EXHIBIT 4(s)
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AMERICAN EXPRESS COMPANY
1.85% Convertible
Senior Debentures due 2033
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INDENTURE
Dated as of November 21, 2003
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U.S. BANK
NATIONAL ASSOCIATION
TRUSTEE
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AMERICAN EXPRESS COMPANY
CROSS REFERENCE SHEET*
THIS CROSS REFERENCE SHEET SHOWS THE LOCATION IN THE INDENTURE OF THE PROVISIONS
INSERTED PURSUANT TO SECTION 310-318(a), INCLUSIVE, OF THE TIA.
TRUST INDENTURE ACT Sections of Indenture
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310(a)(1)(2).............................................. 5.09
(3)(4).............................................. Inapplicable
(5).............................................. 5.09
(b).................................................... 5.07 and 5.09
(b)(1)(A)(C)........................................... Inapplicable
(c).................................................... Inapplicable
311(a)(b)................................................. 5.10
(c) Inapplicable
313(a).................................................... 6.03
(b)(1)................................................. Inapplicable
(2)................................................. 6.03
(c).................................................... 18.03
(d).................................................... 6.03
314(a).................................................... 6.04, 9.04 and 18.03
(b).................................................... Inapplicable
(c)(1)(2).............................................. 1.02
(3).............................................. Inapplicable
(d).................................................... Inapplicable
(e).................................................... 1.02
315(a)(b)(d).............................................. 5.01
(b).................................................... 5.05
(e).................................................... 4.14
316(a)(1)................................................. 4.12 and 4.13
(2)................................................. Inapplicable
(b).................................................... 4.08
(c).................................................... 1.04(e)
317(a).................................................... 4.03 and 4.04
(b).................................................... 9.03
318(a)(c)................................................. 1.05
(b).................................................... Inapplicable
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* The Cross Reference Sheet is not part of the Indenture.
TABLE OF CONTENTS
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ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Certain Terms Defined...........................................1
Section 1.02. Compliance Certificates and Opinions...........................11
Section 1.03. Forms of Documents Delivered to Trustee........................11
Section 1.04. Acts of Holders................................................12
Section 1.05. Conflict with Trust Indenture Act of 1939......................13
Section 1.06. Effect of Headings and Table of Contents.......................13
Section 1.07. Separability Clause............................................13
Section 1.08. Benefits of Indenture..........................................13
Section 1.09. Legal Holidays.................................................13
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating................................................14
Section 2.02. Execution and Authentication...................................15
Section 2.03. Registrar, Paying Agent, Conversion Agent and Calculation
Agent.......................................................15
Section 2.04. Paying Agent to Hold Money and Securities in Trust.............16
Section 2.05. Transfer and Exchange..........................................16
Section 2.06. Replacement Securities.........................................18
Section 2.07. Outstanding Securities; Determinations of Holders' Actions.....19
Section 2.08. Temporary Securities...........................................20
Section 2.09. Cancellation...................................................20
Section 2.10. Persons Deemed Owners..........................................20
Section 2.11. Global Securities..............................................21
Section 2.12. Legends........................................................22
Section 2.13. Payment of Interest; Interest Rights Preserved.................23
Section 2.14. CUSIP Numbers..................................................25
Section 2.15. Calculation of Tax Original Issue Discount.....................25
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01. Discharge of Liability on Securities...........................26
Section 3.02. Repayment of Moneys Held by Trustee............................27
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ARTICLE 4
REMEDIES
Section 4.01. Events of Default..............................................27
Section 4.02. Acceleration of Maturity; Rescission and Annulment.............29
Section 4.03. Collection of Indebtedness and Suits for Enforcement by
Trustee.....................................................30
Section 4.04. Trustee May File Proofs of Claim...............................31
Section 4.05. Trustee May Enforce Claims without Possession of Securities....32
Section 4.06. Application of Money Collected.................................32
Section 4.07. Limitation on Suits............................................32
Section 4.08. Unconditional Right of Holders To Receive Principal and
Interest....................................................33
Section 4.09. Restoration of Right and Remedies..............................33
Section 4.10. Rights and Remedies Cumulative.................................34
Section 4.11. Delay or Omission Not Waiver...................................34
Section 4.12. Control by Holders.............................................34
Section 4.13. Waiver of Past Defaults........................................35
Section 4.14. Undertaking for Costs..........................................35
Section 4.15. Waiver of Stay or Extension Laws...............................35
ARTICLE 5
THE TRUSTEE
Section 5.01. Duties of Trustee..............................................36
Section 5.02. Rights of Trustee..............................................37
Section 5.03. Individual Rights of Trustee...................................39
Section 5.04. Trustee's Disclaimer...........................................39
Section 5.05. Notice of Defaults.............................................39
Section 5.06. Compensation and Indemnity.....................................39
Section 5.07. Replacement of Trustee.........................................40
Section 5.08. Successor Trustee by Merger....................................41
Section 5.09. Eligibility; Disqualification..................................41
Section 5.10. Preferential Collection of Claims Against Company..............42
Section 5.11. Authenticating Agent...........................................42
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders........................................43
Section 6.02. Preservation of Information; Communications to Holders.........44
Section 6.03. Reports by Trustee.............................................45
Section 6.04. Reports by Company.............................................45
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ARTICLE 7
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 7.01. Consolidations and Mergers of Company Permitted Subject to
Certain Conditions..........................................46
Section 7.02. Rights and Duties of Successor Entity..........................47
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders.............47
Section 8.02. Supplemental Indentures with Consent of Holders................48
Section 8.03. Execution of Supplemental Indentures...........................50
Section 8.04. Effect of Supplemental Indentures..............................50
Section 8.05. Reference in Securities to Supplemental Indentures.............50
ARTICLE 9
COVENANTS OF THE COMPANY
Section 9.01. Payment of Principal, Premium and Interest.....................51
Section 9.02. Maintenance of Office or Agency................................51
Section 9.03. Money for Securities Payments to be Held in Trust..............52
Section 9.04. Compliance Certificate.........................................53
Section 9.05. Restrictions on the Creation of Mortgages and Liens............53
Section 9.06. Calculation of Tax Original Issue Discount.....................54
Section 9.07. Further Instruments and Acts...................................54
Section 9.08. Obligation to Conduct Remarketing..............................54
ARTICLE 10
REDEMPTION OF SECURITIES
Section 10.01. Right to Redeem; Notices to Trustee............................54
Section 10.02. Selection of Securities to Be Redeemed.........................55
Section 10.03. Notice of Redemption...........................................55
Section 10.04. Effect of Notice of Redemption.................................56
Section 10.05. Deposit of Redemption Price....................................56
Section 10.06. Securities Redeemed in Part....................................57
ARTICLE 11
CONVERSION
Section 11.01. Conversion Rights..............................................57
Section 11.02. Conversion Rights Based on Common Stock Price..................58
Section 11.03. Conversion Rights Upon Credit Rating Events....................58
Section 11.04. Conversion Rights Upon Notice of Redemption....................58
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Section 11.05. Conversion Rights Upon Occurrence of Certain Corporate
Transactions................................................58
Section 11.06. Conversion Upon Satisfaction Of Trading Price Condition........59
Section 11.07. Conversion Procedures..........................................60
Section 11.08. Fractional Shares..............................................63
Section 11.09. Taxes on Conversion............................................63
Section 11.10. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock.....63
Section 11.11. Adjustment Of Conversion Rate..................................64
Section 11.12. Adjustment for Tax Purposes....................................74
Section 11.13. Notice of Certain Transactions.................................75
Section 11.14. Effect of Reclassification, Consolidation, Merger or Sale
on Conversion Privilege.....................................75
Section 11.15. Trustee's Disclaimer...........................................76
Section 11.16. Rights Issued in Respect of Common Stock Issued Upon
Conversion..................................................77
Section 11.17. Company Determination Final....................................77
ARTICLE 12
PURCHASE AT OPTION OF HOLDERS
Section 12.01. Right to Require Purchase......................................77
Section 12.02. Purchase Procedures............................................77
Section 12.03. Effect of Purchase Notice......................................79
Section 12.04. Deposit of Purchase Price......................................80
Section 12.05. Securities Purchased in Part...................................80
Section 12.06. Repayment to the Company.......................................81
ARTICLE 13
PURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
Section 13.01. Right to Require Purchase......................................81
Section 13.02. Effect of Change in Control Purchase Notice....................85
Section 13.03. Deposit of Change in Control Purchase Price....................86
Section 13.04. Securities Purchased in Part...................................87
Section 13.05. Repayment to the Company.......................................87
ARTICLE 14
CONTINGENT INTEREST
Section 14.01. Contingent Interest............................................87
Section 14.02. Payment of Contingent Interest.................................88
Section 14.03. Notice of Contingent Interest..................................88
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ARTICLE 15
CONTINGENT ACCRETION
Section 15.01. Contingent Accretion...........................................89
Section 15.02. Payment of Contingent Accretion................................89
Section 15.03. Notice of Contingent Accretion.................................89
ARTICLE 16
YIELD RESET AND REMARKETING
Section 16.01. Remarketing Reset Event........................................90
Section 16.02. Reset Yield....................................................90
Section 16.03. Remarketing Procedures.........................................92
Section 16.04. Right to Require Purchase......................................94
ARTICLE 17
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES
Section 17.01. Exemption From Individual Liability............................95
ARTICLE 18
MISCELLANEOUS PROVISIONS
Section 18.01. Successors and Assigns of Company Bound by Indenture...........96
Section 18.02. Acts of Board, Committee or Officer of Successor
Corporation Valid...........................................96
Section 18.03. Required Notices or Demands....................................96
Section 18.04. GOVERNING LAW..................................................97
Section 18.05. Indenture May Be Executed in Counterparts......................97
ANNEX A -- Form of Global Security
ANNEX B -- Projected Payment Schedule
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INDENTURE, dated as of the 21st day of November, 2003, between AMERICAN
EXPRESS COMPANY, a New York corporation (the "Company"), and U.S. BANK NATIONAL
ASSOCIATION, a national banking association organized under the laws of the
United States (the "Trustee").
WHEREAS, for its lawful corporate purposes, the Company deems it necessary
to issue its securities and has duly authorized the execution and delivery of
this Indenture to provide for the issuance of its 1.85% Convertible Senior
Debentures due 2033 (the "Securities").
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Securities
by the Holders thereof, it is mutually covenanted and agreed by the Company and
by the Trustee, for the equal and proportionate benefit of all Holders of the
Securities, as follows:
ARTICLE 1
DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
Section 1.01. Certain Terms Defined.
(a) Definitions.
"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.
"Accreted Interest" means, for any Interest Period for any Security as of
any date of determination, (i) the Accreted Principal Amount of such Security at
the beginning of the Interest Period in which such date occurs, multiplied by
(ii) the Applicable Yield for such Interest Period, multiplied by (iii) the
quotient of the actual number of days elapsed from and including the first day
of such Interest Period, to but excluding the date of determination divided by
360; provided that the Accreted Interest for any full Interest Period shall be
calculated by reference to the actual number of days in such Interest Period
divided by 360.
"Accreted Principal Amount" means, for any Security as of any date of
determination, (i) the Original Principal Amount of such Security, plus (ii) the
sum of the Accreted Interest for each Interest Period concluding on or prior to
such date, plus (iii) the Accreted Interest for the Interest Period in which
such date occurs as of the date of determination.
"Applicable Stock Price" means, in respect of a Conversion Date, the
average of the Closing Sale Prices per share of Common Stock over the 10
Trading-Day period starting the third Trading Day following such Conversion
Date.
"Applicable Yield" means (1) prior to December 1, 2006 0%, (2) unless a
Remarketing Reset Event occurs, from and after December 1, 2006, for any
Interest Period, a rate equal to 1.85% per annum, (3) if a Remarketing Reset
Event occurs, unless the Company has elected pursuant to Section 16.02(b) that
the Securities will bear cash interest, from and after such Remarketing Reset
Event Date, for any Interest Period, the Reset Yield for such Interest Period
and (4) if a Remarketing Reset Event has occurred and the Company has elected
pursuant to Section 16.02(b) to have the Securities bear cash interest, 0% from
and including the applicable Remarketing Reset Date to but excluding the next
succeeding Remarketing Reset Date; provided that in no event shall the
Applicable Yield be less than 0%.
"Base Conversion Price" means the dollar amount derived by dividing the
Accreted Principal Amount by the Base Conversion Rate.
"Base Conversion Rate" means 14.4073 shares of Common Stock, subject to
adjustment as set forth in Section 11.11.
"Board of Directors" means either the board of directors of the Company or
any duly authorized committee of such board.
"Board Resolution" shall mean a copy of a resolution certified by the
Secretary or an Assistant Secretary of the Company to have been duly adopted by
the Board of Directors and to be in full force and effect on the date of such
certification, and delivered to the Trustee.
"Business Day" means any day other than a Saturday, a Sunday or a day on
which banking institutions in The City of New York are authorized or required by
law, regulation or executive order to close.
"Capital Stock" means, as to shares of a corporation, outstanding shares of
stock of any class, whether now or hereafter authorized, irrespective of whether
such class shall be limited to a fixed sum or percentage in respect of the
rights of the holders thereof to participate in dividends and in the
distribution of
2
assets upon the voluntary liquidation, dissolution or winding up of such
corporation.
"Closing Sale Price" of the shares of Common Stock on any date means the
closing sale price per share (or, if no closing sale price is reported, the
average of the closing bid and ask prices or, if more than one in either case,
the average of the average closing bid and the average closing ask prices) on
such date as reported on the principal United States securities exchange on
which shares of Common Stock are traded or, if the shares of Common Stock are
not listed on a United States national or regional securities exchange, as
reported by Nasdaq or by the National Quotation Bureau Incorporated. In the
absence of such quotations, the Company shall be entitled to determine the
Closing Sale Price on the basis it considers appropriate. The Closing Sale Price
shall be determined without reference to extended or after hours trading.
"Commission" means the Securities and Exchange Commission.
"Common Stock" shall mean the shares of Common Stock, $0.20 par value, of
the Company as it exists on the date of this Indenture or any other shares of
capital stock of the Company into which the Common Stock shall be reclassified
or changed.
"Company" means the party named as the "Company" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any such subsequent successor or
successors.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by any Officer and delivered to the Trustee.
"Contingent Accretion" means such contingent interest payable as described
in Article 15.
"Contingent Interest" means such cash interest payable as described in
Article 14.
"Conversion Rate" with respect to any Conversion Date means:
(i) if the Applicable Stock Price is less than or equal to the Base
Conversion Price, the Base Conversion Rate; or
(ii) if the Applicable Stock Price is greater than the Base Conversion
Price, the number of shares of Common Stock determined in accordance with
the following formula:
3
(Applicable Stock Price - Base Conversion Price)
Base Conversion Rate + [ ------------------------------------------------ x Incremental Share Factor ]
Applicable Stock Price
Notwithstanding the foregoing, in no event will the Conversion Rate exceed the
Maximum Conversion Rate. Unless a Remarketing Reset Event occurs, from and after
December 1, 2006, the Conversion Rate shall be fixed at the Conversion Rate
determined as set forth above assuming a Conversion Date that is thirteen
Trading Days prior to December 1, 2006, (the "Fixed Conversion Rate"), subject
to adjustment as set forth in Article 11.
"Corporate Trust Office" means the office of the Trustee located at 000
Xxxx Xxxxxx, 00xx Xxxxx, Xxx Xxxx, Xxx Xxxx 00000 Attention: Xxxxxxx Xxxxxxxxxx,
or such other address as the Trustee may designate from time to time by notice
to the Holders and the Company, or the principal corporate trust office of any
successor Trustee (or such other address as a successor Trustee may designate
from time to time by notice to the Holders and the Company).
"Custodian" means any Person appointed by the Trustee to act as custodian
of Global Securities for the Depositary. The Trustee initially appoints itself
Custodian.
"Default" means any event which is, or after notice or passage of time or
both would be, an Event of Default.
"Effective Conversion Price" means, as of any date of determination, a
dollar amount derived by dividing the Accreted Principal Amount as of such date
of $1,000 Original Principal Amount of Securities by the Conversion Rate then in
effect (assuming a Conversion Date 13 Trading Days prior to the date of
determination); provided that from and after December 1, 2006 (or if such day is
not a Business Day, the immediately succeeding Business Day), the Effective
Conversion Price shall be the Accreted Principal Amount as of such date of
determination divided by the Fixed Conversion Rate.
"Exchange Act" means the Securities Exchange Act of 1934, as amended from
time to time, and the rules and regulations of the Commission promulgated
thereunder.
"Fixed Conversion Rate" has the meaning set forth in the definition of
Conversion Rate."
"Global Security" or "Global Securities" means Securities that are in the
form of the Securities attached hereto as Annex A.
4
"Holder" means a person in whose name a Security is registered on the
Registrar's books.
"Incremental Share Factor" means 43.2219 shares of Common Stock, subject to
adjustment as set forth in Article 11.
"Indenture" means this Indenture, as amended or supplemented from time to
time in accordance with the terms hereof, including the provisions of the TIA
that are deemed to be a part hereof.
"Interest Payment Date" means (1) June 1 and December 1 of each year,
subject to Section 1.09, commencing June 1, 2004 or (2) if a Remarketing Reset
Event has occurred, and the Company has elected pursuant to Section 16.02(b)
that the Securities will bear cash interest, any dates specified by the Company
in the notice referred to in Section 16.03(e).
"Interest Period" means (1) prior to December 1, 2006, the period from and
including the most recent Interest Payment Date to which interest has been paid
or duly made available for payment (or November 21, 2003 if no interest has been
paid or been duly made available for payment) to, but excluding, the next
succeeding Interest Payment Date, or any earlier Change in Control Purchase
Date, (2) unless a Remarketing Reset Event occurs, from and after December 1,
2006, the period from and including each Interest Payment Date to but excluding
the next succeeding Interest Payment Date, or, if earlier, the Stated Maturity,
any Redemption Date, any Purchase Date or any Change in Control Purchase Date,
(3) if a Remarketing Reset Event occurs, unless the Company has elected pursuant
to Section 16.02(b) that the Securities will bear cash interest, from and after
such Remarketing Reset Event Date, the period from and including the applicable
Remarketing Reset Date to but excluding the next succeeding Remarketing Reset
Date, or, if earlier, the Stated Maturity or any Remarketing Purchase Date and
(4) if a Remarketing Reset Event has occurred and the Company has elected
pursuant to Section 16.02(b) to have the Securities bear cash interest, the
period from and including the applicable Remarketing Reset Date or, if later,
the most recent Interest Payment Date (as defined in clause (2) of the
definition thereof) to which interest has been paid or duly made available, to
but excluding the next succeeding Interest Payment Date, or, if earlier, the
earliest of the next succeeding Remarketing Reset Date, the Stated Maturity or
any Remarketing Purchase Date.
"Issue Date" of any Security means the date on which the Security was
originally issued or deemed issued as set forth on the face of the Security.
"Legal Holiday" means a day that is not a Business Day.
5
"Liquidated Damages" means the Liquidated Damages Amount (as defined in the
Registration Rights Agreement).
"Maximum Conversion Rate" means 22.7635 shares of Common Stock, subject to
adjustment as set forth in Article 11.
"Nasdaq" means the Nasdaq National Market.
"Officer" means the Chairman of the Board, the Chairman of the Executive
Committee of the Board, a Vice Chairman of the Board, the President, any Vice
President, the Treasurer, any Assistant Treasurer, the Comptroller, any
Assistant Comptroller, the Secretary, any Assistant Treasurer or any Assistant
Secretary of the Company.
"Officers' Certificate" means a written certificate containing the
information specified in Section 1.02, signed in the name of the Company by any
Officer and delivered to the Trustee. An Officers' Certificate given pursuant to
Section 9.04 need not contain the information specified in Section 1.02.
"Opinion of Counsel" means a written opinion containing the information
specified in Section 1.02 from legal counsel that is delivered to the Trustee.
The counsel may be an employee of, or counsel to, the Company.
"Original Principal Amount" of a Security means the stated Original
Principal Amount as set forth on the face of such Security.
"person" or "Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 2.06 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Principal Subsidiaries" of the Company means the following so long as they
continue to be Subsidiaries: American Express Travel Related Services Company,
Inc., American Express Financial Corporation, American Express Bank Ltd. and any
one or more Subsidiaries of the Company that shall succeed to all or
substantially all of the business of any of the foregoing Subsidiaries or
succeed to the ownership of all or substantially all of the property and assets
of any of the foregoing Subsidiaries.
6
"Purchase Agreement" means the Purchase Agreement dated as of November 17,
2003 among the Company and XX Xxxxxx Securities Inc., Xxxxxx Brothers Inc. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as managers of the initial
purchasers named therein.
"Redemption Date" means the date specified for redemption of the Securities
in accordance with the terms of the Securities and this Indenture.
"Redemption Price" means, when used with respect to any Security to be
redeemed, 100% of the Accreted Principal Amount of such Security as of the
Redemption Date, plus accrued and unpaid interest (including Contingent Interest
and Liquidated Damages, if any) to, but excluding, the Redemption Date.
"Registration Rights Agreement" means the Registration Rights Agreement
dated as of November 21, 2003 among the Company, XX Xxxxxx Securities Inc.,
Xxxxxx Brothers Inc. and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as
managers of the initial purchasers named in the Purchase Agreement.
"Regular Record Date" for the interest payable on any Interest Payment Date
means (1) the May 15 or November 15, as the case may be, immediately preceding
such Interest Payment Date and (2) if a Remarketing Reset Event has occurred,
and the Company has elected pursuant to Section 16.02(b) that the Securities
will bear cash interest, any dates specified by the Company in the notice
referred to in Section 16.03(e).
"Remarketing Agent" means the remarketing agent appointed by the Company
and any successor or replacement remarketing agent appointed by the Company.
"Remarketing Agreement" means, with respect to a remarketing on a
Remarketing Reset Date, the remarketing agreement entered into between the
Company and the Remarketing Agent with respect to the remarketing of Securities
on such Remarketing Reset Date.
"Remarketing Purchase Date" means a Remarketing Reset Date on which the
Company is required to purchase Securities pursuant to Section 16.04.
"Remarketing Purchase Price" has the meaning set forth in Section 16.04.
"Remarketing Reset Date" means the Remarketing Reset Event Date on which a
Remarketing Reset Event occurs and the dates occurring at least six
7
months thereafter and prior to the Stated Maturity as specified by the Company
in a notice delivered to the Holders pursuant to Section 16.03(e).
"Remarketing Reset Event" has the meaning set forth in Section 16.01.
"Remarketing Reset Event Date" means December 1 of 2006, 2008, 2013, 2018,
2023 and 2028 or, if any such day is not a Business Day, the immediately
succeeding Business Day.
"Required Remarketing Date" has the meaning set forth in Section 16.03.
"Reset Yield" has the meaning set forth in Section 16.02.
"Responsible Officer", when used with respect to the Trustee, means any
officer within the corporate trust department (or any successor group) who shall
have direct responsibility for the administration of this Indenture.
"Rule 144A" means Rule 144A under the Securities Act (or any successor
provision), as it may be amended from time to time.
"Securities" or "Security" means any of the Company's 1.85% Convertible
Senior Debentures due 2033, as amended or supplemented from time to time, issued
under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and the rules and regulations of the Commission promulgated thereunder.
"Security Register" means the register maintained by the Registrar that
evidences ownership of the Securities.
"Special Record Date" means, for the payment of any Defaulted Interest, the
date fixed by the Trustee pursuant to Section 2.13.
"Stated Maturity" means December 1, 2033.
"Subsidiary" of any Person means any corporation of which such Person at
the time owns or controls, directly or through an intervening medium, more than
fifty percent (50%) of each class of outstanding Voting Stock, and unless
otherwise specified shall mean a Subsidiary of the Company.
"Tax Original Issue Discount" means the amount of ordinary interest income
on a Security that must be accrued as original issue discount for United States
federal income tax purposes pursuant to Treasury regulation section 1.1275-4 or
any successor provision.
8
"TIA" means (except as provided in Section 8.01 or Section 8.02) the Trust
Indenture Act of 1939 as in effect on the date of this Indenture, provided,
however, that in the event the TIA is amended after such date, TIA means, to the
extent required by any such amendment, the TIA as so amended.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, on Nasdaq or,
if the Common Stock is not quoted on Nasdaq, on the principal other market on
which the Common Stock is then traded.
"Trading Price" means, on any date, the average of the secondary market bid
quotations for the Securities obtained by the Trustee for $10,000,000 Original
Principal Amount of Securities at approximately 3:30 p.m., New York City time,
on such date from three independent nationally recognized securities dealers
selected by the Company; provided that if at least three such bids cannot
reasonably be obtained by the Trustee, but two bids are obtained, then the
average of the two bids shall be used, and if only one such bid can reasonably
be obtained by the Trustee, one bid shall be used; and provided further that if
the Trustee cannot reasonably obtain at least one bid for $10,000,000 Original
Principal Amount of Securities from a nationally recognized securities dealer or
in the Company's reasonable judgment, the bid quotations are not indicative of
the secondary market value of the Securities, then the Trading Price per $1,000
Original Principal Amount of Securities shall be deemed to be less than 96% of
the product of (a) the Conversion Rate on such date (determined using the
Closing Sale Price on such date rather than the Applicable Stock Price) and (b)
the Closing Sale Price on such date.
"Trustee" means the party named as the "Trustee" in the first paragraph of
this Indenture until a successor replaces it pursuant to the applicable
provisions of this Indenture and, thereafter, shall mean such successor. The
foregoing sentence shall likewise apply to any subsequent such successor or
successors.
"Voting Stock", means stock (or the equivalent thereof) of the class or
classes having general voting power under ordinary circumstances to elect at
least a majority of the board of directors, managers or trustees of such
corporation (irrespective of whether or not at the time stock of any other class
or classes shall have or might have voting power by reason of the occurrence of
any contingency).
(b) Other Definitions.
9
Defined in
Term Section
------------------------------------------------------------------- ----------
"Act".............................................................. 1.04(a)
"Adjustment Event"................................................. 11.11(m)
"Associate"........................................................ 13.01
"Bankruptcy Law"................................................... 4.01
"Calculation Agent"................................................ 2.03
"Change in Control"................................................ 13.01(a)
"Change in Control Purchase Date".................................. 13.01(a)
"Change in Control Purchase Notice"................................ 13.01(c)
"Change in Control Purchase Price"................................. 13.01(a)
"Contingent Accretion Payment Date" ............................... 16.02(a)
"Conversion Agent"................................................. 2.03
"Conversion Date".................................................. 11.07
"Current Market Price"............................................. 11.11(i)
"Custodian"........................................................ 4.01
"Determination Date"............................................... 11.11(m)
"Depositary"....................................................... 2.01
"Distributed Securities"........................................... 11.11(d)
"Dividend Threshold Amount"........................................ 11.11(e)
"Event of Default"................................................. 4.01
"Ex-Dividend Date"................................................. 11.11(g)
"Ex-Dividend Time"................................................. 11.05
"Expiration Time".................................................. 11.11(f)
"Fair Market Value"................................................ 11.11(i)
"Failed Remarketing"............................................... 16.03
"Legend"........................................................... 2.05(e)
"Mandatory Cash Settlement Election"............................... 11.07
"Measurement Period"............................................... 14.01(a)
"Notice of Default"................................................ 4.01
"Notice to Opt Out of Remarketing"................................. 16.03(a)
"Paying Agent"..................................................... 2.03
"Principal Value Conversion"....................................... 11.06
"Purchase Date".................................................... 12.01
"Purchased Shares" ................................................ 11.11(f)
"Purchase Notice".................................................. 12.01
"Purchase Price"................................................... 12.01
"Opt Out Date"..................................................... 16.03(a)
"QIB".............................................................. 2.01
"Record Date"...................................................... 11.11(i)
"Registrar"........................................................ 2.03
"Reset Rate"....................................................... 16.02(a)
"Rights"........................................................... 11.16
"Rights Agreement"................................................. 11.16
10
Defined in
Term Section
------------------------------------------------------------------- ----------
"S&P".............................................................. 11.03
"Trigger Event" ................................................... 11.11(d)
Section 1.02. Compliance Certificates and Opinions. Upon any application or
request by the Company to the Trustee to take any action under any provision 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, if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished.
