverse to the holders of Notes
or reduce the Conversion Rate, otherwise than in
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accordance with the terms of this Indenture, or impair the right to convert the Notes into
cash or Common Stock subject to the terms set forth herein, or adversely modify, in any material
respect, the provisions of Article XV, or reduce the quorum or the voting requirements under this
Indenture, or modify any of the provisions of this Section 10.01 or Section 6.07, except to
increase any such percentage or to provide that certain other provisions cannot be modified or
waived without the consent of the holder of each Note so affected, or change any obligation of the
Company to maintain an office or agency in the places and for the purposes set forth in Section
4.01, in each case, without the consent of the holder of each Note so affected or (ii) reduce the
aforesaid percentage of Notes, the holders of which are required to consent to any such
supplemental indenture or to waive any past Event of Default, without the consent of the holders of
all Notes affected thereby.
Subject to Section 10.05, upon the written request of the Company, accompanied by a copy of
the resolutions of the Board of Directors certified by its Secretary or Assistant Secretary
authorizing the execution of any such supplemental indenture, and upon the filing with the Trustee
of evidence of the consent of Noteholders as aforesaid, the Trustee shall join with the Company in
the execution of such supplemental indenture unless such supplemental indenture affects the
Trustee’s own rights, duties, liabilities or immunities under this Indenture or otherwise, in which
case the Trustee may in its discretion, but shall not be obligated to, enter into such supplemental
indenture.
It shall not be necessary for the consent of the Noteholders under this Section 10.01 to
approve the particular form of any proposed supplemental indenture, but it shall be sufficient if
such consent shall approve the substance thereof.
Section 10.02. Supplemental Indentures Without Consent of Noteholders. The Company, when
authorized by the resolutions of the Board of Directors, and the Trustee may, from time to time,
and at any time enter into an indenture or indentures supplemental hereto for one or more of the
following purposes:
(a) to evidence the succession of another Person to the Company and the assumption by
any such successor of the covenants of the Company in this Indenture and in the Notes; or
(b) to add to the covenants of the Company for the benefit of the Noteholders, or to
surrender any right or power conferred upon the Company in this Indenture; or
(c) to evidence or provide for the acceptance of appointment hereunder by a successor
Trustee with respect to the Notes; or
(d) to cure any ambiguity, to correct or supplement any provision in this Indenture
which may be inconsistent with any other provision in this Indenture, or to make any other
provisions with respect to matters or questions arising under this Indenture, which shall
not be inconsistent with the provisions; or
(e) to add to, change or eliminate any of the provisions to permit or facilitate the
issuance of Global Notes and matters related thereto, provided that such action
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pursuant to this clause (e) shall not adversely affect the interests of the Noteholders
in any material respect; or
(f) make provision with respect to the conversion rights of the holders of Notes
pursuant to the requirements of Section 14.06(c) and the redemption obligations of the
Company pursuant to the requirements of Section 3.05(e); or
(g) to provide for the issuance of Additional Notes in accordance with the provisions
of this Indenture; or
(h) to modify or amend any of the provisions of this Indenture to permit the
qualification under the Trust Indenture Act.
Upon the written request of the Company, accompanied by a copy of the resolutions of the Board
of Directors certified by its Secretary or Assistant Secretary authorizing the execution of any
supplemental indenture, the Trustee is hereby authorized to join with the Company in the execution
of any such supplemental indenture, to make any further appropriate agreements and stipulations
that may be therein contained and to accept the conveyance, transfer and assignment of any property
thereunder, but the Trustee shall not be obligated to, but may in its discretion, enter into any
supplemental indenture that affects the Trustee’s own rights, duties, liabilities or immunities
under this Indenture or otherwise.
Any supplemental indenture authorized by the provisions of this Section 10.02 may be executed
by the Company and the Trustee without the consent of the holders of any of the Notes at the time
outstanding, notwithstanding any of the provisions of Section 10.01.
Section 10.03. Effect of Supplemental Indenture. Upon the execution of any supplemental
indenture pursuant to the provisions of this Article X, this Indenture shall be and be deemed to be
modified and amended in accordance therewith and the respective rights, limitation of rights,
obligations, duties and immunities under this Indenture of the Trustee, the Company and the holders
of Notes shall thereafter be determined, exercised and enforced hereunder, subject in all respects
to such modifications and amendments and all the terms and conditions of any such supplemental
indenture shall be and be deemed to be part of the terms and conditions of this Indenture for any
and all purposes.
Section 10.04. Notation on Notes. Notes authenticated and delivered after the execution of
any supplemental indenture pursuant to the provisions of this Article X may bear a notation in form
approved by the Trustee as to any matter provided for in such supplemental indenture. If the
Company or the Trustee shall so determine, new Notes so modified as to conform, in the opinion of
the Trustee and the Company, to any modification of this Indenture contained in any such
supplemental indenture may, at the Company’s expense, be prepared and executed by the Company,
authenticated by the Trustee (or an authenticating agent duly appointed by the Trustee pursuant to
Section 16.10) and delivered in exchange for the Notes then outstanding, upon surrender of such
Notes then outstanding.
Section 10.05. Evidence of Compliance of Supplemental Indenture to Be Furnished to Trustee.
Prior to entering into any supplemental indenture, the Trustee may request
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an Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any
supplemental indenture executed pursuant hereto complies with the requirements of this Article X.
ARTICLE XI
Merger, Consolidation, Etc.
Section 11.01. Mergers, Consolidations and Certain Transfers, Leases and Acquisitions of
Assets. The Company shall not consolidate with or merge into any other Person or convey, transfer
or lease its properties and assets substantially as an entirety to any Person, unless:
(a) in case the Company shall consolidate with or merge into another Person or convey,
transfer or lease its properties and assets substantially as an entirety to any Person, the
Person formed by such consolidation or into which the Company is merged or the Person which
acquires by conveyance or transfer, or which leases, the properties and assets of the
Company substantially as an entirety shall be a corporation, shall be organized and validly
existing under the laws of the United States of America or any jurisdiction thereof and
shall expressly assume, by an indenture supplemental hereto, executed and delivered to the
Trustee, in form satisfactory to the Trustee, the due and punctual payment of the principal
of, and premium, if any, and interest on, all the Notes and the performance or observance of
every covenant and obligation of this Indenture and the Notes on the part of the Company to
be performed or observed; and
(b) immediately after giving effect to such transaction, no Event of Default, and no
event which, after notice or lapse of time or both, would become an Event of Default, shall
have happened and be continuing.
Section 11.02. Successor to Be Substituted. Upon any consolidation of the Company with, or
merger of the Company into, any other Person or any conveyance, transfer or lease of the properties
and assets of the Company substantially as an entirety in accordance with Section 11.01, the
successor Person formed by such consolidation or into which the Company is merged or to which such
conveyance, transfer or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect as if such
successor Person had been named as the Company herein, and thereafter, except in the case of a
lease, the predecessor Person shall be relieved of all obligations and covenants under this
Indenture and the Notes.
Section 11.03. Opinion of Counsel to Be Given Trustee. The Trustee shall receive an
Officers’ Certificate and an Opinion of Counsel as conclusive evidence that any such consolidation,
merger, sale, conveyance or lease and any such assumption complies with the provisions of this
Article XI.
ARTICLE XII
Satisfaction and Discharge of Indenture
Section 12.01. Discharge of Indenture. When:
(a) either:
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(i) the Company shall have delivered to the Trustee for cancellation all Notes
theretofore authenticated (other than any Notes that have been destroyed, lost or
stolen and in lieu of or in substitution for which other Notes shall have been
authenticated and delivered) and not theretofore canceled, or
(ii) all the Notes not theretofore canceled or delivered to the Trustee for
cancellation shall have become due and payable, or are by their terms to become due
and payable within one year or are to be called for redemption within one year under
arrangements satisfactory to the Trustee for the giving of notice of redemption, and
the Company shall deposit with the Trustee, in trust, funds sufficient to pay at
maturity or upon redemption or repurchase of all of the Notes (other than any Notes
that shall have been mutilated, destroyed, lost or stolen and in lieu of or in
substitution for which other Notes shall have been authenticated and delivered) not
theretofore canceled or delivered to the Trustee for cancellation, including
principal, premium, if any, and interest due or to become due to such date of
maturity or redemption date or Repurchase Date, as the case may be, accompanied by a
verification report, as to the sufficiency of the deposited amount, from an
independent certified accountant or other financial professional satisfactory to the
Trustee, and
(b) the Company shall pay or cause to be paid all other sums payable hereunder by the
Company, as the case may be, and
(c) the Company shall have delivered to the Trustee an Officers’ Certificate and an
Opinion of Counsel, each stating that all conditions precedent herein provided for relating
to the satisfaction and discharge of this Indenture have been complied with,
then this Indenture shall cease to be of further effect (except that in the case of clause (a)(ii)
above, Articles II, III, XII and XIV and Sections 4.01, 4.02, 7.01 and 7.03 through 7.12 shall
survive until no Note remains outstanding). The rights, obligations and immunities of the Trustee
hereunder shall survive any discharge pursuant to this Section 12.01, and Section 7.07 shall
survive the termination of this Indenture. The Trustee, on written demand of the Company
accompanied by the aforementioned Officers’ Certificate and an Opinion of Counsel shall, at the
cost and expense of the Company, execute proper instruments acknowledging the satisfaction and
discharge of this Indenture; the Company, however, hereby agrees to reimburse the Trustee for any
costs or expenses thereafter reasonably and properly incurred by the Trustee (including the
reasonable fees and expenses of its counsel) and to compensate the Trustee for any services
thereafter reasonably and properly rendered by the Trustee in connection with this Indenture or the
Notes.
Section 12.02. Deposited Monies to Be Held in Trust by Trustee. Subject to Section 12.04,
all monies deposited with the Trustee pursuant to Section 12.01, shall be held in trust for the
sole benefit of the Noteholders, and such monies shall be applied by the Trustee to the payment,
either directly or through any paying agent (including the Company if acting as the paying agent),
to the holders of the particular Notes for the payment or redemption of which such monies have been
deposited with the Trustee, of all sums due and to become due thereon for principal, premium, if
any, and interest.
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Section 12.03. Paying Agent to Repay Monies Held. Upon the satisfaction and discharge of
this Indenture, all monies then held by any paying agent of the Notes (other than the Trustee)
shall, upon written request of the Company, be repaid to it or paid to the Trustee, and thereupon
such paying agent shall be released from all further liability with respect to such monies.
Section 12.04. Return of Unclaimed Monies. Subject to the requirements of applicable law and
this Indenture, any monies deposited with or paid to the Trustee for payment of the principal of,
or premium, if any, or interest on, Notes and not applied but remaining unclaimed by the holders of
Notes for two years after the date upon which the principal of, or premium, if any, or interest on,
such Notes, as the case may be, shall have become due and payable, shall be repaid to the Company
by the Trustee on demand and all liability of the Trustee shall thereupon cease with respect to
such monies; and the holder of any of the Notes shall thereafter look only to the Company for any
payment that such holder may be entitled to collect unless an applicable abandoned property law
designates another Person.
Section 12.05. Reinstatement. If the Trustee or the paying agent is unable to apply any
money in accordance with Section 12.02 by reason of any order or judgment of any court or
governmental authority enjoining, restraining or otherwise prohibiting such application, the
Company’s obligations under this Indenture and the Notes shall be revived and reinstated as though
no deposit had occurred pursuant to Section 12.01 until such time as the Trustee or the paying
agent is permitted to apply all such money in accordance with Section 12.02; provided that if the
Company makes any payment of interest on or principal of any Note following the reinstatement of
its obligations, the Company shall be subrogated to the rights of the holders of such Notes to
receive such payment from the money held by the Trustee or paying agent.
ARTICLE XIII
Immunity of Incorporators, Stockholders, Officers and Directors
Section 13.01. Indenture and Notes Solely Corporate Obligations. No recourse for the payment
of the principal of, or premium, if any, or interest on, any Note, or for any claim based thereon
or otherwise in respect thereof, and no recourse under or upon any obligation, covenant or
agreement of the Company or the Trustee, respectively, in this Indenture or in any supplemental
indenture or in any Note, or because of the creation of any indebtedness represented thereby, shall
be had against any incorporator, stockholder, employee, agent, officer, director or subsidiary, as
such, past, present or future, of the Company or the Trustee, respectively, or of any respective
successor corporation, either directly or through the Company or the Trustee, respectively, or any
respective successor corporation, whether by virtue of any constitution, statute or rule of law, or
by the enforcement of any assessment or penalty or otherwise; it being expressly understood that
all such liability is hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of the Notes.
ARTICLE XIV
Conversion of Notes
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Section 14.01. Right to Convert
(a) Subject to and upon compliance with the provisions of this Indenture, the holder of any
Note shall have the right to convert the principal amount of the Note, or any portion of such
principal amount which is a multiple of $1,000, into cash or a combination of cash and fully paid
and non-assessable shares of Common Stock (as such shares shall then be constituted) by surrender
of the Note so to be converted in whole or in part, together with any required funds under the
circumstances described in this Section 14.01, in the manner provided in Section 14.02. Each
$1,000 of principal amount of Notes shall be convertible for cash and Common Stock, if any, in an
amount equal to the Daily Settlement Amount, payable as set forth in Section 14.04. The Notes
shall be convertible prior to the close of business on the scheduled trading day immediately
preceding September 15, 2036, only upon the occurrence of one of the following events:
(i) prior to the scheduled trading day immediately preceding September 15, 2036, during
any fiscal quarter commencing after December 31, 2006, if the Closing Sale Price exceeds
120% of the Conversion Price for at least 20 Trading Days in the 30 consecutive Trading Day
period ending on the last Trading Day of the immediately preceding calendar quarter (it
being understood for purposes of this Section 14.01(a)(i) that the Conversion Price in
effect at the close of business on each of the 30 consecutive Trading Days should be used
and such calculation shall give effect to any event referred to in Section 14.05 or 14.06
occurring during such 30 Trading Day period);
(ii) during the five Business Day period immediately after any five consecutive Trading
Day period in which the Trading Price per $1,000 principal amount of the Notes for each day
of such five Trading Day period was less than 98% of the product of the Closing Sale Price
on the applicable date and the Conversion Rate; (it being understood for purposes of this
Section 14.01(a)(ii) that the Conversion Rate in effect at the close of business on each of
the five consecutive Trading Days should be used and such calculation shall give effect to
any event referred to in Section 14.05 or 14.06 occurring during such five Trading Day
period). Upon satisfaction of the Trading Price condition set forth above the Company shall
so notify the Noteholders and if at any time after the Trading Price condition set forth
above has been met, the Trading Price per $1,000 principal amount of Notes is greater than
98% of the product of (a) the Closing Sale Price on such date and (b) the then-applicable
Conversion Rate of the Notes, the Company shall so notify the Noteholders.
