EXHIBIT 4.1
MAVERICK TUBE CORPORATION,
ISSUER
AND
THE BANK OF NEW YORK,
TRUSTEE
INDENTURE
DATED AS OF DECEMBER 30, 2004
---------------------------------
2004 4.00% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2033
---------------------------------
RECONCILIATION AND TIE BETWEEN SECTIONS 3.10 THROUGH 3.18(a),
INCLUSIVE, OF THE TRUST INDENTURE ACT OF 1939
AND SECTIONS OF THIS INDENTURE:
Section of
Trust Indenture Sections of
Act of 1939 Indenture
----------- ---------
Section 3.10 (a)(1) 10.09
(a)(2) 10.09
(a)(3) Not Applicable
(a)(4) Not Applicable
(a)(5) 10.09
(b) 10.08, 10.10
Section 3.11 (a) 10.13
(b) 10.13
(c) Not Applicable
Section 3.12 (a) 11.01, 11.02
(b) 11.02
(c) 11.02
Section 3.13 (a) 11.03
(b) 11.03
(c) 11.03
(d) 11.03
Section 3.14 (a) 11.04
(a)(4) 1.01, 14.04
(b) Not Applicable
(c)(1) 1.02
(c)(2) 1.02
(c)(3) Not Applicable
(d) Not Applicable
(e) 1.02
Section 3.15 (a) 10.01, 10.03
(b) 10.02
(c) 10.01
(d)(1) 10.01
(d)(2) 10.01, 10.03
(d)(3) 11.01, 10.03
(e) 9.14
Section 3.16 (a)(1)(A) 9.02, 9.12
(a)(1)(B) 10.13
(a)(2) Not Applicable
(a) (last sentence) 1.01
(b) 9.08
(c) 1.04
Section 3.17 (a)(1) 9.03
(a)(2) 9.04
(b) 14.03
Section 3.18 (a) 1.07
------------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be a
part of the Indenture.
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Table of Contents
Page
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ARTICLE I DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION................................ 1
SECTION 1.01 Definitions................................................................. 1
SECTION 1.02 Compliance Certificates and Opinions........................................ 13
SECTION 1.03 Form of Documents Delivered to Trustee...................................... 14
SECTION 1.04 Acts of Holders; Record Dates............................................... 14
SECTION 1.05 Notices, Etc., to Trustee and Company....................................... 15
SECTION 1.06 Notice to Holders; Waiver of Notice......................................... 16
SECTION 1.07 Conflict With Trust Indenture Act........................................... 16
SECTION 1.08 Effect of Headings and Table of Contents.................................... 16
SECTION 1.09 Successors and Assigns...................................................... 16
SECTION 1.10 Separability Clause......................................................... 16
SECTION 1.11 Benefits of Indenture; No Recourse Against Others........................... 17
SECTION 1.12 Governing Law............................................................... 17
SECTION 1.13 Legal Holidays.............................................................. 17
ARTICLE II THE NOTES.............................................................................. 17
SECTION 2.01 Title of the Notes.......................................................... 17
SECTION 2.02 [Percentage of Principal Amount............................................. 17
SECTION 2.03 Limitation on Aggregate Principal Amount.................................... 17
SECTION 2.04 Stated Maturity............................................................. 18
SECTION 2.05 Interest and Interest Rates................................................. 18
SECTION 2.06 Note Registrar; Paying Agent and Conversion Agent; Bid Solicitation
Agent; Place of Payment..................................................... 20
SECTION 2.07 Execution and Authentication................................................ 20
SECTION 2.08 Place of Registration or Exchange; Notices and Demands With Respect to
the Notes................................................................... 21
SECTION 2.09 Registration of Transfer and Exchange....................................... 21
SECTION 2.10 Global Notes................................................................ 22
SECTION 2.11 Sinking Fund Obligations.................................................... 23
SECTION 2.12 Tax Treatment of Notes...................................................... 23
SECTION 2.13 Temporary Notes............................................................. 24
SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes................................. 25
SECTION 2.15 Cancellation................................................................ 25
ARTICLE III REDEMPTION............................................................................. 26
SECTION 3.01 Right to Redeem............................................................. 26
SECTION 3.02 Fewer Than All Outstanding Notes to Be Redeemed............................. 26
SECTION 3.03 Selection of Notes to Be Redeemed........................................... 27
SECTION 3.04 Notice of Redemption........................................................ 27
SECTION 3.05 Effect of Notice of Redemption.............................................. 28
SECTION 3.06 Deposit of Redemption Price................................................. 28
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ARTICLE IV PURCHASE UPON A FUNDAMENTAL CHANGE..................................................... 28
SECTION 4.01 Purchase at the Option of the Holder Upon a Fundamental Change.............. 28
SECTION 4.02 Notice of a Fundamental Change.............................................. 29
SECTION 4.03 Exercise of Option.......................................................... 29
SECTION 4.04 Procedures.................................................................. 29
ARTICLE V PURCHASE AT THE OPTION OF THE HOLDER................................................... 30
SECTION 5.01 Purchase of Notes by the Company at the Option of the Holder................ 30
ARTICLE VI CONDITIONS AND PROCEDURES FOR PURCHASES AT OPTION OF HOLDERS........................... 32
SECTION 6.01 Purchase Date or Fundamental Change......................................... 32
SECTION 6.02 Effect of Purchase Notice or Fundamental Change Purchase Notice; Effect
of Event of Default......................................................... 33
SECTION 6.03 Notes Purchased in Part..................................................... 34
SECTION 6.04 Covenant to Comply with Securities Laws Upon Purchase of Notes.............. 35
SECTION 6.05 Repayment to the Company.................................................... 35
SECTION 6.06 Officers' Certificate....................................................... 35
ARTICLE VII CONVERSION OF NOTES.................................................................... 36
SECTION 7.01 Right to Convert; Conversion Value; Method of Payment....................... 36
SECTION 7.02 Conversion Procedures....................................................... 37
SECTION 7.03 Cash Payments in Lieu of Fractional Shares.................................. 38
SECTION 7.04 Taxes on Conversion......................................................... 38
SECTION 7.05 Covenants of the Company.................................................... 38
SECTION 7.06 Adjustments to Conversion Rate.............................................. 39
SECTION 7.07 Calculation Methodology..................................................... 45
SECTION 7.08 When No Adjustment Required................................................. 45
SECTION 7.09 Notice of Adjustment........................................................ 45
SECTION 7.10 Voluntary Increase.......................................................... 45
SECTION 7.11 Notice to Holders Prior to Certain Actions.................................. 46
SECTION 7.12 Effect of Reclassification, Consolidation, Merger, Binding Share Exchange
or Sale..................................................................... 47
SECTION 7.13 Responsibility of Trustee and Conversion Agent.............................. 49
SECTION 7.14 Simultaneous Adjustments.................................................... 50
SECTION 7.15 Successive Adjustments...................................................... 50
SECTION 7.16 General Considerations...................................................... 50
ARTICLE VIII TRANSFER AND EXCHANGE.................................................................. 50
SECTION 8.01 Transfer and Exchange of the Notes.......................................... 50
SECTION 8.02 Legends..................................................................... 50
ARTICLE IX REMEDIES............................................................................... 51
SECTION 9.01 Events of Default........................................................... 51
SECTION 9.02 Acceleration of Maturity; Rescission and Annulment.......................... 54
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SECTION 9.03 Collection of Indebtedness and Suits for Enforcement by Trustee............. 54
SECTION 9.04 Trustee May File Proofs of Claim............................................ 55
SECTION 9.05 Trustee May Enforce Claims Without Possession of Notes...................... 55
SECTION 9.06 Application of Money Collected.............................................. 56
SECTION 9.07 Limitation on Suits......................................................... 56
SECTION 9.08 Unconditional Right of Holders to Receive Principal, Premium and Interest... 57
SECTION 9.09 Restoration of Rights and Remedies.......................................... 57
SECTION 9.10 Rights and Remedies Cumulative.............................................. 57
SECTION 9.11 Delay or Omission Not Waiver................................................ 57
SECTION 9.12 Control by Holders.......................................................... 57
SECTION 9.13 Waiver of Past Defaults..................................................... 58
SECTION 9.14 Undertaking for Costs....................................................... 58
SECTION 9.15 Waiver of Usury, Stay or Extension Laws..................................... 58
ARTICLE X THE TRUSTEE............................................................................ 58
SECTION 10.01 Certain Duties and Responsibilities......................................... 58
SECTION 10.02 Notice of Defaults.......................................................... 59
SECTION 10.03 Certain Rights of Trustee................................................... 59
SECTION 10.04 Not Responsible for Recitals or Issuance of Notes........................... 60
SECTION 10.05 May Hold Notes.............................................................. 60
SECTION 10.06 Money Held in Trust......................................................... 60
SECTION 10.07 Compensation, Reimbursement and Indemnification............................. 61
SECTION 10.08 Conflicting Interests....................................................... 61
SECTION 10.09 Corporate Trustee Required; Eligibility..................................... 62
SECTION 10.10 Resignation and Removal; Appointment of Successor........................... 62
SECTION 10.11 Acceptance of Appointment by Successor...................................... 63
SECTION 10.12 Merger, Conversion, Consolidation or Succession to Business................. 64
SECTION 10.13 Preferential Collection of Claims Against Company........................... 64
SECTION 10.14 Appointment of Authenticating Agent......................................... 64
ARTICLE XI HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY...................................... 66
SECTION 11.01 Company to Furnish Trustee Names and Addresses of Holders................... 66
SECTION 11.02 Preservation of Information; Communications to Holders...................... 67
SECTION 11.03 Reports by Trustee.......................................................... 67
SECTION 11.04 Reports by Company.......................................................... 67
ARTICLE XII CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE................................... 67
SECTION 12.01 Company May Consolidate, Etc., Only on Certain Terms........................ 67
SECTION 12.02 Successor Substituted....................................................... 68
SECTION 12.03 Trustee Entitled to Opinion................................................. 69
ARTICLE XIII SUPPLEMENTAL INDENTURES................................................................ 69
SECTION 13.01 Supplemental Indentures Without Consent of Holders.......................... 69
SECTION 13.02 Supplemental Indentures With Consent of Holders............................. 70
SECTION 13.03 Execution of Supplemental Indentures........................................ 71
iv
SECTION 13.04 Effect of Supplemental Indentures........................................... 71
SECTION 13.05 Conformity With Trust Indenture Act......................................... 72
SECTION 13.06 Reference in Notes to Supplemental Indentures............................... 72
ARTICLE XIV COVENANTS.............................................................................. 72
SECTION 14.01 Payment of Principal and Interest........................................... 72
SECTION 14.02 Maintenance of Office or Agency............................................. 72
SECTION 14.03 Money for Notes Payments to be Held in Trust................................ 72
SECTION 14.04 Statement by Officers as to Default......................................... 73
SECTION 14.05 Waiver of Certain Covenants................................................. 73
ARTICLE XV SUBORDINATION.......................................................................... 74
SECTION 15.01 Notes Subordinate to Senior Indebtedness.................................... 74
SECTION 15.02 No Payment on Notes in Certain Circumstances................................ 74
SECTION 15.03 Notes Subordinated to Prior Payment of All Senior Indebtedness on
Dissolution, Liquidation or Reorganization.................................. 76
SECTION 15.04 Subrogation to Rights of Holders of Senior Indebtedness..................... 77
SECTION 15.05 Obligations of the Company Unconditional.................................... 77
SECTION 15.06 Trustee Entitled to Assume Payments Not Prohibited in Absence of Notice..... 78
SECTION 15.07 Application by Trustee of Amounts Deposited with It......................... 78
SECTION 15.08 Subordination Rights Not Impaired by Acts or Omissions of the Company or
Holders of Senior Indebtedness.............................................. 78
SECTION 15.09 Trustee to Effectuate Subordination of Notes................................ 79
SECTION 15.10 Right of Trustee to Hold Senior Indebtedness................................ 79
SECTION 15.11 Article XVI Not to Prevent Events of Default................................ 79
SECTION 15.12 No Fiduciary Duty of Trustee to Holders of Senior Indebtedness.............. 79
SECTION 15.13 Article Applicable to Paying Agent.......................................... 80
SECTION 15.14 Notes Pari Passu with Prior Notes........................................... 80
v
INDENTURE, dated as of December 30, 2004, between MAVERICK TUBE
CORPORATION, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company"), having its principal office at
00000 Xxxxxxxx Xxxxx Xxxx, Xxxxx 000, Xxxxxxxxxxxx, Xxxxxxxx 00000, and THE BANK
OF NEW YORK, a corporation duly organized and existing under the laws of the
State of New York, as Trustee (herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the execution and delivery of this
Indenture to provide for the issuance of its 2004 4.00% Convertible Senior
Subordinated Notes due 2033 (herein called the "Notes") as in this Indenture
provided.
All things necessary to make this Indenture a valid agreement of the
Company, in accordance with its terms, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the Notes
by the Holders thereof, it is mutually agreed, for the equal and proportionate
benefit of all Holders of the Notes, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.01. Definitions. For all purposes of this Indenture, except as
otherwise expressly provided or unless the context otherwise requires:
(a) the terms defined in this Article have the meanings assigned
to them in this Article and include the plural as well as the
singular;
(b) all other terms used herein which are defined in the Trust
Indenture Act, either directly or by reference therein, have
the meanings assigned to them therein;
(c) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally
accepted accounting principles in the United States of
America, and, except as otherwise expressly provided herein,
the term "generally accepted accounting principles" with
respect to any computation required or permitted hereunder
shall mean such accounting principles as are generally
accepted in the United States of America at the date of such
computation;
(d) unless the context otherwise requires, any reference to an
"Article" or a "Section" refers to an Article or a Section, as
the case may be, of this Indenture; and
1
(e) the words "herein," "hereof" and "hereunder" and other words
of similar import refer to this Indenture as a whole and not
to any particular Article, Section or other subdivision of
this Indenture.
"Act," when used with respect to any Holder, has the meaning specified in
Section 1.04.
"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 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.
"Authenticating Agent" means any Person authorized by the Trustee pursuant
to Section 10.14 to act on behalf of the Trustee to authenticate the Notes.
"Bid Solicitation Agent" has the meaning specified in Section 2.06(c).
"Beneficial Owner" or "Beneficial Ownership" shall be determined in
accordance with Rule 13d-3 promulgated by the Commission under the Exchange Act.
"Board of Directors" means the board of directors of the Company or any
duly authorized committee of that board.
"Board Resolution" means 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," when used with respect to any Place of Payment or place of
conversion or exchange, means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in that Place of Payment
or place of conversion or exchange are authorized or obligated by law or
executive order to remain closed.
"Capital Lease" means a lease that, in accordance with accounting
principles generally accepted in the United States of America, would be recorded
as a capital lease on the balance sheet of the lessee.
"Capital Stock" of any Person means any and all shares (including ordinary
shares or American depositary shares), interests, participations or other
equivalents however designated of corporate stock or other equity
participations, including partnership interests, whether general or limited, of
such Person and any rights (other than debt securities convertible or
exchangeable into an equity interest), warrants or options to acquire an equity
interest in such Person.
"Cash" or "cash" means U.S. legal tender.
"Commission" means the Securities and Exchange Commission.
2
"Common Equity" of any Person means capital stock of such Person that is
generally entitled to (1) vote in the election of directors of such Person or
(2) if such Person is not a corporation, vote or otherwise participate in the
selection of the governing body, partners, managers or others that will control
the management or policies of such Person.
"Common Stock" means the common stock, par value $.01 per share, of the
Company.
"Company" means Maverick Tube Corporation until a successor corporation
shall have become such pursuant to the applicable provisions of this Indenture,
and thereafter "Company" shall mean that successor corporation.
"Company Notice" has the meaning specified in Section 6.01.
"Company Notice Date" has the meaning specified in Section 6.01.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by its Chairman of the Board, its Chief
Executive Officer, its President, its Chief Operating Officer, its Chief
Financial Officer or any of its Vice Presidents, and by its Treasurer, any of
its Assistant Treasurers, its Secretary or any of its Assistant Secretaries, and
delivered to the Trustee.
"Contingent Interest" has the meaning specified in Section 2.05(a).
"Continuing Director" means a director who either was a member of the
Board of Directors on June 9, 2003 or who becomes a member of the Board of
Directors subsequent to that date and whose appointment, election or nomination
for election by the Company's shareholders is duly approved by a majority of the
Continuing Directors on the Board of Directors at the time of such approval,
either by a specific vote or by approval of the proxy statement issued by the
Company on behalf of the Board of Directors in which such individual is named as
nominee for director.
"Conversion Agent" means the office or agency designated by the Company
where Notes may be presented for conversion.
"Conversion Date" has the meaning specified in Section 7.02.
"Conversion Price" means $1,000 divided by the Conversion Rate, rounded to
the nearest whole cent.
"Conversion Rate" has the meaning specified in Section 7.01(a).
"Conversion Value" has the meaning specified in Section 7.01(b).
"Corporate Trust Office" means, except as provided in the following
sentence, the office of the Trustee at which at any particular time its
corporate trust business hereunder shall be administered, which at the date of
original execution of this Indenture is located at The Bank of New York, 0 X.
XxXxxxx Xxxxxx, Xxxxx 0000, Xxxxxxx, Xxxxxxxx 00000, Attn: Corporate Trust
Administration. For purposes of making payments on the Notes and tendering the
Notes for
3
conversion, exchange or redemption, "Corporate Trust Office" means the office of
the Trustee which at any particular time is designated as the office for such
activities, which at the date of original execution of this Indenture is located
at The Bank of New York, 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000,
Attention: Corporate Trust Administration.
"corporation" includes associations, corporations, companies, limited
liability companies and business trusts.
"CPDI Regulations" has the meaning specified in Section 2.12.
"Credit Facility" means the Amended and Restated Credit Agreement dated as
of December 31, 2002 by and among the Company and certain of its Subsidiaries,
on the one hand, and JPMorgan Chase Bank, N.A., CIT Business Credit Canada Inc.,
General Electric Capital Corporation and the other financial lenders party
thereto, on the other hand, as amended, and any credit agreement, loan agreement
or other financing arrangement which, by its terms, supersedes or replaces in
whole or in part such amended and restated credit agreement.
"Defaulted Interest" has the meaning specified in Section 2.05(c).
"Depositary" means a clearing agency registered under the Exchange Act
that is designated to act as Depositary for the Notes as contemplated by Section
2.10.
"Designated Senior Indebtedness" means (i) any liabilities of the Company
for principal, interest (including all interest accruing subsequent to the
commencement of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowed as a claim in any such proceeding), all letter
of credit obligations, fees, indemnification, reimbursement, damages or other
obligations of the Company (including fees, costs, expenses and other amounts
accruing after the commencement of any bankruptcy or similar proceeding, whether
or not a claim for post-petition fees, costs, expenses and other amounts is
allowed as a claim in the proceeding) under the Credit Facility, and (ii) any
other Senior Indebtedness as to which the principal amount is $25.0 million or
more and the instrument creating or evidencing the same (or any related
agreements or documents to which the Company is a party) expressly provides that
such Senior Indebtedness shall be "Designated Senior Indebtedness" for purposes
of this Indenture (provided that such instrument, agreement or other document
may place limitations and conditions on the right of such Senior Indebtedness to
exercise the rights of Designated Senior Indebtedness). If any payment made to
any holder of any Designated Senior Indebtedness or its Representative with
respect to such Designated Senior Indebtedness is rescinded or must otherwise be
returned by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute
Designated Senior Indebtedness effective as of the date of such rescission or
return.
"Determination Date" has the meaning specified in Section 7.01(e).
"Disqualified Capital Stock" means (i) except as set forth in (ii), with
respect to any Person, Capital Stock of that Person that, by its terms or by the
terms of any security into which it is convertible, exercisable or exchangeable,
is, or on the happening of an event or the passage of time would be, required to
be redeemed or repurchased (including at the option of the holder
4
thereof) by that Person or any Subsidiary of that Person, in whole or in part,
on or prior to the Stated Maturity, and (ii) with respect to any Subsidiary of
that Person (including with respect to any Subsidiary of the Company), any
Capital Stock other than any common stock with no preference, privileges, or
redemption or repayment provisions.
"Distributed Assets or Securities" has the meaning specified in Section
7.06(c).
"Equity Interest" means any capital stock, partnership, joint venture,
member or limited liability or unlimited liability company interest, beneficial
interest in a trust or similar entity or other equity interest or investment of
whatever nature.
"Event of Default" has the meaning specified in Section 9.01.
"ex date" when used with respect to any issuance or distribution of or
with respect to any security, means the first date on which the security trades
regular way on the New York Stock Exchange or such other national regional
exchange or market in which the security trades without the right to receive
such issuance or distribution.
"Exchange Act" means the Securities Exchange Act of 1934 and any statute
successor thereto, in each case as amended from time to time.
"Exchange Property" has the meaning specified in Section 7.12(b).
"Exchange Property Average Price" has the meaning specified in Section
7.12(c).
"Exchange Property Value" has the meaning specified in Section 7.12(c).
"Fair Market Value" means the amount which a willing buyer would pay a
willing seller in an arm's-length transaction.
"Fundamental Change" shall be deemed to have occurred at such time after
the original issuance of the Notes as any of the following occurs: (a) the
Common Stock or other common stock into which the Notes are convertible is
neither listed for trading on a United States national securities exchange nor
approved for trading on the Nasdaq National Market or another established
automated over-the-counter trading market in the United States; (b) a "person"
or "group" within the meaning of Section 13(d) of the Exchange Act, other than
the Company, any Subsidiary of the Company or any employee benefit plan of the
Company or any such Subsidiary, files a Schedule TO (or any other schedule, form
or report under the Exchange Act) disclosing that such person or group has
become the direct or indirect ultimate Beneficial Owner of Common Equity of the
Company representing more than 50% of the voting power of the Company's Common
Equity; (c) consummation of any share exchange, consolidation or merger of the
Company pursuant to which the Common Stock will be converted into cash,
securities or other property or any sale, lease or other transfer (in one
transaction or a series of related transactions) of all or substantially all of
the consolidated assets of the Company and its Subsidiaries, taken as a whole,
to any Person (other than the Company or one or more of the Company's
Subsidiaries); provided, however, that a transaction where the holders of the
Company's Common Equity immediately prior to such transaction own, directly or
indirectly, more than 50% of the aggregate voting power of all classes of Common
Equity of the continuing or surviving corporation or
5
transferee immediately after such event shall not be a Fundamental Change; (d)
Continuing Directors cease to constitute at least a majority of the Board of
Directors; provided, however, that a Fundamental Change shall not be deemed to
have occurred in respect of any of the foregoing clauses (a) through (d) if
either (i) the Last Reported Sale Price of Common Stock for any five Trading
Days within the period of 10 consecutive Trading Days ending immediately before
the later of the Fundamental Change or the public announcement thereof shall
equal or exceed 105% of the Conversion Price of the Notes in effect immediately
before the Fundamental Change or the public announcement thereof; or (ii) at
least 90% of the consideration (excluding cash payments for fractional shares)
in the transaction or transactions constituting the Fundamental Change consists
of shares of Capital Stock traded on a national securities exchange or quoted on
the Nasdaq National Market (or which shall be so traded or quoted when issued or
exchanged in connection with such Fundamental Change) (such securities being
referred to as "Publicly Traded Securities") and, as a result of such
transaction or transactions, the Notes become convertible into such Publicly
Traded Securities (excluding cash payments for fractional shares).
"Fundamental Change Purchase Date" has the meaning specified in Section
4.01.
"Fundamental Change Purchase Notice" has the meaning specified in
Section 4.03.
"Fundamental Change Purchase Price" has the meaning specified in Section
4.01.
"Global Notes" has the meaning specified in Section 2.10(a).
"Holder" means a Person in whose name a Note is registered in the Note
Register.
"Indenture" means this instrument as originally executed and as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto in accordance with the provisions hereof.
"Indebtedness," as applied to any Person, means (i) obligations,
contingent or otherwise, for money borrowed (other than unamortized debt
discount or premium); (ii) reimbursement and other obligations pertaining to
letters of credit issued for the account of such Person; (iii) obligations under
any swap, cap, collar, forward purchase contract, derivatives contract or other
similar agreement pursuant to which such Person xxxxxx risks related to interest
rates, currency exchange rates, commodity prices, financial market conditions or
other risks incurred by such Person in the operation of its business; (iv)
obligations evidenced by bonds, debentures, promissory notes or other
instruments or arrangements; (v) obligations as lessee under a Capital Lease;
and (vi) obligations of such Person under any amendments, renewals, extensions,
modifications and refundings of any such indebtedness or obligations listed in
clause (i), (ii), (iii), (iv) or (v) above. All indebtedness of any type
described in the immediately preceding sentence which is secured by a lien upon
property owned by such Person, although such Person has not assumed or become
liable for the payment of such indebtedness, shall for all purposes be deemed to
be Indebtedness of such Person. All indebtedness for borrowed money incurred by
any other Persons which is directly guaranteed as to payment of principal by
such Person shall for all purposes be deemed to be Indebtedness of such Person,
but no other contingent obligation
6
of such Person in respect of indebtedness incurred by any other Persons shall
for any purpose be deemed to be indebtedness of such Person.
"Interest Payment Date" has the meaning specified in Section 2.05(a).
"Junior security" of a Person means any Qualified Capital Stock of that
Person or any Indebtedness of that Person that is subordinated in right of
payment to Senior Indebtedness to substantially the same extent as, or to a
greater extent than, the Notes and has no scheduled installment of principal
due, by redemption, sinking fund payment or otherwise, on or prior to the Stated
Maturity.
"Last Reported Sale Price" means, with respect to Common Stock or any
other Equity Interest, on any date, the closing sale price per share or other
applicable unit (or, if no closing sale price is reported, the average of the
bid and ask prices per share or other applicable unit or, if more than one in
either case, the average of the average bid and the average ask prices) on that
date as reported in composite transactions for the principal U.S. securities
exchange on which the Common Stock or such Equity Interest is traded (which,
with respect to the Common Stock as of the date hereof, is the New York Stock
Exchange under the symbol "MVK") or, if the Common Stock or such Equity Interest
is not listed on a U.S. national or regional securities exchange, as reported by
the Nasdaq National Market; provided, however, if the Common Stock or such
Equity Interest is not listed for trading on a U.S. national or regional
securities exchange and not reported by the Nasdaq National Market on the
relevant date, the Last Reported Sale Price with respect thereto shall be the
last quoted bid price per share for the Common Stock or per share or other
applicable unit of such Equity Interest, respectively, in the over-the-counter
market on the relevant date as reported by the National Quotation Bureau or
similar organization; provided, further, if the Common Stock or such Equity
Interest is not so quoted, the Last Reported Sale Price with respect thereto
shall be the average of the mid-point of the last bid and ask prices per share
for the Common Stock or per share or other applicable unit of such Equity
Interest, respectively, on the relevant date from each of at least three
nationally recognized independent investment banking firms selected by the
Company for this purpose.
"Market Price per share of Common Stock" means the average of the Last
Reported Sale Prices of Common Stock for the 20 Trading Day period ending on the
applicable date of determination (if the applicable date of determination is a
Trading Day or, if not, then on the last Trading Day prior to such applicable
date of determination), appropriately adjusted to take into account the
occurrence, during the period commencing on the first of the Trading Days during
such 20 Trading Day period and ending on the applicable date of determination,
of any event that would result in an adjustment of the Conversion Rate under
this Indenture.
"Maturity" means the date on which the principal of the Notes becomes due
and payable as herein provided, whether at the Stated Maturity or by declaration
of acceleration, call for redemption or otherwise.
"Net Exchange Property Amount" has the meaning specified in Section
7.12(d).
"Net Share Amount" has the meaning provided in Section 7.01(c).
"Net Shares" has the meaning provided in Section 7.01(c).
7
"98% Trading Exception" has the meaning provided in paragraph 10 of the
Notes.
"non-electing share" has the meaning specified in Section 7.12(b).
"Non-Stock Change of Control" means any consolidation, merger, share
exchange, sale, lease or other transfer (in one transaction or a series of
related transactions) of all or substantially all of the Company's assets or
other similar transaction, in each case pursuant to which 10% or more of the
consideration for (or the consideration included in any related liquidating or
other distributions made to the holders of) the outstanding Common Stock (other
than cash payments for fractional shares and cash payments made in respect of
dissenters' appraisal rights) in connection with such transaction consists of
consideration other than common stock that is traded or quoted or scheduled to
be traded or quoted upon or immediately following the effectiveness of such
transaction on a United States national securities exchange or The Nasdaq
National Market.
"Note Register" and "Note Registrar" have the respective meanings
specified in Section 2.06(a).
"Notes" has the meaning stated in the first recital of this Indenture.
"Notice of Default" means a written notice of the kind specified in
Section 9.01(c).
"Officers' Certificate" means a certificate signed by the Chairman of the
Board, the Chief Executive Officer, the President, the Chief Operating Officer,
the Chief Financial Officer or any Vice President, and by the Treasurer, any
Assistant Treasurer, the Secretary or any Assistant Secretary, of the Company
and delivered to the Trustee. One of the officers signing an Officers'
Certificate given pursuant to Section 14.04 shall be the principal executive,
financial or accounting officer of the Company.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of, or counsel to, the Company, and who shall be reasonably acceptable
to the Trustee.