Every certificate or opinion with respect to compliance with a condition or
covenant provided for in this Indenture shall include:
(i) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the definitions herein
relating thereto;
(ii) a brief statement as to the nature and scope of the examination
or investigation upon which the statements or opinions contained in such
certificate or opinion are based;
(iii) a statement that, in the opinion of each such individual, 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
(iv) a statement as to whether or not, in the opinion of each such
individual, such condition or covenant has been complied with.
Section 1.03. Forms of Documents Delivered to Trustee. In any case where
several matters are required to be certified by, or covered by an opinion of,
any specified Person, it is not necessary that all such matters be certified by,
or covered by the opinion of, only one such Person, or that they be so certified
or covered by only one document, but one such Person may certify or give an
opinion with respect to some matters and one or more other such Persons as to
other matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
11
Any certificate or opinion of an officer of the Company may be based,
insofar as it relates to legal matters, upon a certificate or opinion of, or
representations by, counsel, unless such officer actually knows that the
certificate or opinion or representations with respect to the matters upon which
his certificate or opinion is based are erroneous. Any such certificate or
Opinion of Counsel may be based, insofar as it relates to factual matters, upon
a certificate or opinion of, or representations by, an officer or officers of
the Company stating that the information with respect to such factual matters is
in the possession of the Company, unless such counsel knows, or in the exercise
of reasonable care (but without having made an investigation specifically for
the purpose of rendering such opinion) should know, that the certificate or
opinion or representations with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
Section 1.04. Acts of Holders. Any request, demand, authorization,
direction, notice, consent, waiver or other action provided by this Indenture to
be given or taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person or
by an agent duly appointed in writing; and, except as herein otherwise expressly
provided, such action shall become effective when such instrument or instruments
are delivered to the Trustee and, where it is hereby expressly required, to the
Company. Such instrument or instruments (and the action embodied therein and
evidenced thereby) are herein sometimes referred to as the "Act" of the Holders
signing such instrument or instruments. Proof of execution of any such
instrument or of a writing appointing any such agent shall be sufficient for any
purpose of this Indenture and (subject to Section 5.01) conclusive in favor of
the Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such instrument
or writing may be proved in any manner which the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the Security Register.
(d) Any request, demand, authorization, direction, notice, consent, waiver
or other Act of the Holder of any Security shall bind every future Holder of the
same Security and the Holder of every Security issued upon the registration of
transfer thereof or in exchange therefor or in lieu thereof in respect of
anything done, omitted or suffered to be done by the Trustee or the
12
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may, but shall not be obligated to, set a record date for
purposes of determining the identity of Holders entitled to vote or consent to
any action by vote or consent authorized or permitted under this Indenture. If a
record date is fixed, those persons who were Holders of Securities at such
record date (or their duly designated proxies), and only those persons, shall be
entitled to take such action by vote or consent or to revoke any vote or consent
previously given, whether or not such persons continue to be Holders after such
record date. No action approved by such vote or consent shall be taken more than
six months after such record date.
Section 1.05. Conflict with Trust Indenture Act of 1939. If any provision
hereof limits, qualifies or conflicts with a provision of the TIA that is
required under the TIA to be part of and govern this Indenture, the TIA shall
control. If any provision of this Indenture modifies or excludes any provision
of the TIA that may be so modified or excluded, such provision shall be deemed
either to apply to this Indenture so modified or to be excluded, as the case may
be.
Section 1.06. Effect of Headings and Table of Contents. The Article and
Section headings herein and the Table of Contents are for convenience only and
shall not affect the construction hereof.
Section 1.07. Separability Clause. In case any provision in this Indenture
or in any Security shall be invalid, illegal or unenforceable, the validity,
legality and enforceability of the remaining provisions shall not in any way be
affected or impaired thereby.
Section 1.08. Benefits of Indenture. Nothing in this Indenture or in the
Securities, express or implied, shall give to any Person, other than the parties
hereto and their successors hereunder and the Holders, any benefit or any legal
or equitable right, remedy or claim under this Indenture.
Section 1.09. Legal Holidays. Subject to the next two succeeding sentences,
if any specified date (including a date for giving notice) on which action is to
be taken under this Indenture is a Legal Holiday, the action shall be taken on
the next succeeding day that is not a Legal Holiday. In any case where an
Interest Payment Date (other than an Interest Payment Date coinciding with the
Stated Maturity or earlier Redemption Date, Purchase Date, Remarketing Purchase
Date or Change in Control Purchase Date) of a Security falls on a day that is
not a Business Day, such Interest Payment Date will be postponed to the next
succeeding Business Day and no interest on such payment will accrue for the
period from and after the Interest Payment Date to such next succeeding Business
Day. If the Stated Maturity, Redemption Date, Purchase Date,
13
Remarketing Purchase Date or Change in Control Purchase Date of a Security would
fall on a day that is not a Business Day, the required payment of interest, if
any, and principal will be made on the next succeeding Business Day and no
interest on such payment will accrue for the period from and after the Stated
Maturity, Redemption Date, Purchase Date, Remarketing Purchase Date or Change in
Control Purchase Date to such next succeeding Business Day.
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating. The Securities designated "1.85% Convertible
Senior Debentures due 2033" of the Company shall be substantially in the form
set forth in Annex A hereto, which is incorporated into and shall be deemed a
part of this Indenture, with such appropriate insertions, omissions,
substitutions and other variations as are required or permitted by the
Indenture, and may have such letters, numbers or other marks of identification
and such legends or endorsements placed thereon as may be required to comply
with the rules of any securities exchange or as may, consistently herewith, be
determined by the officers of the Company executing the Securities, as evidenced
by their execution of the Securities. Each Security shall be dated the date of
its authentication.
All of the Securities are initially being offered and sold to qualified
institutional buyers as defined in Rule 144A (collectively, "QIBs" or
individually a "QIB") in reliance on Rule 144A under the Securities Act and
shall be issued initially in the form of one or more restricted Global
Securities, which shall be deposited on behalf of the purchasers of the
Securities represented thereby with the Trustee, or any Custodian, as custodian
for the depositary, The Depository Trust Company (such depositary, or any
successor thereto, being hereinafter referred to as the "Depositary"), and
registered in the name of its nominee, Cede & Co., duly executed by the Company
and authenticated by the Trustee as hereinafter provided.
Each Global Security shall represent such of the outstanding Securities as
shall be specified therein and each shall provide that it shall represent the
aggregate Original Principal Amount of outstanding Securities from time to time
endorsed thereon and that the aggregate Original Principal Amount of outstanding
Securities represented thereby may from time to time be reduced or increased, as
appropriate, to reflect exchanges, redemptions, purchases or conversions of such
Securities. Any endorsement of a Global Security to reflect the amount of any
increase or decrease in the Original Principal Amount of outstanding Securities
represented thereby shall be made by the Trustee or Custodian in accordance with
the standing instructions and procedures existing between the Depositary and the
Trustee or Custodian.
14
Certificated Securities shall be issued only under the limited
circumstances provided in Section 2.11(b) hereof.
Section 2.02. Execution and Authentication. The Securities shall be
executed by the Company by any Officer. The signature of any Officer on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of individuals who
were at any time the proper officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein duly
executed by the Trustee or any Authenticating Agent by manual signature of an
authorized officer, and such certificate upon any Security shall be conclusive
evidence, and the only evidence, that such Security has been duly authenticated
and delivered hereunder.
The Trustee shall authenticate and deliver Securities for original issue in
an aggregate Original Principal Amount of $2,000,000,000 upon a Company Order
without any further action by the Company. The Securities shall be issued only
in registered form without coupons and only in denominations of $1,000 Original
Principal Amount and any integral multiple thereof. The aggregate Original
Principal Amount of Securities outstanding at any time may not exceed the amount
set forth in the first sentence of this paragraph, subject to the parenthetical
set forth therein, except as provided in Section 2.06.
Section 2.03. Registrar, Paying Agent, Conversion Agent and Calculation
Agent. The Company shall maintain an office or agency where Securities may be
presented for registration of transfer or for exchange ("Registrar"), an office
or agency where Securities may be presented for purchase or payment ("Paying
Agent") and an office or agency where Securities may be presented for conversion
("Conversion Agent"). The Registrar shall keep a register of the Securities and
of their transfer and exchange. The Company may have one or more co-registrars,
one or more additional paying agents and one or more additional conversion
agents. The term Paying Agent includes any additional paying agent and the term
Conversion Agent includes any additional conversion agent.
The Company shall also appoint an agent to perform the calculations
required pursuant to this Indenture (the "Calculation Agent").
15
The Company shall notify the Trustee of the name and address of any such
agent. If the Company fails to maintain a Registrar, Paying Agent, Calculation
Agent or Conversion Agent, the Trustee shall act as such and shall be entitled
to appropriate compensation therefor pursuant to Section 5.06. The Company or
any Subsidiary or an Affiliate of either of them may act as Paying Agent,
Registrar, Calculation Agent, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar, Conversion Agent,
Calculation Agent and Paying Agent in connection with the Securities.
Section 2.04. Paying Agent to Hold Money and Securities in Trust. Except as
otherwise provided herein, on or prior to each due date of payments in respect
of any Security, the Company shall deposit with the Paying Agent a sum of money
(in immediately available funds if deposited on the due date) or, if applicable,
Common Stock sufficient to make such payments when so becoming due. The Company
shall require each Paying Agent (other than the Trustee) to agree in writing
that the Paying Agent shall hold in trust for the benefit of Holders and/or the
Trustee all money and Common Stock held by the Paying Agent for the making of
payments in respect of the Securities and shall notify the Trustee of any
default by the Company in making any such payment. At any time during the
continuance of any such default, the Paying Agent shall, upon the written
request of the Trustee, forthwith pay to the Trustee all money and Common Stock
so held in trust. If the Company, a Subsidiary or an Affiliate of either of them
acts as Paying Agent, it shall segregate the money and Common Stock held by it
as Paying Agent and hold it as a separate trust fund. The Company at any time
may require a Paying Agent to pay all money and Common Stock held by it to the
Trustee and to account for any funds and Common Stock disbursed by it. Upon
doing so, the Paying Agent shall have no further liability for the money or
Common Stock.
Section 2.05. Transfer and Exchange. (a) Subject to Section 2.11 hereof,
upon surrender for registration of transfer of any Security, together with a
written instrument of transfer satisfactory to the Registrar duly executed by
the Holder or such Holder's attorney duly authorized in writing, at the office
or agency of the Company designated as Registrar or co-registrar pursuant to
Section 2.03, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denomination or denominations, of a like
aggregate Original Principal Amount. The Company shall not charge a service
charge for any registration of transfer or exchange, but the Company and the
Registrar may require payment of a sum sufficient to pay all taxes, assessments
or other governmental charges that may be imposed in connection with the
transfer or exchange of the Securities from the Holder requesting such transfer
or exchange.
16
The Company shall not be required to make, and the Registrar need not
register, transfers or exchanges of Securities selected for redemption (except,
in the case of Securities to be redeemed in part, the portion thereof not to be
redeemed) or any Securities in respect of which a Purchase Notice or Change in
Control Purchase Notice has been given and not withdrawn by the Holder thereof
in accordance with the terms of this Indenture (except, in the case of
Securities to be purchased in part, the portion thereof not to be purchased) or
any Securities for a period of 15 days before the mailing of a notice of
redemption of Securities to be redeemed.
(b) Notwithstanding any provision to the contrary herein, so long as a
Global Security remains outstanding and is held by or on behalf of the
Depositary, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.11 and this Section 2.05(b). Transfers of a
Global Security shall be limited to transfers of such Global Security in whole,
or in part, to nominees of the Depositary or to a successor of the Depositary or
such successor's nominee.
(c) Successive registrations and registrations of transfers and exchanges
as aforesaid may be made from time to time as desired, and each such
registration shall be noted on the register for the Securities.
(d) Any Registrar appointed pursuant to Section 2.03 hereof shall provide
to the Trustee such information as the Trustee may reasonably require in
connection with the delivery by such Registrar of Securities upon transfer or
exchange of Securities.
(e) No Registrar shall be required to make registrations of transfer or
exchange of Securities during any periods designated in the text of the
Securities or in this Indenture as periods during which such registration of
transfers and exchanges need not be made.
(f) If Securities are issued upon the transfer, exchange or replacement of
Securities subject to restrictions on transfer and bearing the legends on the
form of Security attached hereto as Annex A setting forth such restrictions
(collectively, the "Legend"), or if a request is made to remove the Legend on a
Security, the Securities so issued shall bear the Legend, or the Legend shall
not be removed, as the case may be, unless there is delivered to the Company and
the Registrar such satisfactory evidence, which shall include an Opinion of
Counsel, as may be reasonably required by the Company and the Registrar, that
neither the Legend nor the restrictions on transfer set forth therein are
required to ensure that transfers thereof comply with the provisions of Rule
144A or Rule 144 under the Securities Act or that such Securities are not
"restricted" within the meaning of Rule 144 under the Securities Act. Upon (i)
provision of such satisfactory evidence, or (ii) notification by the Company to
the Trustee and
17
Registrar of the sale of such Security pursuant to a registration statement that
is effective at the time of such sale, the Trustee, at the written direction of
the Company, shall authenticate and deliver a Security that does not bear the
Legend. If the Legend is removed from the face of a Security and the Security is
subsequently held by an Affiliate of the Company, the Legend shall be
reinstated. Any shares of Common Stock issued upon conversion of Securities that
bear the Legend shall bear a restricted legend substantially identical to the
Legend (except that such Legend shall not refer to any shares of Common Stock
issuable upon conversion of Securities).
(g) Nothing in this Indenture or in the Securities shall prohibit the sale
or other transfer of any Securities (including beneficial interests in Global
Securities) to the Company or any of its Subsidiaries, which Securities shall
thereupon be canceled in accordance with Section 2.09 of this Indenture.
Section 2.06. Replacement Securities. If (a) any mutilated Security is
surrendered to the Trustee, or (b) the Company and the Trustee receive evidence
to their satisfaction of the destruction, loss or theft of any Security, and
there is delivered to the Company and the Trustee such security or indemnity as
may be required by them to save each of them harmless, then, in the absence of
notice to the Company or the Trustee that such Security has been acquired by a
bona fide purchaser, the Company shall execute and upon its written request the
Trustee shall authenticate and deliver, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and Original Principal Amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has become
or is about to become due and payable, or is about to be purchased by the
Company pursuant to Articles 12 or 13 hereof, the Company in its discretion may,
instead of issuing a new Security, pay or purchase such Security, as the case
may be.
Upon the issuance of any new Securities under this Section, the Company may
require the payment of a sum sufficient to cover any tax or other governmental
charge that may be imposed in relation thereto and any other expenses (including
the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this Section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
18
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
Section 2.07. Outstanding Securities; Determinations of Holders' Actions.
Securities outstanding at any time are all the Securities authenticated by the
Trustee except for those canceled by it, those delivered to it for cancellation,
those delivered to it pursuant to Section 2.06 and those described in this
Section 2.07 as not outstanding. A Security does not cease to be outstanding
because the Company or an Affiliate thereof holds the Security; provided,
however, that in determining whether the Holders of the requisite Original
Principal Amount of Securities have given or concurred in any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
outstanding, except that, in determining whether the Trustee shall be protected
in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Subject to the foregoing,
only Securities outstanding at the time of such determination shall be
considered in any such determination (including, without limitation,
determinations pursuant to Articles 4 and 8).
If a Security is replaced pursuant to Section 2.06, it ceases to be
outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on a
Redemption Date, or on the Business Day following a Purchase Date, a Remarketing
Purchase Date or a Change in Control Purchase Date, or on Stated Maturity, money
or securities, if permitted hereunder, sufficient to pay Securities payable on
that date, then immediately after such Redemption Date, Purchase Date, Change in
Control Purchase Date or Stated Maturity, as the case may be, such Securities
shall cease to be outstanding and interest (including Contingent Interest and
Liquidated Damages, if any) on such Securities shall cease to accrue; provided,
that if such Securities are to be redeemed, notice of such redemption has been
duly given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made.
If a Security is converted in accordance with Article 11, then from and
after the time of conversion on the Conversion Date, such Security shall cease
to be outstanding and interest (including Contingent Interest, if any) shall
cease to accrue on such Security.
19
Section 2.08. Temporary Securities. Pending the preparation of definitive
Securities, the Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the officers executing such Securities may determine, as
conclusively evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the temporary Securities shall be exchangeable for
definitive Securities upon surrender of the temporary Securities at the office
or agency of the Company designated for such purpose pursuant to Section 2.03,
without charge to the Holder. Upon surrender for cancellation of any one or more
temporary Securities the Company shall execute and the Trustee shall
authenticate and deliver in exchange therefor a like Original Principal Amount
of definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
Section 2.09. Cancellation. All Securities surrendered for payment,
purchase by the Company pursuant to Article 12, Article 13 and Section 16.04,
conversion, redemption or registration of transfer or exchange shall, if
surrendered to any person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever, and all
Securities so delivered shall be promptly canceled by the Trustee. The Company
may not issue new Securities to replace Securities it has paid or delivered to
the Trustee for cancellation or that any Holder has converted pursuant to
Article 11. No Securities shall be authenticated in lieu of or in exchange for
any Securities canceled as provided in this Section, except as expressly
permitted by this Indenture. All canceled Securities held by the Trustee shall
be disposed of by the Trustee in accordance with its customary practice.
Section 2.10. Persons Deemed Owners. Prior to due presentment of a Security
for registration of transfer, the Company, the Trustee and any agent of the
Company or the Trustee may treat the Person in whose name such Security is
registered as the owner of such Security for the purpose of receiving payment of
principal of the Security or the payment of any Redemption Price, Purchase
Price, Remarketing Purchase Price or Change in Control Purchase Price in respect
thereof, and interest thereon, for the purpose of conversion and for all other
purposes whatsoever, whether or not such Security be overdue, and neither
20
the Company, the Trustee nor any agent of the Company or the Trustee shall be
affected by notice to the contrary.
None of the Company, the Trustee, any Paying Agent or the Registrar shall
have any responsibility or liability for any aspect of the records relating to
or payments made on account of beneficial ownership interests in a Global
Security or for maintaining, supervising or reviewing any records relating to
such beneficial ownership interests and they shall be protected in acting or
refraining from acting on any such information provided by the Depositary.
Section 2.11. Global Securities.
(a) Notwithstanding any other provisions of this Indenture or the
Securities, transfers of a Global Security, in whole or in part, shall be made
only in accordance with Section 2.05 and this Section 2.11. A Global Security
may not be transferred, in whole or in part, to any Person other than the
Depositary or a nominee or any successor thereof, and no such transfer to any
such other Person may be registered; provided that this clause (a) shall not
prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture unless and until such Security
has been registered in the name of such Person.
(b) Notwithstanding any other provisions of this Indenture or the
Securities, a Global Security shall not be exchanged in whole or in part for a
Security registered in the name of any Person other than the Depositary or one
or more nominees thereof, provided that a Global Security may be exchanged for
Securities registered in the names of any person designated by the Depositary in
the event that the Depositary has notified the Company that it is unwilling or
unable to continue as Depositary for such Global Security or such Depositary has
ceased to be a "clearing agency" registered under the Exchange Act, and a
successor Depositary is not appointed by the Company within 90 days, (ii) the
Company decides to discontinue the use of the system of book-entry transfer
through the Depositary (or any successor Depositary) or an Event of Default has
occurred and is continuing with respect to the Securities. Any Global Security
exchanged pursuant to clause (i) above shall be so exchanged in whole and not in
part, and any Global Security exchanged pursuant to clause (iii) above may be
exchanged in whole or from time to time in part as directed by the Depositary.
Any Security issued in exchange for a Global Security or any portion thereof
shall be a Global Security; provided that any such Security so issued that is
registered in the name of a Person other than the Depositary or a nominee
thereof shall not be a Global Security.
(c) Securities issued in exchange for a Global Security or any portion
thereof shall be issued in definitive, fully registered form, without interest
21
coupons, shall have an aggregate Original Principal Amount equal to that of such
Global Security or portion thereof to be so exchanged, shall be registered in
such names and be in such authorized denominations as the Depositary shall
designate and shall bear the applicable Legends provided for herein. Any Global
Security to be exchanged in whole shall be surrendered by the Depositary to the
Trustee or the Registrar. With regard to any Global Security to be exchanged in
part, either such Global Security shall be so surrendered for exchange or, if
the Trustee is acting as custodian for the Depositary or its nominee with
respect to such Global Security, the Original Principal Amount thereof shall be
reduced, by an amount equal to the portion thereof to be so exchanged, by means
of an appropriate adjustment made on the records of the Trustee. Upon any such
surrender or adjustment, the Trustee shall authenticate and deliver the Security
issuable on such exchange to or upon the order of the Depositary or an
authorized representative thereof.
(d) Subject to the provisions of Section 2.11(f) below, the registered
Holder may grant proxies and otherwise authorize any Person, including Agent
Members (as defined below) and persons that may hold interests through Agent
Members, to take any action which a Holder is entitled to take under this
Indenture or the Securities.
(e) In the event of the occurrence of any of the events specified in
Section 2.11(b) above, the Company will promptly make available to the Trustee a
reasonable supply of certificated Securities in definitive, fully registered
form, without interest coupons.
(f) Neither any members of, or participants in, the Depositary
(collectively, the "Agent Members") nor any other Persons on whose behalf Agent
Members may act shall have any rights under this Indenture with respect to any
Global Security registered in the name of the Depositary or any nominee thereof,
or under any such Global Security, and the Depositary or such nominee, as the
case may be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global Security
for all purposes whatsoever. Notwithstanding the foregoing, nothing herein shall
prevent the Company or the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other authorization
furnished by the Depositary or such nominee, as the case may be, or impair, as
between the Depositary, its Agent Members and any other person on whose behalf
an Agent Member may act, the operation of customary practices of such Persons
governing the exercise of the rights of a holder of any Security.
Section 2.12. Legends.
(a) Subject to the succeeding paragraph, every Security shall be subject to
the restrictions on transfer provided in the Legend including the
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delivery of a certification or an Opinion of Counsel as set forth in the Legend,
if so requested by the Company or the Registrar.
(b) The restrictions imposed by the Legend upon the transferability of any
Security shall cease and terminate when such Security has been sold pursuant to
an effective registration statement under the Securities Act or transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or, if earlier, upon the expiration of the holding period applicable to
sales thereof under Rule 144(k) under the Securities Act (or any successor
provision). Any Security as to which such restrictions on transfer shall have
expired in accordance with their terms or shall have terminated may, upon a
surrender of such Security for exchange to the Registrar in accordance with the
provisions of this Section 2.12 (accompanied, in the event that such
restrictions on transfer have terminated by reason of a transfer in compliance
with Rule 144 or any successor provision, by an opinion of counsel having
substantial experience in practice under the Securities Act and otherwise
reasonably acceptable to the Company, addressed to the Company and the Registrar
and in form acceptable to the Company, to the effect that the transfer of such
Security has been made in compliance with Rule 144 or such successor provision),
be exchanged for a new Security, of like tenor and aggregate Original Principal
Amount, which shall not bear the restrictive Legend. The Company shall inform
the Trustee of the effective date of any registration statement registering the
Securities under the Securities Act. The Trustee and the Registrar shall not be
liable for any action taken or omitted to be taken by it in good faith in
accordance with the aforementioned opinion of counsel or registration statement.
(c) As used in the preceding two paragraphs of this Section 2.12, the term
"transfer" encompasses any sale, pledge, transfer, hypothecation or other
disposition of any Security.
Section 2.13. Payment of Interest; Interest Rights Preserved. Interest,
including any Contingent Interest, on any Security that is payable, and is
punctually paid or duly provided for, on any Interest Payment Date shall be paid
to the Person in whose name that Security (or one or more Predecessor
Securities) is registered at the close of business on the Regular Record Date
for such interest at the office or agency of the Company maintained for such
purpose pursuant to Section 9.02. However, the Company may make such interest
payments by check payable to or upon the written order of the Person entitled
thereto pursuant to Section 18.03, to the address of such Person as it appears
on the Security Register; provided that payment by wire transfer of immediately
available funds will be required with respect to principal of and interest
(including Contingent Interest, if any) on all Global Securities and all
Securities of Holders of more than $25,000,000 aggregate Original Principal
Amount of
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Securities that have requested such method of payment and provided wire transfer
instructions to the Company or the Paying Agent.
Any interest or Contingent Interest on any Security of which is payable but
is not punctually paid or duly provided for on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (a) or (b) below:
(a) The Company may elect to make payment of any Defaulted Interest to the
Persons in whose names the Securities (or Predecessor Securities) 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 notify the Trustee in writing of the amount of Defaulted Interest proposed
to be paid on each Security and the date of the proposed payment, and at the
same time the Company shall deposit with the Trustee an amount of money equal to
the aggregate amount proposed 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 10 days prior to the date of the proposed payment and not less
than 10 days after the receipt by the Trustee of the notice of the proposed
payment. The Trustee shall promptly notify the Company of such Special Record
Date and, in the name and at the expense of the Company, shall cause notice of
the proposed payment of such Defaulted Interest and the Special Record Date
therefor to be mailed, first-class postage prepaid, to each Holder of Securities
at his address as it appears in the Security Register, not less than 10 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
Securities (or Predecessor Securities) are registered at the close of business
on such Special Record Date (notwithstanding the cancellation of such Securities
upon any transfer or exchange subsequent to such Special Record Date and prior
to such payment) and shall no longer be payable pursuant to the following clause
(b).
(b) The Company may make payment of any Defaulted Interest on the
Securities in any other lawful manner not inconsistent with the requirements of
any securities exchange on which such Securities may be listed, and upon such
notice as may be required by such exchange, 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.
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On conversion of a Holder's Securities, such Holder shall not receive any
cash payment of interest. Except as set forth in the next succeeding paragraph,
the Company's delivery to a Holder of the full number of shares of Common Stock
into which a Security is convertible, together with any cash payment for such
Holder's fractional shares, or cash or a combination of cash and Common Stock in
lieu thereof, shall be deemed to satisfy the Company's obligation to pay the
Accreted Principal Amount of the Security and to satisfy the Company's
obligation to pay accrued but unpaid interest (including Contingent Interest, if
any) attributable to the period from the most recent Interest Payment Date
through the Conversion Date.
Notwithstanding the above, if any Securities are converted during the
period from the close of business on any Regular Record Date immediately
preceding any Interest Payment Date to the close of business on the Business Day
immediately preceding such Interest Payment Date, such Securities shall be
accompanied by payment to the Company or its order, in New York Clearing House
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 Original
Principal Amount of Securities 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 Regular Record Date to the close of business on the Business Day
immediately preceding the Interest Payment Date to which such Regular Record
Date relates, (2) the Company has specified a Change in Control Purchase Date
during such period or (3) only to the extent of overdue interest or overdue
Contingent Interest, any overdue interest or overdue Contingent Interest exists
on the Conversion Date with respect to the Securities converted.
Subject to the foregoing provisions of this Section, each Security
delivered under this Indenture upon registration of transfer of or in exchange
for or in lieu of any other Security shall carry the rights to interest accrued
and unpaid, and to accrue, which were carried by such other Security.
Section 2.14. CUSIP Numbers. The Company in issuing the Securities may use
"CUSIP" numbers (if then generally in use), and, if so, the Trustee shall use
"CUSIP" numbers in notices of redemption as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such numbers either as printed on the Securities or as contained
in any notice of a redemption and that reliance may be placed only on the other
identification numbers printed on the Securities, and any such redemption shall
not be affected by any defect in or omission of such numbers. The Company will
promptly notify the Trustee of any change in the CUSIP numbers.