(iii) if such Note has been called for redemption, at any time on or after the date
the notice of redemption has been given until the close of business on the Business Day
immediately preceding the redemption date; or
(iv) as provided in Section (b) of this Section 14.01.
Upon receipt by the Conversion Agent of a demand for conversion from a Noteholder pursuant to
clause (i) of this Section 14.01, the Conversion Agent shall inform the Company of such request and
the Company shall thereupon furnish to the Conversion Agent an
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Officer’s Certificate stating whether the Notes are then convertible pursuant to clause (i) of this Section and setting forth in reasonable detail the Company’s basis for such determination.
Upon receipt of such Officer’s Certificate, then the Conversion Agent shall promptly deliver
written notice thereof to the Company (and, if the Conversion Agent is other than the Trustee, to
the Trustee). In any event, the Company shall be obligated at all times to determine whether the
Notes shall be convertible as a result of the occurrence of an event specified in clause (i) of
this Section 14.01. Whenever the Notes shall become convertible pursuant to this Section 14.01,
the Company or, at the Company’s written request, the Trustee in the name and at the expense of the
Company, shall notify the holders of the event triggering such convertibility in the manner
provided in Section 16.03, and the Company shall also publicly announce such information and
publish it on the Company’s web site. Any notice so given shall be conclusively presumed to have
been duly given, whether or not the holder receives such notice.
The Trustee (or other Conversion Agent appointed by the Company) shall have no obligation to
determine the Trading Price under clause (a)(ii) of this Section 14.01 unless the Company has
requested in writing such a determination; and the Company shall have no obligation to make such
request unless a holder provides it with reasonable evidence that the Trading Price per $1,000
principal amount of Notes would be less than 98% of the product of the Closing Sale Price and the
Conversion Rate. If such evidence is provided, the Company shall request in writing that the
Trustee (or other Conversion Agent) determine the Trading Price of the Notes beginning on the next
Trading Day and on each successive Trading Day until the Trading Price per $1,000 principal amount
of Notes is greater than or equal to 98% of the product of the Closing Sale Price and the
Conversion Rate. The Trustee shall not be liable for its determination of the Trading Price in
compliance with the methodology set forth in this Section 14.01, except for any negligence or
willful misconduct of the Trustee in making such determination.
Notwithstanding any other provision of this Section 14.01(a), on and after September 15, 2036,
and until the close of business on the scheduled trading date immediately preceding the maturity
date of the Notes, the holder of any Note shall have the right to convert the principal amount of
the Note, or any portion of the Note which is a multiple of $1000, at the Conversion Rate.
(b) In addition, if:
(i) (A) the Company distributes to all holders of its Common Stock rights
entitling them to purchase (for a period expiring within 45 days of the record date
for the determination of the stockholders entitled to receive such distribution)
shares of Common Stock, at a price per share less than the average of the Closing
Sale Price for the ten Trading Days immediately preceding, but not including, the
date such distribution is first publicly announced by the Company, or
(B) the Company distributes to all holders of its Common Stock, assets
(including cash), debt securities or rights to purchase its securities, where the
Fair Market Value of such distribution per share of Common Stock
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exceeds 5% of the Closing Sale Price on
the Trading Day immediately preceding the date such
distribution is first publicly announced by the Company,
then, in either case, the Notes may be
surrendered for conversion at any time on and after
the date that the Company gives notice to the holders of such distribution, which shall be
not less than fifteen scheduled Trading Days prior to the Ex-Dividend Time for such
distribution, until the earlier of the close of business on the Business Day immediately
preceding, but not including, the Ex-Dividend Time or the date the Company publicly
announces that such distribution will not take place; provided that no adjustment to the
Conversion Rate or the ability of a holder of a Note to convert will be made if the holder
will otherwise participate in such distribution without conversion; or
(ii) the
Company consolidates with, or merges with or into, another Person or is a
party to a binding share exchange or conveys, transfers, sells, leases or otherwise disposes
of all or substantially all of its properties and assets, in each case, pursuant to which
the Common Stock would be converted into cash, securities or other property, then the Notes
may be surrendered for conversion at any time from and after the date 15 scheduled Trading
Days prior to the anticipated effective date of the transaction and ending on and including
the date 15 scheduled Trading Days after the consummation of the transaction. The Board of
Directors shall determine the anticipated effective date of the transaction, and such
determination shall be conclusive and binding on the holders. The Company will notify the
holders of Notes at least fifteen (15) scheduled Trading Days prior to the anticipated
effective date of such transaction. Such notice shall be given in accordance with Section
16.02.
“Ex-Dividend Time” (or “ex-date”) means, with respect to any issuance or distribution on
shares of Common Stock, the first date on which the Common Stock trades, regular way, on the
principal securities market on which shares of the Common Stock are then traded without the right
to receive such issuance or distribution.
“Fair
Market Value” shall mean the amount that a willing buyer would pay a willing seller in
an arm’s-length transaction.
(c) A Note in respect of which a holder is electing to exercise its option to require
redemption upon a Designated Event pursuant to Section 3.05(a) or repurchase pursuant to Section
3.06 may be converted only if such holder withdraws its election in accordance with Section 3.11.
A holder of Notes is not entitled to any rights of a holder of Common Stock until such holder has
converted its, his or her Notes to Common Stock, and only to the extent such Notes are deemed to
have been converted to Common Stock under this Article XIV.
Section 14.02. Conversion Procedures. To convert a Note, a holder must (a) furnish
appropriate endorsements and transfer documents if required by the Note registrar or the Conversion
Agent, (b) pay any transfer or similar tax, if required, (c) except as set forth in the final
paragraph of this Section 14.02, pay funds equal to the interest payable on the next interest
payment date, and (d) comply with DTC’s procedures for converting a beneficial interest in a Global
Note. The date, within the time periods set forth in Section 14.01, on which the holder satisfies
all of those requirements is the “Conversion Date.” Except as provided in
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Section 14.05(h), the Company shall deliver to the holder through the Conversion Agent, as promptly as practicable
following the Conversion Date, but in no event later than the third Business Day following the
Company’s determination of the Daily Settlement Amounts, cash or a combination
of cash and certificates for the number of whole shares of Common Stock issued pursuant to the
settlement provisions in Section 14.04.
In the event that the Company calls the Notes for redemption under Section 3.01, holders may
convert their Notes only until the close of business on the Business Day immediately preceding the
Redemption Date; provided that in the event that the Company does not pay the consideration for
such redemption in accordance with this Indenture, such Notes shall remain convertible in
accordance with Section 3.03. Any holder who has delivered its Notes for redemption or repurchase
may only convert such Notes, or portions thereof, after withdrawing its redemption election or
Repurchase Notice in accordance with Section 3.11.
The Conversion Notice shall be completed by a Depositary participant on behalf of the
beneficial holder. Conversion Notices may be delivered and such Notes may be surrendered for
conversion in accordance with the applicable procedures of the Depositary as in effect from time to
time. In order to cause a Depositary participant to complete a Conversion Notice, a beneficial
holder must complete, or cause to be completed, the appropriate instruction form for conversion
pursuant to the Depositary’s book-entry conversion program. The Person in whose name the Common
Stock certificate, if any, is registered shall be deemed to be a shareholder of record at the close
of business on the applicable Conversion Date; provided, however, that if any such date is a date
when the stock transfer books of the Company are closed, such Person shall be deemed a shareholder
of record as of the next Business Day on which the stock transfer books of the Company are open.
The Company’s delivery to holders of the Daily Conversion Value will be deemed to satisfy its
obligation to pay thereto the principal amount of the Notes and any accrued but unpaid interest
attributable to the period from the most recent interest payment date to the Conversion Date.
No payment or adjustment shall be made for dividends on, or other distributions with respect
to, any Common Stock except as provided in this Article XIV. Notwithstanding any provision to the
contrary in this Indenture, holders converting Shares will not receive any cash payment of
interest unless such conversion occurs between the applicable record date and the interest payment
date to which it relates. On conversion of a Note, except for conversion during the period from
the close of business on any record date immediately preceding any interest payment date to the
close of business on the Business Day immediately preceding such interest payment date, in which
case the holder on such record date shall receive the interest payable on such interest payment
date, that portion of accrued and unpaid interest on the converted Note attributable to the period
from the most recent interest payment date (or, if no interest payment date has occurred, from the
date of original issuance of the Notes) through the Conversion Date shall not be cancelled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the holder thereof
through delivery of the cash or Common Stock in settlement of the Note being converted pursuant to
Section 14.04, and the Fair Market Value of such shares of Common Stock, if any (together with the
cash portion of such settlement), shall be treated as issued, to the extent thereof, first in
exchange for accrued and unpaid interest accrued through the Conversion
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Date and the balance, if
any, of such Fair Market Value of such Common Stock (and such cash payment) shall be treated as
issued in exchange for the principal amount of the Note being converted pursuant to the provisions
hereof.
If a holder converts more than one Note at the same time, the cash paid and the number of
shares of Common Stock issuable, if any, upon the conversion shall be based on the aggregate
principal amount of Notes converted.
Upon surrender of a Note that is converted in part, the Company shall execute, and the
Trustee shall authenticate and deliver to the holder, a new Note equal in principal amount to the
principal amount of the unconverted portion of the Note surrendered.
Notes or portions thereof surrendered for conversion during the period from the close of
business on any record date immediately preceding any interest payment date to the close of
business on the Business Day immediately preceding such interest payment date shall be accompanied
by payment to the Company or its order, in immediately available funds or other funds acceptable to
the Company, of an amount equal to the interest payable on such interest payment date with respect
to the principal amount of Notes or portions thereof being surrendered for conversion; provided
that no such payment need be made if (1) the Company has specified a redemption date that occurs
during the period from the close of business on a record date to the close of business on the
Business Day immediately preceding the interest payment date to which such record date relates, (2)
the Company has specified a Designated Event Redemption Date during such period or (3) any overdue
interest exists on the Conversion Date with respect to the Notes converted, but only to the extent
of overdue interest.
Section 14.03. Cash Payments in Lieu of Fractional Shares. No fractional shares of Common
Stock or scrip certificates representing fractional shares shall be issued upon conversion of
Notes. If more than one Note shall be surrendered for conversion at one time by the same holder,
the number of full shares that shall be issuable, if any, upon conversion shall be computed in the
manner set forth in Section 14.04. If any fractional share of Common Stock would be issuable upon
such conversion, the Company shall make an adjustment and payment therefor in cash at the Closing
Sale Price thereof on the last day of the applicable Observation Period to the holder of Notes.
Section 14.04. Conversion Rate; Settlement Upon Conversion. (a) The initial Conversion
Rate is ___shares of Common Stock for each $1,000 principal amount of Notes, subject to
adjustment as herein set forth (the “Conversion Rate”). The Company will settle each $1,000
principal amount of Notes being converted in cash and shares of fully paid Common Stock, if
applicable, by delivering, on the third Trading Day immediately following the last day of the
related Observation Period, cash and shares of Common Stock, if any, equal to the sum of the Daily
Settlement Amounts for each of the 10 Trading Days during the related Observation Period. The
Daily Settlement Amounts shall be determined by the Company promptly following the last day of the
Observation Period.
(b) Notwithstanding Section 14.04(a), the Company will settle each $1,000 principal amount of
Notes tendered for conversion to which Additional Shares shall be added to the Conversion Rate as
set forth in Section 14.06(a) pursuant to this clause (b).
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(1) If the last day of the applicable Observation Period related to Notes surrendered
for conversion is prior to the third Trading Day preceding the Effective Date of the
Fundamental Change, the Company will settle such conversion for each $1,000 principal amount
of Notes tendered for conversion as described in Section 14.04(a) by
delivering the cash and shares of Common Stock (based on the Conversion Rate, but without
regard to the number of Additional Shares to be added to the Conversion Rate pursuant to
Section 14.06(a)) on the third Trading Day immediately following the last day of the
applicable Observation Period. As soon as practicable following the Effective Date of the
Fundamental Change, the Company will deliver the increase in such amount of cash and
Reference Property deliverable in lieu of shares of Common Stock, if any, as if the
Conversion Rate had been increased by such number of Additional Shares during the related
Observation Period and based upon the related Daily VWAP prices during such Observation
Period. If such increased amount of cash and shares, if any, results in an increase to the
amount of cash to be paid to holders, the Company will pay such increase in cash, and if
such increased amount results in an increase to the number of shares of Common Stock, the
Company will deliver such increase by delivering Reference Property based on such increased
number of shares.
(2) If the last day of the applicable Observation Period related to Notes surrendered
for conversion is on or following the third scheduled Trading Day preceding the Effective
Date of such Fundamental Change, the Company will settle such conversion with respect to
each $1,000 principal amount of Notes tendered for conversion as described in Section
14.04(a) (based on the Conversion Rate as increased by the Additional Shares pursuant to
Section 14.06(a)) below on the later to occur of (1) the Effective Date of the Fundamental
Change and (2) the third Trading Day immediately following the last day of the applicable
Observation Period.
Section 14.05. Adjustment of Conversion Rate. The Conversion Rate shall be adjusted from
time to time by the Company as follows:
(a) In case the Company shall issue shares of Common Stock as a dividend or
distribution to all holders of its Common Stock, or shall effect a subdivision into a
greater number of shares of Common Stock or combination into a lesser number of shares of
Common Stock, the Conversion Rate shall be adjusted based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such event;
CR’ = the Conversion Rate in effect immediately after the
Ex-Dividend Date for such event;
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OS0 = the number of shares of Common Stock outstanding immediately prior
to the Ex-Dividend Date for such event; and
OS’ = the number of shares of Common Stock outstanding immediately
after the Ex-Dividend Date for such event.