"Optional Redemption" has the meaning specified in Section 3.01(b).
"Optional Redemption Date" means the date specified in the Optional
Redemption Notice as the date for Optional Redemption of the Notes, in
accordance with the terms of the Notes and this Indenture.
"Optional Redemption Notice" has the meaning specified in Section 3.04.
"Optional Redemption Price" has the meaning specified in Section 3.01(b).
"Original Issue Date" means the first date as of which any Notes are
issued under this Indenture.
"Outstanding" means, as of the date of determination, all Notes
theretofore authenticated and delivered under this Indenture, except:
(i) Notes theretofore cancelled by the Trustee or delivered to the
Trustee for cancellation;
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(ii) Notes for whose payment or redemption money in the necessary
amount has been theretofore deposited with the Trustee or any
Paying Agent (other than the Company) in trust or set aside
and segregated in trust by the Company (if the Company shall
act as its own Paying Agent) for the Holders of such Notes;
provided that, if such Notes 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; and
(iii) Notes which have been paid pursuant to Section 2.14 or issued
in exchange for or in lieu of which other Notes have been
authenticated and delivered pursuant to this Indenture, other
than any such Notes in respect of which there shall have been
presented to the Trustee proof satisfactory to it that such
Notes are held by a bona fide purchaser in whose hands such
Notes are valid obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of the Outstanding Notes have given, made or taken any request,
demand, authorization, direction, notice, consent, waiver or other action
hereunder as of any date, Notes owned by the Company or any other obligor upon
the Notes or any Affiliate of the Company or of 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, waiver or other action, only Notes
which a Responsible Officer of the Trustee knows to be so owned shall be so
disregarded, and provided that Notes so owned which have been pledged in good
faith may be regarded as Outstanding if the pledgee establishes to the
satisfaction of the Trustee the pledgee's right so to act with respect to such
Notes and that the pledgee is not the Company or any other obligor upon the
Notes or any Affiliate of the Company or of such other obligor.
"Paying Agent" means the Company or any Person authorized by the Company
to pay the principal of or interest on the Notes on behalf of the Company.
"Payment Blockage Notice" has the meaning specified in Section 15.02(b)
"Payment Default" has the meaning specified in Section 15.02(a).
"Person" means any individual, association, corporation, partnership,
joint venture, limited liability company, unlimited liability company,
joint-stock company, trust, unincorporated organization or government or any
agency or political subdivision thereof.
"Place of Payment" means the place or places where the principal of or
interest on the Notes are payable as specified in this Indenture.
"Predecessor Note" of any particular Note means every previous Note
evidencing all or a portion of the same debt as that evidenced by such
particular Note; and, for the purposes of this definition, any Note
authenticated and delivered under Section 2.14 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Note shall be deemed to evidence the same
debt as the mutilated, destroyed, lost or stolen Note.
9
"Principal Return" has the meaning provided in Section 7.01(c).
"Prior Notes" means the 4.00% Convertible Senior Subordinated Notes due
2033 issued by Maverick Tube Corporation pursuant to the Indenture dated as of
June 9, 2003 between Maverick Tube Corporation and The Bank of New York, as
trustee.
"Provisional Redemption" has the meaning specified in Section 3.01(a).
"Provisional Redemption Date" means the date specified in the Provisional
Redemption Notice as the date for Provisional Redemption of the Notes, in
accordance with the terms of the Notes and this Indenture.
"Provisional Redemption Notice" has the meaning specified in Section 3.04.
"Provisional Redemption Price" has the meaning specified in Section
3.01(a).
"Public Acquirer" means a Person who (i) acquires the Company or all or
substantially all of the Company's assets in a consolidation, merger, share
exchange, sale of all or substantially all of the Company's assets or other
similar transaction and (ii) has a class of common stock traded on a United
States national securities exchange or quoted on The Nasdaq National Market or
which will be so traded or quoted when issued or exchanged in connection with
such transaction ("Public Acquirer Common Stock"); provided, however, that if
the acquirer in any transaction described in clause (i) above does not itself
have a class of common stock satisfying the foregoing requirement, such Person
will be deemed to be a "Public Acquirer," if either (a) a direct or indirect
majority owned subsidiary of such Person or (b) a corporation that directly or
indirectly owns at least a majority of such Person has a class of common stock
satisfying the foregoing requirement (in which case, all references herein to
"Public Acquirer Common Stock" will be deemed to refer to such class of common
stock). For purposes of this definition, majority ownership means having
Beneficial Ownership of more than 50% of the total voting power of all shares of
the respective entity's capital stock or other Equity Interests that are
entitled to vote generally in the election of members of such entity's board of
directors or similar governing body.
"Public Acquirer Change of Control" means any Non-Stock Change of Control
involving a Public Acquirer.
"Public Acquirer Common Stock" has the meaning specified in the definition
of Public Acquirer.
"Publicly Traded Securities" has the meaning specified in the definition
of "Fundamental Change."
"Purchase Date" has the meaning specified in Section 5.01(a).
"Purchase Notice" has the meaning specified in Section 5.01(a)(i).
"Purchase Price" has the meaning provided in paragraph 8 of the Notes.
10
"Qualified Capital Stock" means any Capital Stock of the Company that is
not Disqualified Capital Stock.
"Redemption Date" means the date specified for redemption of the Notes in
accordance with the terms of the Notes and this Indenture. In the case of a
Provisional Redemption pursuant to Section 3.01(a), the Redemption Date shall
mean the Provisional Redemption Date, and, in the case of an Optional Redemption
pursuant to Section 3.01(b), the Redemption Date shall mean the Optional
Redemption Date.
"Redemption Price" when used with respect to any security to be redeemed,
means the price at which such security is to be redeemed (including accrued and
unpaid interest, if any) pursuant to the terms of this Indenture. In the case of
a Provisional Redemption pursuant to Section 3.01(a), the Redemption Price shall
mean the Provisional Redemption Price, and, in the case of an Optional
Redemption pursuant to Section 3.01(b), the Redemption Price shall mean the
Optional Redemption Price.
"Regular Record Date" has the meaning specified in Section 2.05(a).
"Responsible Officer," when used with respect to the Trustee, means an
officer in the Corporate Trust Department of the Trustee having direct
responsibility for administration of this Indenture.
"Representative" means the indenture trustee or other trustee, agent or
representative for any Senior Indebtedness.
"Rights Plan" means that certain Amended and Restated Shareholder Rights
Agreement dated September 22, 2000 between the Company and Xxxxxx Trust &
Savings Bank, as rights agent, as amended from time to time.
"Sale Price" means, with respect to any Public Acquirer Common Stock, on
any date, the closing sale price per share (or, if no closing sale price is
reported, the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and average ask prices) on such date as
reported in the composite transactions for the principal United States national
or regional securities exchange on which such Public Acquirer Common Stock is
traded or, if such Public Acquirer Common Stock is not listed on a United States
national or regional securities exchange, as reported by The Nasdaq National
Market.
"Securities Act" means the Securities Act of 1933 and any statute
successor thereto, in each case as amended from time to time.
"Senior Indebtedness" means the principal of, premium, if any, interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowed as a claim in any such proceeding), all letter of credit
obligations, obligations under any arrangement described in clause (iii) of the
definition of Indebtedness and Capital Lease payments payable on or in
connection with, and all fees, costs, expenses and other amounts (including
fees, costs, expenses and other amounts accruing after the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition fees,
costs, expenses and other amounts is allowed as a claim in the
11
proceeding) accrued or due on or in connection with, Indebtedness of the
Company, whether secured or unsecured, absolute or contingent, due or to become
due, outstanding on the date of this Indenture or thereafter created, incurred,
assumed, guaranteed or in effect guaranteed by the Company (including all
deferrals, renewals, extensions or refundings of, or amendments, modifications
or supplements to, the foregoing), unless in the case of any particular
Indebtedness the instrument creating or evidencing the same or the assumption or
guarantee thereof expressly provides that such Indebtedness shall not be senior
in right of payment to the Notes or expressly provides that such Indebtedness is
"pari passu" or "junior" to the Notes. Notwithstanding the foregoing, the term
Senior Indebtedness shall not include the Notes or the Prior Notes. If any
payment made to any holder of any Senior Indebtedness or its Representative with
respect to such Senior Indebtedness is rescinded or must otherwise be returned
by such holder or Representative upon the insolvency, bankruptcy or
reorganization of the Company or otherwise, the reinstated Indebtedness of the
Company arising as a result of such rescission or return shall constitute Senior
Indebtedness effective as of the date of such rescission or return.
"Significant Subsidiary" means any other Subsidiary which, at the time of
the creation of a pledge, mortgage, security interest or other lien upon any
Equity Interests of such Subsidiary, has consolidated gross assets (having
regard to the Company's beneficial interest in the shares, or the like, of that
Subsidiary) that represents at least 10% of the Company's consolidated gross
assets appearing in the Company's most recent audited consolidated financial
statements.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 2.05(c).
"Spin-off Market Price" per share of Common Stock or per share or other
applicable unit of Equity Interests in a subsidiary or other business unit of
the Company on any day means the average of the Last Reported Sale Price with
respect thereto for each of the 10 consecutive Trading Days commencing on and
including the fifth Trading Day after the "ex date" with respect to the issuance
or distribution requiring such computations; provided, however, if no trading
market develops for such Equity Interests prior to the date for determination of
the Spin-off Market Price thereof pursuant to the foregoing provisions, the
value of the distributed Equity Interests will be determined by two nationally
recognized investment banks appointed by the Company.
"Stated Maturity" means June 15, 2033.
"Subsidiary" means a corporation more than 50% of the outstanding Voting
Stock of which is owned, directly or indirectly, by the Company or by one or
more other Subsidiaries, or by the Company and one or more other Subsidiaries.
"Ten-Day Average Price" has the meaning specified in Section 7.01(b).
"Trading Day" means (a) if the applicable security is listed, admitted for
trading or quoted on the New York Stock Exchange, the Nasdaq National Market or
another national security exchange, a day on which the New York Stock Exchange,
the Nasdaq National Market or such other national security exchange, as the case
may be, is open for trading or (b) if the applicable security is not so listed,
admitted for trading or quoted, any day other than a Saturday
12
or Sunday or a day on which banking institutions in the State of New York are
authorized or obligated by law, regulation or executive order to remain closed.
"Trading Price" of the Notes on any date of determination means the
average of the secondary market bid quotations per $1,000 principal amount of
Notes obtained by the Bid Solicitation Agent for $2 million principal amount of
Notes at approximately 4:00 p.m., New York City time, on such determination date
from three unaffiliated, nationally recognized securities dealers the Company
selects, provided that if: (i) at least three such bids are not obtained by the
Bid Solicitation Agent, or (ii) in the Company's reasonable judgment, the bid
quotations are not indicative of the secondary market value of the Notes, then
the Trading Price of the Notes will equal (a) the then applicable Conversion
Rate of the Notes multiplied by (b) the average of the Last Reported Sale Price
of Common Stock for each of the five Trading Days ending on such determination
date, appropriately adjusted to take into account the occurrence, during the
period commencing on the first of such Trading Days during such five Trading Day
period and ending on such determination date, of any event described in Section
7.06 of this Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939 as in force at
the date as of which this instrument was executed; provided, however, that in
the event the Trust Indenture Act of 1939 is amended after such date, "Trust
Indenture Act" means, to the extent required by any such amendment, the Trust
Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the first paragraph
of this instrument until a successor Trustee shall have become such pursuant to
the applicable provisions of this Indenture, and thereafter "Trustee" shall mean
or include each Person who is then a Trustee hereunder.
"United States" means the United States of America (including the states
and the District of Columbia) and its possessions at the relevant date. As of
the date of this Indenture, the possessions of the United States include Puerto
Rico, the U.S. Virgin Islands, Guam, American Samoa, Wake Island and the
Northern Mariana Islands.
"Vice President," when used with respect to the Company or the Trustee,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president."
"Voting Power" means the total voting power represented by all outstanding
shares of all classes of Voting Stock.
"Voting Stock" means a corporation's stock of any class or classes
(however designated), including membership interests, membership shares or other
similar equity interests, having ordinary Voting Power for the election of the
directors of such corporation, other than stock having such power only by reason
of the happening of a contingency.
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 such certificates and
opinions as may be required under the Trust Indenture Act. Each such certificate
or opinion shall be given in the form of an
13
Officers' Certificate, if to be given by an officer of the Company, or an
Opinion of Counsel, if to be given by counsel, and shall comply with the
requirements of the Trust Indenture Act and any other requirements set forth in
this Indenture.
Every certificate or opinion with respect to compliance with a condition
or covenant provided for in this Indenture (except for certificates provided for
in Section 14.04) shall include,
(a) a statement that each individual signing such certificate or
opinion has read such covenant or condition and the
definitions herein relating thereto;
(b) 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;
(c) 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
(d) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.03 Form 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.
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 knows, or in the exercise of
reasonable care should know, 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 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; Record Dates. Any request, demand,
authorization, direction, notice, consent, waiver or other action provided or
permitted by this Indenture to be given, made 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
14
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 herein 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 10.01) conclusive in favor of the Trustee and
the Company, if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such instrument or
writing may be proved by the affidavit of a witness of such execution or by a
certificate of a notary public or other officer authorized by law to take
acknowledgments of deeds, certifying that the individual signing such instrument
or writing acknowledged to him the execution thereof. Where such execution is by
a signer acting in a capacity other than his individual capacity, such
certificate or affidavit shall also constitute sufficient proof of his
authority. The fact and date of the execution of any such instrument or writing,
or the authority of the Person executing the same, may also be proved in any
other manner which the Trustee deems sufficient.
The ownership of Notes shall be proved by the Note Register.
Any request, demand, authorization, direction, notice, consent, waiver or
other Act of the Holder of any Note shall bind every future Holder of the same
Note and the Holder of every Note 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 Company in reliance
thereon, whether or not notation of such action is made upon such Note.
The Company may, in the circumstances permitted by the Trust Indenture
Act, be entitled to set any day as the record date for determining the Holders
of Outstanding Notes entitled to give or take any direction, notice, consent,
waiver or other action under the Indenture. If not set by the Company prior to
the first solicitation of a Holder of Notes made by any Person in respect of any
such action, or, in the case of any such vote, prior to such vote, the record
date for any such action or vote shall be the 30th day (or, if later, the date
of the most recent list of Holders required to be provided) prior to such first
solicitation or vote, as the case may be. In limited circumstances permitted by
the Trust Indenture Act, the Trustee may set a record date for action by Holders
of Outstanding Notes. With regard to any record date, only the Holders of Notes
on such date (or their duly designated proxies) shall be entitled to give or
take, or vote on, the relevant action. If a record date is set for any action to
be taken by Holders, the action may be taken only by persons who are Holders of
Outstanding Notes on the record date. To be effective, the action must be taken
by Holders of the requisite principal amount of Notes within 180 days or such
shorter period as the Company may specify, or the Trustee may specify, if it set
the record date. This period may be shortened or lengthened by not more than 180
days.
SECTION 1.05 Notices, Etc., to Trustee and Company. Any request, demand,
authorization, direction, notice, consent, waiver or Act of Holders or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
15
(a) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with and received by the
Trustee at its Corporate Trust Office, or
(b) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing and mailed,
first-class postage prepaid, to the Company addressed to: the
address last furnished in writing to the Trustee by the
Company, or, if no such address has been furnished, Chief
Financial Officer, Maverick Tube Corporation, 00000 Xxxxxxxx
Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000.
SECTION 1.06 Notice to Holders; Waiver of Notice. Where this Indenture
provides for notice to Holders of any event, such notice shall be sufficiently
given (unless otherwise herein expressly provided) if in writing and mailed,
first-class postage prepaid, to each Holder affected by such event, at the
address as it appears in the Note Register, not later than the latest date (if
any), and not earlier than the earliest date (if any), prescribed for the giving
of such notice. 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 regular mail service or by reason
of any other cause it shall be impracticable to give such notice by mail, then
such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.07 Conflict With Trust Indenture Act. If any provision limits,
qualifies or conflicts with a provision of the Trust Indenture Act which is
required under such Act to be a part of and govern this Indenture, the latter
provision shall control. If any provision of this Indenture modifies or excludes
any provision of the Trust Indenture Act which may be so modified or excluded,
the latter provision shall be deemed to apply to this Indenture as so modified
or to be excluded, as the case may be.
SECTION 1.08 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 1.09 Successors and Assigns. All covenants and agreements in this
Indenture by the Company shall bind its successors and assigns, whether so
expressed or not.
SECTION 1.10 Separability Clause. In case any provision in this Indenture
or in the Notes 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.
16
SECTION 1.11 Benefits of Indenture; No Recourse Against Others. Nothing in
this Indenture or in the Notes, express or implied, shall give to any Person,
other than the parties hereto and their successors hereunder, the holders of
Senior Indebtedness and the Holders, any benefit or any legal or equitable
right, remedy or claim under this Indenture. A director, officer, employee,
stockholder, partner or other owner of the Company or the Trustee, as such,
shall not have any liability for any obligations of the Company under the Notes
or for any obligations of the Company or the Trustee under this Indenture or for
any claim based on, in respect of or by reason of those obligations or their
creation. Each Holder by accepting a Note waives and releases all that
liability. This waiver and release shall be part of the consideration for the
issue of the Notes.
SECTION 1.12 Governing Law. This Indenture and the Notes shall be governed by
and construed in accordance with the law of the State of New York, without
giving effect to any principles of conflicts of laws thereunder to the extent
the application of the laws of another jurisdiction would be required thereby.
SECTION 1.13 Legal Holidays. In any case where any Interest Payment Date,
Redemption Date, Fundamental Change Purchase Date or Stated Maturity shall not
be a Business Day at any Place of Payment, then (notwithstanding any other
provision of this Indenture or of the Notes) payment of interest or principal
need not be made at such Place of Payment on such date, but may be made on the
next succeeding Business Day at such Place of Payment with the same force and
effect as if made on the Interest Payment Date, Redemption Date or Fundamental
Change Purchase Date, or at the Stated Maturity.
ARTICLE II
THE NOTES
SECTION 2.01 Title of the Notes. The Notes shall be designated as the
"2004 4.00% Convertible Senior Subordinated Notes due 2033."
SECTION 2.02 [Percentage of Principal Amount. The Notes shall be initially
issued at 100% of their principal amount plus an amount equal to the accrued and
unpaid interest on the Prior Notes acquired by the Company on the Original Issue
Date in exchange for the issuance of the Notes, if any, from December 15, 2004.]
SECTION 2.03 Limitation on Aggregate Principal Amount.
(a) The Trustee shall authenticate and deliver Notes for original
issue on the Original Issue Date in the aggregate principal
amount of up to $120,000,000 upon a Company Order for the
authentication and delivery thereof. Such order shall specify
the amount of the Notes to be authenticated, the date on which
the original issue of Notes is to be authenticated and the
name or names of the initial Holder or Holders.
(b) The aggregate principal amount of Notes that may be
outstanding shall not exceed $120,000,000. The Notes shall be
treated for all purposes as a single class or series and shall
be issuable in denominations of $1,000 and any integral
multiple thereof.
17
SECTION 2.04 Stated Maturity. The principal amount of the Notes shall be
payable on the Stated Maturity unless the Notes are earlier redeemed or
converted in accordance with the terms of this Indenture and the Notes.
SECTION 2.05 Interest and Interest Rates.
(a) The Notes shall bear interest at a rate of 4.00% per year,
from December 15, 2004 or from the most recent Interest
Payment Date (as defined below) to which payment has been made
or duly provided for, payable semiannually in arrears on June
15 and December 15 of each year, beginning June 15, 2005 (each
an "Interest Payment Date") to the persons in whose names the
Notes are registered at the close of business on June 1 and
December 1 (each a "Regular Record Date") (whether or not a
Business Day), as the case may be, immediately preceding such
Interest Payment Date. The Notes shall also provide for
payment of contingent interest ("Contingent Interest") in
certain circumstances as specified in paragraph 5 of the
Notes.
(b) Holders of Notes at the close of business on a Regular Record
Date will receive payment of interest, including Contingent
Interest, if any, payable on the corresponding Interest
Payment Date notwithstanding the conversion of such Notes at
any time after the close of business on such Regular Record
Date. Notes surrendered for conversion by a Holder during the
period from the close of business on any Regular Record Date
to the opening of business on the immediately following
Interest Payment Date must be accompanied by payment of
immediately available funds (or a certified check) of an
amount equal to the interest, including Contingent Interest,
if any, that the Holder is to receive on the Notes; provided,
however, that no such payment need be made if (i) the Company
has specified a Redemption Date that is after a Regular Record
Date and on or prior to the immediately following Interest
Payment Date, (ii) the Company has specified a Purchase Date
following a Fundamental Change that is during such period or
(iii) any overdue interest (including overdue Contingent
Interest, if any) exists at the time of conversion with
respect to such Notes to the extent of such overdue interest.
(c) Any such interest not so punctually paid or duly provided for
on any Interest Payment Date ("Defaulted Interest") shall
forthwith cease to be payable to the Holder on such Regular
Record Date and shall either:
(i) be paid to the Person in whose name such Note (or one or
more Predecessor Notes) is registered at the close of
business on the Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee,
notice whereof shall be given to Holders of the Notes
not less than 10 days prior to such Special Record Date,
or
(ii) be paid at any time in any other lawful manner not
inconsistent with the requirements of any securities
exchange or automated quotation system on which the
Notes may be listed or traded, and upon such notice as
may be
18
required by such exchange or automated quotation system,
all as more fully provided in this Indenture.
A Special Record Date for the payment of such Defaulted Interest 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 Note 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 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 the Trustee,
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 given to each Holder of Notes in the manner set forth in Section 1.06, 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 Notes (or their respective Predecessor Notes) are registered at the
close of business on such Special Record Date and shall no longer be payable
pursuant to the preceding clause (ii).
Whenever in this Indenture or in any Note there is mentioned, in any
context, the payment of interest on, or in respect of, any Note, such mention
shall be deemed to include mention of the payment of Defaulted Interest to the
extent that, in such context, Defaulted Interest is, was or would be payable in
respect thereof pursuant to the provisions hereof and express mention of the
payment of Defaulted Interest (if applicable) in any provisions shall not be
construed as excluding Defaulted Interest in those provisions where such express
mention is not made.
(d) The amount of interest, including Contingent Interest, if any,
payable for any period shall be computed on the basis of a
360-day year of twelve 30-day months. The amount of interest,
including Contingent Interest, if any, payable for any partial
period shall be computed on the basis of a 360-day year of
twelve 30-day months and the days elapsed in any partial
month. In the event that any date on which interest is payable
on a Note is not a Business Day, then a payment of the
interest, including Contingent Interest, if any, payable on
such date will be made on the next succeeding day which is a
Business Day (and without any interest or other payment in
respect of any such delay) with the same force and effect as
if made on the date the payment was originally payable.
(e) If any principal of the Notes or any portion of such principal
is not paid when due (whether upon acceleration, upon the date
set for payment of the Redemption Price pursuant to paragraph
6 of the Notes, upon the date set for payment of a Purchase
Price or Fundamental Change Purchase Price pursuant
19
to paragraph 8 of the Notes or upon the Stated Maturity) or if
interest (including Contingent Interest, if any) due hereon or
any portion of such interest is not paid when due in
accordance with paragraph 1 or paragraph 5 or 11 of the Note,
then in each such case the overdue amount shall bear interest
at the rate of 4.00% per annum, compounded semiannually (to
the extent that the payment of such interest shall be legally
enforceable), which interest shall accrue from the date such
overdue amount was due to the date payment of such amount,
including interest thereon, has been made or duly provided
for. All such interest shall be payable on demand.
SECTION 2.06 Note Registrar; Paying Agent and Conversion Agent; Bid
Solicitation Agent; Place of Payment.
(a) The Company shall cause to be kept in an office or agency of
the Company in a Place of Payment a register (the register
maintained in any such office or agency of the Company in a
Place of Payment being herein sometimes collectively referred
to as the "Note Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall
provide for the registration of Notes and of transfers of
Notes. The Trustee, or any other party serving in such
capacity with the Trustee's consent, is hereby appointed "Note
Registrar" for the purpose of registering Notes and transfers
of Notes as herein provided.
(b) The Trustee shall initially serve as the Paying Agent and
Conversion Agent for the Notes. The Company may appoint and
change any Paying Agent or Conversion Agent or approve a
change in the office through which any Paying Agent acts
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 or Conversion Agent.
(c) The Trustee shall initially serve as the bid solicitation
agent (the "Bid Solicitation Agent") for purposes of obtaining
secondary market bid quotations for determining Trading
Prices. The Company may change the Bid Solicitation Agent at
any time; provided, however, the Bid Solicitation Agent shall
not be the Company or an Affiliate of the Company. The Bid
Solicitation Agent shall solicit bids from nationally
recognized securities dealers that are believed by the Company
to be willing to bid for the Notes.
(d) The Place of Payment where the Notes may be presented or
surrendered for payment shall be the Corporate Trust Office of
the Trustee.
SECTION 2.07 Execution and Authentication.
(a) The Notes shall be executed on behalf of the Company by its
Chairman of the Board, any Vice Chairman of the Board, its
President or one of its Vice Presidents, under its corporate
seal reproduced thereon and attested by its Treasurer or an
Assistant Treasurer or its Secretary or one of its Assistant
20
Secretaries. The signature of any of these officers on the
Notes may be manual or facsimile. The seal of the Company may
be in the form of a facsimile thereof and may be impressed,
affixed, imprinted or otherwise reproduced on the Note.
(b) Notes 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 Notes or did
not hold such offices at the date of such Notes.
(c) No Note shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears
on such Note a certificate of authentication in substantially
the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By:_______________________
Authorized Signatory
SECTION 2.08 Place of Registration or Exchange; Notices and Demands With
Respect to the Notes. The place where the Holders of the Notes may present the
Notes for registration of transfer or exchange and may make notices and demands
to or upon the Company in respect of the Notes shall be the Corporate Trust
Office of the Trustee.
SECTION 2.09 Registration of Transfer and Exchange.
(a) Subject to the provisions of Section 2.10, upon surrender for
registration of transfer of any Note at the office or agency
of the Company in a Place of Payment, the Company shall
execute, and the Trustee shall authenticate and deliver, in
the name of the designated transferee or transferees, one or
more new Notes, of any authorized denominations and of like
tenor and aggregate principal amount.
(b) At the option of the Holder, Notes may be exchanged for other
Notes, of any authorized denominations and of like tenor and
aggregate principal amount, upon surrender of the Notes to be
exchanged at such office or agency. Whenever any Notes are so
surrendered for exchange, the Company shall execute, and the
Trustee shall authenticate and deliver, the Notes which the
Holder making the exchange is entitled to receive.
(c) All Notes issued upon any registration of transfer or exchange
of Notes shall be the valid obligations of the Company,
evidencing the same debt, and entitled to
21
the same benefits under this Indenture, as the Notes
surrendered upon such registration of transfer or exchange.
(d) Every Note presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company
or the Trustee) be duly endorsed, or be accompanied by a
written instrument of transfer in form satisfactory to the
Company and the Note Registrar duly executed, by the Holder
thereof or his attorney duly authorized in writing.
(e) No service charge shall be made for any registration of
transfer or exchange of Notes, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in connection with any
registration of transfer or exchange of Notes, other than
exchanges pursuant to Section 2.13, 3.02 or 13.06 not
involving any transfer.
(f) If the Notes are to be redeemed in part, the Company shall not
be required (i) to issue, register the transfer of or exchange
any Notes during a period beginning at the opening of business
15 days before the day of the mailing of a notice of
redemption of any such Notes selected for redemption under
Section 3.03 and ending at the close of business on the day of
such mailing, or (ii) to register the transfer of or exchange
any Note so selected for redemption in whole or in part,
except the unredeemed portion of any Note being redeemed in
part.
(g) No Note Registrar shall be required to make registrations of
transfer or exchange of Notes during any periods designated in
the text of the Notes or in this Indenture as periods during
which such registration of transfers and exchanges need not be
made.
SECTION 2.10 Global Notes.
(a) The Notes shall be issued initially in the form of one or more
permanent Global Notes in definitive, fully registered,
book-entry form, without interest coupons (collectively, the
"Global Notes"). The Global Notes shall be substantially in
the form attached as Exhibit A hereto.
(b) Each of the Global Notes shall represent such of the Notes as
shall be specified therein and shall each provide that it
shall represent the aggregate principal amount of Notes from
time to time endorsed thereon and that the aggregate principal
amount of Notes represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges,
redemptions or conversions. Any endorsement of a Global Note
to reflect the aggregate principal amount, or any increase or
decrease in the aggregate principal amount, of Notes
represented thereby shall be reflected by the Trustee on
Schedule A attached to the Note and made by the Trustee in
accordance with written instructions or such other written
form of instructions as is customary for the Depositary, from
the Depositary or its nominee on behalf of any Person having a
beneficial interest in the Global Note.