Section 2.15. Calculation of Tax Original Issue Discount. The Company
agrees, and by acceptance of a beneficial interest in a Security each
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Holder and any beneficial owner of a Security shall be deemed to agree, to
treat, for United States federal income tax purposes, the Securities as debt
instruments that are subject to Treasury regulation section 1.1275-4(b) or any
successor provision (the "contingent payment regulations"). For United States
federal income tax purposes, the Company agrees, and by acceptance of a
beneficial interest in a Security each Holder and any beneficial owner of a
Security shall be deemed to agree, to treat the fair market value of the Common
Stock received upon the conversion of a Security as a contingent payment for
purposes of the contingent payment regulations, and to accrue interest with
respect to outstanding Securities as original issue discount for United States
federal income tax purposes (i.e., Tax Original Issue Discount) according to the
"noncontingent bond method," set forth in the contingent payment regulations,
using the comparable yield of 6.25% compounded semi-annually, and the projected
payment schedule determined by the Company pursuant to the contingent payment
regulations (attached hereto as Annex B). Holders or beneficial owners may
obtain the issue price, amount of Tax Original Issue Discount, issue date, yield
to maturity, comparable yield and projected payment schedule, by submitting a
written request for it to the Company at the following address: American Express
Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, Attention: Secretary.
The Company acknowledges and agrees, and by acceptance of a beneficial
interest in a Security each Holder and any beneficial owner of a Security shall
be deemed to acknowledge and agree, that (i) the comparable yield described in
the preceding paragraph means the annual yield the Company would pay, as of the
Issue Date, on a nonconvertible fixed-rate debt instrument with no contingent
payments, but with terms and conditions otherwise similar to those of the
Securities and (ii) the comparable yield and the schedule of projected payments
described above do not constitute a representation by the Company regarding the
actual amounts that will be paid on the Securities or the value of the Common
Stock into which the Securities may be converted.
ARTICLE 3
SATISFACTION AND DISCHARGE
Section 3.01. Discharge of Liability on Securities. When (i) the Company
delivers to the Trustee or any Paying Agent all outstanding Securities (other
than Securities replaced pursuant to Section 2.06 of the Indenture) for
cancellation or (ii) all outstanding Securities have become due and payable,
whether at Stated Maturity, any Redemption Date, any Purchase Date, any
Remarketing Purchase Date, a Change in Control Purchase Date, or upon conversion
or otherwise, and the Company deposits with the Trustee, any Paying Agent or the
Conversion Agent, if applicable, cash or, if expressly permitted by
26
the terms of the Securities, Common Stock sufficient to pay all amounts due and
owing on all outstanding Securities (other than Securities replaced pursuant to
Section 2.06), and if in either case the Company pays all other sums payable
hereunder by the Company, then this Indenture shall, subject to Section 5.06,
cease to be of further effect, except for the indemnification of the Trustee,
which shall survive such satisfaction and discharge. The Trustee shall join in
the execution of a document prepared by the Company acknowledging satisfaction
and discharge of this Indenture on demand of the Company accompanied by an
Officers' Certificate and Opinion of Counsel and at the reasonable cost and
expense of the Company. Notwithstanding the satisfaction and discharge of this
Indenture with respect to the Securities, the obligations of the Company with
respect to the Trustee for the Securities shall survive.
Section 3.02. Repayment of Moneys Held by Trustee. Any moneys deposited
with the Trustee or any Paying Agent for the payment of the principal of or
interest on any Security and not applied but remaining unclaimed by the Holders
for two years after the date upon which the principal of or interest on such
Security shall have become due and payable, shall be repaid to the Company by
the Trustee or such Paying Agent on demand; and the Holder of any of the
Securities entitled to receive such payment shall thereafter look only to the
Company for the payment thereof and all liability of the Trustee or such Paying
Agent with respect to such moneys shall thereupon cease.
ARTICLE 4
REMEDIES
Section 4.01. Events of Default. "Event of Default", wherever used herein
with respect to the Securities, means any one of the following events (whatever
the reason for such Event of Default and whether it shall be voluntary or
involuntary or be effected by operation of law, pursuant to any judgment, decree
or order of any court or any order, rule or regulation of any administrative or
governmental body):
(a) a default in the payment of all or any part of the Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase
Price or Change in Control Purchase Price (in each case including any
accrued Contingent Accretion) with respect to any Security when such
payment becomes due and payable pursuant to the terms hereof; or
(b) default in the payment of any interest (including Contingent
Interest and Liquidated Damages, if any) upon any Security when it becomes
due and payable, and continuance of such default for a period of 30 days;
or
27
(c) default in the performance, or breach, of any covenant or warranty
of the Company in this Indenture (other than a covenant or warranty a
default in whose performance or whose breach is elsewhere in this Section
specifically dealt with), and continuance of such default or breach for a
period of 90 days after there as been given by registered or certified
mail, to the Company by the Trustee, or to the Company and the Trustee by
the Holders of at least 25% in aggregate Original Principal Amount of the
Securities then outstanding a written notice specifying such default or
breach and requiring it to be remedied and stating that such notice is a
"Notice of Default" hereunder, or
(d) an event of default under any indebtedness of the Company for
borrowed money which (x) results in the acceleration of such indebtedness
prior to its express maturity, (y) the principal amount of any such
indebtedness, together with the principal amount of any other such
indebtedness the maturity of which has been so accelerated, aggregates $50
million or more and (z) such acceleration has not been rescinded or
annulled within 10 days after there has been given, to the Company by the
Trustee, or to the Company and the Trustee by Holders of at least 25% in
aggregate Original Principal Amount of the Securities then outstanding, a
written notice specifying such default and breach and requiring it to be
remedied and stating that such notice is a "Notice of Default" hereunder,
or
(e) the entry by a court having jurisdiction in the premises of (i) a
decree or order for relief in respect of the Company in an involuntary case
or proceeding under any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or (ii) a decree or order adjudging the
Company a bankrupt or insolvent, or approving as properly filed a petition
seeking reorganization, arrangement, adjustment or composition of or in
respect of the Company under any applicable federal or state law, or
appointing a custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or of any substantial
part of its property, or ordering the winding up or liquidation of its
affairs, 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 60
consecutive days; or
(f) the commencement by the Company 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 it to the entry
of a decree or order for relief in respect of the Company in an involuntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or to the
28
commencement of any bankruptcy or insolvency case or proceeding against it,
or the filing by it of a petition or answer or consent seeking
reorganization or relief under any applicable federal or State law, or the
consent by it to the filing of such petition or to the appointment of or
taking possession by a custodian, receiver, liquidator, assignee, trustee,
sequestrator or similar official of the Company or of any substantial part
of its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate action by
the Company in furtherance of any such action.
Section 4.02. Acceleration of Maturity; Rescission and Annulment. (a) If an
Event of Default occurs and is continuing, the Trustee by notice to the Company
or the Holders of at least 25% in aggregate Original Principal Amount of the
Securities at the time outstanding by written notice to the Company and the
Trustee, may declare the Accreted Principal Amount of the Securities through the
date of such declaration, any accrued Contingent Accretion, and any accrued and
unpaid interest (including Contingent Interest and Liquidated Damages, if any)
through the date of such declaration, on all the Securities to be immediately
due and payable. Upon such a declaration, such Accreted Principal Amount, such
accrued Contingent Accretion, and such accrued and unpaid interest (including
Contingent Interest and Liquidated Damages, if any) shall be due and payable
immediately.
At any time after such a declaration of acceleration with respect to
Securities has been made and before a judgment or decree for payment of the
money due has been obtained by the Trustee as hereinafter in this Article
provided, the Holders of a majority in Original Principal Amount of the
Securities then outstanding, by written notice to the Company and the Trustee,
may waive all defaults with respect to the Securities and rescind and annul such
declaration and its consequences if
(i) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest (including Contingent Interest and
Liquidated Damages, if any) on all Securities,
(B) the Accreted Principal Amount of the Securities and any
accrued Contingent Accretion that have become due otherwise than by
such declaration of acceleration and interest thereon at the overdue
rate or rates prescribed therefor in such Securities or, if no such
rate or rates are so prescribed, at the rate of cash interest borne by
the Securities during the period of such default, or if such default
is after December 1, 2006 and the
29
Securities are not then bearing cash interest, the Applicable Yield of
the Securities during the period of such default,
(C) to the extent that payment of such interest is enforceable
under applicable law, interest upon overdue interest or overdue
Contingent Interest to the date of such payment or deposit at the
overdue rate or rates prescribed therefor in such Securities or, if no
such rate or rates are so prescribed, at the rate of cash interest
borne by the Securities during the period of such default, or if such
default is after December 1, 2006 and the Securities are not then
bearing cash interest, the Applicable Yield of the Securities during
the period of such default, and
(D) all sums paid or advanced by the Trustee hereunder and the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(ii) all Events of Default with respect to the Securities, other than
any non-payment of the Accreted Principal Amount and any accrued Contingent
Accretion of the Securities that have become due solely by such declaration
of acceleration, have been cured or waived as provided in Section 4.13.
No such waiver or rescission and annulment shall affect any subsequent
default or impair any right consequent thereon.
Section 4.03. Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that (i) in case default shall be made in the
payment of any installment of interest (including Contingent Interest and
Liquidated Damages, if any) on any Security, as and when the same shall become
due and payable, and such default shall have continued for a period of 30 days,
or (ii) in case default shall be made in the payment of the Accreted Principal
Amount of any Security or any accrued Contingent Accretion when the same becomes
due in accordance with the terms thereof then, upon demand of the Trustee, the
Company will pay to the Trustee, for the benefit of the Holders of such
Securities, the whole amount that then shall have become due and payable on all
such Securities for principal (including accrued Contingent Accretion, if any)
or interest (including Contingent Interest and Liquidated Damages, if any), or
both, as the case may be, with interest upon the overdue principal and (to the
extent that payment of such interest is enforceable under applicable law) upon
overdue installments of interest at the rate, or overdue rate, if any, borne by
the Securities during the period of such default; and, in addition
30
thereto, such further amount as shall be sufficient to cover reasonable costs of
the Trustee, its agents, attorneys and counsel, and all other expenses and
liabilities incurred, and all advances made, by the Trustee except as a result
of its own negligence or willful misconduct.
If an Event of Default with respect to Securities occurs and is continuing,
the Trustee may in its discretion proceed to protect and enforce its rights and
the rights of the Holders of the Securities by such appropriate judicial
proceedings as the Trustee shall deem necessary to protect and enforce any such
rights, whether for the specific enforcement of any covenant or agreement in
this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
Section 4.04. Trustee May File Proofs of Claim. In case of the pendency of
any receivership, insolvency, liquidation, bankruptcy, reorganization,
arrangement, adjustment, composition or other judicial proceeding relative to
the Company or any other obligor upon the Securities or the property of the
Company or of such other obligor or their creditors, the Trustee (irrespective
of whether the Accreted Principal Amount, Redemption Price, Purchase Price,
Remarketing Purchase Price, Change in Control Purchase Price (including accrued
Contingent Accretion, if any) or interest (including Contingent Interest and
Liquidated Damages, if any) in respect of the Securities 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 on the Company for the payment of
any such amount) shall be entitled and empowered, by intervention in such
proceeding or otherwise,
(i) to file and prove a claim for the entire Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price,
Change in Control Purchase Price (including accrued Contingent Accretion,
if any) and interest (including Contingent Interest and Liquidated Damages,
if any) owing and unpaid in respect of the Securities and to file such
other papers or documents as may be necessary or advisable in order to have
the claims of the Trustee (including any claim for the reasonable costs,
expenses, disbursements and advances of the Trustee, its agents and
counsel) and of the Holders allowed in such judicial proceeding; and
(ii) to collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized by
each Holder 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 Holders, to
pay to
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the Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 5.06.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder any plan of
reorganization, arrangement, adjustment or composition affecting the Securities
or the rights of any Holder thereof or to authorize the Trustee to vote in
respect of the claim of any Holder in any such proceeding.
Section 4.05. Trustee May Enforce Claims without Possession of Securities.
All rights of action and claims under this Indenture or the Securities may be
prosecuted and enforced by the Trustee without the possession of any of the
Securities or the production thereof in any proceeding relating thereto, and any
such 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 costs, expenses, disbursements and advances of
the Trustee, its agents and counsel, be for the ratable benefit of the Holders
of the Securities in respect of which such judgment has been recovered.
Section 4.06. Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order:
FIRST: To the payment of all amounts due the Trustee under Section
5.06;
SECOND: To the payment of the amounts then due and unpaid for Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase
Price, Change in Control Purchase Price (in each case, including accrued
Contingent Accretion, if any) and interest (including Contingent Interest
and Liquidated Damages, if any) on the Securities in respect of which or
for the benefit of which such money has been collected, ratably, without
preference or priority of any kind, according to the amounts due and
payable on such Securities; and
THIRD: To the payment of the remainder, if any, to the Company or as a
court of competent jurisdiction may direct.
Section 4.07. Limitation on Suits. No Holder of any Security shall have any
right to institute any proceeding, judicial or otherwise, with respect to this
Indenture, or for the appointment of a receiver or trustee, or for any other
remedy hereunder, unless
32
(i) such Holder shall have previously given written notice to the
Trustee of a continuing Event of Default with respect to the Securities;
(ii) the Holders of not less than 25% in aggregate Original Principal
Amount of the outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default in its
own name as Trustee hereunder;
(iii) such Holder or Holders shall have offered to the Trustee
reasonable indemnity satisfactory to it as it may require against the
losses, liabilities and expenses to be incurred in compliance with such
request;
(iv) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity shall have failed to institute any such proceeding;
and
(v) no direction inconsistent with such written request shall have
been given to the Trustee pursuant to Section 4.12 during such 60-day
period by the Holders of a majority in Original Principal Amount of the
outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or to seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable and common benefit of
all of such Holders.
Section 4.08. Unconditional Right of Holders To Receive Principal and
Interest. Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the Accreted Principal Amount, Redemption Price, Purchase
Price, Remarketing Purchase Price, Change in Control Purchase Price (in each
case, including accrued Contingent Accretion, if any) and interest (including
Contingent Interest and Liquidated Damages, if any) on such Security after the
respective due dates expressed in such Security, to convert the Securities in
accordance with Article 11, and to institute suit for the enforcement of any
such payment on or after such respective dates, and such rights shall not be
impaired without the consent of such Holder.
Section 4.09. Restoration of Right and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
33
Indenture and such proceeding has been discontinued or abandoned for any reason,
or has been determined adversely to the Trustee or to such Holder, then and in
every such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and the Holders shall continue as though no such proceeding had been
instituted.
Section 4.10. Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities in the last paragraph of Section 2.06, no right or remedy
herein conferred upon or reserved to the Trustee or to the Holders is intended
to be exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every other
right and remedy given hereunder or now or hereafter existing at law or in
equity or otherwise. The assertion or employment of any right or remedy
hereunder, or otherwise, shall not prevent the concurrent assertion or
employment of any other appropriate right or remedy.
Section 4.11. Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Securities to exercise any right or remedy
accruing upon any Event of Default shall impair any such right or remedy or
constitute a waiver of any such Event of Default or an acquiescence therein.
Every right and remedy given by this Article or by law to the Trustee or to the
Holders may be exercised from time to time, and as often as may be deemed
expedient, by the Trustee or by the Holders, as the case may be.
Section 4.12. Control by Holders. The Holders of a majority in aggregate
Original Principal Amount of the outstanding Securities 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, with respect to the Securities; provided, however, that
(i) such direction shall not be in conflict with any rule of law or
with this Indenture,
(ii) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction,
(iii) such direction is not unduly prejudicial to the rights of
Holders not taking part in such direction, and
(iv) such direction would not involve the Trustee in personal
liability, as the Trustee, upon being advised by counsel, shall reasonably
determine.
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Section 4.13. Waiver of Past Defaults. The Holders of at least a majority
in aggregate Original Principal Amount of the outstanding Securities may on
behalf of the Holders of all the Securities by notice to the Trustee waive any
past default hereunder with respect to such Securities and its consequences,
except a Default:
(i) that is an Event of Default described in Section 4.01(a) or (b);
or
(ii) in respect of a covenant or provision hereof which under Article
8 cannot be modified or amended without the consent of the Holder of each
outstanding Security; or
(iii) that constitutes a failure to convert any Security in accordance
with the terms of Article 11.
Upon any such waiver, such Default shall cease to exist, and any Event of
Default arising therefrom shall be deemed to have been cured, for every purpose
of this Indenture, and the Company, the Trustee and Holders shall be restored to
their former positions and rights hereunder, respectively; but no such waiver
shall extend to any subsequent or other Default or impair any right consequent
thereon.
Section 4.14. Undertaking for Costs. All parties to this Indenture agree,
and each Holder of any Security by his 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, suffered 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; but the provisions of this Section shall
not apply to any suit instituted by the Company, to any suit instituted by the
Trustee, to any suit instituted by any Holder, or group of Holders, holding in
the aggregate more than 10% in Original Principal Amount of the outstanding
Securities, or to any suit instituted by any Holder pursuant to Section 4.08.
This Section 4.14 shall be in lieu of Section 315(e) of the TIA and such Section
315(e) is hereby expressly excluded from this Indenture, as permitted by the
TIA.
Section 4.15. Waiver of Stay or Extension Laws. The Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist upon,
or plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law wherever enacted, now or at any time hereafter in
force, which would prohibit or forgive the Company from paying all
35
or any portion of the Accreted Principal Amount, Redemption Price, Purchase
Price, Remarketing Purchase Price, Change in Control Purchase Price (in each
case, including accrued Contingent Accretion, if any) or interest (including
Contingent Interest and Liquidated Damages, if any) in respect of Securities, as
contemplated herein, or which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not 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.
ARTICLE 5
THE TRUSTEE
Section 5.01. Duties of Trustee. If an Event of Default has occurred and is
continuing, the Trustee shall exercise the rights and powers vested in it by
this Indenture and use the same degree of care and skill in its exercise as a
prudent person would exercise or use under the circumstances in the conduct of
such person's own affairs.
(b) Except during the continuance of an Event of Default:
(i) the Trustee need perform only those duties that are specifically
set forth in this Indenture and no others and no implied covenants or
obligations shall be read into this Indenture against the Trustee; and
(ii) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness of
the opinions expressed therein, upon certificates or opinions furnished to
the Trustee and conforming to the requirements of this Indenture. However,
in case of any such certificates or opinions which by provision hereof are
specifically required to be furnished to the Trustee, the Trustee shall
examine the certificates and opinions to determine whether or not they
conform to the requirements of this Indenture (but need not confirm or
investigate the accuracy of mathematical calculations or other facts stated
therein).
This Section 5.01(b) shall be in lieu of Section 315(a) of the TIA and such
Section 315(a) is hereby expressly excluded from this Indenture, as permitted by
the TIA.
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(c) The Trustee shall not be relieved from liability for its own negligent
action, its own negligent failure to act or its own willful misconduct, except
that:
(i) this paragraph (c) does not limit the effect of paragraph (b) of
this Section 5.01;
(ii) the Trustee shall not be liable for any error of judgment made in
good faith unless it is proved that the Trustee was negligent in
ascertaining the pertinent facts; and
(iii) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 4.02 and Section 4.12.
Subparagraphs (c)(i), (ii) and (iii) shall be in lieu of Sections
315(d)(1), 315(d)(2) and 315(d)(3) of the TIA and such Sections 315(d)(1),
315(d)(2) and 315(d)(3) are hereby expressly excluded from this Indenture, as
permitted by the TIA.
(d) Every provision of this Indenture that in any way relates to the
Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 5.01.
(e) The Trustee may refuse to perform any duty or exercise any right or
power or extend or risk its own funds or otherwise incur any financial liability
unless it receives indemnity satisfactory to it against any loss, liability or
expense.
(f) Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee (acting in
any capacity hereunder) shall be under no liability for interest on any money
received by it hereunder unless otherwise agreed in writing with the Company.
Section 5.02. Rights of Trustee. Subject to its duties and responsibilities
under the TIA,
(a) The Trustee may conclusively rely on any document believed by it to be
genuine and to have been signed or presented by the proper person. The Trustee
need not investigate any fact or matter stated in the document.
(b) Before the Trustee acts or refrains from acting, it may require a
Company Request or Company Order, an Officers' Certificate or an Opinion of
Counsel. The Trustee shall not be liable for any action it takes or omits to
take in good faith in reliance on such Officers' Certificate or Opinion of
Counsel.
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(c) The Trustee may act through agents and attorneys and shall not be
responsible for the misconduct or negligence of any agent or attorney appointed
with due care.
(d) Subject to the provisions of Section 5.01(c), the Trustee shall not be
liable for any action it takes or omits to take in good faith which it believes
to be authorized or within its rights or powers.
(e) The Trustee may consult with counsel selected by it and any advice or
Opinion of Counsel shall be full and complete authorization and protection in
respect of any action taken or suffered or omitted by it hereunder in good faith
and in accordance with such advice or Opinion of Counsel.
(f) The Trustee shall be under no obligation to exercise any of the rights
or powers vested in it by this Indenture at the request, order or direction of
any of the Holders, pursuant to the provisions of this Indenture, unless such
Holders shall have offered to the Trustee security or indemnity satisfactory to
it against the costs, expenses and liabilities which may be incurred therein or
thereby.
(g) 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 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
at the sole cost of the Company and shall incur no liability or additional
liability of any kind by reason of such inquiry or investigation.
(h) The Trustee shall not be liable for any action taken, suffered, or
omitted to be taken by it in good faith and reasonably believed by it to be
authorized or within the discretion or rights or powers conferred upon it by
this Indenture.
(i) The Trustee shall not be deemed to have notice of any Default or Event
of Default unless a Responsible Officer of the Trustee has actual knowledge
thereof or unless Holders of not less than 25% in aggregate Original Principal
Amount of the Securities then outstanding shall have provided written notice of
any event which is in fact such a default to the Trustee at the Corporate Trust
Office of the Trustee, and such notice references the Securities and this
Indenture.
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(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.
(k) The Trustee may request that the Company deliver an Officers'
Certificate setting forth the names of individuals and/or titles of officers
authorized at such time to take specified actions pursuant to this Indenture,
which Officers' Certificate may be signed by any person authorized to sign an
Officers' Certificate, including any person specified as so authorized in any
such certificate previously delivered and not superseded.
Section 5.03. Individual Rights of Trustee. The Trustee in its individual
or any other capacity may become the owner or pledgee of Securities and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee. Any Paying Agent, Registrar, Conversion Agent or
co-registrar may do the same with like rights. However, the Trustee must comply
with Sections 5.09 and 5.10.
Section 5.04. Trustee's Disclaimer. The Trustee makes no representation as
to the validity or adequacy of this Indenture or the Securities, it shall not be
accountable for the Company's use or application of the proceeds from the
Securities, it shall not be responsible for any statement in the registration
statement for the Securities under the Securities Act or in the Indenture or the
Securities (other than its certificate of authentication), or the determination
as to which beneficial owners are entitled to receive any notices hereunder.
Section 5.05. Notice of Defaults. If a Default occurs and if it is known to
the Trustee, the Trustee shall give to each Holder notice of the Default within
90 days after it occurs unless such Default shall have been cured or waived
before the giving of such notice. Except in the case of a Default described in
Section 4.01(b) or (a), the Trustee may withhold the notice if and so long as a
committee of its officers in good faith determines that withholding the notice
is in the interests of Holders. The second sentence of this Section 5.05 shall
be in lieu of the proviso to Section 315(b) of the TIA and such proviso is
hereby expressly excluded from this Indenture, as permitted by the TIA.
Section 5.06. Compensation and Indemnity. The Company agrees:
(a) to pay to the Trustee from time to time such reasonable compensation as
the Company and the Trustee shall from time to time agree in writing for all
services rendered by it hereunder (which compensation shall not
39
be limited (to the extent permitted by law) by any provision of law in regard to
the compensation of a trustee of an express trust);
(b) 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, advances and disbursements of its agents and counsel), except any such
expense, disbursement or advance as shall be determined to have been caused by
its own negligence or bad faith; and
(c) to fully indemnify the Trustee and its agents for, and to hold them
harmless against, any loss, damage, claim, liability, cost or expense (including
reasonable attorneys' fees and expenses and taxes (other than taxes based upon,
measured by or determined by the income of the Trustee)) incurred without
negligence or bad faith on its part, arising out of or in connection with the
acceptance or administration of this trust, including the costs and expenses of
defending itself against any claim (whether asserted by the Company, any Holder
or any other Person) or liability in connection with the exercise or performance
of any of its powers or duties hereunder.
To secure the Company's payment obligations in this Section 5.06, the
Trustee shall have a lien prior to the Securities on all money or property held
or collected by the Trustee, except that held in trust to pay the Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase Price,
Change in Control Purchase Price or interest, if any, as the case may be, on
particular Securities.
The Company's payment obligations pursuant to this Section 5.06 shall
survive the discharge of this Indenture and resignation or removal of the
Trustee. When the Trustee incurs expenses after the occurrence of a Default
specified in Section 4.01(e) or Section 4.01(f), the expenses, including the
reasonable fees and expenses of its counsel, are intended to constitute expenses
of administration under any bankruptcy or insolvency law.
Section 5.07. Replacement of Trustee. The Trustee may resign by so
notifying the Company; provided, however, no such resignation shall be effective
until a successor Trustee has accepted its appointment pursuant to this Section
5.07. The Holders of a majority in aggregate Original Principal Amount of the
Securities at the time outstanding may remove the Trustee by so notifying the
Trustee and the Company. The Company shall remove the Trustee if:
(a) the Trustee fails to comply with Section 5.09;
(b) the Trustee is adjudged bankrupt or insolvent;
40
(c) a receiver or public officer takes charge of the Trustee or its
property; or
(d) the Trustee otherwise becomes incapable of acting.
In addition, the Company may remove the Trustee if the Company shall
determine by a Board Resolution that the services provided by the Trustee
hereunder may be obtained at a substantially lower cost to the Company.
If the Trustee resigns or is removed or if a vacancy exists in the office
of Trustee for any reason, the Company shall promptly appoint a successor
Trustee.
A successor Trustee shall deliver a written acceptance of its appointment
to the retiring Trustee and to the Company satisfactory in form and substance to
the retiring Trustee and the Company. Thereupon the resignation or removal of
the retiring Trustee shall become effective, and the successor Trustee shall
have all the rights, powers and duties of the Trustee under this Indenture. The
successor Trustee shall mail a notice of its succession to Holders. The retiring
Trustee shall upon payment of its charges hereunder promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 5.06.
If a successor Trustee does not take office within 30 days after the
retiring Trustee resigns or is removed, the retiring Trustee (at the expense of
the Company), the Company or the Holders of a majority in aggregate Original
Principal Amount of the Securities at the time outstanding may petition at the
expense of the Company any court of competent jurisdiction for the appointment
of a successor Trustee.
If the Trustee fails to comply with Section 5.09 any Holder may petition
any court of competent jurisdiction for the removal of the Trustee and the
appointment of a successor Trustee.
Section 5.08. Successor Trustee by Merger. If the Trustee consolidates
with, merges or converts into, or transfers all or substantially all its
corporate trust business or assets to, another corporation, the resulting,
surviving or transferee corporation without any further act shall be the
successor Trustee; provided that such corporation shall otherwise be qualified
and eligible under this Article.
Section 5.09. Eligibility; Disqualification. The Trustee shall at all times
satisfy the requirements of TIA Sections 310(a)(1) and 310(b). The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of condition. Nothing herein contained shall
41
prevent the Trustee from filing with the Commission the application referred to
in the penultimate paragraph of TIA Section 310(b).
Section 5.10. Preferential Collection of Claims Against Company. The
Trustee shall comply with TIA Section 311(a), excluding any creditor
relationship listed in TIA Section 311(b). A Trustee who has resigned or been
removed shall be subject to TIA Section 311(a) to the extent indicated therein.
Section 5.11. Authenticating Agent.
The Trustee may upon Company request appoint one or more authenticating
agents (including, without limitation, the Company or any Affiliate thereof)
which shall be authorized on behalf of the Trustee in authenticating Securities
in connection with the issue, delivery, registration of transfer, exchange,
partial redemption or repayment thereof (an "Authenticating Agent"). Wherever
reference is made in this Indenture to the authentication of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall be
deemed to include authentication on behalf of the Trustee by an Authenticating
Agent and a certificate of authentication executed on behalf of the Trustee by
an Authenticating Agent. Each Authenticating Agent must be acceptable to the
Company and must be a corporation organized and doing business under the laws of
the United States or of any State, having a combined capital and surplus of at
least $20,000,000, authorized under such laws to do a trust business and subject
to supervision or examination by Federal or State authorities or the equivalent
foreign authority in the case of an Authenticating Agent who is not organized
and doing business under the laws of the United States or of any State thereof
or the District of Columbia.
