Contract
Exhibit 4.1
THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES
ACT”), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION HEREIN
MAY BE OFFERED, 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, THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THE HOLDER OF THIS SECURITY BY ITS ACCEPTANCE
HEREOF AGREES TO OFFER, SELL OR OTHERWISE TRANSFER SUCH SECURITY OR THE COMMON SHARES ISSUABLE UPON
CONVERSION OF SUCH SECURITY, PRIOR TO THE DATE WHICH IS TWO YEARS AFTER THE LATER OF THE ORIGINAL
DATE OF ISSUANCE OF THIS SECURITY AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY) (THE “RESALE
RESTRICTION TERMINATION DATE”) ONLY (A) TO THE COMPANY OR ANY SUBSIDIARY THEREOF, (B) PURSUANT TO
AN EFFECTIVE REGISTRATION STATEMENT UNDER THE SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE
ELIGIBLE FOR RESALE PURSUANT TO RULE 144A UNDER THE SECURITIES ACT (“RULE 144A”), TO A PERSON IT
REASONABLY BELIEVES IS A “QUALIFIED INSTITUTIONAL BUYER” AS DEFINED IN RULE 144A THAT PURCHASES FOR
ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT
THE TRANSFER IS BEING MADE IN RELIANCE ON RULE 144A, OR (D) PURSUANT TO ANOTHER AVAILABLE EXEMPTION
FROM THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, SUBJECT TO THE COMPANY’S AND THE
TRUSTEE’S RIGHT PRIOR TO ANY SUCH OFFER, SALE OR TRANSFER PURSUANT TO CLAUSE (D) PRIOR TO THE
RESALE RESTRICTION TERMINATION DATE TO REQUIRE THE DELIVERY OF AN OPINION OF COUNSEL, CERTIFICATION
AND/OR OTHER INFORMATION SATISFACTORY TO EACH OF THEM. THIS LEGEND WILL BE REMOVED UPON THE REQUEST
OF A HOLDER AFTER THE RESALE RESTRICTION TERMINATION DATE.
THE SECURITIES REPRESENTED BY THIS CERTIFICATE WERE ISSUED WITH ORIGINAL ISSUE DISCOUNT (“OID”) FOR
U.S. FEDERAL INCOME TAX PURPOSES. HOLDERS OF SECURITIES MAY CONTACT XXXX XXXXXXXX, SENIOR VICE
PRESIDENT, AT (000) 000-0000 TO REQUEST INFORMATION REGARDING THE ISSUE PRICE, THE AMOUNT OF OID,
THE ISSUE DATE AND THE YIELD TO MATURITY OF THE SECURITIES FOR U.S. FEDERAL INCOME TAX PURPOSES.
2.25% Convertible Senior Notes due 2037
No. ___ | $ | |
CUSIP No. 743410 AP 7 |
PROLOGIS, a real estate investment trust organized and existing under the laws of the State of
Maryland (herein called the “Company,” which term includes any successor corporation under the
Indenture referred to on the reverse hereof), for value received hereby promises to pay to CEDE &
CO., or registered assigns, the principal sum of five hundred million dollars or such other
principal amount as shall be set forth on the Schedule I hereto on April 1, 2037.
This Security shall bear interest at the rate of 2.25% per year from March 26, 2007, or from
the most recent date to which interest had been paid or provided. Interest is payable
semi-annually in arrears on each April 1 and October 1, commencing October 1, 2007, to Holders of
record at the close of business on the preceding March 15 and September 15, respectively.
Interest payable on each Interest Payment Date shall equal the amount of interest accrued from, and
including the immediately preceding Interest Payment Date (or from and including March 26, 2007, if
no interest has been paid hereon) to but excluding such Interest Payment Date.
Payment of the principal and interest and Additional Interest, if any, on this Security will
be made at the office or agency of the Company maintained for that purpose in the Borough of
Manhattan, City of New York or the City of Boston, or elsewhere as provided in the Indenture, in
such coin or currency of the United States of America as at the time of payment is legal tender for
payment of public and private debts; provided, however, that at the option of the Company, payment
of interest and Additional Interest, if any, may be made by (i) check mailed to the address of the
Person entitled thereto as such address shall appear in the Security Register or (ii) transfer to
an account of the Person entitled thereto located inside the United States; provided further,
however, that, with respect to any Holder of Securities with an aggregate principal amount in
excess of $1,000,000, at the application of such Holder in writing to the Company, interest on such
Holder’s Securities shall be paid by wire transfer in immediately available funds to such Holder’s
account in the United States supplied by such Holder from time to time to the Trustee and Paying
Agent (if different from the Trustee) not later than the applicable record date.
