Exhibit 4.4
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QUALCOMM INCORPORATED
as Issuer
TO
WILMINGTON TRUST COMPANY
as Trustee
INDENTURE
dated as of February 25, 1997
5-3/4% Convertible Subordinated Debentures
Due 2012
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TABLE OF CONTENTS
Page
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ARTICLE I DEFINITIONS........................................................................................... 1
SECTION 1.1 Definitions....................................................................................... 1
ARTICLE II ISSUE, DESCRIPTION, EXECUTION, REGISTRATION AND EXCHANGE OF NOTES.................................... 10
SECTION 2.1 Designation and Principal Amount.................................................................. 10
SECTION 2.2 Form of Debentures; Initial Issuance to Property Trustee.......................................... 10
SECTION 2.3 Denomination of Debentures; Payment of Interest; Extension of Interest Payment Period............. 12
SECTION 2.4 Execution, Authentication, Delivery and Dating.................................................... 15
SECTION 2.5 Registration, Registration of Transfer and Exchange............................................... 15
SECTION 2.6 Mutilated, Destroyed, Lost and Stolen Debentures.................................................. 17
SECTION 2.7 Temporary Debentures.............................................................................. 17
SECTION 2.8 Persons Deemed Owners............................................................................. 18
SECTION 2.9 Cancellation...................................................................................... 18
ARTICLE III REDEMPTION OF DEBENTURES............................................................................ 18
SECTION 3.1 Optional Redemption by Company.................................................................... 18
SECTION 3.2 Tax Event Redemption.............................................................................. 19
SECTION 3.3 Applicability of Article.......................................................................... 20
SECTION 3.4 No Sinking Fund................................................................................... 20
SECTION 3.5 Election to Redeem; Notice to Trustee............................................................. 20
SECTION 3.6 Selection by Trustee of Debentures to Be Redeemed................................................. 20
SECTION 3.7 Notice of Redemption.............................................................................. 20
SECTION 3.8 Deposit of Redemption Price....................................................................... 21
SECTION 3.9 Debentures Payable on Redemption Date............................................................. 22
SECTION 3.10 Debentures Redeemed in Part...................................................................... 22
ARTICLE IV SUBORDINATION OF DEBENTURES.......................................................................... 22
SECTION 4.1 Debentures Subordinate to Senior Indebtedness..................................................... 22
SECTION 4.2 Payment Over of Proceeds Upon Dissolution, Etc.................................................... 22
SECTION 4.3 Prior Payment to Senior Indebtedness Upon Acceleration of Debentures.............................. 23
SECTION 4.4 No Payment When Senior Indebtedness in Default.................................................... 24
SECTION 4.5 Payment Permitted in Certain Situations........................................................... 24
SECTION 4.6 Subrogation to Rights of Holders of Senior Indebtedness........................................... 24
SECTION 4.7 Provisions Solely to Define Relative Rights....................................................... 25
SECTION 4.8 Trustee to Effectuate Subordination............................................................... 25
SECTION 4.9 No Waiver of Subordination Provisions............................................................. 25
SECTION 4.10 Notice to Trustee................................................................................ 26
SECTION 4.11 Reliance on Judicial Order or Certificate of Liquidating Agent................................... 26
SECTION 4.12 Trustee Not Fiduciary for Holders of Senior Indebtedness......................................... 27
SECTION 4.13 Rights of Trustee as Holder of Senior Indebtedness, Preservation of Trustee's Rights............. 27
SECTION 4.14 Article Applicable to Paying Agents.............................................................. 27
SECTION 4.15 Certain Conversions Deemed Payment............................................................... 27
ARTICLE V CERTAIN COVENANTS..................................................................................... 28
SECTION 5.1 Payment of Principal, Premium and Interest........................................................ 28
SECTION 5.2 Maintenance of Office or Agency................................................................... 28
SECTION 5.3 Money for Debentures Payments to Be Held in Trust................................................. 28
SECTION 5.4 Existence......................................................................................... 29
SECTION 5.5 Statement by Officers as to Default............................................................... 30
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SECTION 5.6 Limitation on Dividends and Other Payments........................................................ 30
SECTION 5.7 Covenants as to the Trust......................................................................... 31