Any corporation succeeding to the corporate agency business of an
authenticating agent shall continue to be an Authenticating Agent without the
execution or filing of any paper or any further act on the part of the Trustee
or such Authenticating Agent.
An 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 an
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee promptly may appoint a successor
Authenticating Agent. Any successor Authenticating Agent upon acceptance of its
appointment hereunder shall become vested with all rights, powers and duties of
its predecessor hereunder, with like effect as if originally named as an
Authenticating Agent herein. No successor Authenticating Agent shall be
appointed unless eligible under the provisions of this Section.
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The provisions of Sections 1.04, 1.08, 2.06, 2.09, 5.02, 5.03, 5.04, and
5.06 shall be applicable to any Authenticating Agent.
Pursuant to each appointment made under this Section, the Securities may
have endorsed thereon, in lieu of the Trustee's certificate of authentication,
an alternate certificate of authentication in substantially the following form:
This is one of the Securities described in the within-mentioned Indenture.
--------------------------------------------
By:
----------------------------------------
As Authenticating Agent for the Trustee
----------------------------------------
By: Authorized Signatory
Dated
--------------------------------------
ARTICLE 6
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 6.01. Company to Furnish Trustee Information as to Names and
Addresses of Holders. The Company covenants and agrees that it will furnish or
cause to be furnished to the Trustee:
(a) Semi-annually, not later than June 1 and December 1 in each year,
commencing June 1, 2004, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of a date not more than 15
days prior to the time such list is furnished and
(b) at such other times as the Trustee may request in writing, within 30
days after the receipt by the Company of any such request, a list of similar
form and content as of a date not more than 15 days prior to the time such list
is furnished;
provided, however, that so long as the Trustee is the Registrar, no such list
shall be required to be furnished.
43
Section 6.02. Preservation of Information; Communications to Holders. (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 Securities (1)
contained in the most recent list furnished to it as provided in Section 6.01
and (2) received by it in the capacity of Paying Agent or Registrar (if so
acting) hereunder.
The Trustee may destroy any list furnished to it as provided in Section
6.01 upon receipt of a new list so furnished.
(b) In case three or more Holders of Securities (hereinafter called
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Security of such series
for a period of at least six months preceding the date of such application, and
such application states that the applicants desire to communicate with other
Holders of Securities with respect to their rights under this Indenture or under
the Securities, and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five business days after the receipt of such application, at its
election, either
(i) afford such applicants access to the information preserved at the
time by the Trustee in accordance with the provisions of subsection (a) of
this Section 6.02, or
(ii) inform such applicants as to the approximate number of Holders of
Securities whose names and addresses appear in the information preserved at
the time by the Trustee in accordance with the provisions of subsection (a)
of this Section 6.02, and as to the approximate cost of mailing to such
Holders the form of proxy or other communication, if any, specified in such
application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Securities whose name and address appear in the
information preserved at the time by the Trustee in accordance with the
provisions of subsection (a) of this Section 6.02, a copy of the form of proxy
or other communication which is specified in such request, with reasonable
promptness after a tender to the Trustee of the material to be mailed and of
payment, or provision for the payment, of the reasonable expenses of mailing,
unless within five days after such tender the Trustee shall mail to such
applicants and file with the Commission, together with a copy of the material to
be mailed, a written statement to the effect that, in the opinion of the
Trustee, such mailing would be contrary to the best interests of the Holders of
Securities, or would be in violation of applicable law. Such written statement
shall specify the basis of such
44
opinion. If the Commission, after opportunity for a hearing upon the objections
specified in the written statement so filed, shall enter an order refusing to
sustain any of such objections or if, after the entry of an order sustaining one
or more of such objections, the Commission shall find, after notice and
opportunity for hearing, that all the objections so sustained have been met and
shall enter an order so declaring, the Trustee shall mail copies of such
material to all such Holders with reasonable promptness after the entry of such
order and the renewal of such tender; otherwise the Trustee shall be relieved of
any obligation or duty to such applicants respecting their application.
(c) Each and every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
or any Registrar or any Paying Agent shall be held accountable by reason of the
disclosure of any such information as to the names and addresses of the Holders
in accordance with the provisions of subsection (b) of this Section 6.02,
regardless of the source from which such information was derived, and that the
Trustee shall not be held accountable by reason of mailing any material pursuant
to a request made under said subsection (b).
Section 6.03. Reports by Trustee. Within 60 days after each December 1
beginning with December 1, 2004, the Trustee shall mail to each Holder a brief
report dated as of such December 1 that complies with TIA Section 313(a), if
required by such Section 313(a). The Trustee also shall comply with TIA Section
313(b).
A copy of each report at the time of its mailing to Holders shall be filed
with the Commission and each securities exchange, if any, on which the
Securities are listed. The Company agrees to promptly notify the Trustee
whenever the Securities become listed on any securities exchange and of any
delisting thereof.
Section 6.04. Reports by Company. The Company shall file with the Trustee,
within 15 days after it files such annual and quarterly reports, information,
documents and other reports with the Commission, copies of its annual report and
of the information, documents and other reports (or copies of such portions of
any of the foregoing as the Commission may by rules and regulations prescribe)
which the Company is required to file with the Commission pursuant to Section 13
or 15(d) of the Exchange Act. In the event the Company is at any time no longer
subject to the reporting requirements of Section 13 or 15(d) of the Exchange
Act, it shall continue to provide the Trustee with reports containing
substantially the same information as would have been required to be filed with
the Commission had the Company continued to have been subject to such reporting
requirements. In such event, such reports shall be provided at the times the
Company would have been required to provide reports
45
had it continued to have been subject to such reporting requirements. The
Company also shall comply with the other provisions of TIA Section 314(a).
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, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
If at any time while any of the Securities are "restricted securities"
within the meaning of Rule 144, the Company is no longer subject to the
reporting requirements of Section 13 or 15(d) of the Exchange Act, the Company
will prepare and will furnish to any Holder, any beneficial owner of Securities
and any prospective purchaser of Securities designated by a Holder or a
beneficial owner of Securities, promptly upon request, the information required
pursuant to Rule 144A(d)(4) (or any successor thereto) under the Securities Act
in connection with the offer, sale or transfer of Securities.
ARTICLE 7
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
Section 7.01. Consolidations and Mergers of Company Permitted Subject to
Certain Conditions. The Company shall not consolidate with or merge into any
other corporation or convey or transfer its properties and assets substantially
as an entirety to any Person, unless:
(a) the corporation formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or transfer
the properties and assets of the Company substantially as an entirety shall
be a corporation organized and existing under the laws of the United States
of America or any State thereof or the District of Columbia 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 Accreted Principal Amount, Redemption Price,
Purchase Price, Remarketing Purchase Price or Change in Control Purchase
Price with respect to any Security and any interest (including Contingent
Interest and Liquidated Damages, if any) on all the Securities and the
performance of every covenant of this Indenture on the part of the Company
to be performed or observed;
(b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time, or
46
both, would become an Event of Default, shall have happened and be
continuing; and
(c) the Company has delivered to the Trustee an Officers' Certificate
and an Opinion of Counsel each stating that such consolidation, merger,
conveyance or transfer and such supplemental indenture comply with this
Article and that all conditions precedent herein provided for relating to
such transaction have been met.
The provisions of this Section 7.01 shall not be applicable to a merger or
consolidation in which the Company is the surviving corporation.
Section 7.02. Rights and Duties of Successor Entity. Upon any consolidation
with or merger into any other corporation, or any conveyance or transfer of the
properties and assets of the Company substantially as an entirety in accordance
with Section 7.01, the successor entity formed by such consolidation or into
which the Company is merged or to which such conveyance or transfer 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
had been named as the Company herein, and thereafter the Company (which term for
this purpose shall mean the Person named as the "Company" in the first paragraph
of this instrument or any successor entity which shall theretofore have become
such in the manner presented in this Article) shall be relieved of all
obligations and covenants under this Indenture and the Securities.
ARTICLE 8
SUPPLEMENTAL INDENTURES
Section 8.01. Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by a Board Resolution,
and the Trustee may from time to time and at any time enter into an indenture or
indentures supplemental hereto (which shall conform to the provisions of the TIA
as in force at the date of the execution thereof) for one or more of the
following purposes:
(i) to evidence the succession of another corporation or entity to the
Company, or successive successions, and the assumption by the successor
corporation or entity of the covenants, agreements and obligations of the
Company under this Indenture;
(ii) to add to the covenants of the Company or to add additional
rights for the benefit of the Holders of Securities or to surrender any
right or power herein conferred upon the Company;
47
(iii) to cure any ambiguity, omission, defect or inconsistency herein,
to correct or supplement any provision herein or in any supplemental
indenture which may be defective or inconsistent with any other provision
herein or in any supplemental indenture, or to make such other provisions
with respect to matters or questions arising under this Indenture, provided
such action shall not adversely affect the interests of the Holders of
Securities in any material respect;
(iv) to evidence and provide for the acceptance of appointment
hereunder by a successor Trustee with respect to the Securities and to add
to or change any of the provisions of this Indenture as shall be necessary
to provide for or facilitate the administration of the trust hereunder;
(v) to add any additional Events of Default for the benefit of the
Holders of Securities;
(vi) to secure the Securities; and
(vii) to comply with any requirement of the Commission in connection
with the qualification of the Indenture under the TIA.
Any amendment described in clause (iii) above made solely to conform this
Indenture to the final offering memorandum provided to investors in connection
with the initial offering of the Securities by the Company will not be deemed to
materially and adversely affect the interests of Holders.
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 which may be therein contained and to accept the conveyance,
transfer, assignment, mortgage or pledge of any property thereunder.
Any supplemental indenture authorized by the provisions of this Section
8.01 may be executed by the Company and the Trustee without the consent of the
Holders of any of the outstanding Securities, notwithstanding any of the
provisions of Section 8.02.
Section 8.02. Supplemental Indentures with Consent of Holders. With the
consent of the Holders of at least a majority in Original Principal Amount of
the outstanding Securities, by Act of said Holders delivered to the Company and
the Trustee, the Company, when authorized by a Board Resolution, and the Trustee
may from time to time and at any time enter into an indenture or indentures
supplemental hereto (which shall conform to the provisions of the TIA as in
force at the date of execution thereof) for the purpose of adding any provisions
to or changing in any manner or eliminating any of the provisions of
48
this Indenture or of any supplemental indenture or of modifying in any manner
the rights of the Holders of Securities; provided, however, that no such
supplemental indenture shall, without the consent of the Holder of each
outstanding Security affected thereby:
(i) change the maturity of any payment of Accreted Principal Amount
(including any accrued Contingent Accretion) of, or any installment of
interest (including the payment of Contingent Interest or Liquidated
Damages, if any) on the Securities, or
(ii) reduce the Original Principal Amount or Accreted Principal Amount
thereof, or
(iii) alter the manner or rate of accretion of Accreted Principal
Amount (including any accrued Contingent Accretion) or the manner or rate
of accrual of interest (including Contingent Interest and Liquidated
Damages) or Contingent Accretion, or
(iv) change any place of payment where, or the coin or currency in
which, the Securities or any premium or interest (including the payment of
Contingent Interest or Liquidated Damages, if any) thereon is payable, or
(v) impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity (or, in the case of redemption or
purchase, on or after the Redemption Date or the Purchase Date, Change in
Control Purchase Date or Remarketing Purchase Date, as the case may be), or
(vi) adversely affect the conversion rights of the Holders under
Article 11 of this Indenture or the right of Holders to require the Company
to purchase the Securities under Article 12, Article 13 and Section 16.04
of this Indenture or the right of Holders to have their Securities
remarketed as set forth in Article 16, or the obligations of the Company
pursuant to Section 9.08, or
(vii) reduce the quorum or voting requirements under this Indenture,
or
(viii) reduce the percentage in aggregate Original Principal Amount of
the outstanding Securities, the consent of whose Holders is required for
any such modification, or the consent of whose Holders is required for any
waiver of compliance with the provisions of this Indenture or for any
waiver of an Event of Default; or
49
(ix) modify this Section 8.02, except to increase any percentages
required for approval or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the Holder of
each outstanding Security affected thereby.
Upon the request of the Company accompanied by a copy of a Board Resolution
authorizing the execution of any such supplemental indenture, and upon the
filing with the Trustee of evidence of the consent of Holders as aforesaid, the
Trustee shall join with the Company in the execution of such supplemental
indenture. It shall not be necessary for any Act of Holders under this Section
to approve the particular form of any proposed supplemental indenture, but it
shall be sufficient if such Act shall approve the substance thereof.
Section 8.03. Execution of Supplemental Indentures. In executing, or
accepting the additional trusts created by, any supplemental indenture permitted
by this Article or the modifications thereby of the trusts created by this
Indenture, the Trustee shall be provided with, and (subject to Section 5.01)
shall be fully protected in relying upon, an Opinion of Counsel stating that the
execution of such supplemental indenture is authorized or permitted by this
Indenture. The Trustee may, but shall not be obligated to enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 8.04. Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture pursuant to the provisions of this Article, this
Indenture shall be and be deemed to be modified and amended in accordance
therewith, and the respective rights, limitations of rights, obligations, duties
and immunities under this Indenture of the Trustee, the Company and the Holders
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 8.05. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of any supplemental
indenture pursuant to this Article may, and shall if required by the Trustee,
bear a notation in form approved by the Trustee as to any matter provided for in
such supplemental indenture. If the Company shall so determine, new Securities
so modified as to conform, in the opinion of the Trustee and the Company, to any
such supplemental indenture may be prepared and executed by the Company and
authenticated and delivered by the Trustee in exchange for outstanding
Securities.
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ARTICLE 9
COVENANTS OF THE COMPANY
Section 9.01. Payment of Principal, Premium and Interest. The Company
covenants and agrees that it will duly and punctually pay or cause to be paid
all payments in respect of the Securities in accordance with the terms of the
Securities and this Indenture. Any amounts to be given to the Trustee or Paying
Agent shall be deposited with the Trustee or Paying Agent by 10:00 a.m. New York
City time by the Company at the latest on the day such payment is due or, if
such day is not a Business Day, the immediately succeeding Business Day.
Accreted Principal Amount, Redemption Price, Purchase Price, Remarketing
Purchase Price, Change in Control Purchase Price and interest (including
Contingent Interest and Liquidated Damages, if any), shall be considered paid on
the applicable date due if on such date (or, in the case of a Purchase Price,
Remarketing Purchase Price or Change in Control Purchase Price, on the Business
Day following the applicable Purchase Date or Change in Control Purchase Date,
as the case may be) the Trustee or the Paying Agent holds, in accordance with
this Indenture, money or securities, if permitted hereunder, sufficient to pay
all such amounts then due.
Section 9.02. Maintenance of Office or Agency. The Company shall maintain
an office or agency of the Trustee, Registrar, Paying Agent and Conversion Agent
where the Securities may be presented or surrendered for payment, where the
Securities may be surrendered for registration of transfer or exchange, where
the Securities may be surrendered for purchase, redemption or conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served; provided, however, that, at the option of the
Company, payment of interest may be made (subject to collection) by check mailed
to the address of the Person entitled thereto as such address shall appear in
the Registrar. The office of the Paying Agent, at the Corporate Trust Office,
shall initially be such office or agency for all of the aforesaid purposes. The
Company will give prompt written notice to the Trustee of the location, and any
change in the location, of such office or agency. If at any time the Company
shall fail to maintain any such required office or agency or shall fail to
furnish the Trustee with the address thereof, such presentations, surrenders,
notices and demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to receive all
such presentations, surrenders, notices and demands. The Company shall also
appoint and maintain a Calculation Agent to perform the duties required in this
Indenture.
The Company may also from time to time designate one or more other offices
or agencies where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations.
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Section 9.03. Money for Securities Payments to be Held in Trust. If the
Company shall at any time act as its own Paying Agent with respect to the
Securities, it will, on or before each due date of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price, Change in
Control Purchase Price (including Contingent Accretion, if any) and interest
(including Contingent Interest and Liquidated Damages, if any) on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay such sums so becoming due until such sums shall
be paid to such Persons or otherwise disposed of as herein provided. The Company
will promptly notify the Trustee of any failure by the Company to take such
action or failure so to act.
Whenever the Company shall have one or more Paying Agents for the
Securities, it will, on or prior to each due date of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price, Change in
Control Purchase Price (including Contingent Accretion, if any) and interest
(including Contingent Interest and Liquidated Damages, if any) on any
Securities, deposit with a Paying Agent a sum sufficient to pay such amounts so
becoming due, such sum to be held in trust for the benefit of the Persons
entitled to such amounts, and (unless such Paying Agent is the Trustee) the
Company will promptly notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent, other than the Trustee or an
Affiliate of the Company, to execute and deliver to the Trustee an instrument in
which such Paying Agent shall agree with the Trustee, subject to the provisions
of this Section, that such Paying Agent will:
(i) hold all sums held by it for the payment of the Accreted Principal
Amount, Redemption Price, Purchase Price, Remarketing Purchase Price,
Change in Control Purchase Price (including Contingent Accretion, if any)
and interest (including Contingent Interest and Liquidated Damages, if any)
on the Securities (whether such sums have been paid to it by the Company or
by any other obligor on the Securities) in trust for the benefit of the
Persons entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
(ii) give the Trustee notice of any failure by the Company (or any
other obligor upon the Securities) to make any payment of the Accreted
Principal Amount, Redemption Price, Purchase Price, Remarketing Purchase
Price, Change in Control Purchase Price (including Contingent Accretion, if
any) and interest (including Contingent Interest and Liquidated Damages, if
any) on the Securities when the same shall be due and payable; and
52
(iii) at any time during the continuance of any such Event of Default,
upon the written request of the Trustee, forthwith pay to the Trustee all
sums so held in trust by such Paying Agent.
Anything in this Section to the contrary notwithstanding, the Company may,
at any time, for the purpose of obtaining satisfaction and discharge of this
Indenture, or for any other reason, pay, or by Company Order direct any Paying
Agent to pay, to the Trustee all sums held in trust by the Company or such
Paying Agent, such sums to be held by the Trustee upon the same trusts as those
upon which such sums were held by the Company or such Paying Agent; and, upon
such payment by any Paying Agent to the Trustee, such Paying Agent shall be
released from all further liability with respect to such money.
Section 9.04. Compliance Certificate. The Company will deliver to the
Trustee, on or before a date not more than four months after the end of each
fiscal year ending after the date hereof, a brief certificate, which need not
comply with Section 1.02, from the principal executive, financial or accounting
officer of the Company, stating, as to his or her knowledge, whether or not the
Company is in default in the performance and observance of any of the terms,
provisions and conditions hereof (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 thereof of which he or she
may have knowledge.
Section 9.05. Restrictions on the Creation of Mortgages and Liens. The
Company will not an any time directly or indirectly create, assume, incur, or
suffer to be created, assumed, or incurred or to exist any mortgage, pledge,
encumbrance or lien of any kind (except for any bona fide option or agreement to
sell) (a "Lien") upon (1) any shares of capital stock owned by the Company of
any of the Principal Subsidiaries (other than directors' qualifying shares) or
(2) any shares of capital stock owned by the Company of a Subsidiary of the
Company that owns, directly or indirectly, capital stock of any of the Principal
Subsidiaries (other than directors' qualifying shares) without making effective
provision whereby the Securities (and any other indebtedness of the Company or
such Subsidiary entitled to the benefit of a covenant similar to the covenant
contained in this Section 9.05, subject to applicable priorities of payment)
will be secured by such Lien equally and ratably with any and all other
obligations thereby secured, so long as any such other obligations and
indebtedness shall be so secured; provided, however, that notwithstanding the
foregoing, the Company may incur or suffer to be incurred or to exist upon such
capital stock (A) Liens for taxes, assessments or other governmental charges or
levies which are not yet due or are payable without penalty or of which the
amount, applicability or validity is being contested by the Company in good
faith by appropriate proceedings, or (B) the Liens of any judgment, if such
judgment shall not have
53
remained undischarged, or unstayed on appeal or otherwise, for more than 60
days.
Section 9.06. Calculation of Tax Original Issue Discount. The Company shall
file with the Trustee promptly at the end of each calendar year (i) a written
notice specifying the amount of Tax Original Issue Discount (including daily
rates and accrual periods) accrued on the Securities as of the end of such year
and (ii) such other specific information relating to such Tax Original Issue
Discount as may then be reasonably requested by the Trustee and relevant under
the Internal Revenue Code of 1986, as amended from time to time, or the Treasury
regulations promulgated thereunder.
Section 9.07. Further Instruments and Acts. The Company will execute and
deliver such further instruments and do such further acts as may be reasonably
necessary or proper or as the Trustee may request to carry out more effectively
the purposes of this Indenture.
Section 9.08. Obligation to Conduct Remarketing.
(a) The Company shall appoint a Remarketing Agent and enter into a
remarketing agreement at least 30 days prior to any Remarketing Reset Event Date
and each subsequent Remarketing Reset Date.
(b) The Company shall use its reasonable best efforts to effect the
remarketing of the Securities as described in Article 16. If in the judgment of
counsel to the Company or counsel to the Remarketing Agent a registration
statement is required to effect the Remarketing, the Company shall use its
reasonable best efforts to (i) ensure that a registration statement covering the
Accreted Principal Amount of all Securities to be remarketed will be effective
in a form that will enable the Remarketing Agent to rely on it in connection
with the Remarketing or (ii) effect such Remarketing pursuant to Rule 144A or
any other applicable exemption from registration requirements under the
Securities Act.
ARTICLE 10
REDEMPTION OF SECURITIES
Section 10.01. Right to Redeem; Notices to Trustee. Prior to December 1,
2006, the Securities shall not be redeemable at the option of the Company.
Unless a Remarketing Reset Event has occurred, beginning on December 1, 2006 and
until the earlier of the date on which a Remarketing Reset Event occurs and
Stated Maturity, the Securities are redeemable for cash as a whole, or from time
to time in part, at the option of the Company at the Redemption Price; provided
that if the Redemption Date is an Interest Payment Date, accrued and
54
unpaid interest (including Contingent Interest or Liquidated Damages, if any)
shall be paid to the Holder of record as of the applicable Regular Record Date,
rather than to the Holder presenting the Security for redemption. If the Company
elects to redeem Securities, it shall notify the Trustee in writing of the
Redemption Date, the Original Principal Amount of Securities to be redeemed and
the Redemption Price.
The Company shall give the notice to the Trustee provided for in this
Section 10.01 by a Company Order at least 30 days before the Redemption Date.
Section 10.02. Selection of Securities to Be Redeemed. If less than all the
Securities are to be redeemed, the Trustee shall select the Securities to be
redeemed pro rata or by lot or by any other method the Trustee considers fair
and appropriate (so long as such method is not prohibited by the rules of any
stock exchange on which the Securities are then listed). The Trustee shall make
the selection at least 15 days but not more than 60 days before the Redemption
Date from outstanding Securities not previously called for redemption. The
Trustee may select for redemption portions of the Original Principal Amount of
Securities that have denominations larger than $1,000. Securities and portions
of them the Trustee selects shall be in Original Principal Amounts of $1,000 or
an integral multiple of $1,000. Provisions of this Indenture that apply to
Securities called for redemption also apply to portions of Securities called for
redemption. The Trustee shall notify the Company promptly of the Securities or
portions of Securities to be redeemed.
If any Security selected for partial redemption is converted in part before
termination of the conversion right with respect to the portion of the Security
so selected, the converted portion of such Security shall be deemed to be the
portion selected for redemption. Securities which have been converted during a
selection of Securities to be redeemed may be treated by the Trustee as
outstanding for the purpose of such selection.
Notwithstanding the foregoing, if the Accreted Principal Amount has been
accelerated and such acceleration has not been rescinded, the Company shall not
redeem less than all the Securities then outstanding.
Section 10.03. Notice of Redemption. At least 30 days but not more than 60
days before a Redemption Date, the Company shall mail a notice of redemption by
first-class mail, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed and shall at a
minimum state:
(a) the Redemption Date;
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(b) the Redemption Price;
(c) the Conversion Rate;
(d) the name and address of the Paying Agent and Conversion Agent;
(e) that Securities called for redemption may be converted at any time
before the close of business on the Business Day immediately preceding the
Redemption Date;
(f) that Holders who want to convert Securities must satisfy the
requirements set forth in the applicable provisions of the Securities;
(g) whether the Company will deliver cash, Common Stock or a combination of
cash and Common Stock in the event a Holder converts Securities called for
redemption;
(h) that Securities called for redemption must be surrendered to the Paying
Agent to collect the Redemption Price;
(i) if fewer than all the outstanding Securities are to be redeemed, the
certificate number and Original Principal Amounts of the particular Securities
to be redeemed;
(j) that, unless the Company defaults in making payment of such Redemption
Price, interest (including Contingent Interest and Liquidated Damages, if any)
on Securities called for redemption will cease to accrue on and after the
Redemption Date; and
(k) the CUSIP number of the Securities.
At the Company's request, the Trustee shall give the notice of redemption
in the Company's name and at the Company's expense, provided that the Company
makes such request at least three Business Days prior to such notice of
redemption.
Section 10.04. Effect of Notice of Redemption. Once notice of redemption is
given, Securities called for redemption become due and payable on the Redemption
Date and at the Redemption Price stated in the notice, except for Securities
which are converted in accordance with the terms of this Indenture. Upon
surrender to the Paying Agent, such Securities shall be paid at the Redemption
Price stated in the notice.
Section 10.05. Deposit of Redemption Price. Prior to 10:00 a.m., New York
City time on the Redemption Date, the Company shall deposit with the Paying
Agent (or if the Company or a Subsidiary or an Affiliate of either of them
56
is the Paying Agent, shall segregate and hold in trust) money sufficient to pay
the Redemption Price of all Securities to be redeemed on that date other than
Securities or portions of Securities called for redemption which on or prior
thereto have been delivered by the Company to the Trustee for cancellation or
have been converted. The Paying Agent shall as promptly as practicable return to
the Company any money not required for that purpose because of conversion of
Securities pursuant to Article 11. If such money is then held by the Company in
trust and is not required for such purpose it shall be discharged from such
trust.
Section 10.06. Securities Redeemed in Part. Upon surrender of a Security
that is redeemed in part, the Company shall execute and the Trustee shall
authenticate and deliver to the Holder a new Security in an authorized
denomination equal in Original Principal Amount to the unredeemed portion of the
Security surrendered.
ARTICLE 11
CONVERSION
Section 11.01. Conversion Rights. The Securities shall be convertible in
accordance with their terms and in accordance with and subject to this Article
into a number of shares of Common Stock per $1,000 Original Principal Amount of
Securities equal to the Conversion Rate. Notwithstanding the foregoing, if a
Remarketing Reset Event occurs, from and after the date of such Remarketing
Reset Event, the Securities shall no longer be convertible into Common Stock.
A Holder of a Security otherwise entitled to a fractional share upon the
conversion thereof shall receive cash in an amount equal to the value of such
fractional share based on the Applicable Stock Price with respect to such
conversion. Upon a conversion, the Company may deliver cash or a combination of
cash and Common Stock in lieu of Common Stock, as described in Section 11.07.
Upon determination that Holders are or will be entitled to convert their
Securities pursuant to this Article 11, the Company shall issue a press release
through Reuters Economic Services and Bloomberg Business News or other
reasonable means of distribution and publish such determination on the Company's
website on the World Wide Web.
Holders may surrender Securities for conversion into shares of Common Stock
only if at least one of the conditions described in Sections 11.02 through 11.06
is satisfied. In addition, a Security in respect of which a Holder has delivered
a Purchase Notice or Change in Control Purchase Notice exercising the option of
such Holder to require the Company to purchase such Security may be
57
converted only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture.
Section 11.02. Conversion Rights Based on Common Stock Price. At any time
prior to the Stated Maturity, Securities may be surrendered for conversion into
shares of Common Stock in integral multiples of $1,000 Original Principal
Amount, if, as of the last day of any calendar quarter, the Closing Sale Price
of the Common Stock for at least 20 Trading Days in a period of 30 consecutive
Trading Days ending on the last Trading Day of such calendar quarter is more
than 125% of the Base Conversion Price as of the last day of such calendar
quarter.