Such adjustment shall become effective immediately after 9:00 a.m., New York City time,
on the Business Day following the Stockholder Record Date fixed for such determination. If
any dividend or distribution of the type described in this Section 14.05(a) is declared but
not so paid or made, or the outstanding shares of Common Stock are not subdivided or
combined, as the case may be, the Conversion Rate shall be immediately readjusted, effective
as of the date the Board of Directors determines not to pay such dividend or distribution,
or subdivide or combine the outstanding shares of Common Stock, as the case may be, to the
Conversion Rate that would then be in effect if such dividend, distribution, subdivision or
combination had not been declared.
(b) In case the Company shall issue to all holders of its Common Stock rights, warrants
or convertible securities entitling them to subscribe for or purchase shares of Common Stock
at a price per share less than the Last Reported Sale Price of the Common Stock on the
Business Day immediately preceding the date of announcement of such issuance, the Conversion
Rate shall be adjusted based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend
Date for such event;
CR’ = the Conversion Rate in effect immediately after the
Ex-Dividend Date for such event;
OS0 = the number of shares of Common Stock outstanding immediately prior
to the Ex-Dividend Date for such event;
X = the total number of shares of Common Stock issuable pursuant
to such rights; and
Y = the number of shares of Common Stock equal to the aggregate
price payable to exercise such rights, warrants or convertible securities
divided by the average of the Closing Sale Prices of Common Stock over the ten
(10) consecutive Trading Day period ending on the Business Day immediately
preceding the Ex-Dividend Date relating to such distribution for the issuance
of such rights or warrants.
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Such adjustment shall be successively made whenever any such rights, warrants or
convertible securities are issued and shall become effective immediately after 9:00 a.m.,
New York City time, on the Business Day following the date fixed for such determination. If
such rights, warrants or convertible securities are not so issued, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such Stockholder
Record Date for such distribution had not been fixed. To the extent that shares of Common
Stock are not delivered after the expiration of such rights,
warrants or convertible securities, the Conversion Rate shall be readjusted to the
Conversion Rate that would then be in effect had the adjustments made upon the issuance of
such rights or warrants been made on the basis of delivery of only the number of shares of
Common Stock actually delivered.
In determining whether any rights, warrants or convertible securities entitle the
holders to subscribe for or purchase shares of Common Stock at less than such Last Reported
Sale Price, and in determining the aggregate offering price of such shares of Common Stock,
there shall be taken into account any consideration received by the Company for such rights
or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board of Directors.
(c) In case the Company shall, by dividend or otherwise, distribute to all holders of
its Common Stock shares of any class of Capital Stock of the Company (other than Common
Stock as covered by subsection (a) of this Section), evidences of its Indebtedness or other
assets or property of the Company (including securities, but excluding dividends and
distributions covered by subsection (b) or (d) of this Section and distributions described
below in this subsection (c) with respect to Spin-Offs) (any of such shares of Capital
Stock, Indebtedness, or other asset or property hereinafter in this subsection (c) called
the “Distributed Property”), then, in each such case the Conversion Rate shall be adjusted
based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;
CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;
SP0 = the average of the Closing Sale Prices of Common Stock over the ten (10) consecutive Trading Day period ending on the Business Day immediately
preceding the Ex-Dividend Date relating to such distribution; and
FMV = the fair market value as determined by the Board of Directors of the shares of capital stock, evidences of indebtedness, assets or property
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distributed with respect to each outstanding share of Common Stock on the
Ex-Dividend Date relating to such distribution.
Such adjustment shall become effective immediately prior to 4:00 a.m., New York City
time, on the Business Day following the date fixed for the determination of stockholders
entitled to receive such distribution; provided that if the then fair market value (as so
determined) of the portion of the Distributed Property so distributed
applicable to one share of Common Stock is equal to or greater than SP0 as
set forth above, in lieu of the foregoing adjustment, adequate provision shall be made so
that each holder shall have the right to receive, for each $1,000 principal amount of
Securities upon conversion, the amount of Distributed Property such holder would have
received had such holder owned a number of shares of Common Stock equal to the Conversion
Rate on the Stockholder Record Date. If such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared. If the Board of
Directors determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when issued trading market for any securities,
it must in doing so consider the prices in such market over the same period used in
determining SP0 above.
With respect to an adjustment pursuant to this subsection (c) where there has been a
payment of a dividend or other distribution on the Common Stock or shares of Capital Stock
of any class or series, or similar equity interest, of or relating to a Subsidiary or other
business unit (a “Spin-Off”), the Conversion Rate in effect immediately before 5:00 p.m.,
New York City time, on the Stockholder Record Date fixed for determination of stockholders
entitled to receive the distribution will be increased based on the following formula:
Where,
CR0 = the Conversion Rate in effect immediately prior to such Stockholder Record Date;
CR’ = the Conversion Rate in effect immediately after such Stockholder Record Date;
FMV0 = the average of the Closing Sale Prices of the capital stock or
similar equity interest distributed to holders of Common Stock applicable to
one share of Common Stock over the first ten (10) consecutive Trading Day
period after the effective date of the spin-off; and
MP0 = the average of the Closing Sale Prices of the Company’s Common
Stock over the first ten (10) consecutive trading-day period after the
effective date of the Spin-Off.
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Such adjustment shall occur on the 10th Trading Day from, and including, the effective
date of the Spin-Off.
Rights or warrants distributed by the Company to all holders of Common Stock, entitling
the holders thereof to subscribe for or purchase shares of the Company’s Capital Stock,
including Common Stock (either initially or under certain circumstances), which rights or
warrants, until the occurrence of a specified event or events (“Trigger Event”): (i) are
deemed to be transferred with such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in respect of future issuances of Common Stock,
shall be deemed not to have been distributed for purposes of this Section (and no adjustment
to the Conversion Rate under this Section will be required) until the occurrence of the
earliest Trigger Event, whereupon such rights and warrants shall be deemed to have been
distributed and an appropriate adjustment (if any is required) to the Conversion Rate shall
be made under this subsection (c). If any such right or warrant, including any such existing
rights or warrants distributed prior to the date of this Indenture, are subject to events,
upon the occurrence of which such rights or warrants become exercisable to purchase
different securities, evidences of Indebtedness or other assets, then the date of the
occurrence of any and each such event shall be deemed to be the date of distribution and
record date with respect to new rights or warrants with such rights (and a termination or
expiration of the existing rights or warrants without exercise by any of the holders
thereof). In addition, in the event of any distribution (or deemed distribution) of rights
or warrants, or any Trigger Event or other event (of the type described in the preceding
sentence) with respect thereto that was counted for purposes of calculating a distribution
amount for which an adjustment to the Conversion Rate under this Section was made, (1) in
the case of any such rights or warrants that shall all have been redeemed or repurchased
without exercise by any holders thereof, the Conversion Rate shall be readjusted upon such
final redemption or repurchase to give effect to such distribution or Trigger Event, as the
case may be, as though it were a cash distribution, equal to the per share redemption or
repurchase price received by a holder or holders of Common Stock with respect to such rights
or warrants (assuming such holder had retained such rights or warrants), made to all holders
of Common Stock as of the date of such redemption or repurchase, and (2) in the case of such
rights or warrants that shall have expired or been terminated without exercise by any
holders thereof, the Conversion Rate shall be readjusted as if such rights and warrants had
not been issued.
For purposes of this subsection (c), and subsections (a) and (b) of this Section, any
dividend or distribution to which this subsection (c) is
applicable that also includes shares of Common Stock to which subsection (a) of this Section applies or rights or warrants
to subscribe for or purchase shares of Common Stock to which subsection (a) or (b) of this
Section applies (or both), shall be deemed instead to be (1) a dividend or distribution of
the evidences of Indebtedness, assets or shares of capital stock other than such shares of
Common Stock or rights or warrants to which this subsection (c) applies (and any Conversion
Rate adjustment required by this subsection (c) with respect to such dividend or
distribution shall then be made) immediately followed by (2) a dividend or distribution of
such shares of Common Stock or such rights or warrants (and any further Conversion Rate
adjustment required by subsections (a) and (b) of this Section with
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respect to such dividend
or distribution shall then be made), except (A) the record date of such dividend or
distribution shall be substituted as “the Stockholder Record Date” and “the date fixed for
such determination” within the meaning of subsections (a) and (b) of this Section and (B)
any shares of Common Stock included in such dividend or distribution shall not be deemed
“outstanding immediately prior to such event” within the meaning of subsection (a) of this
Section.
(d) In case the Company shall pay a dividend or make a distribution consisting
exclusively of cash to all holders of its Common Stock, the Conversion Rate shall be
adjusted based on the following formula:
where,
CR0 = the Conversion Rate in effect immediately prior to the Ex-Dividend Date for such distribution;
CR’ = the Conversion Rate in effect immediately after the Ex-Dividend Date for such distribution;
SP0 = the Closing Sale Prices of Common Stock on the Trading Day
immediately preceding the Ex-Dividend Date relating to such distribution; and
C = the amount in cash per share the Company distributes to
holders of its Common Stock.
Such adjustment shall become effective immediately after 5:00 p.m., New York City time,
on the Stockholder Record Date for such dividend or distribution; provided that if the
portion of the cash so distributed applicable to one share of Common Stock is equal to or
greater than SP0 as above, in lieu of the foregoing adjustment, adequate
provision shall be made so that each holder shall have the right to receive upon conversion
of a Note (or any portion thereof) the amount of cash such holder would have received had
such holder owned a number of shares equal to the Conversion Rate on the Stockholder Record
Date. If such dividend or distribution is not so paid or made, the Conversion Rate shall
again be adjusted to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
For the avoidance of doubt, for purposes of this subsection (d), in the event of any
reclassification of the Common Stock, as a result of which the Securities become convertible
into more than one class of Common Stock, if an adjustment to the Conversion Rate is
required pursuant to this subsection (d), references in this Section to one share of Common
Stock or Last Reported Sale Price of one share of Common Stock shall be deemed to refer to a
unit or to the price of a unit consisting of the number of shares of each class of Common
Stock into which the Securities are then convertible equal to the numbers of shares of such
class issued in respect of one share of Common
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Stock in such reclassification. The above
provisions of this paragraph shall similarly apply to successive reclassifications.
(e) In case the Company or any of its Subsidiaries makes a payment in respect of a
tender offer or exchange offer for all or any portion of the Common Stock, to the extent
that the cash and value of any other consideration included in the payment per share of
Common Stock exceeds the Closing Sale Price of the Common Stock on the Trading Day
next succeeding the last date on which tenders or exchanges may be made pursuant to
such tender or exchange offer (as it may be amended), the Conversion Rate shall be increased
based on the following formula:
where,
CR0 = the Conversion Rate in effect on the date such tender or exchange offer expires;
CR’ = the Conversion Rate in effect on the day next succeeding the date such tender or exchange offer expires;
AC = the aggregate value of all cash and any other consideration as determined by
the Board of Directors paid or payable for shares purchased in such tender or exchange
offer;
OS0 = the number of shares of Common Stock outstanding immediately prior to the
date such tender or exchange offer expires;
OS’ = the number of shares of Common Stock outstanding immediately after the date
such tender or exchange offer expires; and
SP’ = the average of the Closing Sale Price of Common Stock on the Trading Day next
succeeding the date such tender or exchange offer expires.
Such adjustment to become effective immediately prior to the opening of business on the
day following the last date on which tenders or exchanges may be made pursuant to such
tender or exchange offer. If the Company is obligated to purchase shares pursuant to any
such tender or exchange offer, but the Company is permanently prevented by applicable law
from effecting all or any such purchases or all or any portion of such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion Rate that would
then be in effect if such tender or exchange offer had not been made or had only been made
in respect of the purchases that had been effected. No adjustment to the Conversion Rate
will be made if the application of the foregoing formulae would result in a decrease in the
Conversion Rate.
(f) If a Person other than the Company or one of its Subsidiaries makes a payment in
respect of a tender offer or exchange offer in which, as of the closing date of the offer,
the Board of Directors is not recommending the rejection of the offer, the
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Conversion Rate
will be adjusted as set forth in paragraph (e) above; provided, however, the adjustment will
only be made if:
|
• |
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The tender offer or exchange offer is for an amount that increases the
offeror’s ownership of Common Stock to more than 25% of the total shares of
Common Stock outstanding; and |
|
|
• |
|
The cash and value of any other consideration included in the payment per
share of the Common Stock exceeds the Closing Sale Price of the Common Stock on
the Trading Date next succeeding the last date on which tenders or exchanges
may be made pursuant to the tender or exchange offer; however, the adjustment
referred to in this clause generally will not be made if, as of the closing of
the offer, the offering documents disclose a plan or an intention to cause the
Company to engage in a consolidation or merger or a sale of all or
substantially all of the Company’s assets. |
For purposes of this Section the term “Stockholder Record Date” shall mean, with
respect to any dividend, distribution or other transaction or event in which the holders of
Common Stock have the right to receive any cash, securities or other property or in which
the Common Stock (or other applicable security) is exchanged for or converted into any
combination of cash, securities or other property, the date fixed for determination of
stockholders entitled to receive such cash, securities or other property (whether such date
is fixed by the Board of Directors or by statute, contract or otherwise).
(g) In addition to those required by subsections (a), (b), (c), (d), (e) and (f) of
this Section, and to the extent permitted by applicable law, the Company from time to time
may increase the Conversion Rate by any amount for a period of at least 20 calendar days if
the Board of Directors determines that such increase would be in the Company’s best
interest. In addition, the Company may also (but is not required to) increase the Conversion
Rate to avoid or diminish any income tax to holders of Common Stock or rights to purchase
Common Stock in connection with any dividend or distribution of shares (or rights to acquire shares) or similar event. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to the holder of each Note at his last address
appearing on the Note Register provided for in Section 2.04 a notice of the increase at
least 15 days prior to the date the increased Conversion Rate takes effect, and such notice
shall state the increased Conversion Rate and the period during which it will be in effect.