22
(c) The Depository Trust Company shall initially serve as
Depositary with respect to the Global Notes. Such Global Notes
shall bear the legends set forth in the form of Note attached
as Exhibit A hereto.
(d) Each Global Note authenticated under this Indenture shall be
registered in the name of the Depositary or a nominee thereof
and delivered to such Depositary or a nominee thereof or
custodian therefor, and each such Global Note shall constitute
a single Note for all purposes of this Indenture.
(e) Notwithstanding any other provision in this Indenture, no
Global Note may be exchanged in whole or in part for Notes
registered, and no transfer of a Global Note in whole or in
part may be registered, in the name of any Person other than
the Depositary for such Global Note or a nominee thereof
unless:
(i) such Depositary has notified the Company that
(A) such Depositary is unwilling, unable or no longer
qualified to continue as Depositary for such
Global Note or
(B) such Depositary has ceased to be a clearing agency
registered under the Exchange Act at a time when
it is required to be so registered,
and the Company does not appoint a successor Depositary within
90 days of that notice; or
(ii) there shall have occurred and be continuing an Event of
Default with respect to such Global Note, and the
Depositary requests the issuance of certificated Notes.
(f) Subject to Section 2.10(e) above, any exchange of a Global
Note for other Notes may be made in whole or in part, and all
Notes issued in exchange for a Global Note or any portion
thereof shall be registered in such names as the Depositary
for such Global Note shall direct.
(g) Every Note authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, a Global Note
or any portion thereof, whether pursuant to this Section,
Section 2.13, 2.14, 3.02 or 13.06 or otherwise, shall be
authenticated and delivered in the form of, and shall be, a
Global Note, unless such Note is registered in the name of a
Person other than the Depositary for such Global Note or a
nominee thereof.
SECTION 2.11 Sinking Fund Obligations. The Company shall have no
obligation to redeem or purchase any Notes pursuant to any sinking fund or
analogous requirement.
SECTION 2.12 Tax Treatment of Notes. The Company agrees, and by accepting
a beneficial ownership interest in the Notes each Holder, and any Person that
acquires a direct or indirect beneficial interest in the Notes, will be deemed
to have agreed, unless otherwise required
23
by applicable law, (a) for United States federal income tax purposes to treat
the Notes as Indebtedness of the Company that is subject to the Contingent
Payment Debt Instrument regulations under Treas. Reg. Sec. 1.1275-4 (the "CPDI
Regulations"), (b) for all tax purposes to treat the Notes as Indebtedness of
the Company, (c) for purposes of the CPDI Regulations, to treat the fair market
value of any stock beneficially received by a beneficial holder upon any
conversion of the Notes as a contingent payment, (d) to be bound by the
Company's determination that the Notes are contingent payment debt instruments
subject to the "noncontingent bond method" of accruing original issue discount
within the meaning of the CPDI Regulations with respect to the Notes, (e) to
accrue original issue discount at the comparable yield as determined by the
Company and (f) to be bound by the Company's projected payment schedule with
respect to the Notes. In addition, unless otherwise required by applicable law,
the Company will treat the exchange of Prior Notes for Notes as not constituting
a significant modification for United States federal income tax purposes. The
provisions of this Indenture shall be interpreted to further this intention and
agreement of the parties. The comparable yield and the schedule of projected
payments are not determined for any purpose other than for the determination of
interest accruals and adjustment thereof in respect of the Notes for United
States federal income tax purposes. Consistent with the Company's treatment of
the exchange of Prior Notes for Notes, as described above, the comparable yield
and schedule of projected payments governing the Notes is identical to the
comparable yield and schedule of projected payments that governed the Prior
Notes. The comparable yield and the schedule of projected payments do not
constitute a projection or representation regarding the future stock price or
the amounts payable on the Notes. For purposes of the foregoing, the Company's
determination of the "comparable yield" is 8.48% per annum, compounded
semiannually. A Holder of Notes may obtain the amount of original issue
discount, issue date, comparable yield and projected payment schedule by
telephoning the Company's Finance Department at (000) 000-0000 or submitting a
written request for such information to: Maverick Tube Corporation, 00000
Xxxxxxxx Xxxxx Xxxx, Xxxxxxx Xxxxx, Xxxxxxxxxxxx, Xxxxxxxx 00000, Attention:
Chief Financial Officer. The schedule of projected payments is set forth on
Exhibit B.
SECTION 2.13 Temporary Notes. Pending the preparation of definitive Notes,
the Company may execute, and upon Company Order the Trustee shall authenticate
and deliver, temporary Notes which are printed, lithographed, typewritten,
mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Notes in lieu of which they are
issued and with such appropriate insertions, omissions, substitutions and other
variations as the officers executing such Notes may determine, as evidenced by
their execution of such Notes.
If temporary Notes are issued, the Company will cause definitive Notes to
be prepared without unreasonable delay. After the preparation of definitive
Notes, the temporary Notes shall be exchangeable for definitive Notes upon
surrender of the temporary Notes at the office or agency of the Company in a
Place of Payment, without charge to the Holder. Upon surrender for cancellation
of any one or more temporary Notes, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor one or more definitive
Notes, of any authorized denominations and of like tenor and aggregate principal
amount. Until so exchanged, the temporary Notes shall in all respects be
entitled to the same benefits under this Indenture as definitive Notes.
24
SECTION 2.14 Mutilated, Destroyed, Lost and Stolen Notes. If any mutilated
Note is surrendered to the Trustee, the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a new Note of like tenor and
principal amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (a) evidence to
their satisfaction of the destruction, loss or theft of any Note and (b) such
security or indemnity as may be required by them to save each of them and any
agent of either of them harmless, then, in the absence of notice to the Company
or the Trustee that such Note has been acquired by a bona fide purchaser, the
Company shall execute and the Trustee shall authenticate and deliver, in lieu of
any such destroyed, lost or stolen Note, a new Note of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Note has become or
is about to become due and payable, the Company in its discretion may, instead
of issuing a new Note, pay such Note.
Upon the issuance of any new Note 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 Note issued pursuant to this Section in lieu of any destroyed,
lost or stolen Note shall constitute an original additional contractual
obligation of the Company, whether or not the destroyed, lost or stolen Note
shall be at any time enforceable by anyone, and shall be entitled to all the
benefits of this Indenture equally and proportionately with any and all other
Notes duly issued hereunder.
The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Notes.
SECTION 2.15 Cancellation. All Notes surrendered for payment, redemption,
conversion, exchange or registration of transfer or exchange shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Notes previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatsoever and may
deliver to the Trustee (or to any other Person for delivery to the Trustee) for
cancellation any Notes previously authenticated hereunder which the Company has
not issued and sold, and all Notes so delivered shall be promptly cancelled by
the Trustee. No Notes shall be authenticated in lieu of or in exchange for any
Notes cancelled as provided in this Section, except as expressly permitted by
this Indenture. Until directed otherwise by a Company Order, all cancelled Notes
held by the Trustee shall be conspicuously marked as such and thereafter treated
in accordance with the Trustee's document retention policies; provided, however,
if any cancelled Note is destroyed by the Trustee, the Trustee shall deliver to
the Company a certificate with respect to such destruction.
25
ARTICLE III
REDEMPTION
SECTION 3.01 Right to Redeem.
(a) Any time after June 15, 2008 and prior to June 15, 2011, the
Company may, at its option, redeem (such redemption being
hereinafter referred to as the "Provisional Redemption") the
Notes, in whole at any time or in part from time to time, upon
notice given in accordance with Section 3.04, at a redemption
price equal to $1,000 per $1,000 principal amount of the Notes
to be redeemed, plus accrued and unpaid interest, including
Contingent Interest, if any, to but excluding the Provisional
Redemption Date (such amount being the "Provisional Redemption
Price"), if the Last Reported Sale Price of Common Stock has
exceeded 130% of the Conversion Price then in effect for at
least 20 Trading Days within a period of 30 consecutive
Trading Days ending on the Trading Day prior to the date on
which the Company mails the Provisional Redemption Notice
pursuant to Section 3.04. If a Provisional Redemption Date is
an Interest Payment Date, the semiannual interest on the Notes
payable on such Interest Payment Date will be payable to the
Holder of record as of the relevant Regular Record Date, and
the Provisional Redemption Price will not include such
interest payment.
(b) Except as set forth in Section 3.01(a), the Notes may not be
redeemed at the option of the Company prior to June 15, 2011.
On and after June 15, 2011, the Company may, at its option,
redeem (such redemption being hereinafter referred to as the
"Optional Redemption") the Notes, in whole at any time or in
part from time to time, on any date prior to the Stated
Maturity, upon notice given in accordance with Section 3.04,
at a redemption price equal to 100% of the principal amount of
the Notes to be redeemed, plus accrued and unpaid interest,
including Contingent Interest, if any, to but excluding
Optional Redemption Date (such amount being the "Optional
Redemption Price").
(c) The election of the Company to redeem any Notes shall be
evidenced by a Board Resolution, a copy of which shall be
provided to the Trustee and upon which the Trustee may
conclusively rely.
SECTION 3.02 Fewer Than All Outstanding Notes to Be Redeemed. If fewer
than all of the outstanding Notes are to be redeemed, the Trustee shall select
the Notes to be redeemed in principal amounts of $1,000 or integral multiples
thereof. In the case that the Trustee shall select the Notes to be redeemed, the
Trustee may effectuate such selection by lot, pro rata, or by any other method
that the Trustee considers fair and appropriate. The Trustee will make such
selection promptly following receipt of the notice of redemption from the
Company, or the written request by the Company to provide such notice, provided
pursuant to Section 3.04. Any Note which is to be redeemed only in part shall be
surrendered at a Place of Payment therefor (with, if the Company or the Trustee
so requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder thereof
or his attorney duly authorized in writing), and the Company shall execute, and
the
26
Trustee shall authenticate and deliver to the Holder of such Note without
service charge, a new Note or Notes, of any authorized denomination as requested
by such Holder, in aggregate principal amount equal to and in exchange for the
unredeemed portion of the principal of the Note so surrendered.
SECTION 3.03 Selection of Notes to Be Redeemed. If any Notes selected for
partial redemption are thereafter surrendered for conversion in part before
termination of the conversion right with respect to the portion of the Notes so
selected, the converted portion of such Notes shall be deemed (so far as may
be), solely for purposes of determining the aggregate principal amount of Notes
to be redeemed by the Company, to be the portion selected for redemption. Notes
which have been converted during a selection of Notes to be redeemed may be
treated by the Trustee as outstanding for the purpose of such selection. Nothing
in this Section 3.03 shall affect the right of any Holder to convert any Notes
pursuant to Article VII before the termination of the conversion right with
respect thereto.
SECTION 3.04 Notice of Redemption. Notice of redemption shall be given by
first-class mail, postage prepaid, to the Trustee and the Paying Agent and to
each Holder of Notes to be redeemed, at his address appearing in the Note
Register. Such notice shall be given not less than 20 nor more than 60 days
prior to the Provisional Redemption Date pursuant to Section 3.01(a) (such
notice being the "Provisional Redemption Notice") or the Optional Redemption
Date pursuant to Section 3.01(b) (such notice being the "Optional Redemption
Notice").
All notices of redemption shall state:
(a) title of the Notes, including applicable CUSIP numbers;
(b) the then current Conversion Rate;
(c) the name and address of the Paying Agent and the Conversion
Agent;
(d) that the Notes called for redemption may be converted at any
time before the close of business on the Business Day
immediately preceding the Redemption Date;
(e) that Holders who wish to convert Notes must comply with the
procedures in paragraph 10 of the Notes;
(f) the Redemption Date;
(g) the Redemption Price;
(h) if less than all the Outstanding Notes consisting of more than
a single Note are to be redeemed, the identification (and, in
the case of partial redemption of any such Notes, the
principal amounts) of the particular Notes to be redeemed and,
if less than all the Outstanding Notes consisting of a single
Note are to be redeemed, the principal amount of the
particular Note to be redeemed;
27
(i) that on the Redemption Date the Redemption Price will become
due and payable upon each such Note to be redeemed and, if
applicable, that interest thereon will cease to accrue on and
after said date; and
(j) the place or places where each such Note is to be surrendered
for payment of the Redemption Price.
Notice of redemption of Notes to be redeemed at the election of the
Company shall be given by the Company or, at the Company's written request, by
the Trustee in the name and at the expense of the Company (provided that such
written request from the Company to the Trustee shall be given not less than 45
nor more than 60 days prior to the Provisional Redemption Date) and shall be
irrevocable.
SECTION 3.05 Effect of Notice of Redemption. Once notice of redemption is
mailed, Notes called for redemption become due and payable on the Redemption
Date and at the Redemption Price, except for Notes that are converted in
accordance with the provisions of Article VII and paragraph 10 of the Notes.
Upon presentation and surrender to the Paying Agent, Notes called for redemption
shall be paid at the Redemption Price as defined in paragraph 6 of the Notes.
SECTION 3.06 Deposit of Redemption Price. On or before 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 an Affiliate of the Company is acting as the
Paying Agent, shall segregate and hold in trust) an amount of money sufficient
to pay the aggregate Redemption Price of all the Notes to be redeemed on that
date other than the Notes or portions thereof called for redemption which on or
prior thereto have been delivered by the Company to the Note Registrar for
cancellation or have been converted. The Trustee and Paying Agent shall, as
promptly as practicable, return to the Company any money not required for that
purpose because of conversion of the Notes in accordance with the provisions of
Article VII. If such money is then held by the Company or a Subsidiary in trust
and is not required for such purpose, it shall be discharged from such trust.
ARTICLE IV
PURCHASE UPON A FUNDAMENTAL CHANGE
SECTION 4.01 Purchase at the Option of the Holder Upon a Fundamental
Change. Subject to the provisions of Article XV, if a Fundamental Change shall
occur at any time prior to June 15, 2011, each Holder shall have the right, at
such Holder's option, to require the Company to purchase any or all of such
Holder's Notes, or any portion of the principal amount thereof, for cash on the
date that is no later than 35 Business Days after the date of the Company Notice
of the occurrence of such Fundamental Change (subject to extension to comply
with applicable law) (the "Fundamental Change Purchase Date"). The Notes shall
be purchased in integral multiples of $1,000 of the principal amount. The
Company shall purchase such Notes at a price (the "Fundamental Change Purchase
Price") equal to 100% of the principal amount of the Notes to be purchased plus
accrued and unpaid interest, including Contingent Interest, if any, to the
Fundamental Change Purchase Date.
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SECTION 4.02 Notice of a Fundamental Change. The Company, or at its
written request (which must be received by the Trustee at least three Business
Days (or such lesser period as agreed to by the Trustee) prior to the date the
Trustee is requested to give such notice as described below), the Trustee, in
the name of and at the expense of the Company, shall mail notices to the Holders
at their addresses shown in the Note Register maintained by the Note Registrar,
a Company Notice of the occurrence of a Fundamental Change and of the purchase
right arising as a result thereof, including the information required by Section
6.01, on or before the 30th day after the occurrence of such Fundamental Change.
SECTION 4.03 Exercise of Option. For a Note to be so purchased at the
option of the Holder, the Paying Agent must receive such Note duly endorsed for
transfer, together with a written notice of purchase (a "Fundamental Change
Purchase Notice") in the form entitled "Form of Fundamental Change Purchase
Notice" on the reverse thereof duly completed, on or before the 35th day after
the date of the Company Notice of the occurrence of such Fundamental Change,
subject to extension to comply with applicable law. The Fundamental Change
Purchase Notice shall state:
(a) if certificated, the certificate numbers of the Notes which
the Holder shall deliver to be purchased, together with the
name, address and taxpayer identification number of the
Holder, or, if not certificated, the Fundamental Change
Purchase Notice must comply with applicable Depositary
procedures;
(b) the portion of the principal amount of the Notes which the
Holder will deliver to be purchased, which portion must be
$1,000 in principal amount or an integral multiple thereof;
and
(c) that such Notes shall be purchased as of the Fundamental
Change Purchase Date pursuant to the terms and conditions
specified in paragraph 8 of the Notes and in this Indenture.
SECTION 4.04 Procedures. The Company shall purchase from a Holder,
pursuant to Article IV, Notes if the principal amount of such Notes is $1,000 or
an integral multiple of $1,000 if so requested by such Holder.
Any purchase by the Company contemplated pursuant to the provisions of
Article IV shall be consummated by the delivery of the Fundamental Change
Purchase Price to be received by the Holder promptly following the later of the
Fundamental Change Purchase Date or the time of book-entry transfer or delivery
of the Notes.
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Fundamental Change Purchase Notice contemplated by Section
4.02 shall have the right at any time prior to the close of business on the
Business Day prior to the Fundamental Change Purchase Date to withdraw such
Fundamental Change Purchase Notice (in whole or in part) by delivery of a
written notice of withdrawal to the Paying Agent in accordance with Section
6.02.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Fundamental Change Purchase Notice or written notice of withdrawal thereof.
29
On or before 10:00 a.m. (New York City time) on the Fundamental Change
Purchase Date, the Company shall deposit with the Paying Agent (or if the
Company or an Affiliate of the Company is acting as the Paying Agent, shall
segregate and hold in trust) money sufficient to pay the aggregate Fundamental
Change Purchase Price of the Notes to be purchased pursuant to Article IV.
Payment by the Paying Agent of the Fundamental Change Purchase Price for such
Notes shall be made promptly following the later of the Fundamental Change
Purchase Date or the time of book-entry transfer or delivery of such Notes. If
the Paying Agent holds, in accordance with the terms of this Indenture, money
sufficient to pay the Fundamental Change Purchase Price of such Notes on the
Business Day following the Fundamental Change Purchase Date, then, on and after
such date, such Notes shall cease to be outstanding and interest (including
Contingent Interest, if any) on such Notes shall cease to accrue, whether or not
book-entry transfer of such Notes is made or such Notes are delivered to the
Paying Agent, and all other rights of the Holder shall terminate (other than the
right to receive the Fundamental Change Purchase Price upon delivery or transfer
of the Notes). Nothing herein shall preclude any withholding tax required by
law.
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 or the Trustee all money held by the Paying Agent for the payment of the
Fundamental Change Purchase Price and shall notify the Trustee of any default by
the Company in making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the money 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 deliver all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the Paying Agent shall
have no further liability for the cash delivered to the Trustee.
All questions as to the validity, eligibility (including time of receipt)
and acceptance of any Notes for redemption shall be determined by the Company,
whose determination shall be final and binding and conclusive as to the Trustee
and Paying Agent.
ARTICLE V
PURCHASE AT THE OPTION OF THE HOLDER
SECTION 5.01 Purchase of Notes by the Company at the Option of the Holder.
(a) Subject to the provisions of Article XV, on each of June 15,
2011, June 15, 2013, June 15, 2018, June 15, 2023 and June 15,
2028 (each, a "Purchase Date"), Holders shall have the option
to require the Company to purchase in cash any Outstanding
Notes at the Purchase Price specified in paragraph 8 of the
Notes, upon:
(i) delivery to the Paying Agent by the Holder of a written
notice of purchase (a "Purchase Notice") in the form
previously delivered to the Paying Agent pursuant to
Section 6.01 (with the blanks appropriately filled) at
any time from the opening of business on the date that
is 20 Business Days prior to a relevant Purchase Date
until the close of business on the fifth Business Day
prior to such Purchase Date, stating:
30
(A) if certificated, the certificate numbers of the
Notes which the Holder will deliver to be
purchased, or, if not certificated, the Purchase
Notice must comply with applicable Depositary
procedures;
(B) the portion of the principal amount of the Notes
which the Holder will deliver to be purchased,
which portion must be $1,000 in principal amount
or an integral multiple thereof; and
(C) that such Notes shall be purchased as of the
Purchase Date pursuant to the terms and conditions
specified in paragraph 8 of the Notes and in this
Indenture; and
(ii) delivery or book-entry transfer of such Notes 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 or transfer
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 Section
5.01 only if the Notes so delivered or transferred to
the Paying Agent shall conform in all respects to the
description thereof in the related Purchase Notice.
(b) The Company shall purchase from a Holder, pursuant to the
terms of this Section 5.01, Notes if the principal amount of
such Notes is $1,000 or an integral multiple of $1,000 if so
requested by such Holder.
(c) Any purchase by the Company contemplated pursuant to the
provisions of this Section 5.01 shall be consummated by the
delivery of the Purchase Price to be received by the Holder
promptly following the later of the Purchase Date or the time
of book-entry transfer or delivery of the Notes.
(d) Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice
contemplated by this Section 5.01 shall have the right at any
time prior to the close of business on the Business Day prior
to the Purchase Date to withdraw such Purchase Notice (in
whole or in part) by delivery of a written notice of
withdrawal to the Paying Agent in accordance with Section
6.02.
(e) The Paying Agent shall promptly notify the Company of the
receipt by it of any Purchase Notice or written notice of
withdrawal thereof.
(f) On or before 10:00 a.m. (New York City time) on the Purchase
Date, the Company shall deposit with the Paying Agent (or if
the Company or an Affiliate of the Company is acting as the
Paying Agent, shall segregate and hold in trust) money
sufficient to pay the aggregate Purchase Price of the Notes to
be purchased pursuant to this Section 5.01. Payment by the
Paying Agent of the Purchase Price for such Notes shall be
made promptly following the later of the Purchase Date or the
time of book-entry transfer or delivery of such Notes. If the
Paying Agent holds, in accordance with the terms of this
Indenture,
31
money sufficient to pay the Purchase Price of such Notes on
the Business Day following the Purchase Date, then, on and
after such date, such Notes shall cease to be outstanding and
interest (including Contingent Interest) on such Notes shall
cease to accrue, whether or not book-entry transfer of such
Notes is made or such Notes are delivered to the Paying Agent,
and all other rights of the Holder shall terminate (other than
the right to receive the Purchase Price upon delivery or
transfer of the Notes). Nothing herein shall preclude any
withholding tax required by law.
(g) 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 or the Trustee all money
held by the Paying Agent for the payment of the Purchase Price
and shall notify the Trustee of any default by the Company in
making any such payment. If the Company or an Affiliate of the
Company acts as Paying Agent, it shall segregate the money
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
deliver all money held by it to the Trustee and to account for
any funds disbursed by the Paying Agent. Upon doing so, the
Paying Agent shall have no further liability for the cash
delivered to the Trustee.
ARTICLE VI
CONDITIONS AND PROCEDURES FOR PURCHASES AT OPTION OF HOLDERS
SECTION 6.01 Purchase Date or Fundamental Change. The Company, or at its
written request (which must be received by the Trustee at least three Business
Days (or such lesser period as agreed to by the Trustee) prior to the date the
Trustee is requested to give such notice as described below), the Trustee, in
the name of and at the expense of the Company, shall mail notices (each a
"Company Notice") to the Holders, at their addresses shown in the Note Register
maintained by the Note Registrar, and delivered to the Trustee and the Paying
Agent, not less than 20 Business Days prior to each Purchase Date, or on or
before the 30th day after the occurrence of the Fundamental Change, as the case
may be (each such date of delivery, a "Company Notice Date"). Each Company
Notice shall include a form of Purchase Notice or Fundamental Change Purchase
Notice to be completed by a Holder and shall state:
(a) the applicable Purchase Price or Fundamental Change Purchase
Price, excluding accrued and unpaid interest, Conversion Rate
at the time of such notice (and any adjustments to the
Conversion Rate) and, to the extent known at the time of such
notice, the amount of interest (including Contingent
Interest), if any, that will be payable with respect to the
Notes on the applicable Purchase Date or Fundamental Change
Purchase Date;
(b) if the notice relates to a Fundamental Change, the events
causing the Fundamental Change and the date of the Fundamental
Change;
(c) the Purchase Date or Fundamental Change Purchase Date;
(d) the last date on which a Holder may exercise its purchase
right;
32
(e) the name and address of the Paying Agent and the Conversion
Agent;
(f) that Notes must be surrendered to the Paying Agent to collect
payment of the Purchase Price or Fundamental Change Purchase
Price;
(g) briefly, the conversion rights of the Notes;
(h) that Notes as to which a Purchase Notice or Fundamental Change
Purchase Notice has been given may be converted only if the
applicable Purchase Notice or Fundamental Change Purchase
Notice has been withdrawn in accordance with the terms of this
Indenture;
(i) that the Purchase Price or Fundamental Change Purchase Price
for any Notes as to which a Purchase Notice or a Fundamental
Change Purchase Notice, as applicable, has been given and not
withdrawn shall be paid by the Paying Agent promptly following
the later of the Purchase Date or Fundamental Change Purchase
Date, as applicable;
(j) the procedures the Holder must follow under Article IV or V,
as applicable, and this Article VI;
(k) that, unless the Company defaults in making payment of such
Purchase Price or Fundamental Change Purchase Price on Notes
covered by any Purchase Notice or Fundamental Change Purchase
Notice, as applicable, interest (including Contingent
Interest, if any) will cease to accrue on and after the
Purchase Date or Fundamental Change Purchase Date, as
applicable;
(l) the CUSIP or ISIN number of the Notes; and
(m) the procedures for withdrawing a Purchase Notice or
Fundamental Change Purchase Notice.
In connection with providing such Company Notice, the Company will issue a
press release and publish a notice containing the information in such Company
Notice in a newspaper of general circulation in The City of New York or publish
such information on the Company's then existing Web site or through such other
public medium as the Company may use at the time.
At the Company's written request, made at least five Business Days prior
to the date upon which such notice is to be mailed, and at the Company's
expense, the Paying Agent shall give the Company Notice in the Company's name;
provided, however, that, in all cases, the text of the Company Notice shall be
prepared by the Company.
SECTION 6.02 Effect of Purchase Notice or Fundamental Change Purchase
Notice; Effect of Event of Default. Upon receipt by the Company of the Purchase
Notice or Fundamental Change Purchase Notice specified in Section 5.01 or
Section 4.03, as applicable, the Holder of the Notes in respect of which such
Purchase Notice or Fundamental Change Purchase Notice, as the case may be, was
given shall (unless such Purchase Notice or Fundamental Change Purchase Notice
is withdrawn in accordance with the two immediately following paragraphs)
thereafter be
33
entitled to receive solely the Purchase Price or Fundamental Change Purchase
Price with respect to such Notes. Such Purchase Price or Fundamental Change
Purchase Price shall be paid by the Paying Agent from available funds to such
Holder promptly following the Purchase Date or the Fundamental Change Purchase
Date, as the case may be, with respect to such Notes (provided the conditions in
Section 5.01 or Section 4.03, as applicable, have been satisfied). Notes in
respect of which a Purchase Notice or Fundamental Change Purchase Notice, as the
case may be, has been given by the Holder thereof may not be converted into
shares of Common Stock on or after the date of the delivery of such Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, unless such
Purchase Notice or Fundamental Change Purchase Notice, as the case may be, has
first been validly withdrawn in accordance with the two immediately following
paragraphs.
A Purchase Notice or Fundamental Change Purchase Notice, as the case may
be, may be withdrawn by a Holder by means of a written notice of withdrawal
delivered to the office of the Paying Agent at any time prior to 5:00 p.m. New
York City time on the Business Day prior to the Purchase Date or the Fundamental
Change Purchase Date, as the case may be, to which it relates specifying:
(a) if certificated, the certificate number of the Notes in
respect of which such notice of withdrawal is being submitted,
or, if not certificated, the written notice of withdrawal must
comply with applicable Depositary procedures;
(b) the principal amount of the Notes with respect to which such
notice of withdrawal is being submitted; and
(c) the principal amount, if any, of such Notes which remains
subject to the original Purchase Notice or Fundamental Change
Purchase Notice, as the case may be, and which has been or
shall be delivered for purchase by the Company.
There shall be no purchase of any Notes pursuant to Article IV or Article
V if an Event of Default has occurred and is continuing (other than a default
that is cured by the payment of the Purchase Price or Fundamental Change
Purchase Price, as the case may be). The Paying Agent shall promptly return to
the respective Holders thereof any Notes (x) with respect to which a Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, has been
withdrawn in compliance with this Section 6.02, or (y) held by it during the
continuance of an Event of Default (other than a default that is cured by the
payment of the Purchase Price or Fundamental Change Purchase Price, as the case
may be) in which case, upon such return, the Purchase Notice or Fundamental
Change Purchase Notice with respect thereto shall be deemed to have been
withdrawn.
SECTION 6.03 Notes Purchased in Part. Any Notes that are to be purchased
only in part shall be surrendered at the office of the Paying Agent (with, if
the Company or the Trustee so requires, due endorsement by, or a written
instrument of transfer in form satisfactory to the Company and 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 the Authenticating
Agent shall authenticate and deliver to the Holder of such Notes, without
service charge, a new Note or Notes, of any authorized denomination as requested
by such Holder in aggregate
34
principal amount equal to, and in exchange for, the portion of the principal
amount of the Notes so surrendered which is not purchased or redeemed.
SECTION 6.04 Covenant to Comply with Securities Laws Upon Purchase of
Notes. In connection with the notice and after obligations of the Company under
Article IV or Article V, the Company shall, to the extent applicable: (a) comply
with Rules 13e-4 and 14e-1 (and any successor provisions thereto) under the
Exchange Act, if applicable; (b) file the related Schedule TO (or any successor
schedule, form or report) under the Exchange Act, if applicable; and (c)
otherwise comply with all applicable federal and state securities laws so as to
permit the rights and obligations under Article IV or Article V to be exercised
or satisfied in the time and in the manner specified in Article IV or Article V.