Section 11.03. Conversion Rights Upon Credit Rating Events. Securities may
be surrendered for conversion in integral multiples of $1,000 Original Principal
Amount any time after the earlier of (a) the date the Securities are assigned a
credit rating by both Standard & Poor's Ratings Services, a division of The
XxXxxx-Xxxx Companies Inc., and its successors ("S&P"), and Xxxxx'x Investors
Services and its successors ("Moody's") and (b) five Business Days following the
date of original issuance of the Securities, during any period in which (1) the
credit rating assigned to the Securities by S&P is below BBB+, (2) the credit
rating assigned to the Securities by Xxxxx'x is below Baa1 or (3) no credit
rating is assigned to the Securities by either S&P or Moody's.
Section 11.04. Conversion Rights Upon Notice of Redemption. Holders may
surrender for conversion in integral multiples of $1,000 Original Principal
Amount any Securities called for redemption under Article 10 hereof at any time
prior to the close of business on the Business Day immediately preceding the
Redemption Date, even if the Securities are not otherwise convertible at such
time.
Section 11.05. Conversion Rights Upon Occurrence of Certain Corporate
Transactions.
If the Company is a party to a consolidation, merger or binding share
exchange pursuant to which shares of Common Stock would be converted into cash,
securities or other property as set forth in clause (ii) of Section 11.14, any
Security may be surrendered for conversion in integral multiples of $1,000
Original Principal Amount at any time from and after the date that is 15 days
prior to the anticipated effective date of the transaction until 15 days after
the actual date of such transaction (or until the Change in Control Purchase
Date if such transaction constitutes a Change in Control) and, at the effective
time of the transaction, the right to convert a Security into shares of Common
Stock shall be changed into a right to convert such Security into the kind and
amount of cash, securities or other property of the Company or another person
that the Holder
58
would have received if the Holder had converted such Security immediately prior
to the transaction.
If the Company distributes to all holders of Common Stock (1) rights or
warrants entitling them to purchase, for a period expiring within 45 days of the
record date for such distribution, Common Stock at less than the average Closing
Sale Price for the 10 Trading Days preceding the declaration date for such
distribution, or (2) cash, assets, debt securities or rights to purchase the
Company's securities, which distribution has a per share value exceeding 10% of
the Closing Sale Price of the Common Stock on the Trading Day immediately
preceding the declaration date for such distribution, the Securities may be
surrendered for conversion in integral multiples of $1,000 Original Principal
Amount beginning on the date that the Company gives notice to the Holders of
such right, which shall not be less than 20 days prior to the time ("Ex-Dividend
Time") immediately prior to the commencement of "ex-dividend" trading for such
distribution on the New York Stock Exchange or such other principal national or
regional exchange or market on which the Common Stock is then listed or quoted
for such dividend or distribution, and Securities may be surrendered for
conversion at any time thereafter until the earlier of close of business on the
Business Day prior to the Ex-Dividend Time and the date the Company announces
that such dividend or distribution will not take place. Notwithstanding the
foregoing, Holders shall not have the right to surrender Securities for
conversion pursuant to this Section 11.05 if they will otherwise participate in
the distribution described above without first converting Securities into Common
Stock.
Section 11.06. Conversion Upon Satisfaction Of Trading Price Condition.
(a) Securities may be surrendered for conversion in integral multiples of
$1,000 Original Principal Amount any time during the five Business Day period
after any five consecutive Trading Day period in which the Trading Price per
$1,000 Original Principal Amount of the Securities for each day of such five
Trading Day period was less than 96% of the product of the Closing Sale Price
and the Conversion Rate as of such Trading Day (determined based on such Closing
Sale Price rather than the Applicable Stock Price).
(b) Notwithstanding the foregoing, if, on the day prior to any conversion
pursuant to Section 11.06(a), the Closing Sale Price of the Common Stock is
greater than the Effective Conversion Price but less than or equal to 125% of
the Base Conversion Price, the Holders of Securities surrendered for conversion
shall receive, in lieu of Common Stock based on the Conversion Rate, cash or
Common Stock or a combination of cash and Common Stock, at the Company's option,
with a value equal to the Accreted Principal Amount of Securities plus accrued
and unpaid interest, if any, including Contingent Interest
59
and Liquidated Damages, if any, as of the Conversion Date (a "Principal Value
Conversion"). If a Holder surrenders its Securities for a Principal Value
Conversion, the Company shall notify such Holder by the second Trading Day
following the Conversion Date whether the Company will pay such Holder all or a
portion of the Accreted Principal Amount plus accrued and unpaid Contingent
Interest and Liquidated Damages, if any, in cash, Common Stock or a combination
of cash and Common Stock, and in what percentage. Any Common Stock delivered
upon a Principal Value Conversion will be valued at the greater of the Effective
Conversion Price on the Conversion Date and the Applicable Stock Price as of the
Conversion Date. The Company will pay such Holder any portion of the Accreted
Principal Amount plus accrued and unpaid Contingent Interest and Liquidated
Damages, if any, to be paid in cash and deliver Common Stock with respect to any
portion of the Accreted Principal Amount plus accrued and unpaid Contingent
Interest and Liquidated Damages, if any, to be paid in Common Stock, no later
than the third Business Day following the determination of the Applicable Stock
Price.
(c) In connection with any conversion pursuant to this Section 11.06, the
Trustee shall not have any obligation to determine the Trading Price of the
Securities unless the Company has requested such determination and the Company
shall have no obligation to make such request unless a Holder provides the
Company with reasonable evidence that the Trading Price per Security would be
less than 96% of the product of the Closing Sale Price of the Common Stock and
the number of shares of Common Stock issuable upon conversion of such Security.
At such time, the Company shall instruct the Trustee to determine the Trading
Price of the Securities beginning on the next Trading Day and on each successive
Trading Day until the Trading Price per such Security is greater than or equal
to 96% of the product of the Closing Sale Price of the Common Stock and the
Conversion Rate as of such Trading Day (determined based on such Closing Sale
Price rather than the Applicable Stock Price).
Section 11.07. Conversion Procedures. To convert a Security, a Holder must
(a) complete and manually sign the Conversion Notice or a facsimile of the
Conversion Notice on the back of the Security and deliver such notice to the
Conversion Agent, (b) surrender the Security to the Conversion Agent, (c)
furnish appropriate endorsements and transfer documents if required by the
Registrar or the Conversion Agent, (d) pay any transfer or similar tax, if
required and (e) if required, pay funds equal to the interest payable on the
next Interest Payment Date, or comply with applicable procedures of the
Depositary in the case of a beneficial interest in a Global Security. The date
on which the Holder satisfies all of those requirements is the "Conversion
Date." Except as set forth in Section 11.06, within two Business Days following
the Conversion Date, the Company shall deliver to the Holder, through the
Conversion Agent, written notice of whether such Securities shall be converted
into Common Stock or paid
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in cash or a combination of cash and Common Stock (unless the Company shall have
already done so pursuant to a notice of redemption pursuant to Section 10.03 in
respect of a Conversion Date occurring before the Redemption Date set forth in
such notice or the Company has previously made the Mandatory Cash Settlement
Election, as defined below). Upon any conversion of Securities, including a
Principal Value Conversion, the Company shall deliver to the Holder through the
Conversion Agent, no later than the third Business Day following the date on
which the Applicable Stock Price is determined, a certificate for the number of
whole shares of Common Stock issuable upon the conversion and, if applicable,
cash in lieu of such Common Stock in an amount equal to the Applicable Stock
Price with respect to such Conversion Date for each share of Common Stock in
lieu of which cash is being delivered pursuant to this Section 11.07 and cash in
lieu of any fractional shares pursuant to Section 11.08. Except as otherwise
provided in this Article 11, the Company may not change its election with
respect to the consideration to be delivered upon conversion of a Security once
the Company has notified the Holder in accordance with this paragraph. Anything
herein to the contrary notwithstanding, in the case of Global Securities,
Conversion Notices may be delivered and such Securities may be surrendered for
conversion in accordance with the applicable procedures of the Depositary as in
effect from time to time. The Person in whose name the Common Stock certificate
is registered shall be deemed to be a shareholder of record at the close of
business on the date on which the Applicable Stock Price is determined with
respect to 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 date on which the
stock transfer books of the Company are open.
At any time prior to the Stated Maturity, the Company may at its option
elect, by notice to the Trustee and the Holders of the Securities, that upon
conversion of the Securities at any time following the date of such notice, the
Company shall be required to deliver cash in an amount at least equal to the
Accreted Principal Amount of the Securities converted (the "Mandatory Cash
Settlement Election"). If the Company makes the Mandatory Cash Settlement
Election, the Company shall also be required to deliver cash only in connection
with any Principal Value Conversion pursuant to Section 11.06. The Company shall
not be entitled to revoke a Mandatory Cash Election without the consent of at
least a majority in Original Principal Amount of the outstanding Securities as
contemplated by Section 8.02.
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. On conversion of a Security, except for conversion during the period
from the close of business on any Regular 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
61
such Regular Record Date shall receive the interest payable on such Interest
Payment Date, that portion of accrued and unpaid interest, including Contingent
Interest, if any, on the converted Security attributable to the period from the
most recent Interest Payment Date (or, if no Interest Payment Date has occurred,
from the Issue Date) 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 or a combination of cash
and Common Stock in lieu thereof, in exchange for the Security being converted
pursuant to the provisions hereof, and the fair market value of such shares of
Common Stock (together with any such cash payment in lieu of fractional shares),
or cash or a combination of cash and Common Stock in lieu thereof, shall be
treated as issued, to the extent thereof, first in exchange for accrued and
unpaid interest (including Contingent Interest, if any) accrued through the
Conversion Date and the balance, if any, of such fair market value of such
Common Stock (and any such cash payment), or cash in lieu thereof, shall be
treated as issued in exchange for the Accreted Principal Amount of the Security
being converted pursuant to the provisions hereof.
The Company agrees, and by acceptance of a beneficial interest in a
Security each Holder and any beneficial owner of a Security shall be deemed to
agree, to treat, for United States federal income tax purposes, the fair market
value of the Common Stock received upon the conversion of a Security (together
with any cash payment in lieu of fractional shares) or cash, or a combination of
cash and Common Stock as a contingent payment on the Security for purposes of
the contingent payment regulations.
If a Holder converts more than one Security at the same time, the number of
shares of Common Stock issuable upon the conversion shall be based on the
aggregate Original Principal Amount of Securities converted.
Upon surrender of a Security that is converted in part, the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder, a new
Security equal in Original Principal Amount to the Original Principal Amount of
the unconverted portion of the Security surrendered.
Securities or portions thereof surrendered for conversion during the period
from the close of business on any Regular 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 New York Clearing House 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 Original Principal Amount of Securities or
portions thereof being surrendered for conversion; provided that no such payment
need be made if (1) the Company has specified a
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Redemption Date that occurs during the period from the close of business on a
Regular Record Date to the close of business on the Interest Payment Date to
which such Regular Record Date relates, (2) the Company has specified a Change
in Control Purchase Date during such period or (3) only to the extent of overdue
interest or overdue Contingent Interest, any overdue interest or overdue
Contingent Interest exists on the Conversion Date with respect to the Securities
converted.
The Holders' right to convert Securities into Common Stock are subject to
the Company's right to elect instead to pay each such Holder the amount of cash
determined pursuant to this Article (or an equivalent amount in a combination of
cash and shares of Common Stock), in lieu of delivering such Common Stock;
provided, however, that if the Accreted Principal Amount of the Securities has
been accelerated and such acceleration has not been rescinded, the Company shall
deliver Common Stock in accordance with this Article, whether or not the Company
has delivered a notice pursuant to this Section 11.07 to the effect that the
Securities would be paid in cash or a combination of cash and Common Stock;
provided further, that the preceding proviso shall not apply if the Company has
made the Mandatory Cash Settlement Election.
Section 11.08. Fractional Shares. The Company shall not issue a fractional
share of Common Stock upon conversion of a Security. Instead, the Company will
deliver cash for the current market value of the fractional share. The current
market value of a fractional share of Common Stock shall be determined, to the
nearest 1/1,000th of a share, by multiplying the Applicable Stock Price in
effect with respect to the applicable Conversion Date of a full share of Common
Stock by the fractional amount and rounding the product to the nearest whole
cent.
Section 11.09. Taxes on Conversion. If a Holder converts a Security, the
Company shall pay any documentary, stamp or similar issue or transfer tax due on
the issue of shares of Common Stock upon such conversion. However, the Holder
shall pay any such tax which is due because the Holder requests the shares to be
issued in a name other than the Holder's name. The Conversion Agent may refuse
to deliver the certificate representing the Common Stock being issued in a name
other than the Holder's name until the Conversion Agent receives a sum
sufficient to pay any tax which will be due because the shares are to be issued
in a name other than the Holder's name. Nothing herein shall preclude any tax
withholding required by law or regulation.
Section 11.10. Reservation of Shares, Shares to Be Fully Paid; Compliance
with Governmental Requirements; Listing of Common Stock.
(a) The Company shall provide, free from preemptive rights, out of its
authorized but unissued shares or shares held in treasury, sufficient shares of
63
Common Stock to provide for the conversion of the Securities from time to time
as such Securities are presented for conversion.
(b) 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 Securities, 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.
(c) (i) The Company covenants that all shares of Common Stock which may be
issued upon conversion of Securities 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 thereof.
(ii) The Company covenants that, if any shares of Common Stock to be
provided for the purpose of conversion of Securities 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 Securities and Exchange Commission (or any successor thereto), endeavor
to secure such registration or approval, as the case may be.
(d) The Company further covenants that, if at any time the Common Stock
shall be listed on the NYSE 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 Security; provided, however,
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 Securities into Common Stock in accordance with the provisions of this
Indenture, the Company covenants to list such Common Stock issuable upon
conversion of the Securities in accordance with the requirements of such
exchange or automated quotation system at such time.
Section 11.11. Adjustment Of Conversion Rate. The Base Conversion Rate
shall be adjusted from time to time by the Company as follows:
(a) In case the Company shall hereafter pay a dividend or make a
distribution to all holders of the outstanding Common Stock in shares of Common
Stock, the Base Conversion Rate shall be increased so that the same
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shall equal the rate determined by multiplying the Base Conversion Rate in
effect at the opening of business on the date following the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution by a fraction,
(i) the numerator of which shall be the sum of the number of shares of
Common Stock outstanding at the close of business on the date fixed for the
determination of stockholders entitled to receive such dividend or other
distribution plus the total number of shares of Common Stock constituting
such dividend or other distribution; and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding at the close of business on the date fixed for such
determination,
such increase to become effective immediately after the opening of business on
the day following the date fixed for such determination. If any dividend or
distribution of the type described in this Section 11.11(a) is declared but not
so paid or made, the Base Conversion Rate shall again be adjusted to the Base
Conversion Rate that would then be in effect if such dividend or distribution
had not been declared.
(b) In case the Company shall issue rights or warrants to all holders of
its outstanding shares of Common Stock entitling them (for a period expiring
within forty-five (45) days after the date fixed for determination of
stockholders entitled to receive such rights or warrants) to subscribe for or
purchase shares of Common Stock at a price per share less than the average of
the Closing Sale Prices of the Common Stock for the 10 Trading Days preceding
the declaration date for such distribution, the Base Conversion Rate shall be
increased so that the same shall equal the rate determined by multiplying the
Base Conversion Rate in effect immediately prior to the date fixed for
determination of stockholders entitled to receive such rights or warrants by a
fraction,
(i) the numerator of which shall be the number of shares of Common
Stock outstanding on the date fixed for determination of stockholders
entitled to receive such rights or warrants plus the total number of
additional shares of Common Stock offered for subscription or purchase, and
(ii) the denominator of which shall be the sum of the number of shares
of Common Stock outstanding at the close of business on the date fixed for
determination of stockholders entitled to receive such rights or warrants
plus the number of shares that the aggregate offering price of the total
number of shares so offered would purchase at a price
65
equal to the average of the Closing Sale Prices of the Common Stock for the
10 Trading Days preceding the declaration date for such distribution.
Such adjustment shall be successively made whenever any such rights or
warrants are issued, and shall become effective immediately after the opening of
business on the day following the date fixed for determination of stockholders
entitled to receive such rights or warrants. To the extent that shares of Common
Stock are not delivered after the expiration of such rights or warrants, the
Base Conversion Rate shall be readjusted to the Base 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. If such rights or warrants are not so issued,
the Base Conversion Rate shall again be adjusted to be the Base Conversion Rate
that would then be in effect if such date fixed for the determination of
stockholders entitled to receive such rights or warrants had not been fixed. In
determining whether any rights or warrants entitle the holders to subscribe for
or purchase shares of Common Stock at a price less than the average of the
Closing Sale Prices of the Common Stock for the 10 Trading Days preceding the
declaration date for such distribution, 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 outstanding shares of Common Stock shall be subdivided into a
greater number of shares of Common Stock, the Base Conversion Rate in effect at
the opening of business on the day following the day upon which such subdivision
becomes effective shall be proportionately increased, and conversely, in case
outstanding shares of Common Stock shall be combined into a smaller number of
shares of Common Stock, the Base Conversion Rate in effect at the opening of
business on the day following the day upon which such combination becomes
effective shall be proportionately reduced, such increase or reduction, as the
case may be, to become effective immediately after the opening of business on
the day following the day upon which such subdivision or combination becomes
effective.
(d) 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
or evidences of its indebtedness or assets (including securities, but excluding
(x) any rights or warrants referred to in Section 11.11(b), (y) any dividend or
distribution (I) paid exclusively in cash or (II) referred to in Section
11.11(a) and (z) any distribution referred to in Section 11.11(g)) (any of the
foregoing hereinafter in this Section 11.11(d) called the "Distributed
Securities")), then, in each such case, the Base Conversion Rate shall be
increased so that the same shall be equal to the rate determined by multiplying
66
the Base Conversion Rate in effect on the Record Date with respect to such
distribution by a fraction,
(i) the numerator of which shall be the Current Market Price on such
Record Date; and
(ii) the denominator of which shall be the Current Market Price on
such Record Date less the Fair Market Value (as determined by the Board of
Directors, whose determination shall be conclusive, and described in a
resolution of the Board of Directors) on the Record Date of the portion of
the Distributed Securities so distributed applicable to one share of Common
Stock,
such adjustment to become effective immediately prior to the opening of business
on the day following such Record Date; provided that if the then Fair Market
Value (as so determined) of the portion of the Distributed Securities so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the Record Date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of Distributed Securities such
holder would have received had such holder converted each Security on the Record
Date. If such dividend or distribution is not so paid or made, the Base
Conversion Rate shall again be adjusted to be the Base 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 Section 11.11(d) 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 computing the Current Market Price on
the applicable Record Date.
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 (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 11.11 (and no adjustment to the Base Conversion Rate
under this Section 11.11 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 Base
Conversion Rate shall be made under this Section 11.11(d). 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
67
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
Base Conversion Rate under this Section 11.11 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 Base 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 thereof,
the Base Conversion Rate shall be readjusted as if such expired or terminated
rights and warrants had not been issued.
For purposes of this Section 11.11(d) and Section 11.11(a) and (b), any
dividend or distribution to which this Section 11.11(d) is applicable that also
includes shares of Common Stock, or rights or warrants to subscribe for or
purchase shares of Common Stock (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 (and
any Base Conversion Rate adjustment required by this Section 11.11(d) 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 Base Conversion Rate adjustment
required by Sections 11.11(a) and 11.11(b) with 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 date fixed for the determination of
stockholders entitled to receive such dividend or other distribution", "the date
fixed for the determination of stockholders entitled to receive such rights or
warrants" and "the date fixed for such determination" within the meaning of
Section 11.11(a) and 11.11(b) and (B) any shares of Common Stock included in
such dividend or distribution shall not be deemed "outstanding at the close of
business on the date fixed for such determination" within the meaning of Section
11.11(a).
(e) In case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock cash, excluding (i) any dividend or distribution in
connection with the liquidation, dissolution or winding up of the Company,
68
whether voluntary or involuntary or (ii) any quarterly cash dividend on the
Common Stock to the extent that the aggregate cash dividend per share of Common
Stock in any quarter does not exceed $0.10 (the "Dividend Threshold Amount"),
then, in such case, the Base Conversion Rate shall be increased so that the same
shall equal the rate determined by multiplying the Base Conversion Rate in
effect immediately prior to the close of business on such record date by a
fraction,
(i) the numerator of which shall be the Current Market Price on such
record date; and
(ii) the denominator of which shall be the Current Market Price on
such record date less the amount of cash so distributed applicable to one
share of Common Stock (determined as set forth below),
such adjustment to be effective immediately prior to the opening of business on
the day following the record date; provided that if the portion of the cash so
distributed applicable to one share of Common Stock is equal to or greater than
the Current Market Price on the record date, in lieu of the foregoing
adjustment, adequate provision shall be made so that each Holder shall have the
right to receive upon conversion the amount of cash such holder would have
received had such holder converted each Security on the Record Date. If such
dividend or distribution is not so paid or made, the Base Conversion Rate shall
again be adjusted to be the Base Conversion Rate that would then be in effect if
such dividend or distribution had not been declared. If any adjustment is
required to be made as set forth in this Section 11.11(e) as a result of a
distribution that is a quarterly cash dividend, such adjustment shall be based
upon the amount by which such distribution exceeds the Dividend Threshold
Amount. If an adjustment is required to be made as set forth in this Section
11.11(e) above as a result of a distribution that is not a quarterly cash
dividend, such adjustment shall be based upon the full amount of the
distribution. If an adjustment or readjustment is made to the Base Conversion
Rate pursuant to this Section 11.11 (other than any adjustment pursuant to
Section 11.11(e)), an appropriate inversely proportional adjustment shall be
made to the Dividend Threshold Amount.
(f) In case a tender or exchange offer made by the Company or any
Subsidiary for all or any portion of the Common Stock shall expire and such
tender or exchange offer (as amended upon the expiration thereof) shall require
the payment to stockholders of consideration per share of Common Stock having a
Fair Market Value (as determined by the Board of Directors, whose determination
shall be conclusive and described in a resolution of the Board of Directors)
that as of the last time (the "Expiration Time") tenders or exchanges may be
made pursuant to such tender or exchange offer (as it may be amended)
69
exceeds the average of the Closing Sale Price of a share of Common Stock for
each of the 10 consecutive Trading Days next succeeding the Expiration Time, the
Base Conversion Rate shall be increased so that the same shall equal the rate
determined by multiplying the Base Conversion Rate in effect immediately prior
to the Expiration Time by a fraction,
(i) the numerator of which shall be the sum of (x) the Fair Market
Value (determined as aforesaid) of the aggregate consideration payable to
stockholders based on the acceptance (up to any maximum specified in the
terms of the tender or exchange offer) of all shares validly tendered or
exchanged and not withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the "Purchased
Shares") and (y) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the
average of the Closing Sale Price of a share of Common Stock for each of
the 10 consecutive Trading Days next succeeding the Expiration Time, and
(ii) the denominator of which shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the
Expiration Time multiplied by the average of the Closing Sale Price of a
share of Common Stock for each of the 10 consecutive Trading Days next
succeeding the Expiration Time,
such adjustment to become effective immediately prior to the opening of business
on the day following the Expiration Time. 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 any such purchases or
all such purchases are rescinded, the Base Conversion Rate shall again be
adjusted to be the Base Conversion Rate that would then be in effect if such
tender or exchange offer had not been made.
(g) If the Company pays a dividend or makes a distribution to all holders
of its Common Stock consisting of capital stock of any class or series, or
similar equity interests, of or relating to a Subsidiary or other business unit
of the Company, the Base Conversion Rate shall be increased so that the same
shall be equal to the rate determined by multiplying the Base Conversion Rate in
effect on the Record Date with respect to such distribution by a fraction,
(i) the numerator of which shall be the sum of (A) the average of the
Closing Sale Prices of the Common Stock for the 10 Trading Days commencing
on and including the fifth Trading Day after the date on which "ex-dividend
trading" commences for such dividend or distribution on The New York Stock
Exchange or such other national or regional exchange or market on which
such securities are then listed or
70
quoted (the "Ex-Dividend Date") plus (B) the fair market value of the
securities distributed in respect of each share of Common Stock for which
this Section 11.11(g) applies and shall equal the number of securities
distributed in respect of each share of Common Stock multiplied by the
average of the closing sale prices of those securities distributed for the
10 Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date; and
(ii) the denominator of which shall be the average of the Closing Sale
Prices of the Common Stock for the 10 Trading Days commencing on and
including the fifth Trading Day after the Ex-Dividend Date,
such adjustment to become effective immediately prior to the opening of business
on the day following fifteenth Trading Day after the Ex-Dividend Date; provided
that if (x) the average of the Closing Sale Prices of the Common Stock for the
10 Trading Days commencing on and including the fifth Trading Day after the
Ex-Dividend Date minus (y) the fair market value of the securities distributed
in respect of each share of Common Stock for which this Section 11.11(g) applies
(as calculated in Section 11.11(g)(i)(B) above) is less than $1.00, then the
adjustment provided by for by this Section 11.11(g) shall not be made and in
lieu thereof the provisions of Section 11.14 shall apply to such distribution.
(h) If any adjustment or readjustment is made to the Base Conversion Rate
pursuant to this Section 11.11, the same proportional adjustment shall be made
to the Incremental Share Factor, the Maximum Conversion Rate and any Fixed
Conversion Rate; provided that no adjustment will be made to the Maximum
Conversion Rate as a result of any adjustment to the Base Conversion Rate
pursuant to Section 11.11(e).
(i) For purposes of this Section 11.11, the following terms shall have the
meaning indicated:
(i) "Current Market Price" shall mean the average of the daily Closing
Sale Prices per share of Common Stock for the 10 consecutive Trading Days
ending on the earlier of such date of determination and the day before the
"ex" date with respect to the issuance, distribution, subdivision or
combination requiring such computation immediately prior to the date in
question. For purpose of this paragraph, the term "ex" date, (1) when used
with respect to any issuance or distribution, means the first date on which
the Common Stock trades, regular way, on the relevant exchange or in the
relevant market from which the Closing Sale Price was obtained without the
right to receive such issuance or distribution, and (2) when used with
respect
71
to any subdivision or combination of shares of Common Stock, means the
first date on which the Common Stock trades, regular way, on such exchange
or in such market after the time at which such subdivision or combination
becomes effective.
If another issuance, distribution, subdivision or combination to which
Section 11.11 applies occurs during the period applicable for calculating
"Current Market Price" pursuant to the definition in the preceding paragraph,
"Current Market Price" shall be calculated for such period in a manner
determined by the Board of Directors to reflect the impact of such issuance,
distribution, subdivision or combination on the Closing Sale Price of the Common
Stock during such period.
(ii) "Fair Market Value" shall mean the amount which a willing buyer
would pay a willing seller in an arm's-length transaction.
(iii) "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).
(j) To the extent permitted by applicable law, the Company from time to
time may increase the Base Conversion Rate by any amount for any period of time
if the period is at least 20 days, the increase is irrevocable during the period
and the Board of Directors shall have made a determination that such increase
would be in the best interests of the Company, which determination shall be
conclusive. Whenever the Base Conversion Rate is increased pursuant to the
preceding sentence, the Company shall mail to Holders a notice of the increase
at least 15 days prior to the date the increased Base Conversion Rate takes
effect, and such notice shall state the increased Base Conversion Rate (and, as
applicable, the Incremental Share Factor, the Maximum Conversion Rate and any
Fixed Conversion Rate) and the period during which they will be in effect.
(k) No adjustment in the Base Conversion Rate (and, as applicable, the
Incremental Share Factor, the Maximum Conversion Rate and any Fixed Conversion
Rate) shall be required unless such adjustment would require an increase or
decrease of at least one percent (1%) in such rate; provided that any
adjustments that by reason of this Section 11.11(k) are not required to be made
shall be carried forward and taken into account in any subsequent adjustment;
and provided further that all such carried forward adjustments shall be made,
regardless of whether the aggregate adjustment is less than one percent (1%),
not
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later than one year following the first such adjustment carried forward. All
calculations under this Article 11 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 need be made for rights to purchase
Common Stock pursuant to a Company plan for reinvestment of dividends or
interest or, except as set forth in this Article 11, for any issuance of Common
Stock or convertible or exchangeable securities or rights to purchase Common
Stock or convertible or exchangeable securities. To the extent the Securities
become convertible into cash, assets, property or securities (other than capital
stock of the Company), subject to Section 11.14, no adjustment need be made
thereafter as to the cash, assets, property or such securities. Interest will
not accrue on any cash into which the Securities are convertible.