(h) All calculations and other determinations under this Article shall be made by the
Company and shall be made to the nearest cent or to the nearest one-ten thousandth
(1/10,000) of a share, as the case may be. No adjustment shall be made for the Company’s
issuance of Common Stock or convertible or exchangeable securities or rights to purchase
Common Stock or convertible or exchangeable securities, other than as provided in this
Section. No adjustment shall be made to the Conversion Rate unless such adjustment would
require a change of at least 1% in the Conversion Rate then in effect at such time. The
Company shall carry forward any adjustments that are less than 1% of the
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Conversion Rate and
make such carried forward adjustments, regardless of whether the aggregate adjustment is
less than 1%, if the Notes are called for redemption, upon a Designated Event, upon a
Fundamental Change, or upon maturity.
(i) In any case in which this Section provides that an adjustment shall become
effective immediately after (1) a record date or Stockholder Record Date for an event, (2)
the date fixed for the determination of stockholders entitled to receive a dividend or
distribution pursuant to subsection (a) of this Section, (3) a date fixed for the
determination of stockholders entitled to receive rights or warrants pursuant to subsection
(b) of this Section, or (4) the last date on which tenders or exchanges may be made pursuant
to any tender or exchange offer pursuant to subsection (e) of this Section (each an
“Adjustment Determination Date”), the Company may elect to defer until the occurrence of the
applicable Adjustment Event (as hereinafter defined) (x) issuing to the holder of any Note
converted after such Adjustment Determination Date and before the occurrence of such
Adjustment Event, the additional cash and, if applicable, shares of Common Stock or other
securities issuable upon such conversion by reason of the adjustment required by such
Adjustment Event over and above the amounts deliverable upon such conversion before giving
effect to such adjustment and (y) paying to such holder any amount in cash in lieu of any
fraction pursuant to Section 14.03. For purposes of this subsection (i), the term
“Adjustment Event” shall mean:
(i) in any case referred to in clause (1) hereof, the occurrence of such event,
(ii) in any case referred to in clause (2) hereof, the date any such dividend or
distribution is paid or made,
(iii) in any case referred to in clause (3) hereof, the date of expiration of such
rights or warrants, and
(iv) in any case referred to in clause (4) hereof, the date a sale or exchange of
Common Stock pursuant to such tender or exchange offer is consummated and becomes
irrevocable.
(j) For purposes of this Section, the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the Company but shall include
shares issuable in respect of scrip certificates issued in lieu of fractions of shares of
Common Stock.
(k) For the avoidance of doubt, if a holder converts Securities prior to the effective
date of a Fundamental Change, and the Fundamental Change does not occur, the holder will not
be entitled to an increased Conversion Rate in connection with such conversion.
For purposes of this Section the term “Stockholder Record Date” shall mean, with respect to
any dividend, distribution or other transaction or event in which the holders of Common Stock have
the right to receive any cash, securities or other property or in which the
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Common Stock (or other
applicable security) is exchanged for or converted into any combination of cash, securities or
other property, the date fixed for determination of stockholders entitled to receive such cash,
securities or other property (whether such date is fixed by the Board of Directors or by statute,
contract or otherwise).
Section 14.06. Effect of Fundamental Change, Reclassification, Consolidation, Merger or
Sale (a) If a Noteholder elects to convert Notes at any time on or after the 15th
scheduled Trading Day prior to the date of a Fundamental Change that occurs on or prior to
December 15, 2013 until the close of business on the Business Day immediately preceding the related
purchase date, the Conversion Rate applicable to each $1,000 principal amount of Notes so converted
shall be increased by an additional number of shares of Common Stock (the “Additional Shares”) as
described below; provided, however, that no increase will be made in the case of Fundamental Change
if at least 90% of the consideration paid for the Common Stock (excluding cash payments for
fractional shares and cash payments made pursuant to dissenters’ appraisal rights) in such
Fundamental Change transaction consists of shares of capital stock or American Depositary Receipts
in respect of shares of capital stock traded on the New York Stock Exchange or another U.S.
national securities exchange or quoted on an established automated over-the-counter trading market
in the United States (or that will be so traded or quoted immediately following the transaction)
and as a result of such transaction or transactions the Notes become convertible solely into such
capital stock or such American Depositary Receipt. Settlement of Notes tendered for conversion to
which Additional Shares shall be added to the Conversion Rate as provided in this subsection shall
be settled pursuant to Section 14.04(b) above. For purposes of this Section 14.06(a), a conversion
shall be deemed to be “in connection” with a Fundamental Change to the extent that such conversion
is effected during the time period specified in Section 3.05(a).
The number of Additional Shares by which the Conversion Rate will be increased shall be
determined by reference to the table attached as Exhibit C hereto, based on the date on which the
Fundamental Change occurs or becomes effective (the “Effective Date”), and the price per share of
the Common Stock on the Effective Date (the “Stock Price”); provided that if the actual Stock Price
is between two Stock Price amounts in the table or the Effective Date is between two Effective
Dates in the table, the number of Additional Shares shall be determined by a straight-line
interpolation between the number of Additional Shares set forth for the next higher and next lower
Stock Price amounts and the two nearest Effective Dates, as applicable, based on a 365-day year;
provided further that if (1) the Stock Price is greater than $ per share (subject to
adjustment in the same manner as set forth in Section 14.05), no Additional Shares will be added to
the Conversion Rate, and (2) the Stock Price is less than $ per share (subject to adjustment
in the same manner as set forth in Section 14.05). Notwithstanding the foregoing, in no event will
the total number of shares of Common Stock issuable upon conversion exceed ___per $1,000
principal amount of Notes (subject to adjustment in the same manner as set forth in Section 14.05).
The stock prices set forth in the first row of the table in Exhibit C hereto shall be adjusted
by the Company as of any date on which the Conversion Rate of the Notes is adjusted. The adjusted
stock prices shall equal the stock prices applicable immediately prior to such adjustment,
multiplied by a fraction, the numerator of which is the Conversion Rate in effect
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immediately prior
to the adjustment giving rise to the stock price adjustment and the denominator of which is the
Conversion Rate as so adjusted. The number of Additional Shares within the table shall be adjusted
in the same manner as the Conversion Rate as set forth in Section 14.05 (other than by operation of
an adjustment to the Conversion Rate by adding Additional Shares).
(b) If any of the following events occur, namely (i) any reclassification or change of the
outstanding shares of Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par value, or as a result of a split,
subdivision or combination), (ii) any consolidation, merger or combination of the Company with
another Person, or (iii) any sale or conveyance of all or substantially all of the property and
assets of the Company to any other Person, in any case as a result of which holders of Common Stock
shall be entitled to receive cash, securities or other property or assets with respect to or in
exchange for such Common Stock (any such event described in clauses (i) through (iii) a “Merger
Event”), then:
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(1) |
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the Company or the successor or purchasing Person or acquirer, as the
case may be, shall execute with the Trustee a supplemental indenture (which shall
comply with the Trust Indenture Act as in force at the date of execution of such
supplemental indenture if such supplemental indenture is then required to so
comply). Such supplemental indenture shall provide for adjustments which shall be as
nearly equivalent as may be practicable to the adjustments provided for in this
Article and the Trustee may conclusively rely on the determination by the Company of
the equivalency of such adjustments. If, in the case of any Merger Event, the
Reference Property includes shares of stock or other securities and assets of a
company other than the successor or purchasing company, as the case may be, in such
reclassification, change of control, consolidation, merger, combination, sale or
conveyance, then such supplemental indenture shall also be executed by such other
company and shall contain such additional provisions to protect the interests of the
holders of the Notes as the Board of Directors shall reasonably consider necessary
by reason of the foregoing, including to the extent required by the Board of
Directors and practicable the provisions providing for the repurchase rights set
forth in Article III. |
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In the event a supplemental indenture is executed pursuant to this Section, the
Company shall promptly file with the Trustee an Officers’ Certificate briefly
stating the reasons therefore, the kind or amount of cash, securities or property or
assets that will constitute the Reference Property after any such Merger Event, any
adjustment to be made with respect thereto and that all conditions precedent have
been complied with, and shall promptly mail notice thereof to all holders. |
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If any securities be provided for the purpose of conversion of Notes hereunder
require registration with or approval of any governmental authority under any
federal or state law before such securities may be validly issued upon conversion,
each supplemental indenture executed pursuant to this Section shall provide that the
Company or the successor or the purchasing Person or acquirer, as the case may be,
or if the Reference Property includes shares of stock or other |
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securities and assets
of a company other than the successor or purchasing company, as the case may be,
then such company, shall use all commercially reasonable efforts, to the extent then
permitted by the rules and interpretations of the SEC (or any successor thereto), to
secure such registration or approval in connection with the conversion of Notes.
(2) Notwithstanding the provisions of Section 14.04 and subject to the
provisions of Section 14.01(a) and Section 14.01(b), at the effective time of such
Merger Event, the right to convert each $1,000 principal amount of Notes will be
changed to a right to convert such Security by reference to the kind and amount of
cash, securities or other property or assets that a holder of a number of shares of
Common Stock equal to the Conversion Rate immediately prior to such transaction
would have owned or been entitled to receive (the “Reference Property”) such that
from and after the effective time of such transaction, a holder will be entitled
thereafter to convert its Notes into cash and the same type (and in the same
proportion) of Reference Property, based on the Daily Settlement Amounts of
Reference Property in an amount equal to the applicable Conversion Rate, as
described under Section 14.04. For purposes of determining the constitution of
Reference Property, the type and amount of consideration that a holder of Common
Stock would have been entitled to in the case of reclassifications, consolidations,
mergers, sales or conveyance of assets or other transactions that cause the Common
Stock to be converted into the right to receive more than a single type of
consideration (determined based in part upon any form of stockholder election) will
be deemed to be the weighted average of the types and amounts of consideration
received by the holders of Common Stock that affirmatively make such an election.
The Company shall not become a party to any such transaction unless its terms are
consistent with the preceding. None of the foregoing provisions shall affect the
right of a holder of Securities to convert its Securities in accordance with the
provisions of this Article XIV prior to the effective date.
(3) The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each holder, at his address appearing on the Note register
provided for in this Indenture, within 20 days after execution thereof. Failure to
deliver such notice shall not affect the legality or validity of such supplemental
indenture.
(4) The above provisions of this Section 14.06 shall similarly apply to
successive Merger Events.
Section 14.07. Taxes on Shares Issued. If a Noteholder submits a Note for conversion, the
Company shall pay all documentary, stamp or similar issue or transfer tax which may be imposed by
the United States or any political subdivision thereof or taxing authority thereof with respect to
the issuance of shares of Common Stock, if any, upon conversion. The Company shall not, however,
be required to pay any such tax which may be payable in respect of any transfer involved in the
issue and delivery of Common Stock in any name other than that of
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the holder of any Note
converted, and the Company shall not be required to issue or deliver any such Common Stock
certificate unless and until the Person or Persons requesting the issue thereof shall have paid to
the Company the amount of such tax or shall have established to the satisfaction of the Company
that such tax has been paid. Nothing herein shall preclude the Company’s withholding any tax
required by law or regulators.
Section 14.08. Reservation of Shares, Shares to Be Fully Paid; Compliance with Governmental
Requirements; Listing of Common Stock. The Company shall provide, free from preemptive rights, out
of its authorized but unissued shares or shares held in treasury, sufficient shares of Common Stock
to provide for the conversion of the Notes from time to time as such Notes are presented for
conversion.
Before taking any action which would cause an adjustment increasing the Conversion Rate to an
amount that would cause the Conversion Price to be reduced below the then par value, if any, of the
shares of Common Stock issuable upon conversion of the Notes, the Company will take all corporate
action which may, in the opinion of its counsel, be necessary in order that the Company may validly
and legally issue shares of such Common Stock at such adjusted Conversion Rate.
The Company covenants that all shares of Common Stock which may be issued upon conversion of
Notes will upon issue be fully paid and non-assessable by the Company and free from all taxes,
liens and charges with respect to the issue by the Company thereof.
The Company covenants that, if any shares of Common Stock to be provided for the purpose of
conversion of Notes hereunder require registration with or approval of any governmental authority
under any federal or state law before such shares may be validly issued upon conversion, the
Company will in good faith and as expeditiously as possible, to the extent then permitted by the
rules and interpretations of the Commission (or any successor thereto), endeavor to secure such
registration or approval, as the case may be.
The Company further covenants that, if at any time the Common Stock shall be listed on the New
York Stock Exchange or the Nasdaq Global Market or any other national securities exchange or
automated quotation system, the Company will, if permitted by the rules of such exchange or
automated quotation system, list and keep listed, so long as the Common Stock shall be so listed on
such exchange or automated quotation system, all Common Stock issuable upon conversion of the Note;
provided that if the rules of such exchange or automated quotation system permit the Company to
defer the listing of such Common Stock until the first conversion of the Notes into Common Stock in
accordance with the provisions of this Indenture, the Company covenants to list such Common Stock
issuable upon conversion of the Notes in accordance with the requirements of such exchange or
automated quotation system at such time.
Section 14.09. Responsibility of Trustee. The Trustee and any other Conversion Agent shall
not at any time be under any duty or responsibility to any holder of Notes to determine the
Conversion Rate or whether any facts exist which may require any adjustment of the Conversion Rate,
or with respect to the nature or extent or calculation of any such adjustment when made, or with
respect to the method employed, or herein or in any supplemental indenture provided to be employed,
in making the same. The Trustee and any other Conversion Agent
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shall not be accountable with
respect to the validity or value (or the kind or amount) of any shares of Common Stock, or of any
securities or property, which may at any time be issued or delivered upon the conversion of any
Note; and the Trustee and any other Conversion Agent make no representations with respect thereto.