SECTION 5.8 Payment of Expenses of the Trust.................................................................. 31
SECTION 5.9 Registration Rights............................................................................... 31
SECTION 5.10 Payment of Taxes and Other Claims................................................................ 32
ARTICLE VI HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY.................................................... 32
SECTION 6.1 Company to Furnish Trustee Names and Addresses of Holders......................................... 32
SECTION 6.2 Preservation of Information; Communications to Holders............................................ 33
SECTION 6.3 Reports by Trustee................................................................................ 34
SECTION 6.4 Reports by Company................................................................................ 34
ARTICLE VII DEFAULTS AND REMEDIES............................................................................... 35
SECTION 7.1 Events of Default................................................................................. 35
SECTION 7.2 Acceleration of Maturity; Rescission and Annulment................................................ 36
SECTION 7.3 Collection of Indebtedness and Suits for Enforcement by Trustee................................... 37
SECTION 7.4 Trustee May File Proofs of Claim.................................................................. 38
SECTION 7.5 Trustee May Enforce Claims Without Possession of Debentures....................................... 38
SECTION 7.6 Application of Money Collected.................................................................... 39
SECTION 7.7 Limitation on Suits............................................................................... 39
SECTION 7.8 Unconditional Right of Holders to Receive Principal and Interest and to Convert................... 40
SECTION 7.9 Restoration of Rights and Remedies................................................................ 40
SECTION 7.10 Rights and Remedies Cumulative................................................................... 40
SECTION 7.11 Delay or Omission Not Waiver..................................................................... 40
SECTION 7.12 Control by Holders of Debentures................................................................. 40
SECTION 7.13 Waiver of Past Defaults.......................................................................... 41
SECTION 7.14 Undertaking for Costs............................................................................ 41
SECTION 7.15 Waiver of Stay or Extension Laws................................................................. 42
SECTION 7.16 Enforcement by Holders of Convertible Preferred Securities....................................... 42
ARTICLE VIII CONCERNING THE TRUSTEE............................................................................. 43
SECTION 8.1 Duties and Responsibilities of the Trustee; During Default; Prior to Default...................... 43
SECTION 8.2 Certain Rights of Trustee......................................................................... 44
SECTION 8.3 Not Responsible for Recitals or Issuance of Debentures............................................ 45
SECTION 8.4 May Hold Debentures............................................................................... 45
SECTION 8.5 Money Held in Trust............................................................................... 45
SECTION 8.6 Compensation and Reimbursement.................................................................... 45
SECTION 8.7 Resignation and Removal; Appointment of Successor................................................. 46
SECTION 8.8 Acceptance of Appointment by Successor............................................................ 47
SECTION 8.9 Disqualification; Conflicting Interests........................................................... 47
SECTION 8.10 Corporate Trustee Required; Eligibility.......................................................... 48
SECTION 8.11 Preferential Collection of Claims Against Company................................................ 48
SECTION 8.12 Merger, Conversion, Consolidation or Succession to Business...................................... 48
SECTION 8.13 Appointment of Authenticating Agent.............................................................. 48
SECTION 8.14. Notice of Defaults.............................................................................. 50
ARTICLE IX ACTS OF HOLDERS...................................................................................... 50
SECTION 9.1 Acts of Holders................................................................................... 50
ARTICLE X MEETINGS OF HOLDERS OF DEBENTURES..................................................................... 51
SECTION 10.1 Purposes for Which Meetings May be Called........................................................ 51
SECTION 10.2 Call, Notice and Place of Meetings............................................................... 51
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SECTION 10.3 Persons Entitled to Vote at Meetings............................................................. 52
SECTION 10.4 Quorum; Action................................................................................... 52
SECTION 10.5 Determination of Voting Rights; Conduct and Adjournment of Meetings.............................. 53
SECTION 10.6 Counting Votes and Recording Action of Meetings.................................................. 53
ARTICLE XI SUPPLEMENTAL INDENTURES.............................................................................. 54