(l) Whenever the Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed Conversion Rate) is
adjusted as herein provided, the Company shall promptly file with the Trustee
and any Conversion Agent other than the Trustee an Officers' Certificate setting
forth the Base Conversion Rate (and, as applicable, the Incremental Share
Factor, the Maximum Conversion Rate and any Fixed Conversion Rate) after such
adjustment and setting forth a brief statement of the facts requiring such
adjustment. Unless and until a Responsible Officer of the Trustee or Conversion
Agent shall have received such Officers' Certificate, the Trustee or Conversion
Agent, as the case may be, shall not be deemed to have knowledge of any
adjustment of the Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed Conversion Rate) and may
assume that the last Base Conversion Rate (and, as applicable, the Incremental
Share Factor, the Maximum Conversion Rate and any Fixed Conversion Rate) of
which it has knowledge is still in effect. Promptly after delivery of such
certificate, the Company shall prepare a notice of such adjustment of the Base
Conversion Rate (and, as applicable, the Incremental Share Factor, the Maximum
Conversion Rate and any Fixed Conversion Rate) setting forth the adjusted Base
Conversion Rate (and, as applicable, the Incremental Share Factor, the Maximum
Conversion Rate and any Fixed Conversion Rate) and the date on which each
adjustment becomes effective and shall mail such notice of such adjustment of
the Base Conversion Rate (and, as applicable, the Incremental Share Factor, the
Maximum Conversion Rate and any Fixed Conversion Rate) to the Holder of each
Security at his last address appearing on the Security Register within 20 days
after execution thereof. Failure to deliver such notice shall not affect the
legality or validity of any such adjustment.
(m) In any case in which this Section 11.11 provides that an adjustment
shall become effective immediately after (1) a record date or Record Date for an
event, (2) the date fixed for the determination of stockholders entitled to
receive a dividend or distribution pursuant to Section 11.11(a), (3) a date
fixed for the
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determination of stockholders entitled to receive rights or warrants pursuant to
Section 11.11(b), or (4) the Expiration Time for any tender or exchange offer
pursuant to Section 11.11(f) (each a "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 Security converted after
such Determination Date and before the occurrence of such Adjustment Event, the
additional 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 Common Stock issuable 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 11.08. For purposes of this Section 11.11(m), 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.
(n) For purposes of this Section 11.11, the number of shares of Common
Stock at any time outstanding shall not include shares held in the treasury of
the Company, unless such treasury shares participate in any distribution or
dividend that requires an adjustment pursuant to this Section 11.11, but shall
include shares issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock.
Section 11.12. Adjustment for Tax Purposes. The Company shall be entitled
to make such increases in the Base Conversion Rate (and, as applicable, the
Incremental Share Factor, the Maximum Conversion Rate and any Fixed Conversion
Rate), in addition to those required by Section 11.11, as the Board of Directors
considers to be advisable to avoid or diminish any income tax to holders of
Common Stock or rights to purchase Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes.
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Section 11.13. Notice of Certain Transactions. In the event that:
(i) the Company takes any action which would require an adjustment in
the Conversion Rate;
(ii) the Company takes any action that requires a supplemental
indenture pursuant to Section 11.14; or
(iii) there is a dissolution or liquidation of the Company;
the Company shall mail to Holders and file with the Trustee a notice stating the
proposed record or effective date, as the case may be. The Company shall mail
the notice at least 15 days before such date. Failure to mail such notice or any
defect therein shall not affect the validity of any transaction referred to in
clause (i), (ii) or (iii) of this Section 11.13.
Section 11.14. Effect of Reclassification, Consolidation, Merger or Sale on
Conversion Privilege. If any of the following events occur, namely (i) any
reclassification or change of the outstanding shares of Common Stock (other than
a subdivision or combination to which Section 11.11(c) applies), (ii) any
consolidation, merger or combination of the Company with another Person as a
result of which holders of Common Stock shall be entitled to receive stock,
other securities or other property or assets (including cash) with respect to or
in exchange for such Common Stock, or (iii) any sale or conveyance of all or
substantially all of the properties and assets of the Company to any other
Person as a result of which holders of Common Stock shall be entitled to receive
stock, other securities or other property or assets (including cash) with
respect to or in exchange for such Common Stock, then the Company or the
successor or purchasing Person, as the case may be, shall execute with the
Trustee a supplemental indenture (which shall comply with the TIA as in force at
the date of execution of such supplemental indenture) providing that each
Security shall be convertible into the kind and amount of shares of stock, other
securities or other property or assets (including cash) receivable upon such
reclassification, change, consolidation, merger, combination, sale or conveyance
by a holder of a number of shares of Common Stock issuable upon conversion of
such Securities (assuming, for such purposes, a sufficient number of authorized
shares of Common Stock are available to convert all such Securities) immediately
prior to such reclassification, change, consolidation, merger, combination, sale
or conveyance assuming such holder of Common Stock did not exercise his rights
of election, if any, as to the kind or amount of stock, other securities or
other property or assets (including cash) receivable upon such reclassification,
change, consolidation, merger, combination, sale or conveyance (provided that,
if the kind or amount of stock, other securities or other property or assets
(including cash) receivable upon such reclassification, change, consolidation,
merger, combination, sale or conveyance is not the same for each share of Common
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Stock in respect of which such rights of election shall not have been exercised
("non-electing share"), then for the purposes of this Section 11.14 the kind and
amount of stock, other securities or other property or assets (including cash)
receivable upon such reclassification, change, consolidation, merger,
combination, sale or conveyance for each non-electing share shall be deemed to
be the kind and amount so receivable per share by a plurality of the
non-electing shares). 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 11.
The Company shall cause notice of the execution of such supplemental
indenture to be mailed to each Holder of Securities, at its address appearing on
the Security register, within 20 days after execution thereof and shall issue a
press release containing such information through Reuters Economic Services and
Bloomberg Business News or other reasonable means of distribution and publish
such information on its website on the World Wide Web. Failure to deliver such
notice shall not affect the legality or validity of such supplemental indenture.
The above provisions of this Section shall similarly apply to successive
reclassifications, changes, consolidations, mergers, combinations, sales and
conveyances.
If this Section 11.14 applies to any event or occurrence, Section 11.11
shall not apply.
Section 11.15. Trustee's Disclaimer. The Trustee shall have no duty to
determine when an adjustment under this Article should be made, how it should be
made or what such adjustment should be, but may accept as conclusive evidence of
that fact or the correctness of any such adjustment, and shall be protected in
relying upon, an Officers' Certificate including the Officers' Certificate with
respect thereto which the Company is obligated to file with the Trustee pursuant
to Section 11.11(k). The Trustee makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities, and the
Trustee shall not be responsible for the Company's failure to comply with any
provisions of this Article.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 11.14, but may accept as conclusive evidence of the
correctness thereof, and shall be fully protected in relying upon, the Officers'
Certificate with respect thereto which the Company is obligated to file with the
Trustee pursuant to Section 11.11(k).
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Section 11.16. Rights Issued in Respect of Common Stock Issued Upon
Conversion. Each share of Common Stock issued upon conversion of Securities
pursuant to this Article 11 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 that such
Rights Agreement requires that each share of Common Stock issued upon conversion
of Securities 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 11, there shall
not be any adjustment to the conversion privilege or Base Conversion Rate (and
as applicable, the Incremental Share Factor, the Maximum Conversion Rate and any
Fixed Conversion Rate) as a result of the issuance of Rights, but an adjustment
to the Base Conversion Rate (and as applicable, the Incremental Share Factor,
the Maximum Conversion Rate and any Fixed Conversion Rate) shall be made
pursuant to Section 11.11(d) upon the separation of the Rights from the Common
Stock.
Section 11.17. Company Determination Final. Any determination that the
Company or the Board of Directors must make pursuant to Sections 11.07, 11.08,
11.11, 11.12 or 11.14 shall be conclusive.
ARTICLE 12
PURCHASE AT OPTION OF HOLDERS
Section 12.01. Right to Require Purchase.
(a) Unless a Remarketing Reset Event occurs, each Holder has the right to
require the Company to purchase all or a portion of the Securities held by such
Holder on December 1, 2006, 2008, 2013, 2018, 2023, and 2028, or if any such day
is not a Business Day, on the immediately succeeding Business Day (each, a
"Purchase Date"), if the Securities are not immediately convertible into Common
Stock on such Purchase Date.
(b) The Company shall give notice of each Purchase Date and of the
procedures set forth in Section 12.02 that each Holder must follow to exercise
its purchase right to each Holder at its address set forth in the Security
Register and to the Depositary, not later than 20 Business Days prior to each
Purchase Date.
Section 12.02. Purchase Procedures. If the Holders have the right to
require the purchase of Securities pursuant to Section 12.01, the Company shall
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purchase such Securities for cash at a Purchase Price equal to 100% of the
Accreted Principal Amount thereof, plus accrued and unpaid interest (including
Liquidated Damages, if any) to, but excluding, the Purchase Date (the "Purchase
Price") (provided that if the Purchase Date is an Interest Payment Date, any
accrued and unpaid interest or Liquidated Damages shall be paid to the Holder of
record as of the applicable Regular Record Date, rather than to the Holder
presenting the Security for purchase), at the option of the Holder thereof,
upon:
(a) delivery to the Paying Agent by the Holder of a written notice of
purchase (a "Purchase Notice") at any time from the opening of business on the
date that is 20 Business Days prior to a Purchase Date until the close of
business on such Purchase Date stating:
(i) if a certificated Security has been issued, the certificate number
of the Security which the Holder will deliver to be purchased or if not,
such information as may be required under applicable procedures of the
Depositary,
(ii) the portion of the Original Principal Amount of the Security
which the Holder will deliver to be purchased, which portion must be $1,000
or an integral multiple thereof, and
(iii) that such Security shall be purchased as of the applicable
Purchase Date pursuant to this Article 12 and any applicable provisions of
such Security; and
(b) delivery or book-entry transfer of such Security to the Paying Agent
prior to, on or after the Purchase Date (together with all necessary
endorsements) at the offices of the Paying Agent, such delivery being a
condition to receipt by the Holder of the Purchase Price therefor; provided,
however, that such Purchase Price shall be so paid pursuant to this Article only
if the Security so delivered to the Paying Agent shall conform in all respects
to the description thereof in the related Purchase Notice, if such Security is
in certified form.
The Company shall purchase from the Holder thereof, pursuant to this
Article, a portion of a Security if the Original Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Article shall be consummated by the payment of the Purchase Price to be received
by the Holder in cash promptly following the later of the Purchase Date
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and the time of delivery or book-entry transfer of the Security as set forth in
Section 12.04.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Purchase Notice contemplated by this Section 12.02 shall
have the right to withdraw such Purchase Notice at any time prior to the close
of business on the Purchase Date by delivery of a written notice of withdrawal
to the Paying Agent in accordance with Section 12.03.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Purchase Notice or written notice of withdrawal thereof.
Section 12.03. Effect of Purchase Notice. Upon receipt by the Paying Agent
of the Purchase Notice specified in Section 12.02(a), the Holder of the Security
in respect of which such Purchase Notice was given shall (unless such Purchase
Notice is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price with respect to such Security.
Such Purchase Price shall be paid to such Holder, subject to receipt of funds by
the Paying Agent, promptly following the later of (x) the Purchase Date with
respect to such Security (provided the conditions in Section 12.02 have been
satisfied) and (y) the time of delivery or book-entry transfer of such Security
to the Paying Agent by the Holder thereof in the manner required by Section
12.02. Securities in respect of which a Purchase Notice has been given by the
Holder thereof may not be converted pursuant to Article 11 hereof on or after
the date of the delivery of such Purchase Notice unless such Purchase Notice has
first been validly withdrawn as specified in the following two paragraphs.
A Purchase Notice may be withdrawn by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Purchase Notice at any time prior to the close of business on the applicable
Purchase Date specifying:
(i) if certificated Securities have been issued, the certificate
number of the Security in respect of which such notice of withdrawal is
being submitted, or if not, such information as may be required under
appropriate procedures of the Depositary;
(ii) the Original Principal Amount of the Security with respect to
which such notice of withdrawal is being submitted; and
(iii) the Original Principal Amount, if any, of such Security that
remain subject to the original Purchase Notice and have been or will be
delivered or book-entry transferred for purchase by the Company.
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There shall be no purchase of any Securities pursuant to this Article 12 if
there has been an acceleration of the Accreted Principal Amount (prior to, on or
after, as the case may be, the giving, by the Holders of such Securities, of the
required Purchase Notice) and such acceleration has not been rescinded. The
Paying Agent will promptly return to the respective Holders thereof any
Securities (x) with respect to which a Purchase Notice has been withdrawn in
compliance with this Indenture, or (y) held by it if there has been an
acceleration of the Accreted Principal Amount, and such acceleration has not
been rescinded, in which case, upon such return, the Purchase Notice with
respect thereto shall be deemed to have been withdrawn.
Section 12.04. Deposit of Purchase Price. Prior to 11:00 a.m. (New York
City time) on the Business Day immediately following the Purchase Date, the
Company shall deposit with the Trustee or with the Paying Agent an amount of
cash (in immediately available funds if deposited on such Business Day)
sufficient to pay the aggregate Purchase Price of all of the Securities or
portions thereof which are to be purchased as of the Purchase Date. The manner
in which the deposit required by this Section 12.04 is made by the Company shall
be at the option of the Company, provided, however, that such deposit shall be
made in a manner such that the Trustee or a Paying Agent shall have immediately
available funds on the date of deposit.
If a Paying Agent holds, in accordance with the terms hereof, cash
sufficient to pay the Purchase Price of any Security for which a Purchase Notice
has been tendered and not withdrawn in accordance with this Indenture on the
Business Day following the Purchase Date then, immediately after such Purchase
Date, such Security will cease to be outstanding, interest (including Contingent
Interest and Liquidated Damages, if any) will cease to accrue and the rights of
the Holder in respect thereof shall terminate (other than the right to receive
the Purchase Price as aforesaid).
Section 12.05. Securities Purchased in Part. Any Security which is to be
purchased only in part shall be surrendered at the office of the Paying Agent
(with, if the Company, the Paying Agent or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company, the Paying Agent or the Trustee duly executed by, the Holder thereof or
such Holder's attorney duly authorized in writing) and the Company shall execute
and the Trustee, or any Authenticating Agent, shall authenticate and deliver to
the Holder of such Security, without service charge except for any taxes to be
paid by the Holder in the event a Security is registered under a new name, a new
Security or Securities, of any authorized denomination as requested by such
Holder in aggregate Original Principal Amount equal to, and in exchange for, the
portion of the Original Principal Amount of the Security so surrendered which is
not purchased.
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Section 12.06. Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed for two years,
subject to applicable unclaimed property law, together with interest, if any,
thereon held by them for the payment of the Purchase Price, provided, however,
that to the extent that the aggregate amount of cash or Common Stock deposited
by the Company pursuant to Section 12.04 exceeds the aggregate Purchase Price of
the Securities or portions thereof which the Company is obligated to purchase as
of the Purchase Date, then promptly after the Business Day following the
Purchase Date, the Trustee or the Paying Agent, as applicable, shall return any
such excess to the Company. Thereafter, any Holder entitled to payment must look
to the Company for payment as general creditors, unless an applicable abandoned
property law designates another Person.
ARTICLE 13
PURCHASE AT OPTION OF HOLDER UPON A CHANGE IN CONTROL
Section 13.01. Right to Require Purchase.
(a) Unless a Remarketing Reset Event occurs, if at any time prior to Stated
Maturity that Securities remain outstanding there shall occur a Change in
Control, Securities shall be purchased by the Company in integral multiples of
$1,000 Original Principal Amount at the option of the Holders thereof as of the
date specified by the Company that is not less than 20 Business Days nor more
than 35 Business Days after the occurrence of the Change in Control (the "Change
in Control Purchase Date") subject to satisfaction by or on behalf of any Holder
of the requirements set forth in subsection (c) of this Section 13.01. The
purchase price of such Securities (the "Change in Control Purchase Price") shall
be equal to 100% of the Accreted Principal Amount of the Securities to be
purchased plus accrued and unpaid interest (including Contingent Interest and
Liquidated Damages, if any) to, but excluding, the Change in Control Purchase
Date, unless such Change in Control Purchase Date falls after a Regular Record
Date and on or prior to the corresponding Interest Payment Date, in which case
the Company shall pay the full amount of accrued and unpaid interest (including
Contingent Interest and Liquidated Damages, if any) payable on such Interest
Payment Date to the holder of record at the close of business on such Regular
Record Date.
A "Change in Control" shall be deemed to have occurred at such time as
either of the following events shall occur:
(i) There shall be consummated any consolidation or merger of the
Company pursuant to which the Common Stock would be converted into
cash, securities or other property, in each case other than a
consolidation or merger of the Company in which the holders of the
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Common Stock immediately prior to the consolidation or merger have,
directly or indirectly, at least a majority of the total voting power
in the aggregate of all classes of capital stock of the continuing or
surviving corporation immediately after such consolidation or merger;
or
(ii) There is a report filed on Schedule 13D or 14D-1 (or any
successor schedule, form or report) pursuant to the Exchange Act,
disclosing that any person, including such person's Affiliates or
Associates (for the purposes of this Section 13.01 only, as the term
"person" is used in Section 13(d)(3) or Section 14(d)(2) of the
Exchange Act) has become the beneficial owner (as the term "beneficial
owner" is defined under Rule 13d-3 or any successor rule or regulation
promulgated under the Exchange Act) of 50% or more of the voting power
of the Common Stock or other Capital Stock into which the Common Stock
is reclassified or changed; provided, however, that a person shall not
be deemed beneficial owner of, or to own beneficially, Error! Bookmark
not defined. any securities tendered pursuant to a tender or exchange
offer made by or on behalf of such person or any of such person's
Affiliates or Associates until such tendered securities are accepted
for purchase or exchange thereunder, or Error! Bookmark not defined.
any securities if such beneficial ownership (1) arises solely as a
result of a revocable proxy delivered in response to a proxy or
consent solicitation made pursuant to the applicable rules and
regulations under the Exchange Act, and (2) is not also then
reportable on Schedule 13D (or any successor schedule) under the
Exchange Act.
Notwithstanding the foregoing provisions of this Section 13.01, a Change of
Control shall not deemed to have occurred upon the occurrence of any of the
following:
(i) The Company, any Subsidiary, any employee stock ownership plan or
any other employee benefit plan of the Company or any Subsidiary, or any
person holding Common Stock for or pursuant to the terms of any such
employee benefit plan, files or becomes obligated to file a report under or
in response to Schedule 13D or Schedule 14D-1 (or any successor schedule,
form or report) under the Exchange Act disclosing beneficial ownership by
it of shares of Common Stock, whether in excess of 50% or otherwise;
(ii) The Closing Sale Price per share of Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the Change in Control or the public
announcement of the Change in Control, in the case of a Change in Control
relating to an acquisition of capital stock, or the period of 10
consecutive Trading Days ending immediately before the Change in Control,
in the case of a Change in Control relating to a merger, consolidation or
asset sale,
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equals or exceeds 105% of the Effective Conversion Price of the Securities
in effect on each of those Trading Days; or
(iii) All or substantially all (but in no event less than 90%) of the
consideration in the transaction or transactions (other than cash payments
for fractional shares and cash payments made in respect of dissenters'
appraisal rights) constituting a Change in Control consists of shares of
common stock, depository receipts or other certificates representing common
equity interests traded or to be traded immediately following a Change of
Control on a national securities exchange or Nasdaq, and, as a result of
the transaction or transactions, the Securities become convertible into
that common stock, depository receipts or other certificates representing
common equity interests.
"Associate" shall have the meaning ascribed to such term in Rule 12b-2 of
the General Rules and Regulations under the Exchange Act, as in effect on the
date hereof.
(b) Within 15 Business Days after the occurrence of a Change in Control,
the Company shall mail a written notice of the Change in Control to the Trustee
and any Paying Agent and to each Holder.
The notice shall include the form of a Change in Control Purchase Notice to
be completed by the Holder and shall state:
(i) the date of such Change in Control and, briefly, the events
causing such Change in Control;
(ii) the date by which the Change in Control Purchase Notice pursuant
to this Section 13.01 must be given;
(iii) the Change in Control Purchase Date;
(iv) the Change in Control Purchase Price that will be accrued and
payable with respect to the Securities as of the Change in Control Purchase
Date;
(v) briefly, the conversion rights of the Securities;
(vi) the name and address of each Paying Agent and Conversion Agent;
(vii) the Base Conversion Rate, the Maximum Conversion Rate and the
current Conversion Rate (using the Applicable Stock Price as determined as
of the Business Day prior to the date on which the notice pursuant to this
Section 13.01(b) is mailed by the Company to the
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Trustee or Paying Agent (assuming a Conversion Date 13 Trading Days prior
to such date), and any adjustments thereto;
(viii) that Securities as to which a Change in Control Purchase Notice
has been given may be converted into Common Stock pursuant to Article 11
only to the extent that the Change in Control Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(ix) the procedures that the Holder must follow to exercise rights
under this Section 13.01;
(x) the procedures for withdrawing a Change in Control Purchase
Notice, including a form of notice of withdrawal;
(xi) that the Holder must satisfy the requirements set forth herein
and in the Securities in order to convert the Securities; and
(xii) the last date on which the purchase right may be exercised.
If any of the Securities is in the form of a Global Security, then the
Company shall modify such notice to the extent necessary to accord with the
procedures of the Depositary applicable to the purchase of Global Securities.
(c) A Holder may exercise its rights specified in subsection (a) of this
Section 13.01 upon delivery of a written notice (which shall be in substantially
the form included as an attachment to the Securities and which may be delivered
by letter, overnight courier, hand delivery, facsimile transmission or in any
other written form and, in the case of Global Securities, may be delivered
electronically or by other means in accordance with the Depositary's customary
procedures) of the exercise of such rights (a "Change in Control Purchase
Notice") to any Paying Agent at any time prior to the close of business on the
Change in Control Purchase Date.
The delivery of such Security to any Paying Agent (together with all
necessary endorsements) at the office of such Paying Agent shall be a condition
to the receipt by the Holder of the Change in Control Purchase Price.
The Company shall purchase from the Holder thereof, pursuant to this
Section 13.01, a portion of a Security if the Original Principal Amount of such
portion is $1,000 or an integral multiple of $1,000. Provisions of this
Indenture that apply to the purchase of all of a Security pursuant to Section
13.01 through Section 13.05 also apply to the purchase of such portion of such
Security.
Any purchase by the Company contemplated pursuant to the provisions of this
Section 13.01 shall be consummated by the delivery of the consideration
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to be received by the Holder promptly following the later of the Change in
Control Purchase Date and the time of delivery of the Security to the Paying
Agent in accordance with this Section 13.01 as set forth in Section 13.02.
Notwithstanding anything herein to the contrary, any Holder delivering to a
Paying Agent the Change in Control Purchase Notice contemplated by this
subsection (c) shall have the right to withdraw such Change in Control Purchase
Notice in whole or as to a portion thereof that is an Original Principal Amount
of $1,000 or an integral multiple thereof at any time prior to the close of
business on the Change in Control Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 13.02.
A Paying Agent shall promptly notify the Company of the receipt by it of
any Change in Control Purchase Notice or written withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case of Global
Securities, any Change in Control Purchase Notice may be delivered or withdrawn
and such Securities may be surrendered or delivered for purchase in accordance
with the applicable procedures of the Depositary as in effect from time to time.
Section 13.02. Effect of Change in Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control Purchase Notice
specified in Section 13.01(c), the Holder of the Security in respect of which
such Change in Control Purchase Notice was given shall (unless such Change in
Control Purchase Notice is withdrawn as specified below) thereafter be entitled
to receive the Change in Control Purchase Price with respect to such Security.
Such Change in Control Purchase Price shall be paid to such Holder promptly
following the later of (a) the Change in Control Purchase Date with respect to
such Security (provided the conditions in Section 13.01(c) have been satisfied)
and (b) the time of delivery or book-entry transfer of such Security to a Paying
Agent by the Holder thereof in the manner required by Section 13.01(c).
Securities in respect of which a Change in Control Purchase Notice has been
given by the Holder thereof may not be converted into Common Stock on or after
the date of the delivery of such Change in Control Purchase Notice unless such
Change in Control Purchase Notice has first been validly withdrawn as specified
in the following paragraph.
A Change in Control Purchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in accordance
with the Change in Control Purchase Notice at any time prior to the close of
business on the applicable Change in Control Purchase Date specifying:
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(i) if certificated Securities have been issued, the certificate
numbers for Securities in respect of which such notice of withdrawal is
being submitted, or if not, such information as required by the Depositary;
(ii) the Original Principal Amount, in integral multiples of $1,000,
of the Securities with respect to which such notice of withdrawal is being
submitted; and
(iii) the Original Principal Amount, if any, of such Securities that
remain subject to the original Change in Control Purchase Notice and have
been or will be delivered or book-entry transferred for purchase by the
Company.
There shall be no purchase of any Securities pursuant to this Article if
there has been an acceleration of the Accreted Principal Amount (prior to, on or
after, as the case may be, the giving, by the Holders of such Securities, of the
required Change in Control Purchase Notice) and such acceleration has not been
rescinded. The Paying Agent will promptly return to the respective Holders
thereof any Securities (x) with respect to which a Change in Control Purchase
Notice has been withdrawn in compliance with this Indenture, or (y) held by it
while there has been an acceleration of the Accreted Principal Amount, and such
acceleration has not been rescinded, in which case, upon such return, the Change
in Control Purchase Notice with respect thereto shall be deemed to have been
withdrawn.
Section 13.03. Deposit of Change in Control Purchase Price. On or before
11:00 a.m. New York City time on the Business Day immediately following the
Change in Control Purchase Date, the Company shall deposit with the Trustee or
with a Paying Agent an amount of cash (in immediately available funds if
deposited on such Business Day) sufficient to pay the aggregate Change in
Control Purchase Price of all the Securities or portions thereof that are to be
purchased as of such Change in Control Purchase Date. The manner in which the
deposit required by this Section 13.03 is made by the Company shall be at the
option of the Company, provided, however, that such deposit shall be made in a
manner such that the Trustee or a Paying Agent shall have immediately available
funds on the date of such deposit.
If a Paying Agent holds, in accordance with the terms hereof, money
sufficient to pay the Change in Control Purchase Price of any Security for which
a Change in Control Purchase Notice has been tendered and not withdrawn in
accordance with this Indenture on the Business Day following the Change in
Control Purchase Date then, immediately following the Change in Control Purchase
Date, such Security will cease to be outstanding, interest (including Contingent
Interest and Liquidated Damages, if any) will cease to accrue and the
86
rights of the Holder in respect thereof shall terminate (other than the right to
receive the Change in Control Purchase Price). The Company shall publicly
announce the Original Principal Amount of Securities purchased as a result of
such Change in Control on or as soon as practicable after the Change in Control
Purchase Date.
Section 13.04. Securities Purchased in Part. Any Security that is to be
purchased only in part shall be surrendered at the office of a Paying Agent and
promptly after the Change in Control Purchase Date the Company shall execute and
the Trustee, or any Authenticating Agent, shall authenticate and deliver to the
Holder of such Security, without service charge (other than amounts to be paid
in respect of applicable transfer taxes), a new Security or Securities, of such
authorized denomination or denominations in integral multiples of $1,000
Original Principal Amount as may be requested by such Holder, in aggregate
Original Principal Amount equal to, and in exchange for, the portion of the
Original Principal Amount of the Security so surrendered that is not purchased.
Section 13.05. Repayment to the Company. The Trustee and the Paying Agent
shall return to the Company any cash that remains unclaimed for two years,
subject to applicable unclaimed property law, together with interest, if any,
thereon held by them for the payment of the Change in Control Purchase Price;
provided, however, that to the extent that the aggregate amount of cash
deposited by the Company pursuant to Section 13.03 exceeds the aggregate Change
in Control Purchase Price of the Securities or portions thereof which the
Company is obligated to purchase as of the Change in Control Purchase Date, then
on the Business Day following the Purchase Date, the Trustee or Paying Agent, as
applicable, shall return any such excess to the Company. Thereafter, any Holder
entitled to payment must look to the Company for payment as general creditors,
unless an applicable abandoned property law designates another Person.