SECTION 6.05 Repayment to the Company. The Trustee and the Paying Agent
shall, after payment of all of the Trustee's and Paying Agent's fees and
expenses hereunder, return to the Company any cash or property that remains
unclaimed as provided in paragraph 14 of the Notes held by them for the payment
of a Purchase Price or Fundamental Change Purchase Price, as the case may be;
provided, however, that to the extent that the aggregate amount of cash or
property deposited by the Company pursuant to Section 5.01(f) or 4.04, as
applicable, exceeds the aggregate Purchase Price or Fundamental Change Purchase
Price, as the case may be, of the Notes or portions thereof which the Company is
obligated to purchase as of the Purchase Date or Fundamental Change Purchase
Date, as the case may be, then promptly on and after the Business Day following
the Purchase Date or Fundamental Change Purchase Date, as the case may be, the
Trustee and the Paying Agent shall return any such excess to the Company.
SECTION 6.06 Officers' Certificate. At least five Business Days before the
Company Notice Date, the Company shall deliver an Officers' Certificate to the
Paying Agent (provided, that at the Company's option, the matters to be
addressed in such Officers' Certificate may be divided among two such
certificates) specifying:
(a) the manner of payment selected by the Company; and
(b) whether the Company desires the Paying Agent to give the
Company Notice required by Section 6.01 herein and, if so, the
information necessary for the Paying Agent to prepare such
notice.
35
ARTICLE VII
CONVERSION OF NOTES
SECTION 7.01 Right to Convert; Conversion Value; Method of Payment.
(a) Subject to and in accordance with the provisions of this
Indenture, a Holder may convert its Notes at any time during
which any condition stated in paragraph 10 of the Notes is met
into Cash and, if applicable, shares of Common Stock at a rate
per $1,000 principal amount of Notes equivalent to 34.2583
shares of Common Stock, subject to adjustment as herein set
forth (the "Conversion Rate"). A Holder may convert a portion
of the principal amount of Notes if the portion is $1,000 or
an integral multiple of $1,000.
(b) Once Notes are tendered for conversion, subject to this
Section 7.01 and to Section 7.06, Holders tendering the Notes
will be entitled to receive, per $1,000 principal amount of
Notes, Cash and, if applicable, shares of Common Stock, the
aggregate value of which per $1,000 principal amount of Notes
(the "Conversion Value") will be equal to the product of (i)
the Conversion Rate in effect on the Conversion Date, and (ii)
the average of the Last Reported Sale Price of Common Stock
for each of the ten consecutive Trading Days (appropriately
adjusted to take into account the occurrence during such
period of stock splits and similar events) beginning on the
second Trading Day immediately following the day the Notes are
tendered for conversion (the "Ten-Day Average Price").
(c) The Company will deliver the Conversion Value of the Notes
surrendered for conversion to a converting Holder as follows:
(a) an amount in Cash (in the case of each such conversion,
the "Principal Return") equal to the lesser of (A) the
aggregate Conversion Value of those Notes and (B) the
aggregate principal amount of those Notes;
(b) if the aggregate Conversion Value of those Notes is
greater than the Principal Return, a number of shares of
Common Stock (in the case of each such conversion, the
"Net Shares"), determined as set forth in clause (d)
below, having a value equal to such aggregate Conversion
Value less the Principal Return (in the case of each
such conversion, the "Net Share Amount"); provided,
however, that Net Shares will be issued in whole shares
only and, in lieu of any fractional Net Share to which a
Holder may be entitled, the Company will deliver an
amount in Cash, determined pursuant to Section 7.03.
(d) Subject to the provisions of clause (c)(2) above with respect
to fractional shares, the number of Net Shares to be issued
will be determined by dividing the Net Share Amount by the
Ten-Day Average Price.
(e) The Conversion Value, Principal Return, Net Share Amount and
the number of Net Shares with respect to any Notes tendered by
a Holder for conversion will
36
be determined by the Company at the end of the ten consecutive
Trading Day period beginning on the second Trading Day
immediately following the day such Notes are tendered for
conversion (in the case of each such conversion, the
"Determination Date"). The Company will pay the Principal
Return and deliver the Net Shares, if any (and any cash in
lieu of any fractional Net Share), with respect to such Notes
as contemplated by Section 7.02.
If upon conversion of Notes by any holder, the Company is not permitted to
pay the Principal Return in cash due to the limitations imposed by the
provisions of any agreement or other instrument relating to any Senior
Indebtedness, the Company shall, within three Business Days of the relevant
Conversion Date, provide notice to such converting Holder and the Trustee that
the Company is not permitted to pay such Principal Return due to the limitations
imposed by such provisions, and such Holder shall have the option to revoke its
notice of conversion during the three Business Day period following delivery of
such notice.
Notwithstanding anything to the contrary in this Section 7.01, if an event
of bankruptcy, insolvency, receivership or similar proceeding involving the
Company has occurred and is continuing, in lieu of delivering the Principal
Return in Cash and any Net Share Amount in shares of Common Stock, the Company
shall have the right to deliver the Conversion Value to a Holder in Cash, shares
of Common Stock or a combination of Cash and shares of Common Stock, at the
Company's option.
SECTION 7.02 Conversion Procedures. To convert Notes, a Holder must
satisfy the requirements in this Section 7.02 and in paragraph 10 of the Notes.
The later of (a) the date on which the Holder satisfies all those requirements
with respect to any Notes held by such Holder and (b) the Determination Date
with respect to such conversion is referred to herein as the "Conversion Date."
As soon as practicable, but in no event later than the fifth Business Day
following the Conversion Date, the Company shall deliver to such Holder, through
the Conversion Agent, the Principal Return, a certificate for (or a book-entry
transfer through the Depositary of) the number of Net Shares issuable upon the
conversion, and cash in lieu of any fractional Net Share, determined pursuant to
Section 7.03. The Person in whose name any such shares of Common Stock are
registered shall be treated as a stockholder of record on and after the
Conversion Date; provided, however, that no surrender of Notes on any date when
the stock transfer books of the Company shall be closed shall be effective to
constitute the Person or Persons entitled to receive any shares of Common Stock
upon such conversion as the record holder or holders of such shares of Common
Stock on such date, but such surrender shall be effective to constitute the
Person or Persons entitled to receive such shares of Common Stock as the record
holder or holders thereof for all purposes at the close of business on the next
succeeding day on which such stock transfer books are open; such conversion
shall be at the Conversion Rate in effect on the Conversion Date, as if the
stock transfer books of the Company had not been closed. Upon conversion of
Notes by a Holder, such Person shall no longer be a Holder of such Notes.
No payment or adjustment shall be made for dividends on, or other
distributions with respect to, any Common Stock, except as provided in Section
7.06 or as otherwise provided in this Indenture.
37
On conversion of Notes, that portion of accrued interest, including
accrued Contingent Interest, if any, with respect to the converted Notes shall
not be canceled, extinguished or forfeited but rather shall be deemed to be paid
in full to the Holder thereof through delivery of the Principal Return and the
Net Shares, if any (together with the cash payment, if any, in lieu of any
fractional Net Shares), with respect to such Notes in exchange for the Notes
being converted pursuant to the provisions hereof, and the Fair Market Value of
any Net Shares (together with any such cash payment in lieu of any fractional
Net Share) shall be treated as issued, to the extent thereof, first in exchange
for interest accrued and unpaid through the Conversion Date and accrued and
unpaid Contingent Interest, [and the balance, if any, of such Fair Market Value
of such Net Shares (and any such cash payment) shall be treated as issued in
exchange for the principal amount of the Notes being converted pursuant to the
provisions hereof].
If a Holder converts more than one Note at the same time, the Principal
Return and the number of Net Shares issuable upon the conversion shall be based
on the total principal amount of the Notes converted.
Upon surrender of a Note that is converted in part, the Company shall
execute, and the Trustee or the Authenticating Agent shall authenticate and
deliver to the Holder, a new Note in an authorized denomination equal in
principal amount to the unconverted portion of the Note surrendered.
If the last day on which Notes may be converted is a legal holiday in a
place where a Conversion Agent is located, the Notes may be surrendered to that
Conversion Agent on the next succeeding day that it is not a legal holiday.
SECTION 7.03 Cash Payments in Lieu of Fractional Shares. The Company shall
not issue a fractional share of Common Stock upon conversion of Notes. Instead
the Company shall deliver Cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined to the
nearest 1/10,000th of a share by multiplying the Ten-Day Average Price of a full
share of Common Stock by the fractional amount and rounding the product to the
nearest whole cent, such current market value to be calculated by the Company.
SECTION 7.04 Taxes on Conversion. If a Holder converts Notes, the Company
shall pay any documentary, stamp or similar issue or transfer tax due on the
issue of shares of Common Stock upon the 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 or delivered to a Person other
than the Holder. The Conversion Agent may refuse to deliver the certificates
representing (or to effect a book-entry transfer of) any shares of 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 shall be due because the shares
are to be issued in a name other than the Holder's name or delivered to a Person
other than the Holder. Nothing herein shall preclude any withholding tax
required by law.
SECTION 7.05 Covenants of the Company. The Company shall, prior to
issuance of any Notes hereunder, and from time to time as may be necessary,
reserve out of its authorized but unissued Common Stock a sufficient number of
shares of Common Stock to permit the conversion of the Notes.
38
All shares of Common Stock delivered upon conversion of the Notes shall be
newly issued shares or treasury shares, shall be duly and validly issued and
fully paid and nonassessable and shall be free from preemptive rights and free
of any lien or adverse claim.
The Company shall endeavor promptly to comply with all federal and state
securities laws regulating the order and delivery of shares of Common Stock upon
the conversion of Notes, if any, and shall cause to have listed or quoted all
such shares of Common Stock on each United States national securities exchange
or over-the-counter or other domestic market on which the Common Stock is then
listed or quoted.
SECTION 7.06 Adjustments to Conversion Rate. The Conversion Rate shall be
adjusted from time to time, without duplication, as follows:
(a) In case the Company shall (i) pay a dividend, or make a
distribution, on its outstanding Common Stock exclusively in
shares of Common Stock; (ii) subdivide its outstanding Common
Stock into a greater number of shares; (iii) combine its
outstanding Common Stock into a smaller number of shares; or
(iv) reclassify its Common Stock, the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect immediately prior to
the opening of business on the day immediately following (A)
the applicable record date, in the case of any such dividend
or other distribution or (B) the applicable effective date, in
the case of any such subdivision, combination or
reclassification, by a fraction, of which:
(1) the numerator shall be the sum of:
(a) the number of shares of Common Stock outstanding
at the close of business on (I) the record date
fixed for the determination of stockholders
entitled to receive such dividend or other
distribution or (II) on the day immediately
preceding the effective date of such subdivision,
combination or reclassification, as applicable,
(b) plus (i) the total number of shares of Common
Stock constituting such dividend or other
distribution or (ii) the increase in the number of
shares of Common Stock (or minus the decrease in
the number of shares of Common Stock) to be
effected by such subdivision, combination or
reclassification; and
(2) the denominator shall be the number of shares of Common
Stock outstanding at the close of business on (a) such
record date, in the case of any such dividend or other
distribution or (b) the day immediately preceding the
effective date of such subdivision, combination or
reclassification, in the case of any such subdivision,
combination or reclassification.
An adjustment made pursuant to this Section 7.06(a) shall
become effective immediately after the open of business on the
day immediately following the applicable record date, in the
case of any such dividend or distribution, or
39
immediately after the applicable effective date of any such
subdivision, combination or reclassification of Common Stock.
If any dividend or distribution of the type described in
clause (i) of the first sentence of this Section 7.06(a) is
not so paid or made, the Conversion Rate shall again be
adjusted to the Conversion Rate which 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 the Common Stock entitling them (for a period
expiring within 60 days after the date of issuance of such
rights or warrants) to subscribe for or purchase Common Stock
at a price per share less than the Market Price per share of
Common Stock on the record date fixed for determination of
shareholders entitled to receive such rights or warrants, the
Conversion Rate shall be adjusted so that the same shall equal
the rate determined by multiplying the Conversion Rate in
effect immediately prior to the open of business on the day
immediately following such record date by a fraction of which
(i) the numerator shall be the number of shares of Common
Stock outstanding at the close of business on such record date
plus the number of additional shares of Common Stock offered
for subscription or purchase, and (ii) the denominator shall
be the number of shares of Common Stock outstanding at the
close of business on such record date plus the number of
shares which the aggregate offering price of the total number
of shares so offered would purchase at the Market Price per
share of Common Stock on the earlier of such record date or
the Trading Day immediately preceding the ex date for such
issuance of rights or warrants. Such adjustment shall be made
successively whenever any such rights or warrants are issued
and shall become effective immediately after the opening of
business on the day immediately following the record date for
the determination of shareholders 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 Conversion Rate shall be readjusted to the
Conversion Rate which 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 Conversion Rate shall again be
adjusted to be the Conversion Rate which would then be in
effect if such record date for the determination of
shareholders 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 less than such Market Price, and in
determining the aggregate offering price of such shares of
Common Stock, there shall be taken into account any
consideration received by the Company for such rights or
warrants, the value of such consideration, if other than cash,
to be determined by the Board of Directors.
(c) In case the Company shall, by dividend or otherwise,
distribute to all holders of Common Stock any assets,
securities or rights or warrants to purchase any of its
securities (excluding (i) any dividend, distribution or
issuance covered by those referred to in Section 7.06(a) or
7.06(b), and (ii) any dividend or distribution paid
exclusively in cash) (any of the foregoing hereinafter in this
Section 7.06(c) called
40
the "Distributed Assets or Securities") in an aggregate amount
per share of Common Stock that, combined together with the
aggregate amount per share of Common Stock of any other such
distributions to all holders of its Common Stock made within
the 12 months preceding the date of payment of such
distribution, and in respect of which no adjustment pursuant
to this Section 7.06(c) has been made, exceeds 10% of the
Market Price per share of Common Stock on the Trading Day
immediately preceding the declaration of such distribution,
then, the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by multiplying the Conversion
Rate in effect immediately prior to the open of business on
the day immediately following the record date mentioned below
by a fraction of which (i) the numerator shall be the Market
Price per share of Common Stock on the earlier of such record
date or the Trading Day immediately preceding the ex date for
such dividend or distribution, and (ii) the denominator shall
be (A) the Market Price per share of Common Stock on the
earlier of such record date or the Trading Day immediately
preceding the ex date for such dividend or distribution less
(B) the Fair Market Value on the earlier of such record date
or the Trading Day immediately preceding the ex date for such
dividend or distribution (as determined by the Board of
Directors, whose determination shall be conclusive, and
described in a certificate filed with the Trustee and the
Paying Agent) of the Distributed Assets or Securities so
distributed applicable to one share of Common Stock. Such
adjustment shall become effective immediately after the open
of business on the day immediately following the record date
for the determination of shareholders entitled to receive such
dividend or distribution; provided, however, that, if (i) the
Fair Market Value of the portion of the Distributed Assets or
Securities so distributed applicable to one share of Common
Stock is equal to or greater than the Market Price per share
of Common Stock on the record date for the determination of
shareholders entitled to receive such distribution or (ii) the
Market Price per share of Common Stock on the record date for
the determination of shareholders entitled to receive such
distribution is greater than the Fair Market Value per share
of such Distributed Assets or Securities by less than $1.00,
then, in lieu of the foregoing adjustment, upon any conversion
of the Notes thereafter, the provisions of Section 7.12 shall
apply to such conversion mutatis mutandis; provided, further,
that for purposes of such application, any reference in such
provisions to the "Exchange Property" shall be deemed to refer
to a unit composed of (A) the number of shares of Common Stock
equal to the Conversion Rate in effect immediately prior to
such distribution and (B) the amount of Distributed Assets or
Securities that a holder of shares of Common Stock would have
received had such holder held a number of shares of Common
Stock equal to the Conversion Rate in effect immediately prior
to such distribution. In the event that such dividend or
distribution is not so paid or made, the Conversion Rate shall
again be adjusted to the Conversion Rate which would then be
in effect if such dividend or distribution had not been
declared.
(d) In case the Company shall make any distributions, by dividend
or otherwise, consisting exclusively of cash to all holders of
outstanding shares of Common Stock in an aggregate amount
that, together with (i) all other all-cash distributions
41
made to all holders of outstanding shares of Common Stock
during the twelve months immediately preceding the date of
such dividend or distribution and (ii) any cash and the Fair
Market Value, as of the expiration of any tender or exchange
offer (other than consideration payable in respect of any
odd-lot tender offer) of consideration payable in respect of
any tender or exchange offer by the Company or any of the
Company's Subsidiaries for all or any portion of shares of
Common Stock concluded during the twelve months immediately
preceding the date of such dividend or distribution, exceeds
10% of the product of the Market Price per share of Common
Stock on the record date with respect to such dividend or
distribution times the number of shares of Common Stock
outstanding on such date, then, and in each such case, the
Conversion Rate shall be adjusted so that the same shall equal
the rate determined by multiplying the Conversion Rate in
effect immediately prior to the open of business on the day
immediately following the record date fixed for the
determination of holders of Common Stock entitled to receive
such dividend or distribution by a fraction of which (A) the
numerator shall be the Market Price per share of Common Stock
on the earlier of such record date or the Trading Day
immediately preceding the ex date for such dividend or
distribution and (B) the denominator shall be (1) the Market
Price per share of Common Stock on the earlier of such record
date or the Trading Day immediately preceding the ex date for
such dividend or distribution less (2) an amount equal to the
quotient of (x) the combined amount distributed or payable in
the transactions described in clauses (i), (ii) and (iii)
above during such 12-month period and (y) the number of shares
of Common Stock outstanding on such record date, such
adjustment to become effective immediately after open of
business on the day immediately following the record date for
the determination of shareholders entitled to receive such
dividend or distribution; provided, however, that if the
portion of the cash so distributed applicable to one share of
Common Stock is equal to or greater than the Market Price per
share of Common Stock on the record date with respect to such
dividend or distribution, in lieu of the foregoing adjustment,
upon any conversion of the Notes thereafter, the provisions of
Section 7.12 shall apply to such conversion mutatis mutandis;
provided, further, that for purposes of such application, any
reference in such provisions to the "Exchange Property" shall
be deemed to refer to a unit composed of (a) the number of
shares of Common Stock equal to the Conversion Rate in effect
immediately prior to such dividend or distribution and (b) the
amount of cash that a holder of shares of Common Stock would
have received had such holder held a number of shares of
Common Stock equal to the Conversion Rate in effect
immediately prior to such dividend or distribution. In the
event that such dividend or distribution is not so paid or
made, the Conversion Rate shall again be adjusted to be the
Conversion Rate which would then be in effect if such dividend
or distribution had not been declared.
(e) With respect to Section 7.06(c) above, in the event that the
Company makes any distribution to all holders of Common Stock
consisting of Equity Interests in a Subsidiary or other
business unit of the Company, then, notwithstanding the
provisions of Section 7.06(c), the Conversion Rate shall be
adjusted so that the same shall equal the rate determined by
multiplying the Conversion Rate in effect
42
immediately prior to the open of business on the day
immediately following the record date fixed for the
determination of holders of Common Stock entitled to receive
such distribution by a fraction of which (i) the numerator
shall be (A) the Spin-off Market Price per share of Common
Stock on such record date plus (B) the Spin-off Market Price
per share or other applicable unit of Equity Interest of the
Subsidiary or other business unit of the Company on such
record date and (ii) the denominator shall be the Spin-off
Market Price per share of Common Stock on such record date,
such adjustment to become effective 10 Trading Days after the
effective date of such distribution of Equity Interests in a
Subsidiary or other business unit of the Company.
(f) Following the effectiveness of any transaction that
constitutes a Public Acquirer Change of Control, if a Holder
elects to convert any Notes pursuant to the provisions of
paragraph 10 of the Notes that permit conversion of Notes
following the occurrence of a Public Acquirer Change of
Control (as specified in a notice of conversion delivered by
such Holder as contemplated by the provisions of paragraph 10
of the Notes), such Holder's right to convert such Notes into
Cash and, if applicable, Common Stock will be changed into a
right to convert such Notes into Cash and, if applicable,
Public Acquirer Common Stock, and the provisions of Section
7.12 shall not be applicable to those Notes. In connection
with any such conversion, the Conversion Rate will be deemed
to have been adjusted, effective as of the effectiveness of
the transaction that constituted the Public Acquirer Change of
Control, so that the same shall be deemed to equal the rate
determined by multiplying the Conversion Rate in effect
immediately prior to the effectiveness of such transaction by
a fraction, of which:
(i) the numerator will be (A) in the case of a Public
Acquirer Change of Control consisting of a share
exchange, consolidation or merger, the average value of
all Cash and any other consideration (as determined by
the Company's Board of Directors) paid or payable per
share of Common Stock or (B) in the case of any other
Public Acquirer Change of Control, the average of the
Last Reported Sale Price of Common Stock for each of the
five consecutive Trading Days prior to but excluding the
date of effectiveness of such Public Acquirer Change of
Control transaction, and
(ii) the denominator will be the average of the Sale Prices
of the Public Acquirer Common Stock for each of the five
consecutive Trading Days commencing on the Trading Day
next succeeding the Effective Date of such Public
Acquirer Change of Control.
After giving effect to the calculation set forth
above, the Conversion Value of the Notes being converted in
accordance with the provisions of this Section 7.06(f) shall
be subject to the provisions of Section 7.01 regarding
delivery of such Conversion Value; provided, that for purposes
of computing the method of delivery of the Conversion Value in
Section 7.01(c), all references to Common Stock in Section
7.01(c) shall be deemed to refer to the Public Acquirer Common
43
Stock; provided, further, that in the case of any transaction
constituting a Public Acquirer Change of Control which is
approved by a majority of the members of the Board of
Directors prior to the effectiveness thereof, in the event
legal, regulatory or other restrictions in effect at the time
of any conversion of Notes in accordance with this Section
7.06(f) prohibit or restrict the delivery of shares of the
Public Acquirer Common Stock pursuant to Section 7.01(c)
(including, without limitation, any such restriction that
would require the registration of the delivery of those shares
or public resales of those shares), the Net Share Amount may,
at the Company's option, instead be settled by the delivery of
cash to the converting Holder in an amount equal to the Net
Share Amount.
In accordance with the provisions of Section 7.15,
after any deemed adjustment of the Conversion Rate in
connection with a Public Acquirer Change of Control pursuant
to the foregoing provisions of this Section 7.06(f), the
Conversion Rate will be subject to further adjustments if,
following the effectiveness of the transaction constituting
such Public Acquirer Change of Control, any one or more of the
events described in any Sections 7.06(a) through 7.06(e)
thereafter occur with respect to the Public Acquirer or the
Public Acquirer Common Stock, as applicable, or one or more
additional change of control transactions (of the kind
referred to in the definition of Public Acquirer Change of
Control) thereafter occur with respect to the Public Acquirer
and/or any successive acquirers of such Public Acquirer, with
the amount of any such adjustment to be the amount determined
by the Board of Directors in good faith to be fair and
equitable to give effect to those provisions as if they were
expressly applicable to the Public Acquirer, the Public
Acquirer Common Stock or successive Public Acquirer Change of
Control transactions, as the case may be.
(g) Upon conversion of the Notes, the Holders shall receive, in
addition to any shares of Common Stock issuable upon such
conversion, the associated rights issued under the Rights Plan
or under any future shareholder rights plan the Company adopts
(notwithstanding the occurrence of an event causing such
rights to separate from the Common Stock at or prior to the
time of conversion) unless, prior to conversion, the rights
have expired, terminated or been redeemed or exchanged in
accordance with the Rights Plan. If, and only if, the Holders
of Notes receive rights under such shareholder rights plans as
described in the preceding sentence upon conversion of their
Notes, then no other adjustment pursuant to this Section 7.06
shall be made in connection with such shareholder rights
plans.
(h) For purposes of this Section 7.06, the number of shares of
Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of
fractions of shares of Common Stock. The Company shall not pay
any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
44
SECTION 7.07 Calculation Methodology. No adjustment in the Conversion
Price need be made unless the adjustment would require an increase or decrease
of at least 1% in the Conversion Price then in effect, provided that any
adjustment that would otherwise be required to be made shall be carried forward
and taken into account in any subsequent adjustment. Except as stated in this
Article VII, the Conversion Rate will not be adjusted for the issuance of Common
Stock or any securities convertible into or exchangeable for Common Stock or
carrying the right to purchase any of the foregoing. Any adjustments that are
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under Article VI, Section 7.06 and this Section
7.07 shall be made to the nearest cent or to the nearest 1/10,000th of a share,
as the case may be.
SECTION 7.08 When No Adjustment Required. No adjustment to the Conversion
Rate need be made:
(a) upon the issuance of any shares of Common Stock pursuant to
any present or future plan providing for the reinvestment of
dividends or interest payable on securities of the Company and
the investment of additional optional amounts in shares of
Common Stock under any plan;
(b) upon the issuance of any shares of Common Stock or options or
rights to purchase those shares pursuant to any present or
future employee, director or consultant benefit plan or
program of or assumed by the Company or any of its
Subsidiaries;
(c) upon the issuance of any shares of Common Stock pursuant to
any option, warrant, right, or exercisable, exchangeable or
convertible security not described in paragraph (b) above and
outstanding as of December 30, 2004;
(d) for a change in the par value or no par value of the Common
Stock; or
(e) for accrued and unpaid interest (including Contingent
Interest, if any).
SECTION 7.09 Notice of Adjustment. Whenever the Conversion Rate is
adjusted (or, following the occurrence of a Public Acquirer Change of Control,
may be deemed to be adjusted, as provided in Section 7.06(f)), the Company shall
promptly mail to Holders a notice of the adjustment. The Company shall also file
with the Trustee and the Conversion Agent such notice and an Officer's
Certificate certifying as to the adjustment to be made. The Officer's
Certificate shall, absent manifest error, be conclusive evidence that the
adjustment is correct. Neither the Trustee nor any Conversion Agent shall be
under any duty or responsibility with respect to any such Officer's Certificate
except to exhibit the same to any Holder desiring inspection thereof.
SECTION 7.10 Voluntary Increase. The Company may make such increases in
the Conversion Rate, in addition to those required by Section 7.06, 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. To the extent permitted by applicable
law, the Company may from time to time increase the Conversion Rate by any
amount for any period of time if the period is at least 20 days, the increase is
irrevocable
45
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 Conversion Rate is so increased,
the Company shall mail to Holders and file with the Trustee and the Conversion
Agent a notice of such increase. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such notice except
to exhibit the same to any Holder desiring inspection thereof. The Company shall
mail the notice at least 15 days before the date the increased Conversion Rate
takes affect. The notice shall state the increased Conversion Rate and the
period it shall be in effect.
SECTION 7.11 Notice to Holders Prior to Certain Actions. In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock that would require an
adjustment in the Conversion Rate pursuant to Section 7.06;
(b) the Company shall authorize the granting to all or
substantially all the holders of its Common Stock of rights or
warrants to subscribe for or purchase any share of any class
or any other rights or warrants;
(c) of any reclassification or reorganization of the Common Stock
of the Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from
par value to no par value, or from no par value to par value),
or of any consolidation or merger to which the Company is a
party and for which approval of any stockholders of the
Company is required, or of the sale or transfer of all or
substantially all of the assets of the Company;
(d) of any Public Change of Control; or
(e) of the voluntary or involuntary dissolution, liquidation or
winding-up of the Company;
then, the Company shall cause to be filed with the Trustee and to be mailed to
each Holder at its address appearing on the Note Register, as promptly as
possible but in any event at least 15 days prior to the applicable date
hereinafter specified, a notice stating (a) the date on which a record is to be
taken for the purpose of such dividend, distribution or rights or warrants, or,
if a record is not to be taken, the date as of which the holders of Common Stock
of record to be entitled to such dividend, distribution, or rights or warrants
are to be determined or (b) the date on which such reclassification,
reorganization, consolidation, merger, sale, transfer, Public Acquirer Change of
Control, dissolution, liquidation or winding-up is expected to become effective
or occur, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their Common Stock for securities or
other property deliverable upon such reclassification, reorganization,
consolidation, merger, sale, transfer, Public Acquirer Change of Control,
dissolution, liquidation or winding-up. Failure to give such notice, or any
defect therein, shall not affect the legality or validity of such dividend,
distribution, reclassification, reorganization, consolidation, merger, sale,
transfer, Public Acquirer Change of Control, dissolution, liquidation or
winding-up.
46
SECTION 7.12 Effect of Reclassification, Consolidation, Merger, Binding
Share Exchange or Sale.