Neither the Trustee nor any Conversion Agent shall be responsible for any failure of the Company to
issue, transfer or deliver any shares of Common Stock or stock certificates or other securities or
property or cash upon the surrender of
any Note for the purpose of conversion or to comply with any of the duties, responsibilities
or covenants of the Company contained in this Article XIV. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any responsibility to
determine the correctness of any provisions contained in any supplemental indenture entered into
pursuant to Section 14.06 relating either to the kind or amount of shares of stock or securities or
property (including cash) receivable by Noteholders upon the conversion of their Notes after any
event referred to in such Section 14.06 or to any adjustment to be made with respect thereto, but,
subject to the provisions of Section 7.01, may accept as conclusive evidence of the correctness of
any such provisions of this Indenture, and shall be protected in relying upon, the Officers’
Certificate (which the Company shall be obligated to file with the Trustee prior to the execution
of any such supplemental indenture) with respect thereto.
Section 14.10. Notice to Holders Prior to Certain Actions. In case:
(a) |
the Company shall declare a dividend (or any other distribution) on its Common
Stock that would require an adjustment in the Conversion Rate pursuant to Section 14.05; or |
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(b) |
the Company shall authorize the granting to the holders of all or substantially all
of its Common Stock of rights or warrants to subscribe for or purchase any share of any
class or any other rights or warrants; or |
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(c) |
of any reclassification or reorganization of the Common Stock of the Company (other
than a subdivision or combination of its outstanding Common Stock, or a change in par value,
or from par value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for which approval of any
stockholders of the Company is required, or of the sale or transfer of all or substantially
all of the assets of the Company; or |
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(d) |
of the voluntary or involuntary dissolution, liquidation or winding up of the
Company; |
the Company shall cause to be filed with the Trustee and to be mailed to each holder of Notes at
his address appearing on the Note register provided for in Section 2.04, as promptly as possible
but in any event at least ten (10) days prior to the applicable date hereinafter specified, a
notice stating (x) the date on which a record is to be taken for the purpose of such dividend,
distribution or rights or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend, distribution or rights are to be
determined, or (y) the date on which such reclassification, consolidation, merger, sale, transfer,
dissolution, liquidation or winding up is expected to become effective or occur, and the date as of
which it is expected that holders of Common Stock of record shall be entitled to exchange their
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Common Stock for securities or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding up. Failure to give
such notice, or any defect therein, shall not affect the legality or validity of such dividend,
distribution, authorization, grant, reclassification, reorganization, consolidation, merger, sale,
transfer, dissolution, liquidation or winding up.
Section 14.11. Rights Issued in Respect of Common Stock Issued upon Conversion. Each share
of Common Stock issued upon conversion of Notes pursuant to this Article XIV shall be entitled to
receive the appropriate number of common stock or preferred stock purchase rights, as the case may
be (the “Rights”), if any, that shares of Common Stock are entitled to receive and the certificates
representing the Common Stock issued upon such conversion shall bear such legends, if any, in each
case as may be provided by the terms of any shareholder rights agreement adopted by the Company, as
the same may be amended from time to time (in each case, a “Rights Agreement”); provided, however,
that any holder who is a holder of Common Stock (or direct or indirect interests therein) at the
time of conversion of any Note, but who is not entitled as a holder of Common Stock to hold or
receive Rights pursuant to the terms of the Rights Agreement, will not receive any such Rights upon
conversion of the Notes. Provided that such Rights Agreement requires that each share of Common
Stock issued upon conversion of Notes at any time prior to the distribution of separate
certificates representing the Rights be entitled to receive such Rights, then, notwithstanding
anything else to the contrary in this Article XIV there shall not be any adjustment to the
conversion privilege or Conversion Rate as a result of the issuance of Rights, but an adjustment to
the Conversion Rate shall be made with respect to Notes then outstanding pursuant to Section
14.05(c) (to the extent required thereby) upon the separation of the Rights from the Common Stock.
ARTICLE XV
Subordination of Notes
Section 15.01. Notes Subordinated to Senior Indebtedness. The Company and the Trustee each
covenants and agrees, and each Noteholder, by its acceptance of a Note, likewise covenants and
agrees that all Notes shall be issued subject to the subordination provisions of this Article XV;
and each Person holding any Note, whether upon original issue or upon transfer, assignment or
exchange thereof, accepts and agrees that the payment of principal, premium and interest on the
Notes shall, to the extent and in the manner set forth in this Article XV, be subordinated in right
of payment to the prior payment in full, in cash or cash equivalents, of all amounts payable under
Senior Indebtedness, including, without limitation, the Company’s obligations under the Bank Credit
Agreement (including any interest accruing subsequent to an event specified in Sections 6.01(g) and
6.01(h), whether or not such interest is an allowed claim enforceable against the debtor under the
United States Bankruptcy Code).
Section 15.02. No Payment on Notes in Certain Circumstances.
(a) No direct or indirect payment by or on behalf of the Company of principal, premium and
interest on the Notes, whether pursuant to the terms of the Notes or upon acceleration or
otherwise, shall be made if, at the time of such payment, there exists a default
in the payment of
all or any portion of the obligations of any Senior Indebtedness, and such default
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shall not have
been cured or waived or the benefits of this sentence waived by or on behalf of the holders of such
Senior Indebtedness.
(b) During the continuance of any other event of default with respect to (i) the Bank Credit
Agreement pursuant to which the maturity thereof may be accelerated and (A) upon receipt by the
Trustee of written notice from the administrative agent under the Bank Credit Agreement (the
“Administrative Agent”) or (B) if such event of default under the Bank Credit
Agreement results from the acceleration of the Notes, from and after the date of such
acceleration, no payment of principal, premium and interest on the Notes may be made by or on
behalf of the Company upon or in respect of the Notes for a period (a “Payment Blockage Period”)
commencing on the earlier of the date of receipt of such notice or the date of such acceleration
and ending 179 days thereafter (unless such Payment Blockage Period shall be terminated by written
notice to the Trustee from the Administrative Agent or such event of default has been cured or
waived or by repayment in full in cash or cash equivalents of such Senior Indebtedness) or (ii) any
other Designated Senior Indebtedness pursuant to which the maturity thereof may be accelerated,
upon receipt by the Trustee of written notice from the trustee or other representative for the
holders of such other Designated Senior Indebtedness (or the holders of at least a majority in
principal amount of such other Designated Senior Indebtedness then outstanding), no payment of
principal, premium and interest on the Notes may be made by or on behalf of the Company upon or in
respect of the Notes for a Payment Blockage Period commencing on the date of receipt of such
notice and ending 119 days thereafter (unless, in each case, such Payment Blockage Period shall be
terminated by written notice to the Trustee from such trustee of, or other representatives for,
such holders or by repayment in full in cash or cash-equivalents of such Designated Senior
Indebtedness or such event of default has been cured or waived). Notwithstanding anything in this
Indenture to the contrary, there must be 180 consecutive days in any 360-day period in which no
Payment Blockage Period is in effect. For all purposes of this Section 15.02(b), no event of
default (other than an event of default pursuant to the financial maintenance covenants under the
Bank Credit Agreement) that existed or was continuing (it being acknowledged that any subsequent
action that would give rise to an event of default pursuant to any provision under which an event
of default previously existed or was continuing shall constitute a new event of default for this
purpose) on the date of the commencement of any Payment Blockage Period with respect to the
Designated Senior Indebtedness initiating such Payment Blockage Period shall be, or shall be made,
the basis for the commencement of a second Payment Blockage Period by the representative for, or
the holders of, such Designated Senior Indebtedness, whether or not within a period of 360
consecutive days, unless such event of default shall have been cured or waived for a period of not
less than 45 consecutive days.
(c) In the event that, notwithstanding the foregoing, any payment shall be received by the
Trustee or any holder when such payment is prohibited by Section 15.02(a) or 15.02(b) hereof of
which the Trustee has actual knowledge, the Trustee shall promptly notify the holders of Senior
Indebtedness of such prohibited payment and such payment shall be held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness or their respective
representatives, or to the trustee or trustees under any indenture pursuant to which any of such
Senior Indebtedness may have been issued, as their respective interests may appear, but only to the
extent that, upon notice from the Trustee to the holders of Senior Indebtedness that such
prohibited payment has been made, the holders of the Senior
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Indebtedness (or their representative
or representatives of a trustee) within 30 days of receipt of such notice from the Trustee notify
the Trustee of the amounts then due and owing on the Senior Indebtedness, if any, and only the
amounts specified in such notice to the Trustee shall be paid to the holders of Senior Indebtedness
and any excess above such amounts due and owing on Senior Indebtedness shall be paid to the
Company.
Section 15.03. Payment over Proceeds upon Dissolution Etc.
(a) Upon any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, in connection with any dissolution or winding
up or total or partial liquidation or reorganization of the Company, whether voluntary or
involuntary, or in bankruptcy, insolvency, receivership or other proceedings or other marshalling
of assets for the benefit of creditors, all amounts due or to become due upon all Senior
Indebtedness (including any interest accruing subsequent to an event specified in Sections 6.01(g)
and 6.01(h), whether or not such interest is an allowed claim enforceable against the debtor under
the United States Bankruptcy Code) shall first be paid in full, in cash or cash equivalents, before
the holders or the Trustee on their behalf shall be entitled to receive any payment by the Company
on account of principal, premium and interest on the Notes, or any payment to acquire any of the
Notes for cash, property or securities, or any distribution with respect to the Notes of any cash,
property or securities. Before any payment may be made by, or on behalf of, the Company on any
principal, premium and interest on the Notes in connection with any such dissolution, winding up,
liquidation or reorganization, any payment or distribution of assets or securities for the Company
of any kind or character, whether in cash, property or securities, to which the holders or the
Trustee on their behalf would be entitled, but for the subordination provisions of this Article XV,
shall be made by the Company or by any receiver, trustee in bankruptcy, liquidating trustee, agent
or other similar Person making such payment or distribution, or by the holders or the Trustee if
received by them or it, directly to the holders of Senior Indebtedness (pro rata to such holders on
the basis of the respective amounts of Senior Indebtedness held by such holders) or their
representatives or to any trustee or trustees under any other indenture pursuant to which any such
Senior Indebtedness may have been issued, as their respective interests appear, to the extent
necessary to pay all such Senior Indebtedness in full, in cash or cash equivalents after giving
effect to any concurrent payment, distribution or provision therefor to or for the holders of such
Senior Indebtedness.
(b) To the extent any payment of Senior Indebtedness (whether by or on behalf of the Company,
as proceeds of security or enforcement of any right of setoff or otherwise) is declared to be
fraudulent or preferential, set aside or required to be paid to any receiver, trustee in
bankruptcy, liquidating trustee, agent or other similar Person under any bankruptcy, insolvency,
receivership, fraudulent conveyance or similar law, then if such payment is recovered by, or paid
over to such receiver, trustee in bankruptcy, liquidating trustee, agent or other similar Person,
the Senior Indebtedness or part thereof originally intended to be satisfied shall be deemed to be
reinstated and outstanding as if such payment had not occurred. To the extent the obligation to
repay any Senior Indebtedness is declared to be fraudulent, invalid, or otherwise set aside under
any bankruptcy, insolvency, receivership, fraudulent conveyance or similar law, then the
obligations so declared fraudulent, invalid or otherwise set aside (and all other amounts that
would come due with respect thereto had such obligation not been affected)
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shall be deemed to be
reinstated and outstanding as Senior Indebtedness for all purposes hereof as if such declaration,
invalidity or setting aside had not occurred.
(c) In the event that, notwithstanding the foregoing provision prohibiting such payment or
distribution, any payment or distribution of assets or securities of the Company of any kind or
character, whether in cash, property or securities, shall be received by the Trustee or any holder
at a time when such payment or distribution is prohibited by Section 15.03(a) hereof
and before all obligations in respect of Senior Indebtedness are paid in full, in cash or cash
equivalents, such payment or distribution shall be received and held in trust for the benefit of,
and shall be paid over or delivered to, the holders of Senior Indebtedness (pro
rata to such holders on the basis of such respective amount of Senior Indebtedness held by
such holders) or their representatives, or to the trustee or trustees under any indenture pursuant
to which any such Senior Indebtedness may have been issued, as their respective interests appear,
for application to the payment of Senior Indebtedness remaining unpaid until all such Senior
Indebtedness has been paid in full, in cash or cash equivalents, after giving effect to any
concurrent payment, distribution or provision therefor to or for the holders of such Senior
Indebtedness.
(d) For purposes of this Section 15.03, the words “cash, property or securities” shall not be
deemed to include, so long as the effect of this clause is not to cause the Notes to be treated in
any case or proceeding or similar event described in this Section 15.03, as part of the same class
of claims as the Senior Indebtedness or any class of claims pari passu with, or senior to, the
Senior Indebtedness for any payment or distribution, securities of the Company or any other
corporation provided for by a plan of reorganization or readjustment that are subordinated, at
least to the extent that the Notes are subordinated, to the payment of all Senior Indebtedness
then outstanding; provided that (i) if a new corporation results from such reorganization or
readjustment, such corporation assumes the Senior Indebtedness and (ii) the rights of the holders
of the Senior Indebtedness are not, without the consent of such holders, altered by such
reorganization or readjustment. The consolidation of the Company with, or the merger of the
Company with or into, another corporation or the liquidation or dissolution of the Company
following the sale, conveyance, transfer, lease or other disposition of all or substantially all of
its property and assets to another corporation upon the terms and conditions provided in Article XI
shall not be deemed a dissolution, winding up, liquidation or reorganization for the purposes of
this Section 15.03 if such other corporation shall, as a part of such consolidation, merger, sale,
conveyance, transfer, lease or other disposition, comply (to the extent required) with the
conditions stated in Article XI.
Section 15.04. Subrogation.
(a) Upon the payment in full of all Senior Indebtedness in cash or cash equivalents, the
holders of Notes shall be subrogated to the rights of the holders of Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company made on such
Senior Indebtedness until the principal or premium, if any, and interest on the Notes shall be
paid in full; and, for the purposes of such subrogation, no payments or distributions to the
holders of the Senior Indebtedness of any cash, property or securities to which the holders or the
Trustee on their behalf would be entitled except for the subordination provisions of this Article
XV, and no payment pursuant to the provisions of this Article XV to the holders of Senior
Indebtedness by holders or the Trustee on their behalf shall, as between the
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Company, its creditors
other than holders of Senior Indebtedness, and the holders of Notes, be deemed to be a payment by
the Company to or on account of the Senior Indebtedness. It is understood that the subordination
provisions of this Article XV are intended solely for the purpose of defining the relative rights
of the holders of Notes, on the one hand, and the holders of the Senior Indebtedness, on the other
hand.