ARTICLE 14
CONTINGENT INTEREST
Section 14.01. Contingent Interest.
(a) Unless a Remarketing Reset Event occurs, the Company will pay
Contingent Interest to Holders during any Interest Period commencing on or after
December 1, 2006, if (x) the average Trading Price of the Securities for the
five Trading Day measurement period immediately preceding the first day of the
applicable Interest Period (the "Measurement Period") equals 125% or more of the
Accreted Principal Amount of the Securities as of the first day of such
Measurement Period and (y) the Securities are immediately convertible into
Common Stock on the first day of such Measurement Period. The amount of
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Contingent Interest payable in any Interest Period pursuant to this Section
14.01(a) will be equal to the Fixed Conversion Rate multiplied by the Payment
Factor for such Interest Period. The "Payment Factor" for each Interest Period
is $0.20, subject to adjustment for any stock dividends on or any subdivisions,
combinations or reclassifications of shares of the Common Stock. Such
adjustments shall be made in a manner inversely proportional to the
corresponding adjustments to the Conversion Rate for such events pursuant to
Section 11.11.
(b) Unless a Remarketing Reset Event occurs, the Company will pay
Contingent Interest (in addition to Contingent Interest payable pursuant to
Section 14.01(a)) to Holders during any Interest Period commencing on or after
December 1, 2006, if (x) the average Trading Price of the Securities for the
applicable Measurement Period equals 200% or more of the Accreted Principal
Amount of the Securities as of the first day of such Measurement Period and (y)
the Securities are immediately convertible into Common Stock on the first day of
such Measurement Period. The amount of Contingent Interest payable in any
Interest Period pursuant to this Section 14.01(b) will be equal to .125% of the
average Trading Price of the Securities for the applicable Measurement Period.
Section 14.02. Payment of Contingent Interest. The Company shall pay
Contingent Interest owed pursuant to Section 14.01(a) or (b) for any Interest
Period on the Interest Payment Date immediately succeeding the applicable
Interest Period (whether or not interest on the Securities is otherwise payable
on such Interest Payment Date), to Holders of Securities as of the Regular
Record Date relating to such Interest Payment Date.
Section 14.03. Notice of Contingent Interest.
(a) As soon as practicable following the first Business Day of an Interest
Period for which Contingent Interest will be payable pursuant to Section
14.01(a) or (b), the Company shall issue a press release through Reuters
Economic Services and Bloomberg Business News or other reasonable means of
distribution containing this information and publish the information on its
website on the World Wide Web.
(b) On any Interest Payment Date on which Contingent Interest is payable
pursuant to this Article 14, the Company shall issue a press release through
Reuters Economic Services and Bloomberg Business News or other reasonable means
of distribution stating the amount of such Contingent Interest and setting forth
the manner in which such amount was calculated, and publish such information on
its website on the World Wide Web.
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ARTICLE 15
CONTINGENT ACCRETION
Section 15.01. Contingent Accretion.
(a) Following the occurrence of a Remarketing Reset Event, the Company will
pay Contingent Accretion to Holders if for four or more consecutive Interest
Periods, the Securities are rated below BBB- by S&P and below Baa3 by Xxxxx'x,
or the Securities are not rated by both S&P and Xxxxx'x, as of the last day of
each Interest Period. The amount of Contingent Accretion that will accrue in any
Interest Period pursuant to this Section 15.01(a) will be equal to $5.00 per
$1,000 Original Principal Amount of Securities for each such Interest Period.
(b) Following the occurrence of a Remarketing Reset Event, the Company will
pay additional Contingent Accretion (in addition to Contingent Accretion payable
pursuant to Section 15.01(a)) to Holders, if, during any of the four or more
consecutive Interest Periods referred to in Section 15.01(a), the Securities are
rated below BB by S&P and below Ba2 by Xxxxx'x, or the Securities are not rated
by both S&P and Xxxxx'x, as of the last day of each Interest Period. The amount
of Contingent Accretion that will accrue in any Interest Period pursuant to this
Section 15.01(b) will be equal to $5.00 per $1,000 Original Principal Amount of
Securities for each such Interest Period.
Section 15.02. Payment of Contingent Accretion.
(a) The Company shall pay Contingent Accretion owed pursuant to Section
15.01(a) or Section 15.01(b) upon the repayment in full by the Company of the
Accreted Principal Amount of the Securities and any accrued and unpaid interest
(including Contingent Interest and Liquidated Damages, if any), whether upon
acceleration pursuant to Section 4.02 of the Indenture, upon the dates set for
payment of the Remarketing Purchase Price, upon the Stated Maturity of the
Securities or otherwise (each, a "Contingent Accretion Payment Date").
(b) Any Contingent Accretion accrued pursuant to Section 15.01(a) or
Section 15.01(b) will not bear interest or additional accretion from accrual
until payment.
(c) Notwithstanding the foregoing, if at any time, following the accrual of
any Contingent Accretion pursuant to Section 15.01(a) or Section 15.01(b) and
prior to the Contingent Accretion Payment Date, the Securities are rated BBB- or
higher by S&P and Baa3 or higher by Xxxxx'x, such Contingent Accretion shall no
longer be payable.
Section 15.03. Notice of Contingent Accretion.
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(a) As soon as practicable following the accrual of any Contingent
Accretion pursuant to Section 15.01(a) or Section 15.01(b), the Company shall
issue a press release through Reuters Economic Services and Bloomberg Business
News or other reasonable means of distribution containing the amount of
Contingent Accretion that has accrued per $1,000 Original Principal Amount of
Securities and publish such information on its website on the World Wide Web.
(b) If, following the accrual of any Contingent Accretion pursuant to
Section 15.01(a) or Section 15.01(b), such Contingent Accretion shall no longer
be payable pursuant to Section 15.02(c), the Company shall issue a press release
through Reuters Economic Services and Bloomberg Business News or other
reasonable means of distribution containing this information and publish the
information on its website on the World Wide Web as soon as practicable
following the occurrence of the events described in Section 15.02(c).
(c) On any Contingent Accretion Payment Date on which Contingent Accretion
is payable pursuant to this Article 15, the Company shall issue a press release
through Reuters Economic Services and Bloomberg Business News or other
reasonable means of distribution stating the amount of such Contingent Accretion
per $1,000 Original Principal Amount of Securities and setting forth the manner
in which such amount was calculated, and publish such information on its website
on the World Wide Web.
ARTICLE 16
YIELD RESET AND REMARKETING
Section 16.01. Remarketing Reset Event. Unless a Remarketing Reset Event
has previously occurred, if the average of the Closing Sale Prices of the Common
Stock over the 10 Trading Day period ending on the Trading Day immediately
preceding any Remarketing Reset Event Date is less than the Effective Conversion
Price as of such Trading Day (a "Remarketing Reset Event"), then following such
Remarketing Reset Event Date, the Company will not pay Contingent Interest on
the Securities, the Securities will no longer be convertible into Common Stock,
the right of Holders to require the Company to purchase Securities on a Purchase
Date or upon a Change in Control shall cease, and the yield or cash interest
rate, as the case may be, on the Securities will be reset on such Remarketing
Reset Event Date and each Remarketing Reset Date thereafter.
Section 16.02. Reset Yield.
(a) The yield or cash interest rate on the Securities will be reset by the
Remarketing Agent on each Remarketing Reset Date to the yield (the "Reset
90
Yield"), or if the Securities will bear cash interest pursuant to Section
16.02(b), to the cash interest rate (the "Reset Rate"), for the applicable
Interest Period (as defined in clause (3) of the definition thereof) necessary
for the proceeds from the remarketing of the Securities, net of any fee to the
Remarketing Agent, to be 100% of Accreted Principal Amount, plus any accrued an
unpaid interest (including Contingent Interest and Liquidated Damages, if any),
as of such Remarketing Reset Date, of the Securities remarketed; provided that
the Reset Yield shall not exceed the maximum rate permitted by law and shall not
be less than 0% per annum.
(b) (i) The Company may elect prior to any remarketing that following such
remarketing the Securities will bear cash interest, in which case the Reset
Yield shall be 0% during the period from and including the applicable
Remarketing Reset Date to but excluding the next succeeding Remarketing Reset
Date.
(ii) If the Company elects pursuant to clause (b)(i) above that the
Securities will bear cash interest, the Company shall pay cash interest on
the Accreted Principal Amount of the Securities at a rate per annum equal
to the Reset Rate. The Company will pay such cash interest on the Interest
Payment Dates specified by the Company in the notice referred to in Section
16.03(e), to the Holders of Securities as of the applicable Regular Record
Dates specified by the Company in such notice.
(c) Notwithstanding the foregoing, if (i) less than $50 million aggregate
Original Principal Amount of Securities is to be remarketed on any Remarketing
Reset Date pursuant to Section 16.03 or (ii) a Failed Remarketing occurs on any
Remarketing Reset Date, the Securities shall not bear cash interest pursuant to
any election by the Company pursuant to Section 16.02(b) and the Reset Yield
shall be the yield necessary, in the judgment of the Remarketing Agent based on
bids from at least three independent nationally recognized securities dealers
selected by the Remarketing Agent, for the Securities to trade at a price equal
to 100% of the Accreted Principal Amount thereof as of such Remarketing Reset
Date. If the Remarketing Agent is not able to obtain bids from at least three
independent nationally recognized securities dealers on a Remarketing Reset
Date, the Reset Yield shall be the Reset Yield in effect on the previous
Remarketing Reset Date, or if no previous Remarketing Reset Date has occurred or
the Reset Yield has not previously been established, the regular interest rate
or Applicable Yield (other than 0%) most recently in effect for the Securities
immediately prior to the applicable Remarketing Reset Date.
(d) By approximately 4:30 p.m., New York City time, on any Remarketing
Reset Date, the Remarketing Agent shall notify the Company, the Trustee, the
Paying Agent and the Depositary of the Reset Yield or, if applicable, the Reset
Rate. The Company shall issue a press release through
91
Reuters Economic Services and Bloomberg Business News or other reasonable means
of distribution stating such Reset Yield or Reset Rate and publish such
information on its website on the World Wide Web.
Section 16.03. Remarketing Procedures.
(a) On any Remarketing Reset Date, all outstanding Securities will be
tendered or deemed tendered to the Remarketing Agent for remarketing unless the
Holder thereof elects not to participate in the remarketing. Each Holder of
Securities by purchasing such Securities agrees to have such Securities
remarketed on any Remarketing Reset Date (unless such Holder elects not to
participate in the remarketing) and authorizes the Remarketing Agent to take any
and all action on its behalf necessary to effect the remarketing. On any
Remarketing Reset Event Date, each Holder of Securities will have the right to
elect not to have its Securities remarketed by notice to the Paying Agent on or
prior to the Business Day immediately prior to any Remarketing Reset Event Date
of the Original Principal Amount of Securities such Holder wants withheld from a
remarketing if a Remarketing Reset Event occurs. Following the occurrence of a
Remarketing Reset Event, each Holder, whether or not such Holder elected to
withhold its Securities from a remarketing on any prior Remarketing Reset Date,
may elect not to participate in a remarketing by notice (a "Notice to Opt Out of
Remarketing") to the Paying Agent on or prior to the Business Day prior to the
applicable Remarketing Reset Date (the "Opt Out Date").
(b) If on any Remarketing Reset Date a Remarketing Reset Event occurs or
has previously occurred and Holders of at least $50 million aggregate Original
Principal Amount of Securities have not delivered a Notice to Opt Out of
Remarketing (a "Required Remarketing Date"), the Remarketing Agent shall conduct
such remarketing in accordance with the terms of the Remarketing Agreement and
this Indenture.
(c) If the Securities are successfully remarketed by the Remarketing Agent
on any Required Remarketing Date, the Remarketing Agent shall deduct any fee
specified in the Remarketing Agreement from the proceeds of such remarketing and
remit the remaining proceeds, which shall be at least 100% of the Accreted
Principal Amount of the Securities remarketed, to the Holders who did not
deliver a Notice to Opt Out of Remarketing as promptly as possible following the
applicable Required Remarketing Date.
(d) If, by 4:00 p.m., New York City time, on any Required Remarketing Date,
the Remarketing Agent is unable to remarket all Securities for which no Notice
to Opt Out of Remarketing has been delivered or a condition precedent in the
Remarketing Agreement shall not have been fulfilled, a failed remarketing
("Failed Remarketing") shall be deemed to have occurred.
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In the event of a Failed Remarketing, the Company shall issue a press release
through Reuters Economic Services and Bloomberg Business News or other
reasonable means of distribution regarding such Failed Remarketing and stating
the aggregate Original Principal Amount of Securities that the Company will
repurchase as required pursuant to Section 16.04(a) and publish such information
on its website on the World Wide Web.
(e) The Company shall notify the Holders of the Securities, and the Company
shall request that the Depositary notify its participants holding Securities, at
least 21 Business Days prior to each Opt Out Date of the potential remarketing
of the Securities, the next Remarketing Reset Date, whether the Securities will
accrete or bear cash interest pursuant to Section 16.03(b) and if the Securities
will bear cash interest, the applicable Interest Payment Dates and Regular
Record Dates, the procedures a beneficial owner must follow to elect not to
participate in such remarketing, the applicable Opt Out Date and the right of
the beneficial owners of Securities to require the Company to purchase
Securities if there is a Failed Remarketing; provided that if the Company does
not provide such notice, (i) the next Remarketing Reset Date shall be the first
anniversary of the previous Remarketing Reset Date (or if such day is not a
Business Day, the immediately succeeding Business Day) and (ii) the Securities
will not bear cash interest pursuant to Section 16.02(b). The Company will also
issue a press release through Reuters Economic Services and Bloomberg Business
News or other reasonable means of distribution and publish such information on
its website on the World Wide Web.
(f) Securities in respect of which no Notice to Opt Out of Remarketing has
been given by the Holder thereof may not be converted pursuant to Article 11
hereof on or after the Opt Out Date, if a Remarketing Reset Event occurs.
A Notice to Opt Out of Remarketing may be withdrawn at any time prior to
the close of Business on the Opt Out Date by means of a written notice of
withdrawal delivered to the office of the Paying Agent in accordance with the
Notice to Opt Out of Remarketing at any time prior to the close of business on
the applicable Remarketing Reset Date specifying:
(i) if certificated Securities have been issued, the certificate
numbers for Securities in respect of which such notice of withdrawal is
being submitted, or if not, such information as required by the Depositary;
(ii) the Original Principal Amount, in integral multiples of $1,000,
of the Securities with respect to which such notice of withdrawal is being
submitted; and
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(iii) the Original Principal Amount, if any, of such Securities that
remain subject to the original Notice to Opt Out of Remarketing.
Section 16.04. Right to Require Purchase.
(a) If a Failed Remarketing occurs on any Remarketing Reset Date, each
Holder of Securities will have the right to require the Company to purchase all
or a portion of its Securities on such Remarketing Reset Date for cash. The
Company shall purchase such Securities at a purchase price (the "Remarketing
Purchase Price") equal to 100% of the Accreted Principal Amount (including
accrued Contingent Accretion, if any) thereof as of the applicable Remarketing
Reset Date, plus accrued and unpaid interest (including Liquidated Damages, if
any) to, but excluding such Remarketing Reset Date. Each Holder must notify the
Paying Agent on or prior to each Remarketing Reset Event Date and any subsequent
Remarketing Reset Date of the aggregate Original Principal Amount of Securities
it wants the Company to repurchase in the event of a Failed Remarketing. Holders
of Securities will be deemed to have exercised their right to require the
Company to purchase the aggregate Original Principal Amount of Securities unless
they elected not to participate in the applicable remarketing by delivering a
Notice to Opt Out of Remarketing pursuant to Section 16.03(a).
(b) If less than $50 million aggregate Original Principal Amount of
Securities is to be remarketed on any Remarketing Reset Date because Holders of
all remaining outstanding Securities have elected not to participate in such
remarketing, there will not be a remarketing and such Holders who did not
deliver the Notice to Opt Out of Remarketing, but only such Holders, will have
the right to require to the Company to purchase all or a portion of their
Securities on such Remarketing Reset Date for cash. Such Holders are deemed to
exercise such right with respect to the aggregate Original Principal Amount of
Securities for which they did not deliver the Notice to Opt Out of Remarketing.
The Company shall purchase such Securities at the Remarketing Purchase Price.
(c) The procedures set forth in Sections 12.04 through 12.06 shall apply to
the purchase of Securities by the Company pursuant to Sections 16.04(a) or (b),
mutatis mutandis, except references to Purchase Date, Purchase Price and
Purchase Notice shall be deemed to refer instead to Remarketing Purchase Date,
Remarketing Purchase Price, and the purchase notice pursuant to Section
16.04(a), respectively.
A purchase notice pursuant to Section 16.04(a) may be withdrawn by means of
a written notice of withdrawal delivered to the office of the Paying Agent at
any time prior to the close of business on the applicable Remarketing Reset Date
specifying:
94
(i) if certificated Securities have been issued, the certificate
numbers for Securities in respect of which such notice of withdrawal is
being submitted, or if not, such information as required by the Depositary;
(ii) the Original Principal Amount, in integral multiples of $1,000,
of the Securities with respect to which such notice of withdrawal is being
submitted; and
(iii) the Original Principal Amount, if any, of such Securities that
remain subject to the original purchase notice and have been or will be
delivered for purchase by the Company.
ARTICLE 17
IMMUNITY OF INCORPORATORS, STOCKHOLDERS, OFFICERS, DIRECTORS AND
EMPLOYEES
Section 17.01. Exemption From Individual Liability. No recourse under or
upon any obligation, covenant or agreement of this Indenture, or of any
Security, or for any claim based thereon or otherwise in respect thereof, shall
be had against any incorporator, stockholder, officer, director or employee, as
such, past, present or future, of the Company or of any successor corporation,
either directly or through the Company, 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 this Indenture and the obligations
issued hereunder are solely corporate obligations, and that no such personal
liability whatever shall attach to, or is or shall be incurred by, the
incorporators, stockholders, officers, directors or employees, as such, past,
present or future, of the Company or of any successor corporation, or any of
them, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations, covenants or agreements contained in this
Indenture or in any of the Securities or implied herefrom or therefrom; and that
any and all such personal liability, either at common law or in equity or by
constitution or statute, of, and any and all such rights and claims against,
every such incorporator, stockholder, officer, director or employee, as such,
because of the creation of the indebtedness hereby authorized, or under or by
reason of the obligations, covenants or agreements contained in this Indenture
or in any of the Securities or implied therefrom, are hereby expressly waived
and released as a condition of, and as a consideration for, the execution of
this Indenture and the issue of such Securities.
95
ARTICLE 18
MISCELLANEOUS PROVISIONS
Section 18.01. Successors and Assigns of Company Bound by Indenture. All
the covenants, stipulations, promises and agreements in this Indenture contained
by or in behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
Section 18.02. Acts of Board, Committee or Officer of Successor Corporation
Valid. 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 corporation that shall at that time be
the successor of the Company.
Section 18.03. Required Notices or Demands. 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 to or on the Company may be given or served by
being mailed postage prepaid in the United States addressed (until another
address is filed by the Company with the Trustee), as follows: American Express
Company, 000 Xxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx, 00000, Attention: Secretary. Any
notice, direction, request or demand by the Company or by any Holder to or upon
the Trustee may be given or made, for all purposes, by being mailed postage
prepaid in the United States addressed to the Corporate Trust Office of the
Trustee. Any notice required or permitted to be mailed to a Holder by the
Company or the Trustee pursuant to the provisions of this Indenture shall be
deemed to be properly mailed by being mailed postage prepaid in the United
States addressed to such Holder at the address of such Holder as shown on the
Security Register. In any case, where notice to Holders is given by mail,
neither the failure to mail such notice, nor any defect in any notice so mailed,
to any particular Holder shall affect the sufficiency of such notice with
respect to other Holders.
Where this Indenture provides for notice in any manner, such notice may be
waived in writing by the Person entitled to receive such notice, either before
or after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such filing
shall not be a condition precedent to the validity of any action taken in
reliance upon such waiver.
In case, by reason of the suspension of or irregularities in regular mail
service, it shall be impractical to mail notice of any event to Holders when
such notice is required to be given pursuant to any provision of this Indenture,
then any manner of giving such notice as shall reasonably be satisfactory to the
Trustee shall be deemed to be a sufficient giving of such notice.
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Section 18.04. GOVERNING LAW. THE LAWS OF THE STATE OF NEW YORK SHALL
GOVERN THIS INDENTURE AND THE SECURITIES, WITHOUT REGARD TO PRINCIPLES OF
CONFLICT OF LAWS.
Section 18.05. Indenture May Be Executed in Counterparts. This Indenture
may be executed in any number of counterparts, each of which when so executed
shall be deemed an original; and all such counterparts shall together constitute
but one and the same instrument.
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IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
AMERICAN EXPRESS COMPANY
By: /s/ XXXXX X. XXXXX
------------------------------------
Name: XXXXX X. XXXXX
Title: ASST. TREASURER
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
[FORM OF FACE OF GLOBAL SECURITY]
[FOR PURPOSES OF SECTIONS 1272, 1273 AND 1275 OF THE INTERNAL REVENUE CODE
OF 1986, AS AMENDED, THIS SECURITY IS BEING ISSUED WITH TAX ORIGINAL ISSUE
DISCOUNT AND THE ISSUE DATE OF THIS SECURITY IS NOVEMBER 21, 2003. IN ADDITION,
THIS SECURITY IS SUBJECT TO UNITED STATES FEDERAL INCOME TAX REGULATIONS
GOVERNING CONTINGENT PAYMENT DEBT INSTRUMENTS. FOR PURPOSES OF SECTIONS 1272,
1273 AND 1275 OF THE INTERNAL REVENUE CODE, THE COMPARABLE YIELD OF THIS
SECURITY IS 6.25%, COMPOUNDED SEMI-ANNUALLY (WHICH WILL BE TREATED AS THE YIELD
TO MATURITY FOR UNITED STATES FEDERAL INCOME TAX PURPOSES).
AMERICAN EXPRESS COMPANY (THE "COMPANY") AGREES, AND BY ACCEPTING A
BENEFICIAL OWNERSHIP INTEREST IN THIS SECURITY EACH HOLDER AND ANY BENEFICIAL
OWNER OF THIS SECURITY WILL BE DEEMED TO HAVE AGREED, FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES (1) TO TREAT THIS SECURITY AS A DEBT INSTRUMENT THAT IS
SUBJECT TO TREAS. REG. SEC. 1.1275-4 (THE "CONTINGENT PAYMENT REGULATIONS"), (2)
TO TREAT THE FAIR MARKET VALUE OF ANY STOCK RECEIVED UPON ANY CONVERSION OF THIS
SECURITY AS A CONTINGENT PAYMENT FOR PURPOSES OF THE CONTINGENT PAYMENT
REGULATIONS, AND (3) TO ACCRUE INTEREST WITH RESPECT TO THE SECURITY AS TAX
ORIGINAL ISSUE DISCOUNT FOR UNITED STATES FEDERAL INCOME TAX PURPOSES ACCORDING
TO THE "NONCONTINGENT BOND METHOD," SET FORTH IN THE CONTINGENT PAYMENT
REGULATIONS, USING THE COMPARABLE YIELD OF 6.25% COMPOUNDED SEMI-ANNUALLY AND
THE PROJECTED PAYMENT SCHEDULE DETERMINED BY THE COMPANY. THE COMPANY AGREES TO
PROVIDE PROMPTLY TO THE HOLDER OF THIS SECURITY, UPON WRITTEN REQUEST, THE ISSUE
PRICE, AMOUNT OF TAX ORIGINAL ISSUE DISCOUNT, ISSUE DATE, YIELD TO MATURITY,
COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE. ANY SUCH WRITTEN REQUEST SHOULD
BE SENT TO THE COMPANY AT THE FOLLOWING ADDRESS: AMERICAN EXPRESS COMPANY, 000
XXXXX XXXXXX, XXX XXXX, XXX XXXX 00000, ATTENTION: SECRETARY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REGISTERED IN THE
NAME OF CEDE & CO. OR IN SUCH
5. A-1
OTHER NAME AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY
TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO CEDE & CO. OR TO SUCH OTHER
ENTITY AS IS REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITORY TRUST
COMPANY), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR
TO ANY PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO., HAS AN
INTEREST HEREIN.
TRANSFERS OF THIS GLOBAL SECURITY SHALL BE LIMITED TO TRANSFERS IN WHOLE,
BUT NOT IN PART, TO NOMINEES OF THE DEPOSITORY TRUST COMPANY, OR TO A SUCCESSOR
THEREOF OR SUCH SUCCESSOR'S NOMINEE AND TRANSFERS OF PORTIONS OF THIS GLOBAL
SECURITY SHALL BE LIMITED TO TRANSFERS MADE IN ACCORDANCE WITH THE RESTRICTIONS
SET FORTH IN ARTICLE TWO OF THE INDENTURE REFERRED TO ON THE REVERSE HEREOF.
THIS SECURITY AND THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY HAVE NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS
AMENDED (THE "SECURITIES ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS
SECURITY, THE SHARES OF COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY
NOR ANY INTEREST OR PARTICIPATION HEREIN OR THEREIN MAY BE REOFFERED, SOLD,
ASSIGNED, TRANSFERRED, PLEDGED, ENCUMBERED OR OTHERWISE DISPOSED OF IN THE
ABSENCE OF SUCH REGISTRATION OR UNLESS SUCH TRANSACTION IS EXEMPT FROM, OR NOT
SUBJECT TO, REGISTRATION.
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES TO OFFER,
SELL OR OTHERWISE TRANSFER SUCH SECURITY, PRIOR TO THE DATE (THE "RESALE
RESTRICTION TERMINATION DATE") WHICH IS TWO YEARS AFTER THE LATER OF THE
ORIGINAL ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY
AFFILIATE OF THE COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF
SUCH SECURITY) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) FOR SO
LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE PURSUANT TO RULE 144A, TO A
PERSON IT REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN
RULE 144A UNDER THE SECURITIES ACT THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE
ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHICH NOTICE IS GIVEN THAT THE
TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, (C)
A-2
PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE RIGHTS OF THE
COMPANY AND THE WITHIN MENTIONED TRUSTEE PRIOR TO ANY SUCH OFFER, SALE OR
TRANSFER PURSUANT TO CLAUSE (D) TO REQUIRE THE DELIVERY OF AN OPINION OF
COUNSEL, CERTIFICATION AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM,
AND IN EACH OF THE FOREGOING CASES, A CERTIFICATE OF TRANSFER IN THE FORM
APPEARING ON THE OTHER SIDE OF THIS SECURITY IS COMPLETED AND DELIVERED BY THE
TRANSFEROR TO THE TRUSTEE. THIS LEGEND WILL BE REMOVED AFTER THE RESALE
RESTRICTION TERMINATION DATE UPON THE REQUEST OF THE HOLDER AND THE DELIVERY OF
AN OPINION OF COUNSEL, CERTIFICATES AND/OR OTHER INFORMATION SATISFACTORY TO THE
COMPANY AND THE TRUSTEE, AS THE CASE MAY BE.]
THE HOLDER OF THIS SECURITY, BY ITS ACCEPTANCE HEREOF, AGREES that AT THE
TIME OF PURCHASE OF THIS SECURITY AND ON EACH DAY THROUGH AND INCLUDING THE DATE
OF DISPOSITION OF SUCH SECURITY EITHER (A) IS NOT AN EMPLOYEE BENEFIT PLAN (AS
DEFINED IN SECTION 3(3) OF THE EMPLOYEE RETIREMENT INCOME SECURITY ACT OF 1974,
AS AMENDED ("ERISA")) OR A PLAN DESCRIBED IN SECTION 4975(E)(1) OF THE INTERNAL
REVENUE CODE OF 1986, AS AMENDED (THE "CODE") THAT IS SUBJECT TO SECTION 4975 OF
THE CODE, A GOVERNMENTAL PLAN, CHURCH PLAN (EACH, AS DEFINED IN ERISA) OR AN
ENTITY THE ASSETS OF WHICH ARE DEEMED TO BE "PLAN ASSETS" UNDER ERISA
REGULATIONS OR (B) THE ACQUISITION, CONVERSION, HOLDING AND DISPOSITION OF THIS
SECURITY BY SUCH HOLDER DOES NOT AND WILL NOT CONSTITUTE A PROHIBITED
TRANSACTION UNDER ERISA OR SECTION 4975 OF THE CODE (OR, IN THE CASE OF A
GOVERNMENTAL PLAN OR CHURCH PLAN, ANY SUBSTANTIALLY SIMILAR LAW) UNLESS AN
EXEMPTION IS AVAILABLE WITH RESPECT TO SUCH TRANSACTIONS AND THE CONDITIONS OF
SUCH EXEMPTION HAVE BEEN SATISFIED.