Reference is made to the further provisions of this Security set forth on the reverse hereof,
including, without limitation, provisions giving the Holder of this Security the right to convert
this Security into cash, Common Shares of the Company or a combination of cash and Common Shares on
the terms and subject to the limitations referred to on the reverse hereof and as more fully
specified in the Indenture. Such further provisions shall for all purposes have the same effect as
though fully set forth at this place.
This Security shall be deemed to be a contract made under the laws of the State of New York,
and for all purposes shall be construed in accordance with the laws of the State of New York
applicable to contracts entered into and to be performed therein.
This Security shall not be valid or become obligatory for any purpose until the certificate of
authentication hereon shall have been manually signed by the Trustee or a duly authorized
authenticating agent under the Indenture.
[Remainder of page intentionally left blank]
Unless the certificate of authentication hereon has been executed by or on behalf of the
Trustee by manual signature, this Security shall not be entitled to any benefit under the Indenture
or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly executed by the
undersigned officer.
PROLOGIS |
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By: | /s/ M. Xxxxxx Xxxxxx | |||
Name: | M. Xxxxxx Xxxxxx, Xx. | |||
Title: | Senior Vice President | |||
Attest
By: | /s/ Xxxxx Xxxxxx | |||
Name: | Xxxxx Xxxxxx | |||
Title: | Assistant Secretary | |||
Dated: March 26, 2007
TRUSTEE’S CERTIFICATE OF AUTHENTICATION:
This is one of the Securities of the series designated therein referred to in the
within-mentioned Indenture.
U.S. BANK NATIONAL ASSOCIATION, as successor trustee |
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BY: | /s/ Xxxxxx X. Xxxxx | |||
Vice President | ||||
PROLOGIS
2.25% Convertible Senior Notes due 2037
2.25% Convertible Senior Notes due 2037
This Security is one of a duly authorized issue of Securities of the Company, designated as
its 2.25% Convertible Senior Notes due 2037 (herein called the “Securities”), issued under and
pursuant to an Indenture dated as of March 1, 1995, as supplemented with respect to the Securities
by the Second Supplemental Indenture, dated as of November 2, 2005 and the Fourth Supplemental
Indenture, dated as of March 26, 2007 (as so supplemented, herein called the “Indenture”), between
the Company and U.S. Bank National Association (herein called the “Trustee”), to which Indenture
and all indentures supplemental thereto reference is hereby made for a description of the rights,
limitations of rights, obligations, duties and immunities thereunder of the Trustee, the Company
and the Holders of the Securities. Additional Securities may be issued in an unlimited aggregate
principal amount, subject to certain conditions specified in the Indenture. Capitalized terms used
but not defined herein shall have the meanings ascribed to them in the Indenture.
In case an Event of Default, as defined in the Indenture, shall have occurred and be
continuing, the principal of and interest on all Securities may be declared, and upon said
declaration shall become, due and payable, in the manner, with the effect and subject to the
conditions provided in the Indenture.
Prior to April 5, 2012, the Company may not redeem the Securities except to preserve the
Company’s status as a real estate investment trust as described in Section 3.01 of the Fourth
Supplemental Indenture. Subject to the terms and conditions of the Indenture, on or after April 5,
2012, the Company shall have the right to redeem the Securities, in whole or from time to time in
part, at a price equal to 100% of the principal amount of the Securities being redeemed, plus
accrued and unpaid interest. Any such redemption shall be upon at least 30 days’ and no more than
60 days’ notice to Holders of the Securities.
Subject to the terms and conditions of the Indenture, the Company will make all payments and
deliveries in respect of the Fundamental Change Repurchase Price, the Put Right Repurchase Price,
the Redemption Price and the principal amount on the Maturity Date, as the case may be, to the
Holder who surrenders a Security to a Paying Agent to collect such payments in respect of the
Security. 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.
The Indenture contains provisions permitting the Company and the Trustee in certain
circumstances, without the consent of the Holders of the Securities, and in other circumstances,
with the consent of the Holders of not less than a majority in principal amount of the Securities
at the time Outstanding, evidenced as in the Indenture provided, to execute supplemental indentures
adding any provisions to or changing in any manner or eliminating any of the provisions of the
Indenture or of any supplemental indenture or modifying in any manner the rights of the Holders of
the Securities; provided, however, that no such supplemental indenture shall make any of the
changes set forth in Section 6.02 of the Fourth Supplemental Indenture, without the consent of each
Holder of an Outstanding Security affected thereby. It is
also provided in the Indenture that, prior to any declaration accelerating the maturity of the
Securities, the Holders of a majority in principal amount of the Securities at the time Outstanding
may on behalf of the Holders of all of the Securities waive any past default or Event of Default
under the Indenture and its consequences except as provided in the Indenture. Any such consent or
waiver by the Holder of this Security (unless revoked as provided in the Indenture) shall be
conclusive and binding upon such Holder and upon all future Holders and owners of this Security and
any Securities which may be issued in exchange or substitution hereof, irrespective of whether or
not any notation thereof is made upon this Security or such other Securities.