(b) If any payment or distribution to which the holders of Notes would otherwise have been
entitled but for the subordination provisions of this Article XV shall have been applied, pursuant
to such provisions of this Article XV, to the payment of all amounts payable under Senior
Indebtedness, then, and in such case, the holders of Notes shall be entitled to receive from the
holders of such Senior Indebtedness any payments or distributions received by such holders of
Senior Indebtedness in excess of the amount required to make payment in full, in cash or cash
equivalents, of such Senior Indebtedness.
Section 15.05. Obligations of Company Unconditional.
(a) Nothing contained in this Article XV or elsewhere in this Indenture or in the Notes is
intended to or shall impair, as among the Company and the holders of the Notes, the obligation of
the Company, which is absolute and unconditional, to pay to such holders the principal of, premium,
if any, and interest on the Notes as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of such holders and
creditors of the Company other than the holders of the Senior Indebtedness, nor shall anything
herein or therein prevent the holders of Notes or the Trustee on their behalf from exercising all
remedies otherwise permitted by applicable law upon default under this Indenture, subject to the
subordination rights, if any, under this Article XV of the holders of the Senior Indebtedness.
(b) Without limiting the generality of the foregoing, nothing contained herein will restrict
the right of the Trustee or the holders to take any action to declare the Notes to be due and
payable prior to their stated maturity pursuant to Section 6.01 or to pursue any rights or remedies
hereunder; provided, however, that all Senior Indebtedness then due and payable or thereafter
declared to be due and payable shall first be paid in full, in cash or cash equivalents, before the
holders or the Trustee are entitled to receive any direct or indirect payment from the Company of
principal, premium and interest on the Notes.
Section 15.06. Notice to Trustee.
(a) The Company shall give prompt written notice to the Trustee of any fact known to the
Company that would prohibit the making of any payment to or by the Trustee in respect of the Notes
pursuant to the subordination provisions of this Article XV. The Trustee shall not be charged with
the knowledge of the existence of any default or event of default with respect to any Senior
Indebtedness or of any other facts that would prohibit the making of any payment to or by the
Trustee unless and until the Trustee shall have received notice in writing at its Corporate Trust
Office to that effect signed by an Officer of the Company, or by a holder of Senior Indebtedness or
trustee or agent thereof; and prior to the receipt of any such written notice, the Trustee shall,
subject to Article VII, be entitled to assume that no such facts exist; provided that, if the
Trustee shall not have received the notice provided for in this Section 15.06
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at least two Business
Days prior to the date upon which, by the terms hereof, any monies shall become payable for any
purpose (including, without limitation, the payment of the principal of, premium, if any, or
interest on any Note), then, notwithstanding anything herein to the contrary, the Trustee shall
have full power and authority to receive any monies from the Company and to apply the same to the
purpose for which they were received, and shall not be affected by any notice to the contrary that
may be received by it on or after such prior date, except for an
acceleration of the Notes prior to such application. Nothing contained in this Section 15.06
shall limit the right of the holders of Senior Indebtedness to recover payments as contemplated by
this Article XV. The foregoing shall not apply if the paying agent is the Company. The Trustee
shall be entitled to rely on the delivery to it of a written notice by a Person representing
himself or itself to be a holder of any Senior Indebtedness (or a trustee on behalf of, or other
representative of, such holder) to establish that such notice has been given by a holder of such
Senior Indebtedness or a trustee or representative on behalf of any such holder.
(b) In the event that the Trustee determines in good faith that any evidence is required with
respect to the right of any Person as a holder of Senior Indebtedness to participate in any payment
or distribution pursuant to this Article XV, the Trustee may request such Person to furnish
evidence to the reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness held
by such Person, the extent to which such Person is entitled to participate in such payment or
distribution and any other facts pertinent to the rights of such Person under this Article XV and,
if such evidence is not furnished to the Trustee, the Trustee may defer any payment to such Person
pending judicial determination as to the right of such Person to receive such payment.
Section 15.07. Reliance on Judicial Order or Certificate of Liquidating Agent. Upon any
payment or distribution of assets or securities referred to in this Article XV, the Trustee and the
holders of Notes shall be entitled to rely upon any order or decree made by any court of competent
jurisdiction in which bankruptcy, dissolution, winding up, liquidation or reorganization
proceedings are pending, or upon a certificate of the receiver; trustee in bankruptcy, liquidating
trustee, agent or other similar Person making such payment or distribution, delivered to the
Trustee or to such holders for the purpose of ascertaining the persons entitled to participate in
such distribution, the holders of the Senior Indebtedness and other indebtedness of the Company,
the amount thereof or payable thereon, the amount or amounts paid or distributed thereon and all
other facts pertinent thereto or to this Article XV.
Section 15.08. Trustee’s Relation to Senior Indebtedness.
(a) The Trustee and any paying agent shall be entitled to all the subordination rights set
forth in this Article XV with respect to any Senior Indebtedness that may at any time be held by it
in its individual or any other capacity to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee or any paying agent of any of
its rights as such holder.
(b) With respect to the holders of Senior Indebtedness, the Trustee undertakes to perform or
to observe only such of its covenants and obligations as are specifically set forth in this Article
XV, and no implied covenants or obligations with respect to the holders of Senior Indebtedness
shall be read into this Indenture against the Trustee. The Trustee shall not be
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deemed to owe any
fiduciary duty to the holders of Senior Indebtedness (except as provided in Sections 15.02(c) and
15.03(c)) and shall not be liable to any such holders if the Trustee shall in good faith mistakenly
pay over or distribute to holders of Notes or to the Company or to any other person cash, property
or securities to which any holders of Senior Indebtedness shall be entitled by virtue of this
Article XV or otherwise.
Section 15.09. Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness. No right of any present or future holders of any Senior
Indebtedness to enforce subordination as provided in this Article XV will at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company or by any act or
failure to act, in good faith, by any such holder, or by any noncompliance by the Company with the
terms of this Indenture, regardless of any knowledge thereof that any such holder may have or
otherwise be charged with. The subordination provisions of this Article XV are intended to be for
the benefit of, and shall be enforceable directly by, the holders of Senior Indebtedness.
Section 15.10. Holders Authorize Trustee to Effectuate Subordination of Notes. Each holder of
Notes by his acceptance of any Notes authorizes and expressly directs the Trustee on its, his or
her behalf to take such action as may be necessary or appropriate to effectuate the subordination
provided in this Article XV, and appoints the Trustee its, his or her attorney-in-fact for such
purposes, including, in the event of any dissolution, winding up, liquidation or reorganization of
the Company (whether in bankruptcy, insolvency, receivership, reorganization or similar proceedings
or upon an assignment for the benefit of creditors or otherwise) tending towards liquidation of the
property and assets of the Company, the filing of a claim for the unpaid balance of its, his or her
Notes in the form required in those proceedings. If the Trustee does not file a proper claim or
proof in indebtedness in the form required in such proceeding at least 30 days before the
expiration of the time to file such claim or claims, each holder of Senior Indebtedness is hereby
authorized to file an appropriate claim for and on behalf of the holders.
Section 15.11. Not to Prevent Events of Default. The failure to make a payment on account of
principal of, premium, if any, or interest on the Notes by reason of any subordination provision
of this Article XV will not be construed as preventing the occurrence of an Event of Default.
Section 15.12. Trustee’s Compensation Not Prejudiced. Nothing in this Article XV will apply
to amounts due to the Trustee pursuant to other sections, including Section 7.07.
Section 15.13. No Waiver of Subordination Provisions. Without in any way limiting the
generality of Section 15.09, the holders of Senior Indebtedness may, at any time and from time to
time, without the consent of or notice to the Trustee or the holders of Notes, without incurring
responsibility to the holders of Notes and without impairing or releasing the subordination
provided in this Article XV or the obligations hereunder of the holders of Notes to the holders of
Senior Indebtedness, do any one or more of the following: (a) change the manner, place or terms of
payment or extend the time of payment of, or renew or alter, Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior
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Indebtedness is outstanding or secured; (b)
sell, exchange, release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights against the Company and
any other Person.
Section 15.14. Payments May Be Paid Prior to Dissolution. Nothing contained in this Article
XV or elsewhere in this Indenture shall prevent (i) the Company except under the
conditions described in Section 15.02 or 15.03, from making payments of principal of, premium,
if any, and interest on the Notes, or from depositing with the Trustee any money for such
payments, or (ii) the application by the Trustee of any money deposited with it for the purpose of
making such payments of principal of, premium, if any, and interest on the Notes to the holders of
such Notes entitled thereto unless, at least two Business Days prior to the date upon which such
payment becomes due and payable, the Trustee shall have received the written notice provided for in
Section 15.02(b) hereof (or there shall have been an acceleration of the Notes prior to such
application) or in Section 15.06 hereof. The Company shall give prompt written notice to the
Trustee of any dissolution, winding up, liquidation or reorganization of the Company.
Section 15.15. Consent of Holders of Senior Indebtedness Under the Bank Credit Agreement. The
subordination provisions of this Article XV (including related definitions and references to such
provisions contained herein) shall not be amended in a manner that would adversely affect the
rights of the holders of Senior Indebtedness under the Bank Credit Agreement, and no such amendment
shall become effective unless the holders of Senior Indebtedness under the Bank Credit Agreement
shall have consented (in accordance with the provisions of the Bank Credit Agreement) to such
amendment. The Trustee shall be entitled to receive and rely on an Officer’s Certificate stating
that such consent has been given.
Section 15.16. Trust Moneys Not Subordinated. Notwithstanding anything contained herein to
the contrary, payments from money or the proceeds of United States government obligations held in
trust under Article VII by the Trustee for the payment of principal of, premium, if any, and
interest on the Notes shall not be subordinated to the prior payment of any Senior Indebtedness
(provided that at the time deposited, such deposit did not violate any then outstanding Senior
Indebtedness), and none of the holders of Notes shall be obligated to pay over any such amount to
any holder of Senior Indebtedness.
ARTICLE XVI
Miscellaneous
Section 16.01. Provisions Binding on Company’s Successors. All the covenants, stipulations,
promises and agreements by the Company contained in this Indenture shall bind its successors and
assigns whether so expressed or not.
Section 16.02. Addresses for Notices, Etc. Any notice or demand which by any provision of
this Indenture is required or permitted to be given or served by the Trustee or by the holders of
Notes on the Company shall be deemed to have been sufficiently given or made, for all purposes, if
given or served by being deposited postage prepaid by registered or certified mail in a post office
letter box addressed (until another address is filed by the Company with the
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Trustee) to AGCO
Corporation, 0000 Xxxxx Xxxxx Xxxxxxx, Xxxxxx, Xxxxxxx 00000, Attention: General Counsel. Any
notice, direction, request or demand hereunder to or upon the Trustee shall be deemed to have been
sufficiently given or made, for all purposes, if given or served by being deposited, postage
prepaid, by registered or certified mail in a post office letter box addressed by the Company to
the Corporate Trust Office or by the Noteholders to the Corporate Trust Office.
The Trustee, by notice to the Company, may designate additional or different addresses for
subsequent notices or communications.
Any notice or communication mailed to a Noteholder shall be mailed to him by first class mail,
postage prepaid, at his address as it appears on the Note register and shall be sufficiently given
to him if so mailed within the time prescribed.
Failure to mail a notice or communication to a Noteholder or any defect in it shall not affect
its sufficiency with respect to other Noteholders. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not the addressee receives it.
Section 16.03. Governing Law. This Indenture and each Note shall be deemed to be a contract
made under the laws of the State of New York, and for all purposes shall be construed in accordance
with the laws of the State of New York without reference to its principles of conflict of laws that
would defer to the substantive laws of another jurisdiction.
Section 16.04. Evidence of Compliance with Conditions Precedent, Certificates to Trustee.
Upon any application or demand by the Company to the Trustee to take any action under any of the
provisions of this Indenture, the Company shall furnish to the Trustee an Officers’ Certificate
stating that all conditions precedent, if any, provided for in this Indenture relating to the
proposed action have been complied with, and an Opinion of Counsel stating that, in the opinion of
such counsel, all such conditions precedent have been complied with.
Each certificate or opinion provided for in this Indenture and delivered to the Trustee with
respect to compliance with a condition or covenant provided for in this Indenture shall include:
(1) a statement that the person making such certificate or opinion has read such covenant or
condition; (2) a brief statement as to the nature and scope of the examination or investigation
upon which the statement or opinion contained in such certificate or opinion is based; (3) a
statement that, in the opinion of such person, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to whether or not such covenant or
condition has been complied with; and (4) a statement as to whether or not, in the opinion of such
person, such condition or covenant has been complied with.
Section 16.05. Legal Holidays. In any case in which the date of maturity of interest on or
principal of the Notes or the redemption date or Repurchase Date of any Note will not be a Business
Day, then payment of such interest on or principal of the Notes need not be made on such date, but
may be made on the next succeeding Business Day with the same force and effect as if made on the
date of maturity or the redemption date or Repurchase Date, and no interest shall accrue for the
period from and after such date.
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Section 16.06. Trust Indenture Act. This Indenture is hereby made subject to, and shall be
governed by, the provisions of the Trust Indenture Act required to be part of and to govern
indentures qualified under the Trust Indenture Act; provided that unless otherwise required by law,
notwithstanding the foregoing, this Indenture and the Notes issued hereunder shall not be subject
to the provisions of subsections (a)(1), (a)(2), and (a)(3) of Section 314 of the Trust Indenture
Act as now in effect or as hereafter amended or modified; provided further that this Section 16.06
shall not require this Indenture or the Trustee to be qualified under the Trust
Indenture Act prior to the time such qualification is in fact required under the terms of the
Trust Indenture Act, nor shall it constitute any admission or acknowledgment by any party to this
Indenture that any such qualification is required prior to the time such qualification is in fact
required under the terms of the Trust Indenture Act. If any provision hereof limits, qualifies or
conflicts with another provision hereof which is required to be included in an indenture qualified
under the Trust Indenture Act, such required provision shall control.