(a) If any of the following events occurs:
(i) any reclassification or change of outstanding shares of
Common Stock (other than a change in par value, or from
par value to no par value, or from no par value to par
value, or as a result of a subdivision or combination);
(ii) any consolidation, merger, combination or binding share
exchange of the Company with another corporation 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 the properties and assets of
the Company as, or substantially as, an entirety to any
other corporation 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 corporation, as the
case may be, shall execute with the Trustee an indenture
supplemental thereto, providing for the conversion and settlement of
the Notes as set forth in this Indenture. Such supplemental
indenture shall provide for adjustments which shall be as nearly
equivalent as may be practicable to the adjustments provided for in
this Section 7.12. If, in the case of any such reclassification,
change, consolidation, merger, binding share exchange, sale or
conveyance, the Exchange Property includes shares of stock, other
securities, property or assets of a Person other than the successor
or purchasing Person, as the case may be, in such reclassification,
change, consolidation, merger, binding share exchange, sale or
conveyance, then such supplemental indenture shall also be executed
by such other Person and shall contain such additional provisions to
protect the interests of the holders of the Notes as the Board of
Directors shall reasonably consider necessary by reason of the
foregoing, including to the extent required by the Board of
Directors and practicable the provisions providing for the purchase
rights set forth in Article IV herein.
(b) Notwithstanding the provisions of Section 7.01(b), the
Conversion Value with respect to each $1,000 principal amount
of Notes converted following the effective date of any such
transaction referred to in Section 7.12(a) shall be calculated
(as provided in clause (c) below) based on the kind and amount
of stock, securities, other property, assets or cash received
upon such reclassification, change, consolidation, merger,
binding share exchange, sale or conveyance by a holder of
Common Stock holding, immediately prior to the transaction, a
number of shares of Common Stock equal to the Conversion Rate
47
immediately prior to such transaction (the "Exchange
Property"), assuming such holder of Common Stock did not
exercise any rights of election as to the kind or amount of
stock, securities, other property, assets or cash receivable
upon such consolidation, merger, binding share exchange, sale
or conveyance (provided that, if the kind or amount of stock,
securities, other property, assets or cash receivable upon
such consolidation, merger, binding share exchange, sale or
conveyance is not the same for each share of Common Stock in
respect of which such rights of election shall not have been
exercised ("non-electing share"), then for the purposes of
this Section 7.12 the kind and amount of stock, securities,
other property, assets or cash receivable upon such
consolidation, merger, binding share exchange, 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).
(c) The Conversion Value in respect of any Notes converted
following the effective date of any such transaction shall be
equal to the average of the daily values of the Exchange
Property pertaining to such Notes as determined in the next
sentence (the "Exchange Property Value") for each of the 10
consecutive Trading Days (appropriately adjusted to take into
account the occurrence during such period of stock splits and
similar events) beginning on the later of (i) the second
Trading Day immediately following the day the Notes are
tendered for conversion and (ii) the effective date of such
transaction (the "Exchange Property Average Price"). For the
purpose of determining the value of any Exchange Property:
(A) any shares of common stock of the successor or
purchasing Person or any other Person that are
included in the Exchange Property shall be valued
as set forth in Section 7.02 as if such shares
were "Common Stock" using the procedures set forth
in the definition of "Sale Price" in Section 1.01;
and
(B) any other securities, property or assets (other
than cash) included in the Exchange Property shall
be valued in good faith by the Board of Directors
or by a New York Stock Exchange member firm
selected by the Board of Directors.
(d) The Company shall deliver such Conversion Value to holders of
Notes so converted as follows:
(i) An amount in Cash equal to the Principal Return with
respect to those Notes, determined as set forth in
Section 7.01(c)(i); and
(ii) If the Conversion Value of those Notes is greater than
the Principal Return, an amount of Exchange Property,
determined as set forth below, equal to such aggregate
Conversion Value less the Principal Return (the "Net
Exchange Property Amount").
48
The amount of Exchange Property to be delivered shall be
determined by dividing the Net Exchange Property Amount by the
Exchange Property Average Price. If the Exchange Property
includes more than one kind of property, the amount of
Exchange Property of each kind to be delivered shall be in the
proportion that the Exchange Property Value of such kind of
Exchange Property bears to the Exchange Property Value of all
the Exchange Property. If the foregoing calculations would
require the Company to deliver a fractional share or unit of
Exchange Property to a holder of Notes being converted, the
Company shall deliver cash in lieu of such fractional share or
unit based on its Exchange Property Average Price.
(e) The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder, at its
address appearing on the Note Register, within 20 days after
execution of such supplemental indenture. Failure to deliver
such notice shall not affect the legality or validity of such
supplemental indenture.
(f) The above provisions of this Section 7.12 shall similarly
apply to successive reclassifications, changes,
consolidations, mergers, combinations, binding share
exchanges, sales and conveyances.
(g) Except as set forth in Section 7.06(f), if this Section 7.12
applies to any event or occurrence, Section 7.06 shall not
apply with respect to such event or occurrence.
Notwithstanding this Section 7.12, if a Public Acquirer Change
of Control occurs and a Holder thereafter elects to convert
any Notes pursuant to the provisions of paragraph 10 of the
Notes that permit conversion of Notes following the occurrence
of a Public Acquirer Change of Control (as specified in a
notice of conversion delivered by such Holder as contemplated
by the provisions of paragraph 10 of the Notes), the
adjustment to the Conversion Rate and the consideration to be
delivered in satisfaction of the Conversion Value shall be
governed by the provisions of Section 7.06(f) and the
provisions of this Section 7.12 shall not be applicable with
respect thereto (except to the extent contemplated by the last
paragraph of Section 7.06(f)).
SECTION 7.13 Responsibility of Trustee and Conversion Agent.
Notwithstanding anything herein to the contrary, the Trustee and any other
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder to either calculate the Conversion Rate or determine whether any
facts exist which may require any adjustment of the Conversion Rate, or with
respect to the nature or extent or calculation of any such adjustment when made,
or with respect to the method employed, or herein or in any supplemental
indenture provided to be employed, in making the same and shall be protected in
relying upon an Officers' Certificate with respect to the same. The Trustee and
any other Conversion Agent shall not be accountable with respect to the validity
or value (or the kind or amount) of any shares of Common Stock, or of any other
securities or property, which may at any time be issued or delivered upon the
conversion of any Notes or with respect to the fairness of the conversion
formulae set forth in this Article VII, and the Trustee and any other Conversion
Agent make no representations with respect thereto. Subject to the provisions of
Article IX, neither the Trustee nor any Conversion
49
Agent shall be responsible for any failure of the Company to issue, transfer or
deliver any Cash or shares of Common Stock or stock certificates or other
securities or property upon the surrender of any Notes for the purpose of
conversion or to comply with any of the duties, responsibilities or covenants of
the Company contained in this Section. Without limiting the generality of the
foregoing, neither the Trustee nor any Conversion Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
supplemental indenture entered into pursuant to Article VII relating either to
the kind or amount of shares of stock or securities or property (including cash)
receivable by Holders upon the conversion of their Notes after any event
referred to in such Section 7.12 or to any adjustment to be made with respect
thereto, but, subject to the provisions of Article IX, may accept as conclusive
evidence of the correctness of any such provisions, and shall be protected in
relying upon, the Officers' Certificate (which the Company shall be obligated to
file with the Trustee prior to the execution of any such supplemental indenture)
with respect thereto.
SECTION 7.14 Simultaneous Adjustments. In the event that Section 7.06
requires adjustments to the Conversion Rate under more than one of Sections
7.06(a), (b), (c) or (d), and the record dates for the distributions giving rise
to such adjustments shall occur on the same date, then such adjustments shall be
made by applying, first, the provisions of Section 7.06(c), second, the
provisions of Section 7.06(a) and third, the provisions of Section 7.06(b).
SECTION 7.15 Successive Adjustments. After an adjustment to the Conversion
Rate under Section 7.06, any subsequent event requiring an adjustment under
Section 7.06 shall cause an adjustment to the Conversion Rate as so adjusted.
SECTION 7.16 General Considerations. Whenever successive adjustments to
the Conversion Rate are called for pursuant to this Article VII, such
adjustments shall be made to the Market Price per share of Common Stock as may
be necessary or appropriate to effectuate the intent of this Article VII and to
avoid unjust or inequitable results as determined in good faith by the Board of
Directors.
ARTICLE VIII
TRANSFER AND EXCHANGE
SECTION 8.01 Transfer and Exchange of the Notes. The transfer and exchange
of Global Notes or beneficial interests therein shall be effected through the
Depositary, in accordance with Section 2.09 and this Article VIII (including the
restrictions on transfer set forth therein and herein) and the rules and
procedures of the Depositary therefor, which shall include restrictions on
transfer comparable to those set forth therein and herein to the extent required
by the Securities Act. The transfer and exchange of Global Notes or beneficial
interests therein for certificated notes (or vice versa) shall be effected
through the Trustee and the Depositary, as the case may be, in accordance with
Section 2.09 and this Article VIII and the rules and procedures of the
Depositary therefor.
SECTION 8.02 Legends. Except as permitted by Section 8.02(b), each
certificate evidencing the Global Notes or certificated notes in definitive form
(and all Notes issued in exchange therefor or substitution thereof) shall bear a
legend in substantially the following form:
50
THE HOLDER OF THE COMMON STOCK ISSUABLE UPON CONVERSION OF THIS SECURITY IS
SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, A RIGHTS AGREEMENT, DATED AS OF
JULY 24, 1998, AS AMENDED AND RESTATED AS OF SEPTEMBER 22, 2000, BETWEEN THE
COMPANY AND XXXXXX TRUST AND SAVINGS BANK, AS RIGHTS AGENT.
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE CODE, THIS
SECURITY IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL ACCRUE ORIGINAL ISSUE
DISCOUNT AT THE ISSUER'S "COMPARABLE YIELD" FOR UNITED STATES FEDERAL INCOME TAX
PURPOSES. PURSUANT TO SECTION 2.12 OF THE INDENTURE, THE COMPANY AGREES, AND BY
ACCEPTANCE OF A BENEFICIAL OWNERSHIP INTEREST IN THE SECURITY, EACH BENEFICIAL
HOLDER OF THE SECURITIES WILL BE DEEMED TO HAVE AGREED, UNLESS OTHERWISE
REQUIRED BY APPLICABLE LAW, FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, (I)
TO TREAT THE SECURITIES AS INDEBTEDNESS THAT IS SUBJECT TO THE CONTINGENT
PAYMENT DEBT INSTRUMENT REGULATIONS UNDER XXXXXXX 0.0000-0 XX XXX XXXXXX XXXXXX
TREASURY REGULATIONS (THE "CPDI REGULATIONS"), AND, FOR PURPOSES OF THE CPDI
REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF COMMON STOCK RECEIVED BY A
BENEFICIAL HOLDER UPON ANY CONVERSION OF THE NOTES AS A CONTINGENT PAYMENT AND
(II) TO BE BOUND BY THE COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" AND
"PROJECTED PAYMENT SCHEDULE," WITHIN THE MEANING OF THE CPDI REGULATIONS, WITH
RESPECT TO THE NOTES AND TO ACCRUE ORIGINAL ISSUE DISCOUNT AT THE COMPARABLE
YIELD AS DETERMINED BY THE COMPANY. THE COMPANY'S DETERMINATION OF THE
"COMPARABLE YIELD" IS 8.48% PER ANNUM, COMPOUNDED SEMIANNUALLY. THE PROJECTED
PAYMENT SCHEDULE, DETERMINED BY THE COMPANY, IS ATTACHED TO THE INDENTURE AS
EXHIBIT B. YOU MAY OBTAIN THE AMOUNT OF ORIGINAL ISSUE DISCOUNT, ISSUE DATE,
COMPARABLE YIELD AND PROJECTED PAYMENT SCHEDULE FOR THE SECURITY BY TELEPHONING
THE COMPANY'S TREASURY DEPARTMENT AT (000) 000-0000 OR SUBMITTING A WRITTEN
REQUEST FOR SUCH INFORMATION TO: MAVERICK TUBE CORPORATION, 00000 XXXXXXXX XXXXX
XXXX, XXXXX 000, XXXXXXXXXXXX, XXXXXXXX 00000, ATTENTION: CHIEF FINANCIAL
OFFICER.
Each certificate evidencing the Global Notes also shall bear the legend
specified for Global Notes in the form of Note attached hereto as Exhibit A.
ARTICLE IX
REMEDIES
SECTION 9.01 Events of Default. "Event of Default" means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article XV or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
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(a) default in the payment of the principal of on any Note when it
becomes due and payable; or
(b) default in the payment of any interest, including Contingent
Interest, if any, upon any Note when it becomes due and
payable, and continuance of such default for a period of 30
days; or
(c) default in the performance, or breach, in any material
respect, of any other 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), and continuance of such default or breach
for a period of 90 days after there has 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 principal amount of the Outstanding Notes 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) the default by the Company or any Subsidiary in a scheduled
payment at maturity, upon redemption or otherwise, in the
aggregate principal amount of $15 million or more, after the
expiration of any applicable grace period, of any Indebtedness
or the acceleration of any Indebtedness of the Company or any
Subsidiary of the Company in such aggregate principal amount,
so that it becomes due and payable prior to the date on which
it would otherwise have become due and payable and such
payment default is not cured or such acceleration is not
rescinded within 30 days after notice to the Company or any
subsidiary in accordance with the terms of the Indebtedness;
or
(e) the entry by a court having jurisdiction in the premises of a
decree or order
(i) for relief in respect of the Company or any Significant
Subsidiary in an involuntary case or proceeding under
any applicable federal or state bankruptcy, insolvency,
reorganization or other similar law;
(ii) adjudging the Company or any Significant Subsidiary
bankrupt or insolvent or approving as properly filed a
petition seeking reorganization, arrangement, adjustment
or composition of or in respect of the Company or any
Significant Subsidiary under any applicable federal or
state bankruptcy, insolvency, reorganization or other
similar law;
(iii) appointing a custodian, receiver, liquidator, assignee,
trustee, sequestrator or other similar official of the
Company or any Significant Subsidiary or of any
substantial part of the property of the Company or of
any Significant Subsidiary; or
(iv) ordering the winding up or liquidation of the affairs of
the Company or any Significant Subsidiary, and the
continuance of any such decree or order for relief or
any such other decree or order unstayed and in effect
for a period of 60 consecutive days; or
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(f) the occurrence of any of the following:
(i) the commencement by the Company or any Significant
Subsidiary of a voluntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law to be adjudicated a
bankrupt or insolvent;
(ii) the consent by the Company or any Significant Subsidiary
to the entry of a decree or order for relief in respect
of it in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency,
reorganization or other similar law or the consent by
the Company or any Significant Subsidiary to the
commencement of any bankruptcy or insolvency case or
proceeding against it;
(iii) the filing by the Company or any Significant Subsidiary
of a petition or answer or consent seeking
reorganization or relief under any applicable federal or
state bankruptcy, insolvency, reorganization or other
similar law, or the consent by the Company or any
Significant Subsidiary to the filing of such petition;
(iv) the consent by the Company or any Significant Subsidiary
to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee,
sequestrator or other similar official of the Company or
any Significant Subsidiary or of any substantial part of
the property of the Company or any Significant
Subsidiary;
(v) the making by the Company or any Significant Subsidiary
of an assignment for the benefit of creditors;
(vi) the admission by the Company or any Significant
Subsidiary in writing of its inability to pay its debts
generally as they become due; or
(vii) the taking of corporate action by the Company or any
Significant Subsidiary in furtherance of any such
action; or
(g) default in the obligation of the Company to redeem the Notes
after exercising its redemption option pursuant to Article
III; or
(h) defaults in the obligation of the Company to convert the Notes
upon exercise of a Holder's conversion right in accordance
with the terms of the Notes and Article VII; or
(i) default in the obligation of the Company to purchase Notes
upon the occurrence of a Fundamental Change or the exercise by
a Holder of its option to require the Company to repurchase
such Holder's Notes in accordance with the terms of Article IV
or Article V, as applicable.
53
SECTION 9.02 Acceleration of Maturity; Rescission and Annulment. If an
Event of Default (other than an Event of Default specified in Section 9.01(e) or
9.01(f)) occurs and is continuing, then in every such case the Trustee or the
Holders of not less than 25% in principal amount of the Outstanding Notes may
declare the principal amount of all the Notes to be due and payable immediately,
by a notice in writing to the Company (and to the Trustee if given by Holders),
and upon any such declaration, such principal amount (or specified amount) shall
become immediately due and payable in cash. If an Event of Default specified in
Section 9.01(e) or 9.01(f) occurs with respect to the Notes at the time
Outstanding, the principal amount of all the Notes shall automatically, and
without any declaration or other action on the part of the Trustee or any
Holder, become immediately due and payable.
At any time after such a declaration of acceleration with respect to the
Notes 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 principal amount of the Outstanding Notes, by written
notice to the Company and the Trustee, may rescind and annul such declaration
and its consequences if:
(a) the Company has paid or deposited with the Trustee a sum sufficient
to pay
(i) all overdue interest on all Notes, including Contingent
Interest, if any,
(ii) the principal of the Notes which have become due otherwise
than by such declaration of acceleration and any interest
thereon at the rate or rates prescribed therefor,
(iii) to the extent that payment of such interest is lawful,
interest upon overdue interest at the rate or rates prescribed
therefor, and
(iv) all sums paid or advanced by the Trustee hereunder and the
compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel;
and
(b) all Events of Default with respect to the Notes, other than the
non-payment of the principal of the Notes which have become due
solely by such declaration of acceleration, have been cured or
waived as provided in Section 9.13.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
SECTION 9.03 Collection of Indebtedness and Suits for Enforcement by
Trustee. The Company covenants that if
(a) default is made in the payment of any interest on any Note when such
interest becomes due and payable and such default continues for a
period of 30 days, or
54
(b) default is made in the payment of the principal of any Note at the
Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Notes, the whole amount then due and payable on such Notes for
principal and interest (including Contingent Interest, if any) and, to the
extent that payment of such interest shall be legally enforceable, interest on
any overdue principal and interest, at the rate or rates prescribed therefor in
such Notes, and, in addition thereto, such further amount as shall be sufficient
to cover the costs and expenses of collection, including the reasonable
compensation, expenses, disbursements and advances of the Trustee, its agents
and counsel, except as a result of the Trustee's gross negligence or willful
misconduct.
If an Event of Default occurs and is continuing, the Trustee may proceed
to protect and enforce its rights and the rights of the Holders of Notes by such
appropriate judicial proceedings as the Trustee shall deem most effectual 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 9.04 Trustee May File Proofs of Claim. In case of any judicial
proceeding relative to the Company, its property or its creditors, the Trustee
shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized 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 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 10.07 except as a result of its gross negligence or willful misconduct.
No provision of this Indenture 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 Notes 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; provided, however, that the
Trustee may, on behalf of the Holders, vote for the election of a trustee in
bankruptcy or similar official and be a member of a creditors' or other similar
committee.
SECTION 9.05 Trustee May Enforce Claims Without Possession of Notes. All
rights of action and claims under this Indenture or the Notes may be prosecuted
and enforced by the Trustee without the possession of any of the Notes 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 compensation, expenses, disbursements and advances of
the Trustee, its agents and counsel (except no such provision shall be made
respecting compensation, expenses, disbursements and advances made as a result
of Trustee's gross negligence), be for the
55
ratable benefit of the Holders of the Notes in respect of which such judgment
has been recovered.
SECTION 9.06 Application of Money Collected. Any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at the
date or dates fixed by the Trustee and, in case of the distribution of such
money on account of principal or interest, upon presentation of the Notes and
the notation thereon of the payment if only partially paid and upon surrender
thereof if fully paid:
FIRST: To the payment of costs and expenses of collection,
reasonable compensation to 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 gross negligence or willful
misconduct.
SECOND: Subject to Article XV, in case the principal of the
outstanding Notes shall not have become due, to the payment of interest on
the Notes, in the order of maturity of the installments of such interest,
such payments to be made ratably to the persons entitled thereto, without
discrimination or preference.
THIRD: Subject to Article XV, in case the principal of the
outstanding Notes shall have become due, by declaration, or otherwise, to
the payment of the whole amount then owing and unpaid upon the Notes for
principal and interest; and in case such moneys shall be insufficient to
pay in full the whole amount so due and unpaid upon the Notes, then to the
payment of such principal and interest ratably to the aggregate of such
principal and accrued and unpaid interest.
SECTION 9.07 Limitation on Suits. No Holder of any Note 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:
(a) such Holder has previously given written notice to the Trustee of a
continuing Event of Default;
(b) the Holders of not less than 25% in principal amount of the
Outstanding Notes 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;
(c) such Holder or Holders have offered to the Trustee indemnity
reasonably satisfactory to the Trustee against the costs, expenses
and liabilities to be incurred in compliance with such request;
(d) the Trustee for 60 days after its receipt of such notice, request
and offer of indemnity has failed to institute any such proceeding;
and
(e) no direction inconsistent with such written request has been given
to the Trustee during such 60-day period by the Holders of a
majority in principal amount of the Outstanding Notes;
56
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 benefit of all of such
Holders.
SECTION 9.08 Unconditional Right of Holders to Receive Principal, Premium
and Interest. Notwithstanding any other provision in this Indenture, the Holder
of any Note shall have the right, which is absolute and unconditional, to
receive payment of the principal of and interest (including Contingent Interest,
if any) on such Note on the Stated Maturity (or, in the case of redemption, on
the Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
SECTION 9.09 Restoration of Rights and Remedies. If the Trustee or any
Holder has instituted any proceeding to enforce any right or remedy under this
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 9.10 Rights and Remedies Cumulative. Except as otherwise provided
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Notes in the last paragraph of Section 2.14, 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 9.11 Delay or Omission Not Waiver. No delay or omission of the
Trustee or of any Holder of any Notes 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 9.12 Control by Holders. The Holders of a majority in principal
amount of the Outstanding Notes shall have the right to direct the time, method
and place of conducting any proceeding for any remedy available to the Trustee,
or exercising any trust or power conferred on the Trustee, provided that:
(a) such direction shall not be in conflict with any rule of law or with
this Indenture; and
57
(b) the Trustee may take any other action deemed proper by the Trustee
which is not inconsistent with such direction.
SECTION 9.13 Waiver of Past Defaults. The Holders of not less than a
majority in principal amount of the Outstanding Notes may, on behalf of the
Holders of all the Notes, waive any past default hereunder and its consequences,
except a default:
(a) in the payment of the principal of or interest on any Note;
(b) by the Company in any payment of the Redemption Price, Purchase
Price or Fundamental Change Purchase Price with respect to any Note;
(c) which constitutes a failure to convert any Note in accordance with
its terms and the terms of this Indenture; or
(d) in respect of a covenant or provision which under Article XIII
cannot be modified or amended without the consent of the Holder of
each Outstanding Note affected.
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; but no such waiver shall extend to any subsequent or other
default or impair any right consequent thereon.
SECTION 9.14 Undertaking for Costs. 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, a court may require any
party litigant in such suit to file an undertaking to pay the costs of such
suit, and may assess costs against any such party litigant, in the manner and to
the extent provided in the Trust Indenture Act; provided that neither this
Section nor the Trust Indenture Act shall be deemed to authorize any court to
require such an undertaking or to make such an assessment in any suit instituted
by the Company or the Trustee.
SECTION 9.15 Waiver of Usury, 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 usury, stay or extension law wherever enacted, now
or at any time hereafter in force, 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 X
THE TRUSTEE
SECTION 10.01 Certain Duties and Responsibilities. The duties and
responsibilities of the Trustee shall be as provided by the Trust Indenture Act.
Notwithstanding the foregoing, no provision of this Indenture shall require the
Trustee to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the exercise
of any of its rights or powers, if it shall have reasonable grounds for
believing that repayment of such funds or adequate indemnity against such risk
or liability is not reasonably assured to it.
58
Whether or not therein expressly so provided, every provision of this Indenture
relating to the conduct or affecting the liability of or affording protection to
the Trustee shall be subject to the provisions of this Section.
SECTION 10.02 Notice of Defaults. If a default occurs hereunder with
respect to Notes, the Trustee shall give the Holders of Notes notice of such
default as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
9.01(c) with respect to the Notes, no such notice to Holders shall be given
until at least 60 days after the occurrence thereof. For the purpose of this
Section, the term "default" means any event or events, as the case may be,
specified in Section 9.01, not including periods of grace, if any, provided for
therein.
SECTION 10.03 Certain Rights of Trustee. Subject to the provisions of
Section 10.01:
(a) the Trustee may conclusively rely and shall be protected in acting
or refraining from acting upon any resolution, action, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein shall be
sufficiently evidenced by a Company Request or Company Order, and
any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the Trustee shall
deem it desirable that a matter be proved or established prior to
taking, suffering or omitting any action hereunder, the Trustee
(unless other evidence be herein specifically prescribed) may, in
the absence of bad faith on its part, rely upon an Officers'
Certificate;
(d) the Trustee may consult with counsel of its choice, and the advice
of such counsel or any Opinion of Counsel shall be full and complete
authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any of the
rights or powers vested in it by this Indenture at the request or
direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee security or indemnity
reasonably satisfactory to it against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation into the
facts or matters stated in any resolution, action, 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
59
investigation, it shall be entitled to examine the books, records
and premises of the Company, personally or by agent or attorney;
(g) the Trustee may execute any of the trusts or powers hereunder or
perform any duties hereunder either directly or by or through agents
or attorneys, and the Trustee shall not be responsible for any
misconduct or negligence on the part of any agent or attorney
appointed with due care by it hereunder;
(h) the Trustee shall not be liable for any action taken by it in good
faith and believed by it to be authorized or within the discretion
or rights or powers conferred upon it by this Indenture;
(i) the Trustee is not required to take notice or deemed to have notice
of any default or Event of Default hereunder, except any Event of
Default under Section 9.01(a) or (b), unless a Responsible Officer
of the Trustee has actual knowledge thereof or the Trustee has
received notice (at the Corporate Trust Office of the Trustee) in
writing of such default or Event of Default from the Company or the
Holders of at least 25% in aggregate principal amount of the
Outstanding Notes and such notice references the Notes and this
Indenture, and, in the absence of any such notice, the Trustee may
conclusively assume that no such default or Event of Default exists;
and
(j) the Trustee's immunities and protections from liability and its
right to indemnification in connection with the performance of its
duties under this Indenture shall extend to, and be enforceable by,
the Trustee in each of its capacities hereunder and each officer,
director, agent, attorney, employee or other Person employed to act
hereunder.
SECTION 10.04 Not Responsible for Recitals or Issuance of Notes. The
recitals contained herein and in the Notes, except the Trustee's certificates of
authentication, shall be taken as the statements of the Company, and neither the
Trustee nor any Authenticating Agent assumes any responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Notes. Neither the Trustee nor any
Authenticating Agent shall be accountable for the use or application by the
Company of Notes or the proceeds thereof.
SECTION 10.05 May Hold Notes. The Trustee, any Authenticating Agent, any
Paying Agent, any Note Registrar or any other agent of the Company, in its
individual or any other capacity, may become the owner or pledgee of Notes and,
subject to Sections 10.08 and 10.13, may otherwise deal with the Company with
the same rights it would have if it were not Trustee, Authenticating Agent,
Paying Agent, Note Registrar or such other agent.
SECTION 10.06 Money Held in Trust. Money held by the Trustee, or any
Paying Agent, in trust hereunder need not be segregated from other funds except
to the extent required by law. Neither the Trustee nor any Paying Agent shall be
under any liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
60
SECTION 10.07 Compensation, Reimbursement and Indemnification. The Company
agrees:
(a) to pay to the Trustee from time to time reasonable compensation as
shall be agreed in writing between the Company and the Trustee for
all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of
a trustee of an express trust);
(b) except as otherwise expressly provided herein, to reimburse the
Trustee upon its request for all reasonable expenses, disbursements
and advances incurred or made by the Trustee in accordance with any
provision of this Indenture (including the reasonable compensation
and the expenses and disbursements of its agents and counsel),
except any such expense, disbursement or advance as may be
attributable to its gross negligence or willful misconduct; and
(c) to indemnify the Trustee for, and to hold it harmless against, any
loss, liability or expense incurred without gross negligence or
willful misconduct on its part, arising out of or in connection with
the acceptance or administration of the trust or trusts hereunder,
including the costs and expenses of defending itself against any
claim or liability in connection with the exercise or performance of
any of its powers or duties hereunder and the costs and expenses of
enforcing this right to indemnification.
In the event any action, suit or proceeding is brought against any Trustee
in connection with any claim for which it is entitled to indemnity hereunder, it
shall promptly (but no later than 10 days following service) notify the Company
in writing, enclosing a copy of all papers served. All counsel employed to
defend the Trustee against any such claim shall be retained directly by the
Trustee, subject to the approval of the Company, which approval shall not be
unreasonably withheld. The Company shall not be required to pay the fees and
expenses of more than one law firm in connection with its obligations hereunder.
The Trustee, either directly or through its counsel, shall inform the Company on
a timely basis as to the progress of any claim for which the Trustee is entitled
to indemnification hereunder. Notwithstanding any other provision of this
Indenture, the Company shall not be liable to pay any settlement agreed to
without its written consent, which consent shall not be unreasonably withheld.