No reference herein to the Indenture and no provision of this Security or of the Indenture
shall alter or impair the obligation of the Company, which is absolute and unconditional, to pay
the principal of and accrued and unpaid interest on this Security at the place, at the respective
times, at the rate and in the lawful money herein prescribed.
The Securities are issuable in registered form without coupons in denominations of $1,000
principal amount and integral multiples thereof. At the office or agency of the Company referred
to on the face hereof, and in the manner and subject to the limitations provided in the Indenture,
without payment of any service charge but with payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration or exchange of
Securities, Securities may be exchanged for a like aggregate principal amount of Securities of
other authorized denominations.
The Securities are not subject to redemption through the operation of any sinking fund.
Upon the occurrence of a Fundamental Change, the Holder has the right, at such Holder’s
option, to require the Company to repurchase all of such Holder’s Securities or any portion thereof
(in principal amounts of $1,000 or integral multiples thereof) on the Fundamental Change Repurchase
Date at a price equal to 100% of the principal amount of the Securities such holder elects to
require the Company to repurchase, together with accrued and unpaid interest to but excluding the
Fundamental Change Repurchase Date. The Company or, at the written request of the Company, the
Trustee shall mail to all Holders of record of the Securities a notice of the occurrence of a
Fundamental Change and of the repurchase right arising as a result thereof on or before the
twentieth day after the occurrence of any Fundamental Change.
On April 1, 2012, April 1, 2017, April 1, 2022, April 1, 2027 and April 1, 2032, the Holder
has the right, at such Holder’s option, to require the Company to repurchase all of such Holder’s
Securities or any portion thereof (in principal amounts of $1,000 or integral multiples thereof) at
a price equal to 100% of the principal amount of the Securities such Holder elects to require the
Company to repurchase, together with accrued and unpaid interest to but excluding the Put Right
Repurchase Date. Holders shall submit their Securities for repurchase to the Paying Agent at any
time from the opening of business on the date that is 25 Business Days prior to the applicable Put
Right Repurchase Date until the close of business on the fifth Business Day prior to the Put Right
Repurchase Date.
Subject to the provisions of the Indenture, the Holder hereof has the right, at its option, on
and after February 1, 2012, or earlier upon the occurrence of certain conditions
specified in the Indenture and prior to the close of business on the Trading Day immediately
preceding the Maturity Date, to convert any Securities or portion thereof which is $1,000 or an
integral multiple thereof, into cash, Common Shares or a combination of cash and Common Shares, at
the option of the Company as provided in the Fourth Supplemental Indenture, in each case at the
Conversion Rate specified in the Indenture, as adjusted from time to time as provided in the
Indenture, upon surrender of this Security, together with a Notice of Conversion, a form of which
is attached to this Security, as provided in the Indenture and this Security, to the Company at the
office or agency of the Company maintained for that purpose in the Borough of Manhattan, City of
New York or the City of Boston or elsewhere as provided in the Indenture, and, unless the shares
issuable on conversion are to be issued in the same name as this Security, duly endorsed by, or
accompanied by instruments of transfer in form satisfactory to the Company duly executed by, the
Holder or by his duly authorized attorney. The initial Conversion Rate is 13.0576 shares for each
$1,000 principal amount of Securities. No fractional Common Shares will be issued upon any
conversion, but an adjustment in cash will be paid to the Holder, as provided in the Indenture, in
respect of any fraction of a share which would otherwise be issuable upon the surrender of any
Security or Securities for conversion. No adjustment shall be made for dividends or any shares
issued upon conversion of such Security except as provided in the Indenture.
Upon due presentment for registration of transfer of this Security at the office or agency of
the Company in the Borough of Manhattan, City of New York or the City of Boston, a new Security or
Securities of authorized denominations for an equal aggregate principal amount will be issued to
the transferee in exchange thereof, subject to the limitations provided in the Indenture, without
charge except for any tax, assessments or other governmental charge imposed in connection
therewith.
The Company, the Trustee, any authenticating agent, any Paying Agent, any Conversion Agent and
any Security Registrar may deem and treat the registered Holder hereof as the absolute owner of
this Security (whether or not this Security shall be overdue and notwithstanding any notation of
ownership or other writing hereon), for the purpose of receiving payment hereof, or on account
hereof, for the conversion hereof and for all other purposes, and neither the Company nor the
Trustee nor any other authenticating agent nor any Paying Agent nor any other Conversion Agent nor
any Security Registrar shall be affected by any notice to the contrary. All payments made to or
upon the order of such registered Holder shall, to the extent of the sum or sums paid, satisfy and
discharge liability for monies payable on this Security.