Section 16.07. No Security Interest Created. Nothing in this Indenture or in the Notes,
expressed or implied, shall be construed to constitute a security interest under the Uniform
Commercial Code or similar legislation, as now or hereafter enacted and in effect, in any
jurisdiction in which property of the Company or its subsidiaries is located.
Section 16.08. Benefits of Indenture. Nothing in this Indenture or in the Notes, express or
implied, shall give to any Person, other than the parties hereto, any paying agent, any
authenticating agent, Conversion Agent, any Note registrar and their successors hereunder and the
holders of Notes any benefit or any legal or equitable right, remedy or claim under this Indenture.
Section 16.09. Table of Contents, Headings, Etc.The table of contents and the titles and
headings of the Articles and Sections of this Indenture have been inserted for convenience of
reference only, are not to be considered a part hereof, and shall in no way modify or restrict any
of the terms or provisions hereof.
Section 16.10. Authenticating Agent. The Trustee may appoint an authenticating agent that
shall be authorized to act on its behalf, and subject to its direction, in the authentication and
delivery of Notes in connection with the original issuance thereof and transfers and exchanges of
Notes hereunder, including under Sections 2.04, 2.05, 2.06, 2.07, 3.03 and 3.05, as fully to all
intents and purposes as though the authenticating agent had been expressly authorized by this
Indenture and those Sections to authenticate and deliver Notes. For all purposes of this
Indenture, the authentication and delivery of Notes by the authenticating agent shall be deemed to
be authentication and delivery of such Notes “by the Trustee” and a certificate of authentication
executed on behalf of the Trustee by an authenticating agent shall be deemed to satisfy any
requirement hereunder or in the Notes for the Trustee’s certificate of authentication. Such
authenticating agent shall at all times be a Person eligible to serve as trustee hereunder pursuant
to Section 7.09.
Any corporation into which any authenticating agent may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, consolidation or conversion
to which any authenticating agent shall be a party, or any corporation succeeding to the corporate
trust business of any authenticating agent, shall be the
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successor of the authenticating agent
hereunder, if such successor corporation is otherwise eligible under this Section 16.10, without
the execution or filing of any paper or any further act on the part of the parties hereto or the
authenticating agent or such successor corporation.
Any authenticating agent may at any time resign by giving written notice of resignation to the
Trustee and to the Company. The Trustee may at any time terminate the agency of any authenticating
agent by giving written notice of termination to such authenticating
agent and to the Company. Upon receiving such a notice of resignation or upon such a
termination, or in case at any time any authenticating agent shall cease to be eligible under this
Section, the Trustee shall either promptly appoint a successor authenticating agent or itself
assume the duties and obligations of the former authenticating agent under this Indenture and, upon
such appointment of a successor authenticating agent, if made, shall give written notice of such
appointment of a successor authenticating agent to the Company and, at the Company’s expense, shall
mail notice of such appointment of a successor authenticating agent to all holders of Notes as the
names and addresses of such holders appear on the Note register.
The Company agrees to pay to the authenticating agent from time to time such reasonable
compensation for its services as shall be agreed upon in writing between the Company and the
authenticating agent.
The provisions of Sections 7.03, 7.04, 7.05, 8.03 and this Section 16.10 shall be applicable
to any authenticating agent.
Section 16.11. Official Acts by Successor Corporation. Any act or proceeding by any
provision of this Indenture authorized or required to be done or performed by any board, committee
or officer of the Company shall and may be done and performed with like force and effect by the
like board, committee or officer of any Person that shall at the time be the lawful sole successor
of the Company.
Section 16.12. Severability. In case any provision in this Indenture or in the Notes shall
be invalid, illegal or unenforceable, then (to the extent permitted by law) the validity, legality
and enforceability of the remaining provisions shall not in any way be affected or impaired
thereby.
Union Bank of California, N.A. hereby accepts the trusts in this Indenture declared and
provided, upon the terms and conditions herein above set forth.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be duly executed.
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AGCO CORPORATION, as Issuer
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UNION BANK OF CALIFORNIA, N.A.,
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EXHIBIT A
[Include only for Global Notes:]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY (55 XXXXX XXXXXX, XXX XXXX, XXX XXXX) (THE “DEPOSITARY”, WHICH TERM INCLUDES ANY SUCCESSOR
DEPOSITARY FOR THE CERTIFICATES) TO THE COMPANY 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 REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY (AND ANY PAYMENT HEREIN IS MADE
TO CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITARY), 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.]
A-1
AGCO CORPORATION
____% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2036
CUSIP: ____________
AGCO CORPORATION, a corporation duly organized and validly existing under the laws of the
State of Delaware (herein called the “Company”, which term includes any successor corporation under
the Indenture referred to on the reverse hereof), for value received hereby promises to pay to
____________ or its registered assigns, [the principal sum of
____________ DOLLARS] [the principal sum set forth on Schedule I hereto] on December
15, 2036 at the office or agency of the Company maintained for that purpose in accordance with the
terms of the Indenture, in such coin or currency of the United States of America as at the time of
payment shall be legal tender for the payment of public and private debts, and to pay interest,
semiannually on June 15 and December 15 of each year, commencing June 15, 2007, on said principal
sum at said office or agency, in like coin or currency, at the rate per annum of ___%, from the
June 15 or December 15, as the case may be, next preceding the date of this Note to which interest
has been paid or duly provided for, unless the date hereof is a date to which interest has been
paid or duly provided for, in which case from the date of this Note, or unless no interest has been
paid or duly provided for on the Notes, in which case from December ___, 2006, until payment of said
principal sum has been made or duly provided for. Notwithstanding the foregoing, if the date
hereof is after any June 15 or December 15, as the case may be, and before the following June 15 or
December 15, this Note shall bear interest from such June 15 or December 15; provided that if the
Company shall default in the payment of interest due on such June 15 or December 15, then this Note
shall bear interest from the next preceding June 15 or December 15 to which interest has been paid
or duly provided for or, if no interest has been paid or duly provided for on such Note, from
December ___, 2006. Except as otherwise provided in the Indenture, the interest payable on the Note
pursuant to the Indenture on any June 15 or December 15 will be paid to the Person entitled thereto
as it appears in the Note register at the close of business on the record date, which shall be the
June 1 or December 1 (whether or not a Business Day) next preceding such June 15 or December 15, as
provided in the Indenture; provided that any such interest not punctually paid or duly provided for
shall be payable as provided in the Indenture. Interest may, at the option of the Company, be
paid either (i) by check mailed to the registered address of such Person (provided that the holder
of Notes with an aggregate principal amount in excess of $2,000,000 shall, at the written election
(timely made and containing appropriate wire transfer information) of such holder, be paid by wire
transfer of immediately available funds) or (ii) by transfer to an account maintained by such
Person located in the United States; provided that payments to the Depositary will be made by wire
transfer of immediately available funds to the account of the Depositary or its nominee.
The Company promises to pay interest on overdue principal and premium, if any, (to the extent
that payment of such interest is enforceable under applicable law) at the rate of ___%, per annum.
A-2
Reference is made to the further provisions of this Note set forth on the reverse hereof,
including, without limitation, provisions giving the holder of this Note the right to convert this
Note into Common Stock of the Company on the terms and subject to the limitations referred to on
the reverse hereof and as more fully specified in the Indenture. Such further provisions shall for
all purposes have the same effect as though fully set forth at this place.
This Note shall be deemed to be a contract made under the laws of the State of New York, and
for all purposes shall be construed in accordance with and governed by the laws of the State of New
York without reference to its principles of conflict of laws.
This Note shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
A-3
IN WITNESS WHEREOF, the Company has caused this Note to be duly executed.
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
UNION BANK OF CALIFORNIA, N.A., as Trustee
Dated: December ___, 2006
A-4
FORM OF REVERSE OF NOTE
AGCO CORPORATION
___% CONVERTIBLE SENIOR SUBORDINATED NOTE DUE 2036
This Note is one of a duly authorized issue of Notes of the Company, designated as its ___%
Convertible Senior Subordinated Notes Due 2036 (herein called the “Notes”), limited in aggregate
principal amount to $201,250,000, issued and to be issued under and pursuant to an Indenture dated
as of December ___, 2006 (herein called the “Indenture”), between the Company and Union Bank of
California, N.A., as trustee (herein called the “Trustee”), to which Indenture and all indentures
supplemental thereto reference is hereby made for a description of the rights, limitations of
rights, obligations, duties and immunities thereunder of the Trustee, the Company and the holders
of the Notes.
In case an Event of Default shall have occurred and be continuing, the principal of, and
premium, if any, and accrued interest on, all Notes may be declared by either the Trustee or the
holders of not less than 25% in aggregate principal amount of the Notes then outstanding, and upon
said declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
The Indenture contains provisions permitting the Company and the Trustee, with the consent of
the holders of at least a majority in aggregate principal amount of the Notes at the time
outstanding, to execute supplemental indentures adding any provisions to or changing in any manner
or eliminating any of the provisions or of any supplemental indenture or modifying in any manner
the rights of the holders of the Notes; provided that no such supplemental indenture shall (i)
extend the fixed maturity of any Note, or reduce the rate or change the time of payment of interest
thereon, or reduce the principal amount thereof or premium, if any, thereon or reduce any amount
payable on redemption or repurchase thereof, or impair the right of any Noteholder to institute
suit for the payment thereof, or make the principal thereof or interest or premium, if any, thereon
payable in any coin or currency or payable at any place other than that provided in the Indenture
or the Notes, or change the obligation of the Company to redeem any Note on a redemption date in a
manner adverse to the holders of Notes, or change the obligation of the Company to redeem any Note
upon the happening of a Designated Event in a manner adverse to the holders of Notes, or change the
obligation of the Company to repurchase any Note on a Repurchase Date in a manner adverse to the
holders of Notes, or reduce the Conversion Rate, otherwise than in accordance with the terms of the
Indenture, or impair the right to convert the Notes into cash or Common Stock subject to the terms
set forth therein, or adversely modify, in any material respect, the provisions of Article XV, or
reduce the quorum or the voting requirements under the Indenture, or modify any of the provisions
of Section 10.01 or Section 6.07 of the Indenture, except to increase any such percentage or to
provide that certain other provisions cannot be modified or waived without the consent of the
holder of each Note so affected, or change any obligation of the Company to maintain an office or
agency in the places and for the purposes set forth in Section 4.01 thereof, in each case, without
the consent of the holder of each Note so affected, or (ii) reduce the aforesaid percentage of
Notes, the holders of which are required to consent to any such supplemental indenture or to waive
any past Event of Default, without the consent of the holders of all Notes affected thereby.
Subject to the
A-5
provisions of the Indenture, the holders of a majority in aggregate principal amount of the
Notes at the time outstanding may on behalf of the holders of all of the Notes waive any past
default or Event of Default under the Indenture and its consequences except a default in the
payment of interest, or any premium on or the principal of, any of the Notes, or a failure by the
Company to convert any Notes into Common Stock of the Company, or a default in the payment of the
redemption price, or a default in the payment of the repurchase price on a Repurchase Date, or a
default in respect of a covenant or provisions which under Article X cannot be modified or amended
without the consent of the holders of each or all Notes then outstanding or affected thereby. Any
such consent or waiver by the holder of this Note (unless revoked as provided in the Indenture)
shall be conclusive and binding upon such holder and upon all future holders and owners of this
Note and any Notes which may be issued in exchange or substitution hereof, irrespective of whether
or not any notation thereof is made upon this Note or such other Notes.
No reference herein to the Indenture and no provision of this Note shall alter or impair the
obligation of the Company, which is absolute and unconditional, to pay the principal of, and any
premium and interest on, this Note at the place, at the respective times, at the rate and in the
coin or currency herein prescribed.
Interest on the Notes shall be computed on the basis of a 360-day year of twelve 30-day
months.
The Notes are issuable in fully registered form, without coupons, in denominations of $1,000
principal amount and any multiple of $1,000. At the office or agency of the Company referred to on
the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax,
assessment or other governmental charge that may be imposed in connection with any registration or
exchange of Notes, Notes may be exchanged for a like aggregate principal amount of Notes of any
other authorized denominations.
At any time on or after December 19, 2013, the Notes may be redeemed at the option of the
Company, in whole or in part, in cash, upon mailing a notice of such redemption not less than 30
days but not more than 60 days before the redemption date to the holders of Notes at their last
registered addresses, all as provided in the Indenture, at 100% of the principal amount of the
Notes to be redeemed, together with accrued and unpaid interest, if any, to, but excluding the date
fixed for redemption; provided that if the redemption date is on a June 15 or December 15, then the
interest payable on such date shall be paid to the holder of record on the preceding June 1 or
December 1, respectively:
The Company may not give notice of any redemption of the Notes if a default in the payment of
interest or premium, if any, on the Notes has occurred and is continuing.
The Notes are not subject to redemption through the operation of any sinking fund.
If a Designated Event occurs at any time prior to maturity of the Notes, this Note will be
redeemable on a Designated Event Redemption Date, which is not less than 30 nor more than 60 days
after such Designated Event, at the option of the holder of this Note at a redemption
A-6
price equal to 100% of the principal amount thereof, together with accrued interest to (but
excluding) the redemption date; provided that if such Designated Event Redemption Date is a June 15
or December 15, the interest payable on such date shall be paid to the holder of record of this
Note on the preceding June 1 or December 1, respectively. The Notes will be redeemable in
multiples of $1,000 principal amount. The Company shall mail to all holders of record of the Notes
a notice of the occurrence of a Designated Event and of the redemption right arising as a result
thereof on or before the 10th day after the occurrence of such Designated Event. For a
Note 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 in accordance with the terms of the Indenture,
the form entitled “Option to Elect Repayment Upon a Designated Event” attached below duly
completed, together with book-entry transfer of the Note, on or before the close of business on the
Designated Event Redemption Date.