In the event the Trustee incurs expenses or renders services in any
proceedings which result from the occurrence or continuance of an Event of
Default under Section 9.01(e) or 9.01(f), or from the occurrence of any event
which, solely by virtue of the passage of time, would become such an Event of
Default, the expenses so incurred and compensation for services so rendered are
intended to constitute expenses of administration under the United States
Bankruptcy Code or equivalent law.
The provisions of this Section shall survive the resignation or removal of
the Trustee and the termination of this Indenture.
SECTION 10.08 Conflicting Interests. If the Trustee has or shall acquire a
conflicting interest within the meaning of the Trust Indenture Act, the Trustee
shall either eliminate such
61
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
SECTION 10.09 Corporate Trustee Required; Eligibility. There shall at all
times be one (and only one) Trustee hereunder with respect to the Notes. The
Trustee shall be a Person that is eligible pursuant to the Trust Indenture Act
to act as such and has a combined capital and surplus of at least $50,000,000.
If any such Person publishes reports of condition at least annually, pursuant to
law or to the requirements of its supervising or examining authority, then for
the purposes of this Section and to the extent permitted by the Trust Indenture
Act, the combined capital and surplus of such Person shall be deemed to be its
combined capital and surplus as set forth in its most recent report of condition
so published. If at any time the Trustee shall cease to be eligible in
accordance with the provisions of this Section, it shall resign immediately in
the manner and with the effect hereinafter specified in this Article.
SECTION 10.10 Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no appointment of a
successor Trustee pursuant to this Article shall become effective
until the acceptance of appointment by the successor Trustee in
accordance with the applicable requirements of Section 10.11.
(b) The Trustee may resign at any time by giving written notice thereof
to the Company. If the instrument of acceptance by a successor
Trustee required by Section 10.11 shall not have been delivered to
the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of
competent jurisdiction at the expense of the Company for the
appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the Holders of a
majority in principal amount of the Outstanding Notes, delivered to
the Trustee and to the Company. If the instrument of acceptance by a
successor Trustee required by Section 10.11 shall not have been
delivered to the Trustee within 30 days after the giving of such
notice of removal, the Trustee being removed may petition any court
of competent jurisdiction (at the expense of the Company) for the
appointment of a successor Trustee.
(d) If, at any time,
(1) the Trustee shall fail to comply with Section 10.08 after
written request therefor by the Company or by any Holder who
has been a bona fide Holder of a Note for at least six months,
or
(2) the Trustee shall cease to be eligible under Section 10.09 and
shall fail to resign after written request therefor by the
Company or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee
or of its property shall be
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appointed or any public officer shall take charge or control
of the Trustee or of its property or affairs for the purpose
of rehabilitation, conservation or liquidation,
then, in any such case,
(A) the Company by a Board Resolution may remove the
Trustee, or
(B) subject to Section 9.14, any Holder who has been a bona
fide Holder of a Note for at least six months may, on
behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a
successor Trustee or Trustees.
(e) If the Trustee shall resign, be removed or become incapable of
acting, or if a vacancy shall occur in the office of Trustee for any
cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee and shall comply with the applicable requirements
of Section 10.11. If, within one year after such resignation,
removal or incapability, or the occurrence of such vacancy, a
successor Trustee shall be appointed by Act of the Holders of a
majority in principal amount of the Outstanding Notes delivered to
the Company and the retiring Trustee, the successor Trustee so
appointed shall, forthwith upon its acceptance of such appointment
in accordance with the applicable requirements of Section 10.11,
become the successor Trustee and to that extent supersede the
successor Trustee appointed by the Company. If no successor Trustee
shall have been so appointed by the Company or the Holders and
accepted appointment in the manner required by Section 10.11, any
Holder who has been a bona fide Holder of a Note for at least six
months may, on behalf of himself and all others similarly situated,
petition any court of competent jurisdiction for the appointment of
a successor Trustee.
(f) The Company shall give notice of each resignation and each removal
of the Trustee and each appointment of a successor Trustee to all
Holders of Notes in the manner provided in Section 1.06. Each notice
shall include the name of the successor Trustee and the address of
its Corporate Trust Office.
SECTION 10.11 Acceptance of Appointment by Successor. In case of the
appointment hereunder of a successor Trustee, every such successor Trustee so
appointed shall execute, acknowledge and deliver to the Company and to the
retiring Trustee an instrument accepting such appointment, and thereupon the
resignation or removal of the retiring Trustee shall become effective and such
successor Trustee, without any further act, deed or conveyance, shall become
vested with all the rights, powers, trusts and duties of the retiring Trustee;
but, on the request of the Company or the successor Trustee, such retiring
Trustee shall, upon payment of all amounts due it hereunder, execute and deliver
an instrument transferring to such successor Trustee all the rights, powers and
trusts of the retiring Trustee and shall duly assign, transfer and deliver to
such successor Trustee all property and money held by such retiring Trustee
hereunder.
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In case of the appointment hereunder of a successor Trustee, the Company,
the retiring Trustee and each successor Trustee shall execute and deliver an
indenture supplemental hereto wherein each successor Trustee shall accept such
appointment and which shall contain such provisions as shall be necessary or
desirable to transfer and confirm to, and to vest in, each successor Trustee all
the rights, powers, trusts and duties of the retiring Trustee and, upon the
execution and delivery of such supplemental indenture, the resignation or
removal of the retiring Trustee shall become effective to the extent provided
therein and such successor Trustee, without any further act, deed or conveyance,
shall become vested with all the rights, powers, trusts and duties of the
retiring Trustee with respect to the Notes; but, on request of the Company or
the successor Trustee, such retiring Trustee shall duly assign, transfer and
deliver to such successor Trustee all property and money held by such retiring
Trustee hereunder with respect to the Notes.
Upon request of any such successor Trustee, the Company shall execute any
and all instruments for more fully and certainly vesting in and confirming to
such successor Trustee all such rights, powers and trusts referred to in the
first or second preceding paragraph, as the case may be.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be qualified and eligible under
this Article.
SECTION 10.12 Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or converted or with which
it may be consolidated, or any corporation resulting from any merger, conversion
or consolidation to which the Trustee shall be a party, or any corporation
succeeding to all or substantially all the corporate trust business of the
Trustee, shall be the successor of the Trustee hereunder, provided such
corporation shall be otherwise qualified and eligible under this Article,
without the execution or filing of any paper or any further act on the part of
any of the parties hereto. In case any Notes shall have been authenticated, but
not delivered, by the Trustee then in office, any successor by merger,
conversion or consolidation to such authenticating Trustee may adopt such
authentication and deliver the Notes so authenticated with the same effect as if
such successor Trustee had itself authenticated such Notes.
SECTION 10.13 Preferential Collection of Claims Against Company. If and
when the Trustee shall be or become a creditor of the Company (or any other
obligor upon the Notes), the Trustee shall be subject to the provisions of the
Trust Indenture Act regarding the collection of claims against the Company (or
any such other obligor).
SECTION 10.14 Appointment of Authenticating Agent. The Trustee may appoint
an Authenticating Agent or Agents which shall be authorized to act on behalf of
the Trustee to authenticate Notes issued upon original issue and upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.14, and Notes so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if authenticated
by the Trustee hereunder. Wherever reference is made in this Indenture to the
authentication and delivery of Notes by the Trustee or the Trustee's certificate
of authentication, such reference shall be deemed to include authentication and
delivery 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
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shall at all times be a corporation organized and doing business under the laws
of the United States of America, any state thereof or the District of Columbia,
authorized under such laws to act as Authenticating Agent, having a combined
capital and surplus of not less than $50,000,000 and subject to supervision or
examination by federal or state authority. If such Authenticating Agent
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Authenticating Agent
shall be deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating Agent
shall cease to be eligible in accordance with the provisions of this Section,
such Authenticating Agent shall resign immediately in the manner and with the
effect specified in this Section.
Any corporation into which an Authenticating Agent may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which such Authenticating Agent
shall be a party, or any corporation succeeding to all or substantially all of
the corporate agency or corporate trust business of an Authenticating Agent,
shall continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating Agent.
In case at the time such successor to any Authenticating Agent shall
succeed to such Authenticating Agent, any of the Notes shall have been
authenticated but not delivered, any such successor to such Authenticating Agent
may adopt the certificate of authentication of any predecessor Authenticating
Agent and deliver such Notes so authenticated; and in case at that time any of
the Notes shall not have been authenticated, any successor to any Authenticating
Agent may authenticate such Notes either in the name of any predecessor
hereunder or in the name of successor Authenticating Agent; and in all such
cases such certificate shall have the full force which it is anywhere in the
Notes or in this Indenture provided that the certificate of the predecessor
Authenticating Agent shall have; provided, however, that the right to adopt the
certificate of authentication of any predecessor Authenticating Agent or to
authenticate Notes in the name of any predecessor Authenticating Agent shall
apply only to its successor or successors by merger, conversion or
consolidation.
An Authenticating Agent may resign at any time by giving written notice
thereof to the Trustee and to the Company. The Trustee may at any time terminate
the agency of an Authenticating Agent by giving written notice thereof 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 such
Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which must be acceptable to the Company and shall give notice of such
appointment in the manner provided in Section 1.06 to all Holders of Notes. Any
successor Authenticating Agent upon acceptance of its appointment hereunder
shall become vested with all the rights, powers and duties of its predecessor
hereunder, with like effect as if originally named as an Authenticating Agent.
No successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
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Any Authenticating Agent by the acceptance of its appointment shall be
deemed to have agreed with the Trustee that: it will perform and carry out the
duties of an Authenticating Agent as herein set forth; it will keep and maintain
and furnish to the Trustee from time to time as requested by the Trustee
appropriate records of all transactions carried out by it as Authenticating
Agent and will furnish the Trustee such other information and reports as the
Trustee may reasonably require; it is eligible for appointment as Authenticating
Agent under this Section 10.14 and will notify the Trustee promptly if it shall
cease to be so qualified; and it will indemnify the Trustee against any loss,
liability or expense incurred by the Trustee and will defend any claim asserted
against the Trustee by reason of acts or failures to act of the Authenticating
Agent but it shall have no liability for any action taken by it at the specific
written direction of the Trustee.
The Company agrees to pay to each Authenticating Agent from time to time
reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the Notes may have
endorsed thereon, in addition to the Trustee's certificate of authentication, an
alternative certificate of authentication in the following form:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
By
As Authenticating Agent
By
Authorized Officer
ARTICLE XI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 11.01 Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than June 30 and December 31 in each year, a
list, in such form as the Trustee may reasonably require, of the
names and addresses of the Holders as of a date no more than 15 days
prior to the date 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;
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excluding from any such list names and addresses received by the Trustee
in its capacity as Note Registrar.
SECTION 11.02 Preservation of Information; Communications to Holders. The
Trustee shall preserve, in as current a form as is reasonably practicable, the
names and addresses of Holders contained in the most recent list furnished to
the Trustee as provided in Section 11.01 and the names and addresses of Holders
received by the Trustee, or its designee, in its capacity as Note Registrar. The
Trustee may destroy any list furnished to it as provided in Section 11.01 upon
receipt of a new list so furnished.
The rights of Holders to communicate with other Holders with respect to
their rights under this Indenture or under the Notes, and the corresponding
rights and privileges of the Trustee, shall be as provided by the Trust
Indenture Act.
Every Holder, by receiving and holding the same, agrees with the Company
and the Trustee that neither the Company nor the Trustee nor any agent of either
of them shall be held accountable by reason of any disclosure of information as
to names and addresses of Holders made pursuant to the Trust Indenture Act.
SECTION 11.03 Reports by Trustee. The Trustee shall transmit to Holders
such reports concerning the Trustee and its actions under this Indenture as may
be required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto.
Reports so required to be transmitted at stated intervals of not more than
12 months shall be transmitted no later than sixty days after each May 15
following the date of first issuance.
A copy of each such report shall, at the time of such transmission to
Holders, be filed by the Trustee with each stock exchange upon which any Notes
are listed, with the Commission and with the Company. (The Company will notify
the Trustee when any Notes are listed on any stock exchange pursuant to Section
11.04.)
SECTION 11.04 Reports by Company. The Company shall file with the Trustee
and the Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to the
Trust Indenture Act at the times and in the manner provided pursuant to such
Act; provided that any such information, documents or reports required to be
filed with the Commission pursuant to Section 13 or 15(d) of the Exchange Act
shall be filed with the Trustee within 15 days after the same is so required to
be filed with the Commission.
The Company shall notify in writing the Trustee when any Notes are listed
on any stock exchange.
ARTICLE XII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 12.01 Company May Consolidate, Etc., Only on Certain Terms. The
Company covenants that it will not merge or consolidate with any other Person or
convey, transfer or lease all or substantially all of its assets or properties
to any Person (in one transaction
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or a series of related transactions), except that the Company may merge or
consolidate with, or convey, transfer or lease all or substantially all of its
assets or properties to, any other corporation, provided that:
(a) (i) the Company shall be the continuing corporation; or
(ii) (A) the successor corporation (if other than the
Company) shall be a corporation organized and
validly existing under the laws of the United
States of America or a state thereof or the
District of Columbia; and
(B) such corporation shall expressly assume the due
and punctual payment of the principal of and
interest on all the Notes and the due and punctual
performance and observance of all of the covenants
and conditions of this Indenture to be performed
by the Company, including, without limitation, the
payment of principal and interest, including
Contingent Interest, if any;
and
(b) the Company or such successor corporation, as the case may be,
shall not, immediately after such merger or consolidation, or
such sale or conveyance, be in default in the performance of
any such covenant or condition and no event which with the
lapse of time, the giving of notice or both would constitute
an Event of Default shall have occurred and be continuing.
For purposes of this Section 12.01, "substantially all of its assets"
shall mean, at any date, a portion of the non-current assets reflected in the
Company's consolidated balance sheet as of the end of the most recent quarterly
period that represents at least 66 2/3% of the total reported value of such
assets.
SECTION 12.02 Successor Substituted. In case of any such consolidation,
merger, conveyance, transfer or lease and upon the assumption by the successor
corporation of the obligations under this Indenture and the Notes in accordance
with Section 12.01, such successor corporation shall succeed to and be
substituted for the Company, with the same effect as if it had been named herein
as a party hereto, and the Company shall thereupon be relieved of any further
obligations or liabilities hereunder and upon the Notes and the Company as the
predecessor corporation may thereupon or at any time thereafter be dissolved,
wound-up or liquidated. Such successor corporation thereupon may cause to be
signed, and may issue either in its own name or in the name of the predecessor
corporation, any or all of the Notes issuable hereunder which theretofore shall
not have been signed by the Company and delivered to the Trustee and, upon the
order of such successor corporation, instead of the Company, and subject to all
the terms, conditions and limitations in this Indenture prescribed, the Trustee
shall authenticate and shall deliver any Notes which previously shall have been
signed and delivered by the officers of the Company to the Trustee for
authentication and any Notes which such successor corporation
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thereafter shall cause to be signed and delivered to the Trustee for that
purpose. All the Notes so issued shall in all respects have the same legal rank
and benefit under this Indenture as the Notes theretofore or thereafter issued
in accordance with the terms of this Indenture as though all of such Notes had
been issued at the date of the execution hereof.
In case of any such consolidation, merger, sale or conveyance, such
changes in phraseology and form (but not in substance) may be made in the Notes
thereafter to be issued as may be appropriate.
SECTION 12.03 Trustee Entitled to Opinion. The Trustee, subject to the
provisions of Sections 10.01 and 10.03, may receive an Opinion of Counsel, at
the expense of the Company, as conclusive evidence that any such consolidation,
merger, conveyance, transfer or lease and any such assumption, complies with the
provisions of this Article XII.
ARTICLE XIII
SUPPLEMENTAL INDENTURES
SECTION 13.01 Supplemental Indentures Without Consent of Holders. Without
the consent of any Holders, the Company, when authorized by its Board of
Directors, and the Trustee, at any time and from time to time, may enter into
one or more indentures supplemental hereto, in form satisfactory to the Trustee,
for one or more of the following purposes:
(a) to evidence the succession of another Person to the Company, or
successive successions, and the assumption by any such successor
corporation of the covenants, agreements and obligations of the
Company herein and in the Notes; or
(b) to add to the covenants of the Company for the benefit of the
Holders of the Notes or to surrender any right or power of the
Company; or
(c) to add any Events of Default; or
(d) to add to or change any of the provisions of this Indenture to such
extent as shall be necessary to permit or facilitate the issuance of
Notes in bearer form, registrable or not registrable as to
principal, and with or without interest coupons, or to permit or
facilitate the issuance of Notes in uncertificated form; or
(e) to convey, transfer, assign, mortgage or pledge any property to or
with the Trustee or to surrender any right or power herein conferred
upon the Company by this Indenture; or
(f) to provide for uncertificated securities in addition to certificated
securities; or
(g) to evidence and provide for the acceptance of appointment hereunder
of a successor Trustee pursuant to the requirements of Section
10.11; or
(h) to cure any ambiguity, to correct or supplement any provision herein
which may be defective or inconsistent with any other
69
provision herein, or to make any other provisions with respect to
matters or questions arising under this Indenture, provided that
such action pursuant to this clause (8) shall not adversely affect
the interests of the Holders of Notes; or
(i) to comply with the rules or regulations of any securities exchange
or automated quotation system on which any of the Notes may be
listed or traded; or
(j) to add to, change or eliminate any of the provisions of this
Indenture as shall be necessary or desirable in accordance with any
amendments to the Trust Indenture Act, provided that such action
does not adversely affect the rights or interests of any Holder of
Notes.
SECTION 13.02 Supplemental Indentures With Consent of Holders. With the
consent of the Holders of not less than a majority in principal amount of the
Outstanding Notes affected by such supplemental indenture, by Act of said
Holders delivered to the Company and the Trustee, the Company, when authorized
by its Board of Directors, and the Trustee may enter into an indenture or
indentures supplemental hereto for the purpose of adding any provisions to or
changing in any manner or eliminating any of the provisions of this Indenture or
modifying in any manner the rights of the Holders of Notes under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent of the Holder of each Outstanding Note affected thereby:
(a) change the Stated Maturity of the principal of, or any installment
of principal of or interest (including Contingent Interest, if any)
on, any Note, or reduce the principal amount thereof or the rate of
interest (including Contingent Interest, if any) thereon or any
premium payable upon the redemption thereof, or reduce the amount of
the principal of any other Note which would be due and payable upon
a declaration of acceleration of the Maturity thereof pursuant to
Section 9.02;
(b) change any place of payment where, or the coin or currency in which,
any Note or interest (including Contingent Interest, if any) thereon
is payable;
(c) impair the right to institute suit for the enforcement of any
payment on any Note;
(d) change the terms and conditions of the Notes in a manner adverse to
the Holder of any Note, including any adverse change in the right to
require the Company to repurchase any Note or the subordination of
the Notes;
(e) reduce the Redemption Price, Purchase Price or Fundamental Change
Purchase Price of the Notes;
(f) change the terms applicable to redemption or purchase of the Notes
in a manner adverse to the Holder;
(g) alter the manner of calculation or rate of Contingent Interest
payable on any Note or extend the time for payment of any such
amount;
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(h) reduce the percentage in principal amount of the Outstanding Notes,
the consent of whose Holders is required for any such supplemental
indenture, or the consent of whose Holders is required for any
waiver (of compliance with certain provisions of this Indenture or
certain defaults hereunder and their consequences) provided for in
this Indenture or for any modification or amendment of this
Indenture;
(i) modify any of the provisions of this Section, Section 9.13, Section
14.07 or Section 15.04, except to increase any percentage set forth
in such Sections or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
Holder of each Outstanding Note affected thereby; provided, however,
that this clause shall not be deemed to require the consent of any
Holder with respect to changes in the references to "the Trustee"
and concomitant changes in this Section, Section 14.07 and Section
15.04, or the deletion of this proviso, in accordance with the
requirements of Sections 10.11 and 13.01(7); or
(j) make any change that adversely affects the right to convert or
exchange any Note (except as permitted by Section 13.01) or decrease
the Conversion Rate or increase the Conversion Price of any such
Note.
No amendment or modification of this Indenture under this Section may
amend or modify, or otherwise adversely affect the rights the holders of Senior
Indebtedness or Designated Senior Indebtedness described in Article XV without
the prior written consent of the holders of a majority of the Designated Senior
Indebtedness (or such larger percentage of the holders of the Designated Senior
Indebtedness as are required to approve such amendment or modification under the
terms of the instruments pursuant to which such Designated Senior Indebtedness
has been incurred) and at least a majority of all outstanding Senior
Indebtedness.
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 13.03 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 entitled to receive, and (subject to Section
10.01) shall be fully protected in relying upon, an Officer's Certificate and 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 13.04 Effect of Supplemental Indentures. Upon the execution of any
supplemental indenture under this Article, this Indenture shall be modified in
accordance therewith, and such supplemental indenture shall form a part of this
Indenture for all purposes; and every Holder of Notes theretofore or thereafter
authenticated and delivered hereunder shall be bound thereby.
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SECTION 13.05 Conformity With Trust Indenture Act. Every supplemental
indenture executed pursuant to this Article shall conform to the requirements of
the Trust Indenture Act.
SECTION 13.06 Reference in Notes to Supplemental Indentures. Notes
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 Notes 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 at the
Company's expense and authenticated and delivered by the Trustee in exchange for
Outstanding Notes.
ARTICLE XIV
COVENANTS
SECTION 14.01 Payment of Principal and Interest. The Company covenants and
agrees that it will duly and punctually pay or cause to be paid the principal of
and interest (including Contingent Interest, if any) on the Notes at the Place
of Payment, at the times and in the manner provided in the Notes and this
Indenture.
SECTION 14.02 Maintenance of Office or Agency. The Company will maintain
in the Borough of Manhattan, The City of New York, and in each other Place of
Payment an office or agency where Notes may be presented or surrendered for
payment, where Notes may be surrendered for registration of transfer or exchange
and where notices and demands to or upon the Company in respect of the Notes and
this Indenture may be served. The Company will give prompt written notice to the
Trustee of the location, and any change in the location, of such office or
agency. If at any time the Company shall fail to maintain any such required
office or agency or shall fail to furnish the Trustee with the address thereof,
such presentations, surrenders, notices and demands may be made or served at the
Corporate Trust Office of the Trustee, or an affiliate of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other offices
or agencies where the Notes may be presented or surrendered for any or all such
purposes and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the Company
of its obligation to maintain an office or agency in the Borough of Manhattan,
The City of New York, and in each other Place of Payment for such purposes. The
Company will give prompt written notice to the Trustee of any such designation
or rescission and of any change in the location of any such other office or
agency.
SECTION 14.03 Money for Notes Payments to be Held in Trust. If the Company
shall at any time act as its own Paying Agent, it will, on or before each due
date of the principal of or interest on any of the Notes, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and interest so becoming due until such sums shall be paid to such
Persons or otherwise disposed of as herein provided and will promptly notify the
Trustee of its action or failure so to act.
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Whenever the Company shall have one or more Paying Agents, it will, prior
to each due date of the principal of or interest on the Notes, deposit with a
Paying Agent a sum sufficient to pay such amount, such sum to be held as
provided by the Trust Indenture Act, 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 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 (a) comply with the provisions of the Trust
Indenture Act applicable to it as a Paying Agent and (b) during the continuance
of any default by the Company in the making of any payment, upon the written
request of the Trustee, forthwith pay to the Trustee all sums held in trust by
such Paying Agent for payment in respect of the Notes. Each of the Company and
the Trustee, having agreed to the foregoing on its behalf as a Paying Agent by
its execution and delivery of this instrument, has hereby satisfied the
provisions of this paragraph with respect to itself as a Paying Agent.
The Company may at any time 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.
Any money deposited with the Trustee or any Paying Agent, or then held by
the Company, in trust for the payment of the principal of or interest on any
Note and remaining unclaimed for two years after such principal or interest has
become due and payable shall be paid to the Company on Company Request, or (if
then held by the Company) shall be discharged from such trust; and the Holder of
such Note shall thereafter, as an unsecured general creditor, look only to the
Company for payment thereof, and all liability of the Trustee or such Paying
Agent with respect to such trust money, and all liability of the Company as
trustee thereof, shall thereupon cease; provided, however, that the Trustee or
such Paying Agent, before being required to make any such repayment, may at the
expense of the Company cause to be published once, in a newspaper published in
the English language, customarily published on each Business Day and of general
circulation in New York, New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company free of the trust formerly impressed upon it.
SECTION 14.04 Statement by Officers as to Default. The Company will
deliver to the Trustee, within 120 days after the end of each fiscal year of the
Company ending after the date hereof, an Officers' Certificate, stating whether
or not to the knowledge of the signers thereof the Company is in default in the
performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
SECTION 14.05 Waiver of Certain Covenants. The Company may omit in any
particular instance to comply with any term, provision or condition set forth in
any covenant
73
provided pursuant to Section 13.01(b) for the benefit of the Holders if before
the time for such compliance the Holders of at least a majority in principal
amount of the Outstanding Notes shall, by Act of such Holders, either waive such
compliance in such instance or generally waive compliance with such term,
provision or condition, but no such waiver shall extend to or affect such term,
provision or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such term, provision or condition shall remain in
full force and effect.
ARTICLE XV
SUBORDINATION
SECTION 15.01 Notes Subordinate to Senior Indebtedness. The Company and
each Holder of a Note, by his or her acceptance thereof, agree that (a) the
payment of the principal of and interest (including Contingent Interest, if any)
on each and all the Notes and (b) any other payment in respect of the Notes,
including the payment of any Principal Return in Cash upon conversion or any
payment on account of the acquisition or redemption of Notes by the Company, is
subordinated, to the extent and in the manner provided in this Article XV, to
the prior payment in full of all Senior Indebtedness (in each case, such payment
to be made in cash or in such other form of payment as shall be satisfactory to
the holder or holders of such Senior Indebtedness or a trustee or other
representative duly acting on behalf of such holder or holders), whether
outstanding at the date of this Indenture or thereafter created, incurred,
assumed or guaranteed, and that these subordination provisions are for the
benefit of the holders of Senior Indebtedness.
Each Holder of a Note, by his or her acceptance thereof, acknowledges and
agrees that the provisions of this Article XV are, and are intended to be, an
inducement and a consideration to all Persons who, in reliance on such
provisions, become holders of, or continue to hold, Senior Indebtedness, and
such provisions are made for the benefit of the holders of Senior Indebtedness,
and those holders are made obligees hereunder, and any one or more of them may
enforce such provisions.
SECTION 15.02 No Payment on Notes in Certain Circumstances.
(a) No payment shall be made by or on behalf of the Company on
account of the principal of or interest (including Contingent
Interest, if any) on or with respect to the Notes, an account
of any Principal Return applicable to any of the Notes upon
conversion or to acquire any of the Notes (including any
purchases of the Notes pursuant to Article IV and Article V)
for Cash or property (other than Junior securities of the
Company), or on account of any redemption provisions of the
Notes, in the event of default in payment of any principal of,
premium (if any) or interest on any Designated Senior
Indebtedness when the same becomes due and payable, whether at
maturity or at a date fixed for prepayment or by declaration
of acceleration or otherwise, beyond any applicable period of
grace specified in the instrument or instruments pursuant to
which such Designated Senior Indebtedness was incurred (a
"Payment Default"), unless and until that Payment Default has
been cured or waived or otherwise has ceased to exist.
74
(b) No payment shall be made by or on behalf of the Company on
account of the principal of or interest on the Notes, an
account of any Principal Return applicable to any of the Notes
upon conversion or to acquire any of the Notes (including any
repurchases of the Notes pursuant to the provisions thereof at
the option of the Holder of the Notes) for Cash or property
(other than Junior securities of the Company), or on account
of the redemption provisions of the Notes, in the event of any
default (other than a Payment Default) with respect to any
Designated Senior Indebtedness permitting the holders of that
Designated Senior Indebtedness (or a trustee or other
representative on behalf of the holders thereof) to declare
that Designated Senior Indebtedness due and payable prior to
the date on which it would otherwise have become due and
payable, on written notice thereof to the Company and the
Trustee by any holders of Designated Senior Indebtedness (or a
trustee or other representative on behalf of the holders
thereof) (a "Payment Blockage Notice"), unless and until that
default shall have been cured or waived or otherwise has
ceased to exist; provided, that such payments may not be
prevented pursuant to this Section 15.02(b) for more than 179
days after an applicable Payment Blockage Notice has been
received by the Trustee unless the Designated Senior
Indebtedness in respect of which that default exists has been
declared due and payable in its entirety, in which case no
such payment may be made until that acceleration has been
rescinded or annulled or that Designated Senior Indebtedness
has been paid in full. No default (other than a Payment
Default) that existed or was continuing on the date of any
Payment Blockage Notice (whether or not that default is on the
same issue of Designated Senior Indebtedness) may be made the
basis for the giving of a second Payment Blockage Notice,
unless such default was cured during the interim period, and
only one such Payment Blockage Notice may be given in any
period of 365 consecutive days.