A-3
AMERICAN EXPRESS COMPANY
1.85% Convertible Senior Debentures due 2033
No. Original Principal Amount:
Issue Date: November 21, 2003 CUSIP:
AMERICAN EXPRESS COMPANY, a New York corporation (the "Company"), for value
received, hereby promises to pay to Cede & Co., or registered assigns, the
Accreted Principal Amount (as defined in the Indenture referred to on the
reverse side of this Security) (including accrued Contingent Accretion, as
defined in the Indenture, if any) on December 1, 2033.
This Security shall bear interest and Accreted Interest (as defined in the
Indenture) as specified on the reverse side of this Security and in the
Indenture. Contingent Interest, if any, on this Security, will be payable as
specified on the reverse side of this Security and in the Indenture. This
Security is convertible, is subject to redemption at the option of the Company
or purchase at the option of the Holder hereof and is subject to remarketing,
all as specified on the reverse side of this Security and in the Indenture.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
A-4
IN WITNESS WHEREOF, the undersigned, being duly authorized, have executed
this Indenture on behalf of the respective parties hereto as of the date first
above written.
AMERICAN EXPRESS COMPANY
By: /s/ XXXXX X. XXXXX
-------------------------------------
Name: XXXXX X. XXXXX
Title: ASSISTANT TREASURER &
SR. VICE PRESIDENT
U.S. BANK NATIONAL ASSOCIATION
By: /s/ Xxxxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed.
AMERICAN EXPRESS COMPANY
By:
-------------------------------------
Name:
Title:
Attest:
---------------------------------------
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
U.S. BANK NATIONAL ASSOCIATION, as Trustee, certifies that this is one of the
Securities referred to in the within-mentioned Indenture.
By:
------------------------------------
Authorized Signature
Dated:
A-5
[FORM OF REVERSE SIDE OF SECURITY]
1.85% Convertible Senior Debentures due 2033
This Security is one of a duly authorized issue of securities of the
Company (herein called the "Securities") limited in aggregate Original Principal
Amount to $2,000,000,000, issued under an Indenture, dated as of November 21,
2003 (the "Indenture"), between the Company and U.S. Bank National Association,
as Trustee (the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto reference
is hereby made for a statement of the respective rights, limitations of rights,
duties and immunities thereunder of the Company, the Trustee and the Holders of
the Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered. Capitalized terms used and not otherwise defined in
this Security are used as defined in the Indenture.
1. Interest.
This Security will bear interest from November 21, 2003 or from the most
recent date to which interest has been paid or duly provided for, semi-annually
in arrears on June 1 and December 1 of each year (each, an "Interest Payment
Date"), subject to Section 1.09 of the Indenture, commencing June 1, 2004, at
the rate per annum equal to 1.85%. Interest on this Security shall be calculated
on the basis of a 360-day year composed of twelve 30-day months. Interest
payable on this Security on any Interest Payment Date will include interest for
the immediately preceding Interest Period. The interest so payable and
punctually paid or duly provided for on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest payment, which shall be the May 15
or November 15, as the case may be, immediately preceding the relevant Interest
Payment Date. Any interest which is payable, but is not punctually paid or duly
provided for, on any Interest Payment Date shall forthwith cease to be payable
to the registered Holder hereof on the relevant Regular Record Date by virtue of
having been such Holder, and may be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Company, notice whereof shall be given to the Holders of
Securities not less than 10 days prior to such Special Record Date, or may be
paid at any time in any other lawful manner not inconsistent with the
requirements of any securities exchange on which the Securities may be listed,
and upon such notice as may be required by such exchange, all as more fully
provided in the Indenture.
A-6
From and after December 1, 2006, the Company will no longer be required to
pay cash interest unless the Company elects prior to any remarketing that
following such remarketing the Securities will bear cash interest pursuant to
Section 16.02(b) of the Indenture. The Original Principal Amount of this
Security shall accrete daily at the Applicable Yield for each Interest Period,
which shall be 0% (1) prior to December 1, 2006 and (2) during any period for
which the Company has elected pursuant to Section 16.02(b) that the Securities
will bear cash interest.
2. Contingent Interest.
Unless a Remarketing Reset Event occurs, from and after December 1, 2006,
the Company will pay Contingent Interest on this Security under the
circumstances and in the amounts described in Article 14 of the Indenture. Such
Contingent Interest, if any, shall be payable semi-annually in arrears on each
Interest Payment Date to the Holder of this Security as of the close of business
on the Regular Record Date relating to such Interest Payment Date.
If a Remarketing Reset Event occurs, from and after the applicable
Remarketing Reset Event Date, the Company will no longer be required to
pay Contingent Interest.
3. Contingent Accretion.
Following the occurrence of a Remarketing Reset Event, the Company will pay
Contingent Accretion on this Security under the circumstances and in the amounts
described in Article 15 of the Indenture. Such Contingent Accretion, if any,
will be payable on the earliest Contingent Accretion Payment Date to occur.
If, following the accrual of any Contingent Accretion, an event occurs as
specified in Section 15.02(c), such Contingent Accretion shall no longer be
payable.
4. Interest on Overdue Amounts.
If the Accreted Principal Amount (including any accrued Contingent
Accretion) hereof or any portion of such Accreted Principal Amount is not paid
when due (whether upon acceleration pursuant to Section 4.02 of the Indenture,
upon the dates set for payment of the Redemption Price, Purchase Price or Change
in Control Purchase Price, Remarketing Purchase Price, or upon the Stated
Maturity of this Security) or if interest due hereon (including Contingent
Interest and Liquidated Damages, if any) (or any portion of such interest), is
not paid when due, then in each such case the overdue amount shall, to the
extent permitted by law, bear interest at the rate then borne by this Security
or, if any overdue amount exists on or after December 1, 2006, at the Applicable
Yield or
A-7
the Reset Yield or Reset Rate, if any, of this Security for the applicable
Interest Period, compounded at the end of such Interest Period, which interest
shall accrue from the date such overdue amount was originally due to the date
payment of such amount, including interest thereon, has been made or duly
provided for. All such interest shall be payable as set forth in the Indenture.
5. Method of Payment.
Subject to the terms and conditions of the Indenture, the Company will make
payments in respect of Redemption Price, Purchase Price, Remarketing Purchase
Price, Change in Control Purchase Price and at Stated Maturity to Holders who
surrender Securities to a Paying Agent to collect such payments in respect of
the Securities; provided that if any Redemption Date, Purchase Date, Remarketing
Purchase Date or Change in Control Purchase Date is an Interest Payment Date,
accrued and unpaid interest (including Contingent Interest and Liquidated
Damages, if any) shall be paid to the Holder of record as of the applicable
Regular Record Date. The Company will pay cash amounts in money of the United
States that at the time of payment is legal tender for payment of public and
private debts. However, the Company may make such cash payments by check payable
in such money; provided that payment by wire transfer of immediately available
funds will be required with respect to principal (including accrued Contingent
Accretion, if any) of and interest (including Contingent Interest, if any) on
all Global Securities and all Securities of Holders of more than $25,000,000
aggregate Original Principal Amount of Securities that have requested such
method of payment and provided wire transfer instructions to the Company or the
Paying Agent. If any Interest Payment Date (other than an Interest Payment Date
coinciding with the Stated Maturity or earlier Redemption Date, Purchase Date,
Remarketing Purchase Date or Change in Control Purchase Date) falls on a day
that is not a Business Day, such Interest Payment Date will be postponed to the
next succeeding Business Day and no interest on such payment will accrue for the
period from and after the Interest Payment Date to such next succeeding Business
Day. If the Stated Maturity, Redemption Date, Purchase Date, Remarketing
Purchase Date or Change in Control Purchase Date of this Security would fall on
a day that is not a Business Day, the required payment of interest, if any, and
principal will be made on the next succeeding Business Day and no interest on
such payment will accrue and no principal will accrete for the period from and
after the Stated Maturity, Redemption Date, Purchase Date, Remarketing Purchase
Date or Change in Control Purchase Date to such next succeeding Business Day.
6. Paying Agent, Conversion Agent, Calculation Agent and Registrar.
Initially, the Trustee will act as Paying Agent, Conversion Agent,
Calculation Agent and Registrar. The Company may appoint and change any Paying
Agent, Conversion Agent, Calculation Agent, Registrar or co-registrar
A-8
without notice, other than notice to the Trustee. The Company or any of its
Subsidiaries or any of their Affiliates may act as Paying Agent, Conversion
Agent, Calculation Agent, Registrar or co-registrar.
7. Indenture.
The terms of the Securities include those stated in the Indenture and those
made part of the Indenture by reference to the Trust Indenture Act of 1939, as
in effect from time to time (the "TIA"). The Securities are subject to all such
terms, and Holders are referred to the Indenture and the TIA for a statement of
those terms.
The Securities are general unsecured obligations. The Indenture does not
limit other indebtedness of the Company, secured or unsecured.
8. Redemption at the Option of the Company.
No sinking fund is provided for the Securities. Prior to December 1, 2006,
the Securities shall not be redeemable at the option of the Company. Unless a
Remarketing Reset Event has occurred, beginning on December 1, 2006 and until
the earlier of the date on which a Remarketing Reset Event occurs and Stated
Maturity, the Securities are redeemable for cash as a whole, or from time to
time in part, at the option of the Company at a Redemption Price equal to 100%
of the Accreted Principal Amount of the Securities, plus accrued and unpaid
interest (including Contingent Interest and Liquidated Damages, if any) to, but
excluding, the Redemption Date, as provided in Article 10 of the Indenture.
If the Company redeems less than all of the outstanding Securities, the
Trustee will select the Securities to be redeemed (i) by lot; (ii) pro rata; or
(iii) by another method the Trustee considers fair and appropriate. If the
Trustee selects a portion of a Holder's Securities for partial redemption and
the Holder converts a portion of the same Securities, the converted portion
shall be deemed to be from the portion selected for redemption. The Company may
not redeem less than all of the outstanding Securities if the Accreted Principal
Amount has been accelerated and such acceleration has not be rescinded.
9. Notice of Redemption.
Notice of redemption will be mailed at least 30 days but not more than 60
days before the Redemption Date to each Holder of Securities to be redeemed at
the Holder's registered address. If money sufficient to pay the Redemption Price
of all Securities (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, immediately
after such Redemption Date interest shall cease to accrue and
A-9
principal will cease to accrete on such Securities or portions thereof.
Securities in denominations larger than $1,000 Original Principal Amount may be
redeemed in part but only in integral multiples of $1,000.
10. Purchase By the Company at the Option of the Holder.
Unless a Remarketing Reset Event occurs, each Holder has the right to
require the Company to purchase the Securities held by such Holder on December
1, 2006, 2008, 2013, 2018, 2023 and 2028, or if any such day is not a Business
Day, the next succeeding Business Day (each, a "Purchase Date"), if this
Security is not immediately convertible into Common Stock on such Purchase Date.
If required by any Holder, the Company shall purchase Securities for cash at a
Purchase Price equal to 100% of the Accreted Principal Amount thereof, plus
accrued and unpaid interest (including Contingent Interest and Liquidated
Damages, if any) to, but excluding, the Purchase Date, upon delivery of a
Purchase Notice containing the information set forth in the Indenture, at any
time from the opening of business on the date that is 20 Business Days prior to
such Purchase Date until the close of business on such Purchase Date and upon
delivery or book-entry transfer of the Securities to the Paying Agent by the
Holder as set forth in the Indenture.
Unless a Remarketing Reset Event occurs, at the option of the Holder and
subject to the terms and conditions of the Indenture, the Company shall purchase
all or a portion of the Securities held by such Holder on the date specified by
the Company that is not less than 20 nor more than 35 Business Days after the
occurrence of a Change in Control of the Company occurring prior to Stated
Maturity for a Change in Control Purchase Price equal to 100% of the Accreted
Principal Amount thereof, plus accrued and unpaid interest (including Contingent
Interest and Liquidated Damages, if any) to, but excluding, the Change in
Control Purchase Date, unless such Change in Control Purchase Date falls after a
Regular Record Date and on or prior to the corresponding Interest Payment Date,
in which case the Company shall pay the full amount of accrued and unpaid
interest (including Contingent Interest and Liquidated Damages, if any) payable
on such Interest Payment Date to the Holder at the close of business on such
Regular Record Date.
Holders have the right to withdraw any Purchase Notice or Change in Control
Purchase Notice, as the case may be, by delivering to the Paying Agent a written
notice of withdrawal in accordance with the provisions of the Indenture.
As provided in the Indenture, if cash sufficient to pay the Purchase Price,
Remarketing Purchase Price or Change in Control Purchase Price, as the case may
be, of all Securities or portions thereof to be purchased as of the Purchase
Date, Remarketing Purchase Date or the Change in Control Purchase Date, as the
case may be, is deposited with the Paying Agent on the Business Day
A-10
following the Purchase Date, Remarketing Purchase Date or the Change in Control
Purchase Date, as the case may be, such Securities shall cease to be
outstanding, all interest (including Contingent Interest, if any) ceases to
accrue and principal ceases to accrete on such Securities (or portions thereof)
immediately after such Purchase Date, Remarketing Purchase Date or Change in
Control Purchase Date, as the case may be, and the Holder thereof shall have no
other rights as such (other than the right to receive the Purchase Price,
Remarketing Purchase Price or Change in Control Purchase Price, as the case may
be, upon surrender or book-entry transfer of such Security).
11. Conversion.
Subject to the terms of the Indenture, the Holder of a Security may convert
the Security into shares of Common Stock at the Conversion Rate under the
circumstances set forth in Sections 11.02, 11.03, 11.04, 11.05 and 11.06 of the
Indenture. A Security in respect of which a Holder has delivered a Purchase
Notice or a Change in Control Purchase Notice exercising the option of such
Holder to require the Company to purchase such Security may be converted only if
such notice of exercise is withdrawn in accordance with the terms of the
Indenture. The Conversion Rate for the Securities on any Conversion Date shall
be determined as set forth in the Indenture.
The Company shall deliver cash or a check in lieu of any fractional share
of Common Stock.
A Holder's right to convert the Securities into Common Stock of the Company
is also subject to the Company's right to elect to pay such Holder cash in lieu
of Common Stock as set forth in Section 11.07 of the Indenture.
A Holder may convert a portion of a Security if the Original 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 Security, except for conversion during the
period from the close of business on any Regular 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 Regular Record Date shall receive the interest payable on such Interest
Payment Date, that portion of accrued and unpaid interest (including Contingent
Interest, if any) on the converted Security attributable to the period from the
most recent Interest Payment Date (or, if no Interest Payment Date has occurred,
from the Issue Date) 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 Security being converted pursuant to the provisions hereof.
A-11
Securities or portions thereof surrendered for conversion during the period
from the close of business on any Regular 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 New York Clearing House 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 Original Principal Amount of Securities 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 Regular Record Date to the
close of business on the Interest Payment Date to which such Regular Record Date
relates, (2) the Company has specified a Change in Control Purchase Date during
such period or (3) only to the extent of overdue interest or overdue Contingent
Interest, any overdue interest or overdue Contingent Interest exists on the
Conversion Date with respect to the Securities converted.
No fractional shares will be issued upon conversion; in lieu thereof, an
amount will be paid in cash based upon the Applicable Stock Price.
The Company agrees, and each Holder and any beneficial owner of a Security
by its purchase thereof shall be deemed to agree, to treat, for United States
federal income tax purposes, the fair market value of the Common Stock received
upon the conversion of a Security (together with any cash payment in lieu of
fractional shares) or cash, or a combination of cash and Common Stock as a
contingent payment on the Security for purposes of the contingent payment
regulations.
To convert a Security, a Holder must follow the procedures set forth in
Section 11.07 of the Indenture.
The Conversion Rate will be adjusted as set forth in Article 11 of the
Indenture
12. Denominations; Transfer; Exchange.
The Securities are in fully registered form, without coupons, in
denominations of $1,000 of Original Principal Amount and integral multiples of
$1,000. A Holder may transfer or exchange Securities in accordance with the
Indenture. The Registrar may require a Holder, among other things, to furnish
appropriate endorsements and transfer documents and to pay any taxes and fees
required by law or permitted by the Indenture. The Registrar need not transfer
or exchange any Securities selected for redemption (except, in the case of a
Security to be redeemed in part, the portion of the Security not to be redeemed)
or any Securities in respect of which a Purchase Notice or Change in Control
A-12
Purchase Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before the mailing of a
notice of redemption of Securities to be redeemed.
13. Persons Deemed Owners.
The registered Holder of this Security may be treated as the owner of this
Security for all purposes.
14. Unclaimed Money or Securities.
The Trustee and the Paying Agent shall return to the Company upon written
request any money or securities held by them for the payment of any amount with
respect to the Securities that remains unclaimed for two years subject to
applicable unclaimed property law. After return to the Company, Holders entitled
to the money or securities must look to the Company for payment as general
creditors unless an applicable abandoned property law designates another person.
15. Amendment; Waiver.
Subject to certain exceptions set forth in the Indenture, (i) the Indenture
or the Securities may be amended with the written consent of the Holders of at
least a majority in aggregate Original Principal Amount of the Securities at the
time outstanding and (ii) certain Defaults may be waived with the written
consent of the Holders of a majority in aggregate Original Principal Amount of
the Securities at the time outstanding. The Company and the Trustee may amend
the Indenture under certain circumstances without the consent of the Holders, as
described in the Indenture.
16. Defaults and Remedies.
If an Event of Default occurs and is continuing, the Trustee, or the
Holders of at least 25% in aggregate Original Principal Amount of the Securities
at the time outstanding, may declare all the Securities to be due and payable
immediately.
Holders may not enforce the Indenture or the Securities except as provided
in the Indenture. The Trustee may refuse to enforce the Indenture or the
Securities unless it receives reasonable indemnity or security. Subject to
certain limitations, Holders of a majority in aggregate Original Principal
Amount of the Securities at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Holders notice of
any continuing Default (except a Default in payment of amounts specified in
clause (i) or (ii) of
A-13
Section 4.01 of the Indenture) if it determines that withholding notice is in
their interests.
17. Yield Reset and Remarketing.
If a Remarketing Reset Event occurs, then the Securities shall be
remarketed and the Reset Yield or Reset Rate, as the case may be, shall be
established as set forth in Article 16 of the Indenture.
If a Failed Remarketing occurs on any Remarketing Reset Date, each Holder
of Securities will have the right to require the Company to purchase all or a
portion of its Securities on such Remarketing Reset Date for cash. Holders of
Securities will be deemed to have exercised this right unless such Holders
elected not to participate in the applicable remarketing. Holders of Securities
who elected not to participate in the remarketing must notify the Paying Agent
as provided in Article 16 of the Indenture of the number of Securities, if any,
they want the Company to purchase. The Company shall purchase such Securities at
a purchase price equal to 100% of the Accreted Principal Amount thereof as of
the applicable Remarketing Reset Date, plus accrued Contingent Accretion, if
any, and accrued and unpaid interest, if any, to, but excluding such Remarketing
Reset Date as provided in the Indenture.
18. Trustee Dealings with the Company.
Subject to certain limitations imposed by the TIA, the Trustee under the
Indenture, in its individual or any other capacity, may become the owner or
pledgee of Securities and may otherwise deal with and collect obligations owed
to it by the Company or its Affiliates and may otherwise deal with the Company
or its Affiliates with the same rights it would have if it were not Trustee.
19. No Recourse Against Others.
An incorporator, a director, officer, employee or stockholder, as such, of
the Company, past, present or future, shall not have any liability for any
obligations of the Company under the Securities or the Indenture or for any
claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Holder waives and releases all such
liability. The waiver and release are part of the consideration for the issue of
the Securities.
20. Authentication.
This Security shall not be valid until an authorized signatory of the
Trustee or any Authenticating Agent manually signs the Trustee's Certificate of
Authentication on the other side of this Security.
A-14
21. Abbreviations.
Customary abbreviations may be used in the name of a Holder or an assignee,
such as TEN COM (=tenants in common), TEN ENT (=tenants by the entireties), JT
TEN (=joint tenants with right of survivorship and not as tenants in common),
CUST (=custodian), and U/G/M/A (=Uniform Gift to Minors Act).
22. GOVERNING LAW.
THE LAWS OF THE STATE OF NEW YORK SHALL GOVERN THE INDENTURE AND THIS
SECURITY, WITHOUT REGARD TO PRINCIPLES OF CONFLICT OF LAWS.
----------
The Company will furnish to any Holder upon written request and without
charge a copy of the Indenture.
American Express Company
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Secretary
A-15
Schedule I
[Include Schedule I only for a Global Security]
AMERICAN EXPRESS COMPANY
1.85% Convertible Senior Debenture Due 2033
No. __________
The initial Original Principal Amount of this Global Security is $_____________.
=========================================================================================================
Notation Explaining Original Authorized Signature of
Date Original Principal Amount Principal Amount Recorded Trustee or Custodian
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A-16
ASSIGNMENT FORM
To assign this Security, fill in the form below:
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
Security, and hereby irrevocably constitutes and appoints
______________________________________ attorney to transfer said Security on the
books of the Company, with full power of substitution in the premises.
In connection with any transfer of the Security prior to the expiration of
the holding period applicable to sales thereof under Rule 144(k) under the
Securities Act (or any successor provision) (other than any transfer pursuant to
a registration statement that has been declared effective under the Securities
Act), the undersigned confirms that such Security is being transferred:
[_] To American Express Company (the "Company") or a subsidiary thereof;
or
[_] To a "qualified institutional buyer" in compliance with Rule 144A
under the Securities Act of 1933, as amended; or
[_] Pursuant to a Registration Statement which has been declared effective
under the Securities Act of 1933, as amended, and which continues to
be effective at the time of transfer; or
[_] Pursuant to and in compliance with another available exemption from
the registration requirements of the Securities Act of 1933, as
amended.
Unless one of the boxes is checked, the Trustee or Registrar will refuse to
register any of the Securities evidenced by this certificate in the name of any
person other than the registered holder thereof.
Dated:
----------------------
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Signature(s)
Signature(s) must be guaranteed by an
"eligible guarantor institution" meeting
the requirements of the Security
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 Security registrar in
addition to, or in substitution for,
STAMP, al in accordance with the
Securities Exchange Act of 1934, as
amended.
----------------------------------------
Signature Guarantee
B-1
CONVERSION NOTICE
To convert this Security into Common Stock of the Company, check the box:
To convert only part of this Security, state the Original Principal Amount to be
converted (which must be $1,000 or an integral multiple of $1,000): $ __________
If you want the stock certificate made out in another person's name, fill in the
form below:
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax ID no.)
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
Your
Signature:
-----------------------------------
(Sign exactly as your name appears on the other side of this Security)
B-1
PURCHASE NOTICE
TO: AMERICAN EXPRESS COMPANY
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from American Express Company (the "Company")
regarding the right of holders to elect to require the Company to purchase the
Securities and requests and instructs the Company to purchase the entire
Original Principal Amount of this Security, or portion thereof (which is $1,000
Original Principal Amount or an integral multiple thereof) designated below, in
accordance with the terms of the Indenture at the price of 100% of the Accreted
Principal Amount (including any accrued Contingent Accretion) or proportional
portion thereof, together with accrued interest (including Contingent Interest
and Liquidated Damages, if any) to, but excluding, the Purchase 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 Securities shall
be purchased by the Company as of the applicable Purchase Date or Remarketing
Purchase Date pursuant to the terms and conditions specified in the Indenture.
This election is made pursuant to:
[_] Article 12, Purchase at Option of Holders at December 1, 2006, 2008, 2013,
2018, 2023 and 2028, or
[_] Section 16.04(a), Right to Require Repurchase Upon a Failed Remarketing.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Original Principal Amount to be purchased (if less than all):
Social Security or Other Taxpayer Identification Number:
A-2
OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN CONTROL
TO: AMERICAN EXPRESS COMPANY
U.S. BANK NATIONAL ASSOCIATION
The undersigned registered owner of this Security hereby irrevocably
acknowledges receipt of a notice from American Express Company (the "Company")
regarding the right of holders to elect to require the Company to purchase the
Securities upon a Change in Control and requests and instructs the Company
pursuant to Section 13.01 to purchase the entire Original Principal Amount of
this Security, or portion thereof (which is $1,000 Original Principal Amount or
an integral multiple thereof) designated below, in accordance with the terms of
the Indenture at the price of 100% of the Accreted Principal Amount or
proportional portion thereof, together with accrued interest (including
Contingent Interest and Liquidated Damages, if any) to, but excluding, the
Change in Control Purchase 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 Securities shall be repurchased by the Company as of the
Change in Control Purchase 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 Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Original Principal Amount to be purchased (if less than all):
Social Security or Other Taxpayer Identification Number:
A-3
ELECTION NOT TO REMARKET SECURITIES
TO: AMERICAN EXPRESS COMPANY
The undersigned registered owner of this Security hereby elects not to have
remarketed the entire Original Principal Amount of this Security, or portion
thereof (which is $1,000 Original Principal Amount or an integral multiple
thereof) designated below, on the next [Remarketing Reset Event Date if a
Remarketing Reset Event occurs] [Remarketing Reset Date] in accordance with the
terms of the Indenture and the Remarketing Agreement. Capitalized terms used
herein but not defined shall have the meanings ascribed to such terms in the
Indenture. The undersigned acknowledges that in the event of a Failed
Remarketing, it will not have the right to require the Company to repurchase
this Security unless it separately provides the Company with a duly executed
Purchase Notice within the required time period.
Dated:
Signature(s):
NOTICE: The above signatures of the holder(s) hereof must correspond with
the name as written upon the face of the Security in every particular without
alteration or enlargement or any change whatever.
Security Certificate Number (if applicable):
Original Principal Amount to be purchased (if less than all):
Social Security or Other Taxpayer Identification Number:
A-4
ANNEX B
PROJECTED PAYMENT SCHEDULE
Projected Projected
Date Payment Date Payment
---------- --------- --------- ----------
11/21/2003 1,000.00 6/1/2019 0.00
6/1/2004 (9.76) 12/1/2019 0.00
12/1/2004 (9.25) 6/1/2020 0.00
6/1/2005 (9.25) 12/1/2020 0.00
12/1/2005 (9.25) 6/1/2021 0.00
6/1/2006 (9.25) 12/1/2021 0.00
12/1/2006 (9.25) 6/1/2022 0.00
6/1/2007 0.00 12/1/2022 0.00
12/1/2007 0.00 6/1/2023 0.00
6/1/2008 0.00 12/1/2023 0.00
12/1/2008 0.00 6/1/2024 0.00
6/1/2009 0.00 12/1/2024 0.00
12/1/2009 0.00 6/1/2025 0.00
6/1/2010 0.00 12/1/2025 0.00
12/1/2010 0.00 6/1/2026 0.00
6/1/2011 0.00 12/1/2026 0.00
12/1/2011 0.00 6/1/2027 0.00
6/1/2012 0.00 12/1/2027 0.00
12/1/2012 0.00 6/1/2028 0.00
6/1/2013 0.00 12/1/2028 0.00
12/1/2013 0.00 6/1/2029 0.00
6/1/2014 0.00 12/1/2029 0.00
12/1/2014 0.00 6/1/2030 0.00
6/1/2015 0.00 12/1/2030 0.00
12/1/2015 0.00 6/1/2031 0.00
6/1/2016 0.00 12/1/2031 0.00
12/1/2016 0.00 6/1/2032 0.00
6/1/2017 0.00 12/1/2032 0.00
12/1/2017 0.00 6/1/2033 0.00
6/1/2018 0.00 12/1/2033 (6,027.82)
12/1/2018 0.00
B-1