SECTION 11.1 Supplemental Indentures Without Consent of Holders............................................... 54
SECTION 11.2 Supplemental Indentures With Consent of Holders.................................................. 55
SECTION 11.3 Execution of Supplemental Indentures............................................................. 55
SECTION 11.4 Effect of Supplemental Indentures................................................................ 56
SECTION 11.5 Conformity with Trust Indenture Act.............................................................. 56
SECTION 11.6 Reference in Debentures to Supplemental Indentures............................................... 56
ARTICLE XII CONSOLIDATION, MERGER, SALE OR CONVEYANCE........................................................... 56
SECTION 12.1 Company May Consolidate, Etc. on Certain Terms................................................... 56
SECTION 12.2 Successor Corporation Substituted................................................................ 57
SECTION 12.3 Opinion of Counsel to Trustee.................................................................... 57
ARTICLE XIII SATISFACTION AND DISCHARGE......................................................................... 57
SECTION 13.1 Satisfaction and Discharge of Indenture.......................................................... 57
SECTION 13.2 Application of Trust Money....................................................................... 58
ARTICLE XIV IMMUNITY OF INCORPORATORS, SHAREHOLDERS, OFFICERS, DIRECTORS AND EMPLOYEES......................... 59
ARTICLE XV CONVERSION OF DEBENTURES............................................................................. 59
SECTION 15.1 Conversion Rights................................................................................ 59
SECTION 15.2 Conversion Procedures............................................................................ 60
SECTION 15.3 Conversion Price Adjustments..................................................................... 61
SECTION 15.4 Conversion Price Adjustment - Rights under Shareholders Rights Plan.............................. 65
SECTION 15.5 Conversion Price Adjustment - Merger, Consolidation or Sale of Assets of the Company............. 66
SECTION 15.6 Merger, Consolidation, or Sale of Assets......................................................... 67
SECTION 15.7 Notice of Adjustments of Conversion Price........................................................ 68
SECTION 15.8 Prior Notice of Certain Events................................................................... 68
SECTION 15.9 Dividend or Interest Reinvestment Plans.......................................................... 69
SECTION 15.10 Certain Additional Rights....................................................................... 69
SECTION 15.11 Reservation of Shares of Common Stock........................................................... 70
SECTION 15.12 Payment of Certain Taxes upon Conversion........................................................ 70
SECTION 15.13 Nonassessability................................................................................ 70
SECTION 15.14 Duties of Trustee Regarding Conversion.......................................................... 70
SECTION 15.15 Repayment of Certain Funds upon Conversion...................................................... 71
SECTION 15.16 Restrictions on Common Stock Issuable Upon Conversion........................................... 71
ARTICLE XVI MISCELLANEOUS PROVISIONS............................................................................ 71
SECTION 16.1 Compliance Certificates and Opinions............................................................. 71
SECTION 16.2 Form of Documents Delivered to Trustee........................................................... 72
SECTION 16.3 Notices, Etc., to Trustee and Company............................................................ 72
SECTION 16.4 Notice to Holders of Debentures; Waiver.......................................................... 73
SECTION 16.5 Language of Notices, Etc......................................................................... 73
SECTION 16.6 Conflict with Required Provisions of the Trust Indenture Act..................................... 73
SECTION 16.7 Effect of Headings and Table of Contents......................................................... 73
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SECTION 16.8 Successors and Assigns........................................................................... 73
SECTION 16.9 Separability Clause.............................................................................. 74
SECTION 16.10 Benefits of Indenture........................................................................... 74
SECTION 16.11 Governing Law................................................................................... 74
SECTION 16.12 Legal Holidays.................................................................................. 74
SECTION 16.13 Execution in Counterparts....................................................................... 74
Exhibit A: Form of Debenture
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INDENTURE, dated as of February 25, 1997, between QUALCOMM
Incorporated, a corporation duly organized and existing under the laws of the
State of Delaware (herein called the "Company," as more fully defined in Section
1.1), having its principal office at 6455 Lusk Boulevard, San Diego, California
92121-2779, and Wilmington Trust Company, a national banking association having
its principal corporate trust office at 1100 North Market Street, Ninth Floor,
Wilmington, Delaware 19890, as Trustee (herein called the "Trustee," as more
fully defined in Section 1.1).