(c) In furtherance of the provisions of Section 15.01, in the
event that, notwithstanding the foregoing provisions of this
Section 15.02, any payment or distribution of assets of the
Company (other than Junior securities of the Company) shall be
received by the Trustee or the Holders of the Notes or any
Paying Agent with respect thereto at a time when that payment
or distribution was prohibited by the provisions of this
Section 15.02, then, unless that payment or distribution is no
longer prohibited by this Section 15.02, that payment or
distribution (subject to the provisions of Section 15.07)
shall be received and held in trust by the Trustee or such
Holders or Paying Agent for the benefit of the holders of
Senior Indebtedness, and shall be paid or delivered by the
Trustee or such Holders or Paying Agent, as the case may be,
to the holders of Senior Indebtedness remaining unpaid or
unprovided for or their representative or representatives, or
to the trustee or trustees under any indenture pursuant to
which any instruments evidencing that Senior Indebtedness may
have been issued, ratably, according to the aggregate amounts
remaining unpaid on account of that Senior Indebtedness held
or represented by each, for application to the payment of all
Senior Indebtedness
75
in full after giving effect to all concurrent payments and
distributions to or for the holders of that Senior
Indebtedness.
SECTION 15.03 Notes Subordinated to Prior Payment of All Senior
Indebtedness on Dissolution, Liquidation or Reorganization. Upon any
distribution of assets of the Company or upon any dissolution, winding up, total
or partial liquidation or reorganization of the Company, whether voluntary or
involuntary, in bankruptcy, insolvency, receivership or similar proceeding or
upon assignment for the benefit of creditors:
(a) the holders of all Senior Indebtedness shall first be entitled
to receive payments in full (in each case, such payment to be
made in Cash or in such other form of payment as shall be
satisfactory to the holder or holders of such Senior
Indebtedness or a trustee or other representative duly acting
on behalf of such holder or holders), before the Holders of
Notes are entitled to receive any payment (other than in the
form of Junior securities of the Company) on account of the
principal of or interest (including Contingent Interest, if
any) on, or an account of any Principal Return applicable to,
those Notes;
(b) any payment or distribution of assets of the Company of any
kind or character, whether in cash, property or securities
(other than Junior securities of the Company), to which the
Holders of Notes or the Trustee on behalf of those Holders
would be entitled, except for the provisions of this Article
XV, shall be paid by the liquidating trustee or agent or other
Person making such a payment or distribution directly to the
holders of that Senior Indebtedness or their representative,
ratably according to the respective amounts of Senior
Indebtedness held or represented by each, to the extent
necessary to make payment in full of all that Senior
Indebtedness remaining unpaid after giving effect to all
concurrent payments and distributions to the holders of that
Senior Indebtedness; and
(c) in the event that, notwithstanding the foregoing, any payment
or distribution of assets of the Company of any kind or
character, whether in cash, property or securities (other than
Junior securities of the Company), shall be received by the
Trustee or the Holders of Notes or any Paying Agent with
respect thereto (or, if the Company or any Affiliate of the
Company is acting as its own Paying Agent, money for any such
payment or distribution shall be segregated or held in trust)
on account of the principal of or interest on, or on account
of any Principal Return applicable to, the Notes before all
Senior Indebtedness is paid in full, that payment or
distribution (subject to the provisions of Section 15.07)
shall be received and held in trust by the Trustee or such
Holder or Paying Agent for the benefit of the holders of that
Senior Indebtedness, or their respective representatives,
ratably according to the respective amounts of that Senior
Indebtedness held or represented by each, to the extent
necessary to make payment as provided herein of all that
Senior Indebtedness remaining unpaid after giving effect to
all concurrent payments and distributions and all provisions
therefor to or for the holders of that Senior Indebtedness,
but only to the extent that as to any holder of that Senior
Indebtedness, as promptly as
76
practical following notice from the Trustee to the holders of
that Senior Indebtedness that such prohibited payment has been
received by the Trustee, Holder(s) or Paying Agent (or has
been segregated as provided above), that holder (or a
representative therefor) notifies the Trustee of the amounts
then due and owing on that Senior Indebtedness, if any, held
by that holder, and only the amounts specified in those
notices to the Trustee shall be paid to the holders of that
Senior Indebtedness.
SECTION 15.04 Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness as provided herein,
the Holders of the Notes shall be subrogated (to the extent of the payments or
distributions made to the holders of that Senior Indebtedness pursuant to the
provisions of this Article XV to the rights of the holders of that Senior
Indebtedness to receive payments or distributions of assets of the Company
applicable to that Senior Indebtedness until all amounts owing on, or with
respect to, the Notes shall be paid in full. For the purpose of that
subrogation, no such payments or distributions to the holders of that Senior
Indebtedness by the Company, or by or on behalf of the Holders of the Notes by
virtue of this Article XV, which otherwise would have been made to those Holders
shall, as among the Company, its creditors other than the holders of Senior
Indebtedness and those Holders, be deemed to be payment by the Company or on
account of that Senior Indebtedness, it being understood that the provisions of
this Article XV are and are intended solely for the purpose of defining the
relative rights of the Holders of the Notes, on the one hand, and the holders of
that Senior Indebtedness, on the other hand.
If any payment or distribution to which the Holders of the Notes would
otherwise have been entitled but for the provisions of this Article XV shall
have been applied, pursuant to the provisions of this Article XV, to the payment
of amounts payable under Senior Indebtedness, then those Holders shall be
entitled to receive from the holders of that Senior Indebtedness any payments or
distributions received by those holders of Senior Indebtedness in excess of the
amount sufficient to pay all amounts payable under or in respect of that Senior
Indebtedness in full.
SECTION 15.05 Obligations of the Company Unconditional. Nothing contained
in this Article XV or elsewhere in this Indenture or in the Notes is intended to
or shall impair, as between the Company and the Holders of the Notes, the
obligation of the Company, which is absolute and unconditional, to pay to those
Holders the principal of and interest (including Contingent Interest, if any) on
the Notes, or the Principal Return with respect to the Notes upon conversion of
the Notes, as and when the same shall become due and payable in accordance with
the terms of the Notes and this Indenture, or is intended to or shall affect the
relative rights of those Holders and creditors of the Company other than the
holders of Senior Indebtedness, nor shall anything herein or therein prevent the
Trustee or any Holder from exercising all remedies otherwise permitted by
applicable law on default under this Indenture, subject to the rights, if any,
under this Article XV, of the holders of Senior Indebtedness in respect of cash,
property or securities of the Company received on the exercise of any such
remedy. Notwithstanding anything to the contrary in this Article XV or elsewhere
in this Indenture or in the Notes, on any distribution of assets of the Company
referred to in this Article XV, the Trustee, subject to the provisions of
Sections 10.01 and 10.03, and the Holders of the Notes shall be entitled to rely
on any order or decree made by any court of competent jurisdiction in which such
dissolution,
77
winding up, liquidation or reorganization proceedings are pending, or a
certificate of the liquidating trustee or agent or other Person making any
distribution to the Trustee or to those Holders for the purpose of ascertaining
the Persons entitled to participate in that distribution, the holders of Senior
Indebtedness and other Indebtedness of the Company, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article XV so long as that court has been
apprised of the provisions of, or the order, decree or certificate makes
reference to, the provisions of this Article XV.
SECTION 15.06 Trustee Entitled to Assume Payments Not Prohibited in
Absence of Notice. The Trustee shall not at any time be charged with knowledge
of the existence of any facts that would prohibit the making of any payment to
or by the Trustee unless and until a Responsible Officer of the Trustee or any
Paying Agent shall have received, no later than two Business Days prior to that
payment, written notice thereof from the Company or from one or more holders of
Senior Indebtedness or from any representative therefor and, prior to the
receipt of any such written notice, the Trustee, subject to the provisions of
Sections 10.01 and 10.03, shall be entitled in all respects conclusively to
assume that no such fact exists.
SECTION 15.07 Application by Trustee of Amounts Deposited with It. Any
deposit of assets with the Trustee or the Paying Agent (whether or not in trust)
for the payment of principal of or interest on (or any Principal Return with
respect to) any Notes shall be subject to the provisions of Sections 15.01,
15.02, 15.03 and 15.04; provided that if prior to two Business Days preceding
the date on which by the terms of this Indenture any such assets may become
distributable for any purpose (including, without limitation, the payment of
either principal of or interest on (or any Principal Return with respect to) any
Note, the Trustee or such Paying Agent shall not have received with respect to
those assets the written notice provided for in Section 15.06, then the Trustee
or such Paying Agent shall have full power and authority to receive those assets
and to apply the same to the purpose for which they were received, and shall not
be affected by any notice to the contrary that may be received by it on or after
that date; and provided further that nothing contained in this Article XV shall
prevent the Company from making, or the Trustee from receiving or applying, any
payment in connection with the redemption of Notes if the first publication of
notice of that redemption (whether by mail or otherwise in accordance with this
Indenture) has been made, and the Trustee has received that payment from the
Company, prior to the occurrence of any of the contingencies specified in
Section 15.02 or 15.03.
SECTION 15.08 Subordination Rights Not Impaired by Acts or Omissions of
the Company or Holders of Senior Indebtedness. No right of any present or future
holders of any Senior Indebtedness to enforce the subordination provisions
contained in this Article XV shall at any time in any way be prejudiced or
impaired by any act or failure to act on the part of the Company or by any act
or failure to act, in good faith, by any such holder, or by any noncompliance by
the Company with the terms of this Indenture, regardless of any knowledge
thereof that any such holder may have or be otherwise charged with. The holders
of Senior Indebtedness may extend, renew, modify or amend the terms of the
Senior Indebtedness or any security therefor and release, sell or exchange that
security and otherwise deal freely with the Company, all without affecting the
liabilities and obligations of the parties to this Indenture or the Holders of
the Notes.
78
SECTION 15.09 Trustee to Effectuate Subordination of Notes. Each Holder of
a Note by his acceptance thereof authorizes and expressly directs the Trustee on
his behalf to take such action as may be necessary or appropriate to effectuate
the subordination provisions contained in this Article XV and to protect the
rights of the Holders of the Notes pursuant to this Indenture, and appoints the
Trustee such Holder's attorney-in-fact for that purpose, including, in the event
of any dissolution, winding up, liquidation or reorganization of the Company
(whether in bankruptcy, insolvency or receivership proceedings or upon an
assignment for the benefit of creditors of the Company), the filing of a claim
for the unpaid balance of his Notes in the form required in said proceedings and
cause said claim to be approved. If the Trustee does not file a proper claim or
proof of debt in the form required in that proceeding prior to 30 days before
the expiration of the time to file such claim or claims, then the holders of
Senior Indebtedness or their representative is hereby authorized to have the
right to file and is hereby authorized to file an appropriate claim for and on
behalf of the Holders of said Notes. Nothing herein contained shall be deemed to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to authorize or consent to or accept or adopt on behalf of any
Holder of Notes any plan of reorganization, arrangement, adjustment or
composition affecting the Notes or the rights of any Holder thereof, or to
authorize the Trustee or the holders of Senior Indebtedness or their
representative to vote in respect of the claim of any Holder of the Notes in any
such proceeding.
SECTION 15.10 Right of Trustee to Hold Senior Indebtedness. The Trustee in
its individual capacity shall be entitled to all of the rights set forth in this
Article XV in respect of any Senior Indebtedness at any time held by it to the
same extent as any other holder of Senior Indebtedness, and nothing in this
Indenture shall be construed to deprive the Trustee of any of its rights as such
holder.
SECTION 15.11 Article XV Not to Prevent Events of Default. The failure to
make a payment on account of principal of or interest (including Contingent
Interest, if any) on any of (or on account of any Principal Return with respect
to any of) the Notes by reason of any provision of this Article XV shall not be
construed as preventing the occurrence of a Default or an Event of Default under
Section 9.01 or in any way prevent the Holders of the Notes from exercising any
right hereunder other than the right to receive payment on or with respect to
the Notes. The Company shall promptly notify holders of Senior Indebtedness if
payment of the Notes is accelerated due to an Event of Default or if the Company
is required to purchase any Notes upon a Fundamental Change, provided that the
Company's failure to provide such notice shall not diminish the rights of
holders of Senior Indebtedness hereunder.
SECTION 15.12 No Fiduciary Duty of Trustee to Holders of Senior
Indebtedness. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Indebtedness, and shall not be liable to any of those holders
(other than for its willful misconduct or gross negligence) if it shall in good
faith mistakenly pay over or distribute to the Holders of the Notes or the
Company or any other Person, cash, property or securities to which any holders
of Senior Indebtedness shall be entitled by virtue of this Article XV or
otherwise. Nothing in this Section 15.12 shall affect the obligation of any
other such Person to hold that payment for the benefit of, and to pay that
payment over to, the holders of Senior Indebtedness or their representative.
79
SECTION 15.13 Article Applicable to Paying Agent. In case at any time any
Paying Agent other than the Trustee shall have been appointed by the Company and
be then acting hereunder, the term "Trustee" as used in this Article XV shall in
that case (unless the context shall otherwise require) be construed as extending
to and including that Paying Agent within its meaning as fully for all intents
and purposes as if that Paying Agent were named in this Article XV in addition
to or in place of the Trustee; provided, however, that this Section 15.13 shall
not apply to the Company or any Affiliate of the Company if it or that Affiliate
acts as Paying Agent.
SECTION 15.14 Notes Pari Passu with Prior Notes. The payment of principal
and interest (including Contingent Interest, if any) on each and all of the
Notes and all other payments with respect to the Notes shall rank pari passu
with the payment rights under the Prior Notes.
80
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
MAVERICK TUBE CORPORATION
By:
Xxxxxx X. Xxxxx
Vice President - Finance and Administration, Treasurer, Secretary and
Chief Financial Officer
THE BANK OF NEW YORK
By:
Name:
Title:
00
XXXXX XX XXXXXXXX Xxxxxxx
Xxxxxxx
XXXXXX OF __________ section
On the ______ day of December, 2004, before me personally came Xxxxxx X.
Xxxxx, to me known, who, being by me duly sworn, did depose and say that she is
the Vice President - Finance and Administration, Treasurer, Secretary and Chief
Financial Officer of Maverick Tube Corporation, one of the corporations
described in and which executed the foregoing instrument; that she knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board of Directors of
said corporation; and that she signed her name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
STATE OF____________ Section
Section
COUNTY OF __________ Section
On the ______ day of December, 2004, before me personally came
__________________, to me known, who, being by me duly sworn, did depose and say
that he is a __________________ of The Bank of New York, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board of Directors of said
corporation; and that he signed his name thereto by like authority.
Notary Public
[NOTARIAL SEAL]
82
Exhibit A
[FORM OF FACE OF NOTE]
[Global Note]
[Certificated Note]
[IF THIS SECURITY IS TO BE A GLOBAL NOTE -] THIS SECURITY IS A GLOBAL
SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO AND IS
REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE OF A DEPOSITARY. THIS
SECURITY IS EXCHANGEABLE FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER
THAN THE DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES DESCRIBED
IN THE INDENTURE AND MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY
TO A NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY.
[For as long as this Global Security is deposited with or on behalf of The
Depository Trust Company it shall bear the following legend.] Unless this
certificate is presented by an authorized representative of The Depository Trust
Company, a New York corporation ("DTC"), to Maverick Tube Corporation or its
agent for registration of transfer, exchange, or payment, and any certificate
issued is registered in the name of Cede & Co. or in such other name as is
requested by an authorized representative of DTC (and any payment is made to
Cede & Co. or to such other entity as is requested by an authorized
representative of DTC), ANY TRANSFER, PLEDGE, OR OTHER USE FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL inasmuch as the registered owner
hereof, Cede & Co., has an interest herein.
MAVERICK TUBE CORPORATION
2004 4.00% Convertible Senior Subordinated Notes due 2033
No.___ $__________ *
CUSIP No. 577914ABO
MAVERICK TUBE CORPORATION, a corporation duly organized and existing under
the laws of the State of Delaware (herein called the "Company", which term
includes any successor Person under the Indenture hereinafter referred to), for
value received, hereby promises to pay to _______________, or registered
assigns, the principal sum of
* REFERENCE IS MADE TO SCHEDULE A ATTACHED HERETO WITH RESPECT TO
DECREASES AND INCREASES IN THE AGGREGATE PRINCIPAL AMOUNT OF NOTES EVIDENCED BY
THIS CERTIFICATE.
A-1
____________________ Dollars on June 15, 2033. This Note shall bear interest as
specified on the reverse side of this Note. This Note is convertible and is
subject to redemption at the option of the Company and to purchase by the
Company at the option of the Holder as specified on the other side of this Note.
Reference is hereby made to the further provisions of this Note set forth
on the reverse hereof, which further provisions shall for all purposes have the
same effect as if set forth at this place.
THE HOLDER OF THE COMMON STOCK ISSUABLE UPON CONVERSION OF
THIS SECURITY IS SUBJECT TO, AND ENTITLED TO THE BENEFITS OF, A
RIGHTS AGREEMENT, DATED AS OF JULY 24, 1998, AS AMENDED AND RESTATED
AS OF SEPTEMBER 22, 2000, BETWEEN THE COMPANY AND XXXXXX TRUST AND
SAVINGS BANK, AS RIGHTS AGENT.
FOR PURPOSES OF SECTIONS 1273 AND 1275 OF THE INTERNAL REVENUE
CODE, THIS SECURITY IS A CONTINGENT PAYMENT DEBT INSTRUMENT AND WILL
ACCRUE ORIGINAL ISSUE DISCOUNT AT THE ISSUER'S "COMPARABLE YIELD"
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES. PURSUANT TO SECTION
2.12 OF THE INDENTURE, THE COMPANY AGREES, AND BY ACCEPTANCE OF A
BENEFICIAL OWNERSHIP INTEREST IN THE SECURITY, EACH BENEFICIAL
HOLDER OF THE SECURITIES WILL BE DEEMED TO HAVE AGREED, UNLESS
OTHERWISE REQUIRED BY APPLICABLE LAW, FOR UNITED STATES FEDERAL
INCOME TAX PURPOSES, (I) TO TREAT THE SECURITIES AS INDEBTEDNESS
THAT IS SUBJECT TO THE CONTINGENT PAYMENT DEBT INSTRUMENT
REGULATIONS UNDER XXXXXXX 0.0000-0 XX XXX XXXXXX XXXXXX TREASURY
REGULATIONS (THE "CPDI REGULATIONS"), AND, FOR PURPOSES OF THE CPDI
REGULATIONS, TO TREAT THE FAIR MARKET VALUE OF COMMON STOCK RECEIVED
BY A BENEFICIAL HOLDER UPON ANY CONVERSION OF THE NOTES AS A
CONTINGENT PAYMENT AND (II) TO BE BOUND BY THE COMPANY'S
DETERMINATION OF THE "COMPARABLE YIELD" AND "PROJECTED PAYMENT
SCHEDULE," WITHIN THE MEANING OF THE CPDI REGULATIONS, WITH RESPECT
TO THE NOTES AND TO ACCRUE ORIGINAL ISSUE DISCOUNT AT THE COMPARABLE
YIELD AS DETERMINED BY THE COMPANY.
THE COMPANY'S DETERMINATION OF THE "COMPARABLE YIELD" IS 8.48%
PER ANNUM, COMPOUNDED SEMIANNUALLY. THE PROJECTED PAYMENT SCHEDULE,
DETERMINED BY THE COMPANY, IS ATTACHED TO THE
A-2
INDENTURE AS EXHIBIT B. YOU MAY OBTAIN THE AMOUNT OF ORIGINAL ISSUE
DISCOUNT, ISSUE DATE, COMPARABLE YIELD AND PROJECTED PAYMENT
SCHEDULE FOR THE SECURITY BY TELEPHONING THE COMPANY'S TREASURY
DEPARTMENT AT (000) 000-0000 OR SUBMITTING A WRITTEN REQUEST FOR
SUCH INFORMATION TO: MAVERICK TUBE CORPORATION, 00000 XXXXXXXX XXXXX
XXXX, XXXXX 000, XXXXXXXXXXXX, XXXXXXXX 00000, ATTENTION: CHIEF
FINANCIAL OFFICER.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse by manual signature, this Note shall not
be entitled to any benefit under the Indenture or be valid or obligatory for any
purpose.
A-3
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: MAVERICK TUBE CORPORATION
By:
Name:
(SEAL) Title:
Attest:
Name:
Title:
This is one of the Notes designated therein referred to in the
within-mentioned Indenture.
THE BANK OF NEW YORK,
As Trustee
Date of Authentication:
By:
Authorized Signatory
A-4
[FORM OF REVERSE SIDE OF NOTE]
MAVERICK TUBE CORPORATION
2004 4.00% CONVERTIBLE SENIOR SUBORDINATED NOTES DUE 2033
1. INTEREST
This Note shall bear interest at a rate of 4.00% per year on the principal
hereof, from December 15, 2004 or from the most recent Interest Payment Date (as
defined below) to which payment has been made or duly provided for, payable
semiannually in arrears on June 15 and December 15 of each year, beginning June
15, 2005 (each an "Interest Payment Date") to the persons in whose names the
Notes are registered at the close of business on June 1 and December 1 (each a
"Regular Record Date") (whether or not a Business Day), as the case may be,
immediately preceding the applicable Interest Payment Date. This Note shall also
bear Contingent Interest in certain circumstances as specified in paragraph 5
below. The amount of interest payable for any period shall be computed on the
basis of a 360-day year of twelve 30-day months. The amount of interest payable
for any partial period shall be computed on the basis of a 360-day year of
twelve 30-day months and the days elapsed in any partial month.
Holders of Notes at the close of business on a Regular Record Date will
receive payment of interest, including Contingent Interest, if any, payable on
the corresponding Interest Payment Date notwithstanding the conversion of such
Notes at any time after the close of business on such Regular Record Date,
except in circumstances as specified in paragraph 8 below.
If the principal or any portion of such principal is not paid when due
(whether upon acceleration, upon the date set for payment of the Redemption
Price pursuant to paragraph 6, upon the date set for payment of a Purchase Price
or Fundamental Change Purchase Price pursuant to paragraph 8 or upon the Stated
Maturity of this Note) or if interest (including Contingent Interest, if any)
due hereon or any portion of such interest is not paid when due in accordance
with this paragraph or paragraph 5 or 11, then in each such case the overdue
amount shall bear interest at the rate of 4.00% per annum, compounded
semiannually (to the extent that the payment of such interest shall be legally
enforceable), which interest shall accrue from the date such overdue amount was
due to the date payment of such amount, including interest thereon, has been
made or duly provided for. All such interest shall be payable on demand.
2. METHOD OF PAYMENT
Payments of principal on this Note and interest payable on this Note at
the Stated Maturity or upon redemption of this Note shall be made in immediately
available funds in such currency of the United States of America as at the time
of payment shall be legal tender for the payment of public and private debts, at
the request of the Holder upon presentation and surrender of this Note, at the
office or agency of the Paying Agent in New York, New York or any other duly
appointed Paying Agent, provided that this Note is presented to the paying agent
in time for the Paying Agent to make payments in immediately available funds in
accordance with its normal procedures. So long as any Notes are represented by a
Global Note, interest (other than
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interest payable at Maturity or upon redemption) shall be paid in immediately
available funds by wire transfer to the Depositary for such Notes, on the
written order of the Depositary.
Payment of interest (other than interest payable in accordance with the
provisions of the immediately preceding paragraph) will, subject to certain
exceptions provided in the Indenture referred to herein, be made by check mailed
to the address of the Person entitled thereto as such address shall appear in
the security register as of the applicable Regular Record Date or, at the option
of the Company, by wire transfer to an account maintained by such Person with a
bank located in the United States.
3. PAYING AGENT, CONVERSION AGENT AND NOTE REGISTRAR
Initially, the Trustee, shall act as Paying Agent, Conversion Agent and
Note Registrar. The Company may appoint and change any Paying Agent, Conversion
Agent, Note Registrar or co-registrar or approve a change in the office through
which any Paying Agent acts 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, Note Registrar or co-registrar.
4. INDENTURE
This Note is one of a duly authorized issue of securities of the Company,
issued and to be issued in one or more series under an Indenture, dated as of
December 30, 2004 (as amended or supplemented from time to time, the
"Indenture"), between the Company and the Trustee. Capitalized terms used herein
or in any Annex hereto and not defined herein or therein have the meanings
ascribed thereto in the Indenture. Reference is hereby made to the Indenture for
a statement of the respective rights thereunder of the Company, the Trustee and
the Holders and the terms upon which the Notes are to be authenticated and
delivered. The terms, conditions and provisions of the Notes are those stated in
the Indenture, those made part of the Indenture by reference to the Trust
Indenture Act of 1939, as amended, and those set forth in the Notes. If a
conflict or inconsistency exists between the Indenture and this Note, the
Indenture shall control.
The Notes are general unsecured obligations of the Company limited to
$120,000,000 aggregate principal amount.
5. CONTINGENT INTEREST
The Company will pay Contingent Interest to the Holders of the Notes
during any six-month interest period from June 15 to December 14 or from
December 15 to June 14 commencing on or after June 15, 2008 for which the
average Trading Price of a Note for the applicable five Trading Day reference
period, as defined below, equals or exceeds 130% of the principal amount of the
Notes as of the day immediately preceding the first day of the applicable
six-month interest period. The "five Trading Day reference period" means the
five Trading Days ending on the second Trading Day immediately preceding the
relevant six-month interest period. During any period when Contingent Interest
is payable, the Contingent Interest payable per Note in respect of any six-month
period will equal 0.25% of the average Trading Price of the Note for the
applicable five Trading Day reference period.
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The record date and payment date for Contingent Interest, if any, will be
the same as the Regular Record Date and Interest Payment Dates for the
semiannual interest payments on the Notes.
Upon a determination that Holders will be entitled to receive Contingent
Interest during a six-month interest period, the Company shall notify the
Holders. In connection with providing such notice, the Company shall issue a
press release by the first day of the applicable six-month interest period and
publish a notice containing information regarding the Contingent Interest
determination in a newspaper of general circulation in The City of New York or
publish such information on the Company's then existing website or through such
other public medium as the Company may use at that time.
6. REDEMPTION AT THE OPTION OF THE COMPANY
No sinking fund is provided for the Notes.
Any time after June 15, 2008 and prior to June 15, 2011, the Company may,
at its option, redeem the Notes, in whole at any time or in part from time to
time, upon notice given in accordance with Section 3.04 of the Indenture, at a
redemption price equal to $1,000 per $1,000 principal amount of the Notes to be
redeemed, plus accrued and unpaid interest, including Contingent Interest, if
any, to but excluding the Provisional Redemption Date, if the Last Reported Sale
Price of Common Stock has exceeded 130% of the Conversion Price then in effect
for at least 20 Trading Days within a period of 30 consecutive Trading Days
ending on the Trading Day prior to the date on which the Company mails the
Provisional Redemption Notice pursuant to Section 3.04 of the Indenture.
Except as set forth above, the Notes may not be redeemed at the option of
the Company prior to June 15, 2011. On and after June 15, 2011, the Company may,
at its option, redeem the Notes, in whole at any time or in part from time to
time, on any date prior to the Stated Maturity, upon notice given in accordance
with Section 3.04 of the Indenture, at a redemption price equal to 100% of the
principal amount of the Notes to be redeemed, plus accrued and unpaid interest,
including Contingent Interest, if any, to but excluding Optional Redemption
Date.
7. NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY
Notice of redemption at the option of the Company shall be mailed at least
20 days but not more than 60 days before a Redemption Date to the Trustee, the
Paying Agent and each Holder of Notes to be redeemed at the Holder's address
appearing in the Note Register. If money sufficient to pay the Redemption Price
of all Notes (or portions thereof) to be redeemed on the Redemption Date is
deposited with the Paying Agent prior to or on the Redemption Date, on and after
the Redemption Date interest (including Contingent Interest, if any), if any,
shall cease to accrue on such Notes or portions thereof. Notes in denominations
larger than $1,000 principal amount may be redeemed in part but only in integral
multiples of $1,000 principal amount.
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8. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER; PURCHASE AT THE
OPTION OF THE HOLDER UPON A FUNDAMENTAL CHANGE.
Subject to the terms and conditions of the Indenture, a Holder shall have
the option to require the Company to purchase the Notes held by such Holder on
June 15, 2011, June 15, 2013, June 15, 2018, June 15, 2023 and June 15, 2028
(each, a "Purchase Date") at a purchase price (the "Purchase Price") equal to
100% of the principal amount of the Notes to be purchased plus any accrued and
unpaid interest (including Contingent Interest, if any) to such Purchase Date,
upon delivery of a Purchase Notice containing the information required pursuant
to Section 5.01(a) of the Indenture, from the opening of business on the date
that is 20 Business Days prior to such Purchase Date until the close of business
on the fifth Business Day prior to such Purchase Date and upon delivery of the
Notes to the Paying Agent by the Holder as set forth in the Indenture. The
Company will pay the Purchase Price in cash.
Notes in denominations larger than $1,000 principal amount may be
purchased in part, but only in integral multiples of $1,000 principal amount.
If a Fundamental Change shall occur at any time prior to June 15, 2011,
each Holder shall have the right, at such Holder's option and subject to the
terms and conditions of the Indenture, to require the Company to purchase any or
all of such Holder's Notes or any portion of the principal amount thereof that
is equal to $1,000 or an integral multiple of $1,000 on the day that is 35 days
after the date of the Company Notice of the occurrence of the Fundamental Change
(subject to extension to comply with applicable law) for a Fundamental Change
Purchase Price equal to 100% of the principal amount of Notes purchased plus
accrued and unpaid interest (including Contingent Interest, if any) to the
Fundamental Change Purchase Date, which Fundamental Change Purchase Price shall
be paid by the Company in cash, as set forth in the Indenture.