No recourse for the payment of the principal of, or accrued and unpaid interest on, this
Security, or for any claim based hereon or otherwise in respect hereof, and no recourse under or
upon any obligation, covenant or agreement of the Company in the Indenture or any indenture
supplemental thereto or in any Security, or because of the creation of any indebtedness represented
thereby, shall be had against any incorporator, stockholder, employee, agent, officer, trustee,
director or subsidiary, as such, past, present or future, of the Company or of any successor
corporation, either directly or through the Company or any successor corporation, whether by virtue
of any constitution, statute or rule of law or by the enforcement of any assessment or penalty or
otherwise, all such liability being, by the acceptance hereof and as part of the consideration for
the issue hereof, expressly waived and released.
Terms used in this Security and defined in the Indenture are used herein as therein defined.
Customary abbreviations may be used in the name of a Holder or an assignee, such as TEN COM
(=tenants in common), TENANT (=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).
Schedule I
2.25% Convertible Senior Notes due 2037
No.
Notation Explaining | ||||||
Principal Amount | Authorized Signature of | |||||
Date | Principal Amount | Recorded | Trustee or Custodian | |||
Schedule I
FORM OF CONVERSION NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby exercises the option to convert this
Security, or the portion hereof (which is $1,000 principal amount or an integral multiple thereof)
below designated, into cash, Common Shares, or a combination of cash and shares of Common Shares,
in accordance with the terms of the Indenture referred to in this Security, and directs that the
shares issuable and deliverable upon such conversion, if any, together with any check in payment of
the cash in respect of the remaining Conversion Obligation (as defined in the Indenture) and for
fractional shares and any Securities representing any unconverted principal amount hereof, be
issued and delivered to the registered holder hereof unless a different name has been indicated
below. If shares or any portion of this Security not converted are to be issued in the name of a
person other than the undersigned, the undersigned will pay all transfer taxes payable with respect
thereto. Any amount required to be paid to the undersigned on account of interest accompanies this
Security.
Dated:
Signature(s)
Signature
Guarantee
Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions)
with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities
to be delivered, other than to and in the name of
the registered holder.
Fill in for registration of shares if to be
issued, and Securities if to be delivered, other
than to and in the name of the registered holder:
(Name) |
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(Street Address) |
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(City, State and Zip Code) |
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Please print name and address |
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Principal amount to be converted (if less than all): $ ,000 | ||||
Social Security or Other Taxpayer Identification Number |
FORM OF PUT RIGHT REPURCHASE NOTICE
To: PROLOGIS
The undersigned hereby requests and instructs the Company to repay the entire principal amount
of this Security, or a portion hereof (which is $1,000 principal amount or an integral multiple
thereof) below designated, on April 1, ___in accordance with the terms of the Indenture referred
to in this Security at the Put Right Repurchase Price, to the registered holder hereof.
Dated: |
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Signature(s) | ||
Social Security or Other Taxpayer Identification Number Principal amount to be repaid (if less than all): $___,000 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. |
FORM OF FUNDAMENTAL CHANGE REPURCHASE NOTICE
To: PROLOGIS
The undersigned registered owner of this Security hereby acknowledges receipt of a notice from
ProLogis (the “Company”) as to the occurrence of a Fundamental Change with respect to the Company
and requests and instructs the Company to repay the entire principal amount of this Security, or
the portion thereof (which is $1,000 principal amount or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this Security, to the
registered holder hereof.
Dated: |
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Signature(s) | ||
Social Security or Other Taxpayer Identification Number Principal amount to be repaid (if less than all): $___,000 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. |
FORM OF ASSIGNMENT AND TRANSFER
For value received hereby sell(s), assign(s) and transfer(s) unto (Please insert social security or Taxpayer Identification Number of assignee) the within Security,
and hereby irrevocably constitutes and appoints attorney to transfer the 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:
o To ProLogis or any of its subsidiaries; or
o To a “qualified institutional buyer” in compliance with Rule 144A under the Securities Act
of 1933, as amended; or
o Pursuant to and in compliance with Rule 144 under the Securities Act of 1933, as amended;
or
o 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.
Unless one of the boxes is checked, the trustee wits 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) |
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Signature Guarantee |
Signature(s) must be guaranteed by an eligible
Guarantor Institution (banks, stock brokers,
savings and loan associations and credit unions)
with membership in an approved signature guarantee
medallion program pursuant to Rule 17Ad-15 under
the Securities Exchange Act of 1934, as amended,
if Common Shares are to be issued, or Securities
to be delivered, other than to and in the name of
the registered holder.
NOTICE: The signature on the conversion notice, the option to elect repurchase upon a Fundamental
Change, the Put Right Notice, or the assignment must correspond with the name as written upon the
face of the Security in every particular without alteration or enlargement or any change whatever.