Subject to the terms and conditions, the Company shall become obligated to purchase, at the
option of the holder, all or any portion of the Notes held by such holder, in cash, on December 15,
2013, December 15, 2016, December 15, 2021, December 15, 2026 and December 15, 2031, in whole
multiples of $1,000 at a purchase price of 100% of the principal amount, plus any accrued and
unpaid interest, on the Note up to the Repurchase Date. To exercise such right, a holder shall
deliver to the Company the form entitled “Repurchase Notice” attached below duly completed,
together with book-entry transfer of the Note to the Trustee, at any time from the opening of
business on the date that is ten (10) Business Days prior to such Repurchase Date until the close
of business on the Repurchase Date.
Holders have the right to withdraw any such redemption election or Repurchase Notice by
delivering to the designated Company representative a written notice of withdrawal up to the close
of business on the Designated Event Redemption Date or the Repurchase Date, as applicable, all as
provided in the Indenture.
If cash sufficient to pay the redemption or purchase price of all Notes or portions thereof to
be redeemed on the Designated Event Redemption Date or purchased as of the Repurchase Date is
deposited with the Trustee (or other paying agent appointed by the Company), on the Business Day
following such date, as applicable, interest will cease to accrue on such Notes (or portions
thereof), and the holder thereof shall have no other rights as such other than the right to receive
the redemption price or purchase price upon surrender of such Note.
Subject to the occurrence of certain events and in compliance with the provisions of the
Indenture, the holder hereof has the right to convert the principal amount hereof, or any portion
of such principal amount which is a multiple of $1,000, into cash or a combination of cash and
fully paid and non-assessable shares of Common Stock. The initial Conversion Rate of the Notes is
_________shares of Common Stock for each $1,000 principal amount of Notes, subject to adjustment
as set forth in the Indenture. The Company will settle each $1,000 principal amount of Notes being
converted in cash and shares of fully paid Common Stock, if applicable, by delivering, on the third
Trading Day immediately following the last day of the related Observation Period, cash and shares
of Common Stock, if any, equal to the sum of the Daily Settlement Amounts for each of the 20
Trading Days during the related Observation Period. The Daily Settlement Amounts shall be
determined by the Company promptly following
A-7
the last day of the Observation Period. A Note in respect of which a holder is exercising its
right to require redemption upon a Designated Event or repurchase on a Repurchase Date may be
converted only if such holder withdraws its election to exercise either such right in accordance
with the terms of the Indenture.
A holder may convert a portion of a Note if the principal amount of such portion is $1,000 or
an integral multiple of $1,000. No payment or adjustment shall be made for dividends on the Common
Stock except as provided in the Indenture. On conversion of a Note, except for conversion during
the period from the close of business on any record date immediately preceding any interest payment
date to the close of business on the Business Day immediately preceding such interest payment date,
in which case the holder on such record date shall receive the interest payable on such interest
payment date, that portion of accrued and unpaid interest on the converted Note attributable to the
period from the most recent interest payment date (or, if no interest payment date has occurred,
from the date of original issuance of the Notes) through the Conversion Date shall not be
cancelled, extinguished or forfeited, but rather shall be deemed to be paid in full to the holder
thereof through delivery of the Common Stock (together with the cash payment, if any, in lieu of
fractional shares), or cash in lieu thereof, in exchange for the Note being converted pursuant to
the provisions hereof.
Notes or portions thereof surrendered for conversion during the period from the close of
business on any record date immediately preceding any interest payment date to the close of
business on the Business Day immediately preceding such interest payment date shall be accompanied
by payment to the Company or its order, in immediately available funds or other funds acceptable to
the Company, of an amount equal to the interest payable on such interest payment date with respect
to the principal amount of Notes or portions thereof being surrendered for conversion; provided
that no such payment need be made if (1) the Company has specified a Redemption Date that occurs
during the period from the close of business on a record date to the close of business on the
Business Day immediately preceding the interest payment date to which such record date relates, (2)
the Company has specified a Designated Event Redemption Date during such period or (3) any overdue
interest exists on the Conversion Date with respect to the Notes converted, only to the extent of
overdue interest.
No fractional shares will be issued upon conversion; in lieu thereof, an amount will be paid
in cash based upon the Closing Sale Price of the Common Stock as provided in Section 14.03.
To convert a Note, a holder must (a) furnish appropriate endorsements and transfer documents
if required by the Note registrar of the Conversion Agent, (b) pay any transfer or similar tax, if
required, (c) except as set forth in Section 14.02, pay funds equal to the interest payable on the
next interest payment date, and (d) comply with DTC’s procedures for converting a beneficial
interest in a Global Note.
The Conversion Rate will be adjusted as set forth in Sections 14.05 and 14.06. In the event
of a Fundamental Change which is also a Public Acquirer Change of Control, the Company may, in lieu
of increasing the Conversion Rate, elect to adjust the Conversion Rate such that from and after the
effective date of such Public Acquirer Change of Control, any shares
A-8
of stock issued upon conversion of the Notes would be for the publicly traded common stock of
the acquirer, not the Company.
Any Notes called for redemption, unless surrendered for conversion by the holders thereof on
or before the close of business on the Business Day preceding the redemption date, may be deemed to
be redeemed from the holders of such Notes for an amount equal to the applicable redemption price,
together with accrued but unpaid interest to, but excluding, the date fixed for redemption, by one
or more investment banks or other purchasers who may agree with the Company (i) to purchase such
Notes from the holders thereof and convert them into shares of the Company’s Common Stock and (ii)
to make payment for such Notes as aforesaid to the Trustee in trust for the holders.
Upon due presentment for registration of transfer of this Note at the office or agency of the
Company maintained for that purpose in accordance with the terms of the Indenture, a new Note or
Notes of authorized denominations for an equal aggregate principal amount will be issued to the
transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessment or other governmental charge imposed in connection therewith.
The Company, the Trustee, any authenticating agent, any paying agent, any Conversion Agent and
any Note registrar may deem and treat the registered holder hereof as the absolute owner of this
Note (whether or not this Note shall be overdue and notwithstanding any notation of ownership or
other writing hereon made by anyone other than the Company or any Note registrar) for the purpose
of receiving payment hereof, or on account hereof, for the conversion hereof and for all other
purposes, and neither the Company nor the Trustee nor any other authenticating agent nor any paying
agent nor other Conversion Agent nor any Note registrar shall be affected by any notice to the
contrary. All payments made to or upon the order of such registered holder shall, to the extent of
the sum or sums paid, satisfy and discharge liability for monies payable on this Note.
No recourse for the payment of the principal of, or any premium or interest on, this Note, or
for any claim based hereon or otherwise in respect hereof, and no recourse under or upon any
obligation, covenant or agreement of the Company in the Indenture or any supplemental indenture or
in any Note, or because of the creation of any indebtedness represented thereby, shall be had
against any incorporator, stockholder, employee, agent, officer or director or subsidiary, as such,
past, present or future, of the Company or of any successor corporation, either directly or through
the Company or any successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment or penalty or otherwise, all such liability being, by
acceptance hereof and as part of the consideration for the issue hereof, expressly waived and
released.
Terms used in this Note and defined in the Indenture are used herein as therein defined.
A-9
ABBREVIATIONS
The following abbreviations, when used in the inscription of the face of this Note, shall be
construed as though they were written out in full according to applicable laws or regulations.
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TEN COM - |
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as tenants in common |
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UNIF GIFT MIN ACT -___Custodian ___ |
TEN ENT - |
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as tenant by the entireties |
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(Cust) (Minor) |
JT TEN - |
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as joint tenants with right of
survivorship and
not as tenants in common |
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under Uniform Gifts to Minors Act
________________________
(State) |
Additional abbreviations may also be used though not in the above list.
A - 10
CONVERSION NOTICE
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TO: |
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AGCO CORPORATION
UNION BANK OF CALIFORNIA, N.A. |
The undersigned registered owner of this Note hereby irrevocably exercises the option to
convert this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated,
into cash or a combination of cash and shares of Common Stock of AGCO Corporation (or such other
entity pursuant to a Public Acquirer Change of Control) in accordance with the terms referred to in
this Note, and directs that a check in the amount of said cash and any shares issuable and
deliverable upon such conversion, together with any amount in payment for fractional shares and any
Notes representing any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the Indenture. If shares
or any portion of this Note not converted are to be issued in the name of a person other than the
undersigned, the undersigned will provide the appropriate information below and pay all transfer
taxes payable with respect thereto. Any amount required to be paid by the undersigned on account
of interest accompanies this Note.
Dated: ________________________
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Name of holder or underlying participant of Depository |
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Signature(s) |
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Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the Note registrar, which requirements include
membership or participation in the Security Transfer Agent Medallion Program (“STAMP”) or such other
“signature guarantee program” as may be determined by the Note registrar in addition to, or in substitution
for, STAMP, all in accordance with the Securities Exchange Act of 1934, as amended. |
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Signature Guarantee |
A - 11
Fill in
the registration of shares of Common Stock if to be issued, and Notes if to be
delivered, other than to and in the name of the registered holder:
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(Name) |
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(Street Address) |
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(City, State and Zip Code) |
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Please print name and address |
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Principal amount to be converted (if less than all): |
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Social Security or Other Taxpayer
Identification Number: |
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A - 12
OPTION TO ELECT REPAYMENT
UPON A DESIGNATED EVENT
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TO: |
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AGCO CORPORATION
UNION BANK OF CALIFORNIA, N.A. |
The undersigned
registered owner of this Note hereby irrevocably acknowledges receipt of a
notice from AGCO Corporation (the “Company”) as to the occurrence of a Designated Event with
respect to the Company and requests and instructs the Company to redeem the entire principal amount
of this Note, or the portion thereof (which is $1,000 or a multiple thereof) below designated, in
accordance with the terms referred to in this Note at the price of 100% of such entire principal
amount or portion thereof, together with accrued interest to, but excluding, the Designated Event
Redemption Date, to the registered holder hereof. Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture.
Dated: ________________________
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Signature(s) |
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NOTICE: The above signatures of the holder(s) hereof
must correspond with the name as written upon the face
of the Note in every particular without alteration or
enlargement or any change whatever.
Principal amount to be repaid (if less than all): |
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Social Security or Other Taxpayer Identification Number |
A - 13
REPURCHASE NOTICE
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TO: |
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AGCO CORPORATION
UNION BANK OF CALIFORNIA, N.A. |
The undersigned registered owner of this Note hereby
irrevocably acknowledges receipt of a notice
from AGCO Corporation (the “Company”) regarding the right of holders to elect to require the
Company to repurchase the Notes and requests and instructs the Company to repay the entire
principal amount of this Note, or the portion thereof (which is $1,000 or an integral multiple
thereof) below designated, in accordance with the terms at the price of 100% of such entire
principal amount or portion thereof, together with accrued interest to, by excluding, the
Repurchase Date, to the registered holder hereof. Capitalized terms used herein but not defined
shall have the meanings ascribed to such terms in the Indenture. The Notes shall be repurchased by
the Company as of the Repurchase Date pursuant to the terms and conditions specified in the
Indenture.
Dated:
Signature(s):
NOTICE: The above
signatures of the holder(s) hereof must correspond with the name as written
upon the face of the Note in every particular without alteration or enlargement or any change
whatever.
Note Certificate
Number (if applicable):
Principal amount
to be repurchased (if less than all):
Social Security
or Other Taxpayer Identification Number:
A - 14
ASSIGNMENT
For value received ___hereby sell(s) assign(s) and transfer(s) unto
___(Please insert social security or other Taxpayer Identification Number of
assignee) the within Note, and hereby irrevocably constitutes and appoints
___attorney to transfer said Note on the books of the Company, with full
power of substitution in the premises.
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Dated: |
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Signature(s) |
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Signature(s) must be guaranteed by an “eligible
guarantor institution” meeting the requirements of the
Note registrar, which requirements include membership
or participation in the Security Transfer Agent
Medallion Program (“STAMP”) or such other “signature
guarantee program” as may be determined by the Note
registrar in addition to, or in substitution for,
STAMP, all in accordance with the Securities Exchange
Act of 1934, as amended. |
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Signature Guarantee |
NOTICE: The signature on the Conversion Notice, the Option to Elect Redemption Upon a Designated
Event, the Repurchase Notice or the Assignment must correspond with the name as written upon the
face of the Note in every particular without alteration or enlargement or any change whatever.
A-15
Schedule I
[Include Schedule I only for a Global Note]
AGCO CORPORATION
___% Convertible Senior Subordinated Note Due 2036
No. _______
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Authorized Signature |
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Notation Explaining Principal |
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of Trustee or |
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Date |
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Principal Amount |
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Amount Recorded |
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Custodian |
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A-16
EXHIBIT B
TRUSTEE’S CERTIFICATE OF AUTHENTICATION
This is one of the Notes described in the within-named Indenture.
UNION BANK OF CALIFORNIA, N.A., as Trustee
By:
__________________
Authorized Officer
Dated:
B-1
EXHIBIT C
TABLE OF ADDITIONAL MAKE-WHOLE SHARES IN EVENT OF FUNDAMENTAL CHANGE
PURSUANT TO SECTION 14.06
OF
INDENTURE
The following table sets forth the hypothetical stock price and number of additional
[make-whole] shares, subject to adjustment upon any adjustment to the Conversion Rate, issuable per
$1,000 aggregate principal amount of Notes as provided in Section 14.06 of the Indenture:
(Expressed as Shares per $1,000 Original Principal Amount)
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Effective Date |
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Stock Price on Effective Date of Fundamental Change |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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$ |
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Determination of additional [make-whole] shares if the stock price and effective date are not set
forth on the table above and the stock price is:
(a) between two stock prices on the table or the effective date is between two dates on the
table, the number of additional [make-whole] shares will be determined by straight-line
interpolation between the number of additional [make-whole] shares set forth for the higher
and lower stock price and the two effective dates, as applicable, based on a 365-day year;
(b) in excess of $ per share (subject to adjustment), no additional [make-whole] shares will be issued upon conversion; or
(c) less than $ per share (subject to adjustment), no additional [make-whole] shares
will be issued upon conversion.
B-2