For a Note to be so purchased at the option of the Holder, the Paying
Agent must receive such Note duly endorsed for transfer, together with a duly
completed Fundamental Change Purchase Notice substantially in the form of Annex
A to this Note or a duly completed Purchase Notice substantially in the form of
Annex B to this Note.
Holders have the right to withdraw, in whole or in part, any Purchase
Notice or Fundamental Change Purchase Notice, as the case may be, by delivery to
the Paying Agent of a written notice of withdrawal in accordance with the
provisions of Section 6.02 of the Indenture.
If cash sufficient to pay a Fundamental Change Purchase Price or
Purchase Price, as the case may be, of all Notes or portions thereof to be
purchased as of the Purchase Date or the Fundamental Change Purchase Date, as
the case may be, is deposited with the Paying Agent on the Business Day
following the Purchase Date or the Fundamental Change Purchase Date, as the case
may be, the Notes will cease to be outstanding and interest (including
Contingent Interest, if any) shall cease to accrue on such Notes (or portions
thereof) on and after such date (whether or not book-entry transfer of the Notes
is made or whether or not the Note is delivered to the Paying Agent), and the
Holder thereof shall have no other rights as such (other than the right to
receive the Purchase Price or Fundamental Change Purchase Price, as the case may
be, upon delivery or transfer of such Note).
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9. SUBORDINATION; PARI PASSU WITH CERTAIN NOTES
The payment of the principal of and interest (including Contingent
Interest, if any) on each and all the Notes and any other payment in respect of
the Notes, including the payment of any Principal Return in Cash upon conversion
or any payment on account of the acquisition or redemption of Notes by the
Company: (a) is subordinated, to the extent and in the manner provided in
Article XV of the Indenture, to the prior payment in full of all Senior
Indebtedness, whether outstanding at the date of the Indenture or thereafter
created, incurred, assumed or guaranteed and (b) shall rank pari passu with the
respect to payment under the Prior Notes. The subordination provisions of the
Indenture are for the benefit of the holders of Senior Indebtedness.
10. CONVERSION
Subject to the procedures set forth in the Indenture, a Holder may convert
Notes into cash and, if applicable, shares of Common Stock (in accordance with
the provisions of Section 7.01 of the Indenture) at any time prior to the close
of business on June 15, 2033 during the periods and upon satisfaction of at
least one of the conditions set forth below:
(a) in any calendar quarter (and only during such calendar quarter) if
the Last Reported Sale Price for Common Stock for at least 20
Trading Days during the period of 30 consecutive Trading Days ending
on the last Trading Day of the previous calendar quarter is greater
than or equal to 120% of the Conversion Price on such last Trading
Day (for purposes of any determination hereunder, a calendar quarter
will be considered any period between (and including) June 15 and
September 14, September 15 and December 14, December 15 and March 14
and March 15 and June 14 of each year);
(b) during the five Business Day period immediately after any five
consecutive Trading Day period in which the Trading Price per $1,000
principal amount of Notes, as determined following a request by a
Holder according to the procedures described below, for each day of
such five Trading Day period was less than 98% of the product of the
Last Reported Sale Price of Common Stock and the Conversion Rate as
of such Trading Day (the "98% Trading Exception"); provided however,
that if, on any Conversion Date pursuant to this clause (b), the
Last Reported Sale Price of Common Stock is greater than the
Conversion Price, the Notes will have a Conversion Value equal to
the principal amount of such Notes, plus accrued and unpaid interest
(including Contingent Interest, if any) as of the Conversion Date,
subject to the 98% Trading Exception;
(c) in the event that the Company calls the Notes for redemption, at any
time prior to the close of business on the second Business Day
immediately preceding the Redemption Date, even if the Notes are not
otherwise convertible at such time;
(d) during any period in which the Notes are rated by either or both of
Xxxxx'x Investors Service, Inc. or Standard & Poor's Rating Services
and the credit rating assigned to the Notes by either such rating
agency has been reduced by two or
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more rating levels from the level initially assigned to the Notes;
provided, however, that the Company is under no obligation to have
the Notes rated;
(e) the Company elects to (i) distribute to all holders of Common Stock
rights entitling them to purchase, for a period expiring within 60
days after the date of such distribution, shares of Common Stock at
less than the Last Reported Sale Price of Common Stock on the
Trading Day immediately preceding the declaration date of the
distribution, or (ii) distribute to all holders of Common Stock
assets, debt securities or rights to purchase securities of the
Company, which distribution has a per share value as determined by
the Board of Directors exceeding 10% of the Last Reported Sale Price
of Common Stock on the Trading Day immediately preceding the
declaration date for such distribution; provided that, in the case
of the foregoing clauses (i) and (ii), the Company must notify the
Holders at least 20 Business Days immediately prior to the
ex-dividend date for such distribution, and once the Company has
given such notice, Holders may surrender their Notes for conversion
at any time until the earlier of the close of business on the
Business Day immediately prior to the ex-dividend date or the
Company's announcement that such distribution will not take place,
even if the Notes are not otherwise convertible at such time;
provided, however, that a Holder may not exercise this right to
convert if the Holder may participate in the distribution without
conversion (as used herein, the term "ex-dividend date," when used
with respect to any issuance or distribution, shall mean the first
date on which a sale of the Common Stock does not automatically
transfer the right to receive the relevant dividend from the seller
of the Common Stock to its buyer); provided, further, if Holders do
not surrender their Notes for conversion at that time, the Company
will make approximate adjustments to the original conversion ratio
to reflect any distributions, as specified in (i) and (ii) above;
(f) the Company becomes a party to a consolidation, merger or binding
share exchange, in each case pursuant to which the Common Stock
would be converted into cash or property other than securities, in
which case a Holder may surrender Notes for conversion at any time
from and after the date which is 15 days prior to the anticipated
effective date for the transaction until 15 days after the actual
effective date of such transaction; or
(g) at any time after the occurrence of a Public Acquirer Change of
Control.
Following the effective date of any transaction described in clause (f) or
(g) of the immediately preceding paragraph, the right to convert the Notes at
the Conversion Rate, and the consideration to be received upon settlement
thereof, shall be modified as set forth under Section 7.06 of the Indenture.
Notes in respect of which a Holder has delivered a notice of exercise of
the option to require the Company to purchase such Notes pursuant to Article IV
or V of the Indenture may be converted only if the notice of exercise is
withdrawn in accordance with the terms of the Indenture.
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The initial Conversion Rate is 34.2583. The Conversion Rate is subject to
adjustment in certain events described in the Indenture.
Notes surrendered for conversion by a Holder during the period from the
close of business on any Regular Record Date to the opening of business on the
immediately following Interest Payment Date must be accompanied by payment of an
amount equal to the interest, including Contingent Interest, if any, that the
Holder is to receive on the Notes; provided, however, that no such payment need
be made if (a) the Company has specified a Redemption Date that is after a
Regular Record Date and on or prior to the immediately following Interest
Payment Date, (b) the Company has specified a Purchase Date following a
Fundamental Change that is during such period, or (c) any overdue interest
(including overdue Contingent Interest, if any) exists at the time of conversion
with respect to such Notes to the extent of such overdue interest.
To convert the Notes a Holder must (a) complete and manually sign the
irrevocable conversion notice substantially in the form of Annex C to this Note
(or complete and manually sign a facsimile of such notice), together, if the
Notes are in certificated form, with the certificated security, and deliver such
notice to the Conversion Agent at the office maintained by the Conversion Agent
for such purpose, (b) surrender the Notes to the Conversion Agent, (c) furnish
appropriate endorsements and transfer documents if required by the Conversion
Agent, the Company or the Trustee and (d) pay all transfer or similar taxes, if
any. If a Holder is electing to convert Notes pursuant to the provisions hereof
which permit conversion of Notes following the occurrence of a Public Acquirer
Change of Control, such conversion notice must clearly so indicate.
A Holder may convert fewer than all of such Holder's Notes only if the
principal amount of such Notes converted are in integral multiples of $1,000
principal amount. No payment or adjustment shall be made for dividends on or
other distributions with respect to any Common Stock except as provided in the
Indenture. On conversion of the Notes, that portion of accrued and unpaid
interest attributable to any period prior to and including the Conversion Date
and accrued and unpaid Contingent Interest with respect to the converted portion
of the Notes shall not be canceled, extinguished or forfeited, but rather shall
be deemed to be paid in full to the Holder thereof through the delivery of the
Cash and, if applicable, shares of Common Stock deliverable upon conversion in
exchange for the portion of the Notes being converted pursuant to the terms
hereof; and the Fair Market Value (as determined by the Company or its designee)
of any such shares of Common Stock (together with any such cash payment in lieu
of fractional shares) shall be treated as issued, to the extent thereof, first
in exchange for interest accrued and unpaid through the Conversion Date and
accrued and unpaid Contingent Interest, [and the balance, if any, of such Fair
Market Value of such Common Stock (and any such cash payment) shall be treated
as issued in exchange for the principal amount of the Notes being converted
pursuant to the provisions hereof].
In connection with any conversion upon satisfaction of the 98% Trading
Exception, the Trustee shall have no obligation to determine the Trading Price
of the Notes unless the Company has requested such determination; and the
Company shall have no obligation to make such request unless a Holder provides
the Company on or prior to 12:00 noon (New York time) on any Trading Day with
reasonable evidence that the Trading Price per $1,000 principal amount of
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Notes would be less than 98% of the product of (a) the Last Reported Sale Price
of Common Stock and (b) the Conversion Rate then in effect. At the time of any
such determination, the Company shall instruct the Trustee to determine the
Trading Price of the Notes beginning on the next Trading Day and on each
successive Trading Day until the Trading Price per $1,000 principal amount of
Notes is greater than or equal to 98% of the product of (a) the Last Reported
Sale Price of Common Stock and (b) the Conversion Rate then in effect.
Notwithstanding anything herein to the contrary, the Trustee and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder to either calculate the Conversion Rate or determine whether any
facts exist which may require any adjustment of the Conversion Rate, as more
specifically set forth in Section 7.13 of the Indenture.
11. DEFAULTED INTEREST
Except as otherwise specified with respect to the Notes, any Defaulted
Interest on any Note shall forthwith cease to be payable to the registered
Holder thereof on the relevant Regular Record Date by virtue of having been such
Holder, and such Defaulted Interest may be paid by the Company as provided for
in Section 2.05(c) of the Indenture.
12. DENOMINATIONS; TRANSFER; EXCHANGE
The Notes are in registered form, without coupons, in denominations of
$1,000 principal amount and integral multiples of $1,000. A Holder may transfer
or convert Notes in accordance with the provisions of the Indenture. The Note
Registrar may require a Holder, among other things, to (a) furnish appropriate
endorsements and transfer documents, including an Assignment Notice
substantially in the form of Annex D to this Note, and (b) pay any taxes and
fees required by law or permitted by the Indenture. In the event of any
redemption or purchase in part, the Note Registrar need not register the
transfer of or exchange any Notes selected for redemption or any Notes in
respect of which a Purchase Notice or Fundamental Change Purchase Notice has
been given and not withdrawn for a period of 15 days before the mailing of a
Redemption Notice, Purchase Notice or Fundamental Change Purchase Notice.
13. PERSONS DEEMED OWNERS
The registered Holder of this Note may be treated as the owner of this
Note for all purposes.
14. UNCLAIMED MONEY OR PROPERTY
The Trustee and the Paying Agent shall, after payment of all of the
Trustee's and Paying Agent's fees and expenses under the Indenture, return to
the Company upon written request any money or property held by them for the
payment of any amount with respect to the Notes that remains unclaimed for two
years; provided, however, that the Trustee or such Paying Agent, before being
required to make any such return, may at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York
notice that such money or property remains unclaimed and that, after a date
specified therein, which shall not be less than 30 days from the date of such
publication, any unclaimed money or property then remaining shall be returned to
the Company. After return to the Company, Holders entitled to
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the money or property 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, (a) the
Indenture or the Notes may be amended with the written consent of the Holders of
at least a majority in aggregate principal amount of the Notes at the time
Outstanding and (b) certain defaults or noncompliance with certain provisions
may be waived with the written consent of the Holders of a majority in aggregate
principal amount of the Notes at the time Outstanding. The Indenture or the
Notes may be amended without the consent of any Holders under circumstances set
forth in Section 13.01 of the Indenture. Any such consent or waiver by the
Holder of this Note shall be conclusive and binding upon such Holder and upon
all future Holders of this Note and of any Note issued upon the registration of
transfer or in exchange herefor or in lieu hereof, whether or not notation of
such consent or waiver is made upon this Note.
16. DEFAULTS AND REMEDIES
If an Event of Default occurs and is continuing, either the Trustee or the
Holders of at least 25% in principal amount of the Notes at the time outstanding
may declare the principal amount and any accrued and unpaid interest (including
Contingent Interest, if any), of all the Notes to be due and payable
immediately. Certain events of bankruptcy or insolvency are Events of Default
which shall result in the Notes being declared due and payable immediately upon
the occurrence of such Events of Default.
Events of Default in respect of the Notes are set forth in Section 9.01 of
the Indenture. Holders may not enforce the Indenture or the Notes except as
provided in the Indenture. The Trustee may refuse to enforce the Indenture or
the Notes unless it receives reasonable indemnity or security. Subject to
certain limitations, conditions and exceptions, Holders of a majority in
aggregate principal amount of the Notes at the time Outstanding may direct the
Trustee in its exercise of any trust or power, including the annulment of a
declaration of acceleration. The Trustee may withhold from Holders notice of any
continuing default (except a default in payment on any Notes) if it determines
that withholding notice is in their interests.
17. CONSOLIDATION, MERGER AND SALE OF ASSETS
In the event of a consolidation, merger, or sale of assets to convey,
transfer or lease of all or substantially all of Company's property or assets as
described in Article XII of the Indenture, the successor corporation to the
Company shall succeed to and be substituted for the Company, and may exercise
the Company's rights and powers under this Indenture, and thereafter, the
Company shall be relieved of all obligations and covenants under the Indenture
and the Notes.
18. TRUSTEE AND AGENT DEALINGS WITH THE COMPANY
The Trustee, Paying Agent, Conversion Agent and Note Registrar under the
Indenture, each in its individual or any other capacity, may become the owner or
pledgee of Notes and may otherwise deal with and collect obligations owed to it
by the Company or its Affiliates and may
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otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee, Paying Agent, Conversion Agent or Note Registrar.
19. CALCULATIONS IN RESPECT OF THE NOTES
The Company shall be responsible for making all calculations called for
under the Notes. These calculations shall include, without limitation,
determination of the Last Reported Sale Price of Common Stock, the Market Price
per share of Common Stock, the Sale Price of any Public Acquirer Common Stock,
the Ten-Day Average Price for Common Stock, accrued interest payable on the
Notes and the Conversion Price. The Company shall make such calculations in good
faith and, absent manifest error, such calculations will be final and binding on
the Holders and the Trustee, Paying Agent and Conversion Agent may conclusively
rely on such calculations. The Company shall provide to each of the Trustee and
the Conversion Agent a schedule of its calculations and each of the Trustee and
the Conversion Agent shall be entitled to rely upon the accuracy of such
calculations without independent verification. The Trustee shall forward the
Company's calculations to any Holder upon the request of such Holder.
20. NO RECOURSE AGAINST OTHERS
A director, officer, employee, stockholder, partner or other owner of the
Company or the Trustee, as such, shall not have any liability for any
obligations of the Company under the Notes or for any obligations of the Company
or the Trustee under the Indenture or for any claim based on, in respect of or
by reason of such obligations or their creation. By accepting a Note, each
Holder waives and releases all such liability. The waiver and release are part
of the consideration for the issue of the Notes.
21. AUTHENTICATION
This Note shall not be valid until an authorized officer of the Trustee or
Authenticating Agent manually signs the Trustee's Certificate of Authentication
on the other side of this Note.
22. ABBREVIATIONS
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).
23. GOVERNING LAW
The Indenture and this Note shall be governed by and construed in
accordance with the laws of the State of New York without regard to the
conflicts of law rules of said state.
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Schedule A
SCHEDULE OF ADJUSTMENTS
The initial aggregate principal amount of Securities evidenced by
the Certificate to which this Schedule is attached is $_________________. The
notations on the following table evidence decreases and increases in the
aggregate principal amount of Securities evidenced by such Certificate.
Aggregate Principal
Decrease in Aggregate Increase in Aggregate Amount of Securities
Date of Principal Amount of Principal Amount of Remaining After Such Notation by Note
Adjustment Securities Securities Decrease or Increase Registrar
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Annex A
FORM OF FUNDAMENTAL CHANGE PURCHASE NOTICE
To: Maverick Tube Corporation
The undersigned registered holder of this Note hereby acknowledges receipt
of a notice from Maverick Tube Corporation (the "Company") as to the occurrence
of a Fundamental Change with respect to the Company and requests and instructs
the Company to repurchase this Note, or the portion (which is $1,000 principal
amount or an integral multiple thereof) designated below, in accordance with the
terms of the Note and the Indenture referred to in this Note and directs that
the check of the Company, in payment for this Note or the portion thereof and
any Notes representing any unrepurchased principal amount hereof, be issued and
delivered to the registered holder unless a different name has been indicated
below. If any portion of this Note not repurchased is to be issued in the name
of a Person other than the undersigned, the undersigned shall pay all transfer
taxes payable with respect thereto. The Notes to be repurchased shall be
purchased as of the Fundamental Change Purchase Date pursuant to the terms and
conditions specified in paragraph 8 of this Note and in the Indenture.
Dated:
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange
if Notes are to be delivered, other
than to or in the name of the
registered holder.
Signature Guarantee
Fill in for registration of Notes if to be issued other than to and in the
name of registered holder:
(Name)
(Street Address)
(City, state and zip code)
Please print name and address
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Principal Amount to be purchased (if less
than all): $__________,000
Social Security or Other Taxpayer Number
Certificate Number*: ____________
* For certificated notes only.
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Annex B
FORM OF PURCHASE NOTICE
To: Maverick Tube Corporation
The undersigned registered holder of this Note hereby acknowledges receipt
of a notice from Maverick Tube Corporation (the "Company") as to the holder's
option to require the Company to repurchase this Note and requests and instructs
the Company to repurchase this Note, or the portion (which is $1,000 principal
amount or an integral multiple thereof) designated below, in accordance with the
terms of the Note and the Indenture referred to in this Note and directs that
the check of the Company in payment for this Note or the portion thereof and any
Notes representing any unrepurchased principal amount hereof, be issued and
delivered to the registered holder unless a different name has been indicated
below. If any portion of this Note not repurchased is to be issued in the name
of a Person other than the undersigned, the undersigned shall pay all transfer
taxes payable with respect thereto. The Notes to be repurchased shall be
purchased as of the Purchase Date pursuant to the terms and conditions specified
in paragraph 8 of this Note and in the Indenture.
Dated:
Signature(s)
Signature(s) must be guaranteed by a commercial bank or
trust company or a member firm of a major stock exchange
if Notes are to be delivered, other than to or in the
name of the registered holder.
Signature Guarantee
Fill in for registration of Notes if to be issued other than to and in the
name of registered holder:
(Name)
(Street Address)
(City, state and zip code)
Please print name and address
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Principal Amount to be purchased (if less
than all): $__________,000
Social Security or Other Taxpayer Number
Certificate Number*: ____________
* For certificated notes only.
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Annex C
FORM OF CONVERSION NOTICE
To: Maverick Tube Corporation
The undersigned registered holder of this Note hereby exercises the option
to convert this Note, or portion (which is $1,000 principal amount or an
integral multiple thereof) designated below, for shares of Common Stock of
Maverick Tube Corporation in accordance with the terms of the Indenture referred
to in this Note, and directs that the shares, if any, issuable and deliverable
upon such conversion, together with any check for cash deliverable upon such
conversion, and any Notes representing any unconverted principal amount hereof,
be issued and delivered to the registered holder unless a different name has
been indicated below. If shares or any portion of this Note not converted are to
be issued in the name of a Person other than the undersigned, the undersigned
shall pay all transfer taxes payable with respect thereto.
This notice shall be deemed to be an irrevocable exercise of the option to
convert this Note.
[ ] If applicable, check box if the undersigned elects to convert in
accordance with the Public Acquirer Change of Control provisions of the
Indenture governing this Note.
Dated:
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange
if shares of Common Stock are to be
issued, or Notes to be delivered,
other than to or in the name of the
registered holder.
Signature Guarantee
A-20
Fill in for registration of shares if to be
delivered, and Notes if to be issued other
than to and in the name of registered
holder:
Principal Amount to be purchased (if less
(Name) than all):
(Street Address) $___________,000
(City, state and zip code) Social Security or Other Taxpayer
Please print name and address Number
A-21
Annex D
ASSIGNMENT FORM
For value received ___________________________ hereby sell(s), assign(s)
and transfer(s) unto _____________________ (Please insert social security or
other Taxpayer Identification Number of assignee) the within Note, and hereby
irrevocably constitutes and appoints __________ attorney to transfer the said
Note on the books of the Company, with full power of substitution in the
premises.
Dated:
Signature(s)
Signature(s) must be guaranteed by a
commercial bank or trust company or a
member firm of a major stock exchange
if shares of Common Stock are to be
issued, or Notes to be delivered,
other than to or in the name of the
registered holder.
Signature Guarantee
NOTICE: The above signatures of the holder(s) must correspond with the
name as written upon the face of the Note in every particular without alteration
or enlargement or any change whatever.
A-22
Exhibit B
PROJECTED PAYMENT SCHEDULE
Maverick Tube Corporation
$120,000,000 Convertible Senior Subordinated Notes due 2033 Comparable Yield: 8.48%
SEMIANNUAL NONCONTINGENT CONTINGENT TOTAL ADJUSTED
PERIOD ENDING PAYMENTS PAYMENTS PAYMENTS ISSUE PRICE OID
12/15/2003 $20.67 $ 0.00 $ 20.67 $1,000.00 $ 43.84
6/15/2004 $20.00 $ 0.00 $ 20.00 $1,023.18 $ 43.38
12/15/2004 $20.00 $ 0.00 $ 20.00 $1,046.56 $ 44.37
6/15/2005 $20.00 $ 0.00 $ 20.00 $1,070.93 $ 45.41
12/15/2005 $20.00 $ 0.00 $ 20.00 $1,096.34 $ 46.48
6/15/2006 $20.00 $ 0.00 $ 20.00 $1,122.83 $ 47.61
12/15/2006 $20.00 $ 0.00 $ 20.00 $1,150.43 $ 48.78
6/15/2007 $20.00 $ 0.00 $ 20.00 $1,179.21 $ 50.00
12/15/2007 $20.00 $ 0.00 $ 20.00 $1,209.21 $ 51.27
6/15/2008 $20.00 $ 0.00 $ 20.00 $1,240.48 $ 52.60
12/15/2008 $20.00 $ 0.00 $ 20.00 $1,273.08 $ 53.98
6/15/2009 $20.00 $ 0.00 $ 20.00 $1,307.06 $ 55.42
12/15/2009 $20.00 $ 0.00 $ 20.00 $1,342.48 $ 56.92
6/15/2010 $20.00 $ 0.00 $ 20.00 $1,379.40 $ 58.49
12/15/2010 $20.00 $ 0.00 $ 20.00 $1,417.88 $ 60.12
6/15/2011 $20.00 $ 0.00 $ 20.00 $1,458.00 $ 61.82
12/15/2011 $20.00 $ 0.00 $ 20.00 $1,499.82 $ 63.59
6/15/2012 $20.00 $ 0.00 $ 20.00 $1,543.41 $ 65.44
12/15/2012 $20.00 $ 3.25 $ 23.25 $1,588.85 $ 67.37
6/15/2013 $20.00 $ 3.37 $ 23.37 $1,632.97 $ 69.24
12/15/2013 $20.00 $ 3.50 $ 23.50 $1,678.84 $ 71.18
6/15/2014 $20.00 $ 3.63 $ 23.63 $1,726.52 $ 73.20
12/15/2014 $20.00 $ 3.77 $ 23.77 $1,776.09 $ 75.31
6/15/2015 $20.00 $ 3.91 $ 23.91 $1,827.63 $ 77.49
12/15/2015 $20.00 $ 4.06 $ 24.06 $1,881.20 $ 79.76
6/15/2016 $20.00 $ 4.21 $ 24.21 $1,936.91 $ 82.12
12/15/2016 $20.00 $ 4.37 $ 24.37 $1,994.82 $ 84.58
6/15/2017 $20.00 $ 4.54 $ 24.54 $2,055.02 $ 87.13
12/15/2017 $20.00 $ 4.71 $ 24.71 $2,117.62 $ 89.79
6/15/2018 $20.00 $ 4.89 $ 24.89 $2,182.69 $ 92.55
12/15/2018 $20.00 $ 5.07 $ 25.07 $2,250.35 $ 95.41
6/15/2019 $20.00 $ 5.27 $ 25.27 $2,320.69 $ 98.40
12/15/2019 $20.00 $ 5.46 $ 25.46 $2,393.83 $ 101.50
6/15/2020 $20.00 $ 5.67 $ 25.67 $2,469.86 $ 104.72
12/15/2020 $20.00 $ 5.89 $ 25.89 $2,548.91 $ 108.07
6/15/2021 $20.00 $ 6.11 $ 26.11 $2,631.10 $ 111.56
12/15/2021 $20.00 $ 6.34 $ 26.34 $2,716.55 $ 115.18
6/15/2022 $20.00 $ 6.58 $ 26.58 $2,805.39 $ 118.95
12/15/2022 $20.00 $ 6.83 $ 26.83 $2,897.77 $ 122.87
6/15/2023 $20.00 $ 7.08 $ 27.08 $2,993.80 $ 126.94
12/15/2023 $20.00 $ 7.35 $ 27.35 $3,093.66 $ 131.17
6/15/2024 $20.00 $ 7.63 $ 27.63 $3,197.47 $ 135.57
12/15/2024 $20.00 $ 7.92 $ 27.92 $3,305.42 $ 140.15
6/15/2025 $20.00 $ 8.22 $ 28.22 $3,417.65 $ 144.91
12/15/2025 $20.00 $ 8.53 $ 28.53 $3,534.34 $ 149.86
B-1
SEMIANNUAL NONCONTINGENT CONTINGENT TOTAL ADJUSTED
PERIOD ENDING PAYMENTS PAYMENTS PAYMENTS ISSUE PRICE OID
6/15/2026 $20.00 $ 8.85 $ 28.85 $3,655.66 $ 155.00
12/15/2026 $20.00 $ 9.19 $ 29.19 $3,781.81 $ 160.35
6/15/2027 $20.00 $ 9.53 $ 29.53 $3,912.98 $ 165.91
12/15/2027 $20.00 $ 9.89 $ 29.89 $4,049.35 $ 171.69
6/15/2028 $20.00 $ 10.27 $ 30.27 $4,191.15 $ 177.70
12/15/2028 $20.00 $ 10.66 $ 30.66 $4,338.59 $ 183.96
6/15/2029 $20.00 $ 11.06 $ 31.06 $4,491.89 $ 190.46
12/15/2029 $20.00 $ 11.48 $ 31.48 $4,651.29 $ 197.21
6/15/2030 $20.00 $ 11.91 $ 31.91 $4,817.02 $ 204.24
12/15/2030 $20.00 $ 12.36 $ 32.36 $4,989.36 $ 211.55
6/15/2031 $20.00 $ 12.83 $ 32.83 $5,168.54 $ 219.15
12/15/2031 $20.00 $ 13.31 $ 33.31 $5,354.86 $ 227.05
6/15/2032 $20.00 $ 13.82 $ 33.82 $5,548.59 $ 235.26
12/15/2032 $20.00 $ 14.34 $ 34.34 $5,750.04 $ 243.80
6/15/2033 $20.00 $6,192.18 $6,212.18 $5,959.50 $ 252.68
THE COMPARABLE YIELD AND THE SCHEDULE OF PROJECTED PAYMENTS ARE NOT DETERMINED
FOR ANY PURPOSE OTHER THAN FOR THE DETERMINATION OF A U.S. HOLDER'S INTEREST
ACCRUALS AND ADJUSTMENTS THEREOF IN RESPECT OF THE NOTES FOR UNITED STATES
FEDERAL INCOME TAX PURPOSES AND DO NOT CONSTITUTE A PROJECTION OR REPRESENTATION
REGARDING THE ACTUAL AMOUNTS PAYABLE ON THE NOTES.
CONSISTENT WITH SECTION 2.12 OF THE INDENTURE, THE COMPARABLE YIELD AND SCHEDULE
OF PROJECTED PAYMENTS GOVERNING THE NOTES IS IDENTICAL TO THE COMPARABLE YIELD
AND SCHEDULE OF PROJECTED PAYMENTS THAT GOVERNED THE PRIOR NOTES.
B-2