RECITALS OF THE COMPANY:
WHEREAS, for its lawful corporate purposes, the Company has duly
authorized the issue of its 5-3/4% Convertible Subordinated Debentures due 2012
(hereinafter sometimes called the "Debentures"), in an aggregate principal
amount not to exceed $567,050,000 (or up to $680,452,500 if the overallotment
option granted under the Purchase Agreement is exercised in full) and, to
provide the terms and conditions upon which the Debentures are to be
authenticated, issued and delivered, the Company has duly authorized the
execution and delivery of this Indenture; and
WHEREAS, the Debentures, the certificate of authentication to be borne
by the Debentures, and the form of assignment, and the form of conversion notice
to be borne by the Debentures are to be substantially in the forms hereinafter
provided for; and
WHEREAS, all acts and things necessary to make the Debentures, when
executed by the Company and authenticated and delivered by the Trustee or a duly
authorized authenticating agent, as in this Indenture provided, the valid,
binding and legal obligations of the Company, and to constitute these presents a
valid agreement according to its terms, have been done and performed, and the
execution of this Indenture and the issue hereunder of the Debentures have in
all respects been duly authorized.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
That in order to declare the terms and conditions upon which the
Debentures are, and are to be, authenticated, issued and delivered, and in
consideration of the premises and of the purchase and acceptance of the
Debentures by the Holders thereof, the Company covenants and agrees with the
Trustee for the equal and proportionate benefit of the respective Holders from
time to time of the Debentures (except as otherwise provided below), as follows:
ARTICLE I
DEFINITIONS
SECTION 1.1 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 herein expressly provided, 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) 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;
(e) headings are for convenience of reference only and do not
affect interpretation; and
(f) the following terms have the meanings given to them in the
Declaration: (i) Clearing Agency; (ii) Common Stock; (iii) Conversion
Agent; (iv) Convertible Preferred Security Certificate; (v) Delaware
Trustee; (vi) Dissolution Tax Opinion; (vii) DTC; (viii) Investment
Company Event; (ix) No-Recognition Opinion; (x) Property Trustee; (xi)
Purchase Agreement; (xii) Redemption Tax Opinion; (xiii) Regular
Trustees; (xiv) Special Event; and (xv) Tax Event.
"Act," when used with respect to any Holder of a Debenture, has the
meaning specified in Section 9.1.
"Actual Knowledge" means, with respect to the Trustee's knowledge of an
occurrence, receipt by a Responsible Officer of the Trustee of written notice of
such occurrence from the Company or a Holder or Holders of at least ten percent
(10%) of the Outstanding principal amount of the Debentures.
"Additional Interest" has the meaning specified in Section 2.3(b).
"Additional Payment" means any Additional Interest, Compounded
Interest, or Liquidated Damages.
"Affiliate" has the same meaning as given to that term in Rule 405 of
the Securities Act of 1933, as amended, or any successor rule thereunder.
"Applicable Price" means (i) in the case of a Non-Stock Fundamental
Change in which the holders of the Common Stock receive only cash, the amount of
cash received by the holder of one share of Common Stock and (ii) in the event
of any other Non-Stock Fundamental Change or any Common Stock Fundamental
Change, the average of the Closing Prices during the ten trading days prior to
and including the record date for the determination of the holders of Common
Stock entitled to receive such securities, cash, or other property in connection
with such Non-Stock Fundamental Change or Common Stock Fundamental Change or, if
there is no such record date, the date upon which the holders of the Common
Stock shall have the right to receive such securities, cash, or other property,
in each case as adjusted in good faith by the Company to appropriately reflect
any of the events referred to in clauses (i) through (vi) of Section 15.3(a).
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"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 8.13 to act on behalf of the Trustee to authenticate
Debentures.
"Authorized Newspaper" means a newspaper, in the English language or in
an official language of the country of publication, customarily published on
each Business Day, whether or not published on Saturdays, Sundays or holidays,
and of general circulation in the place in connection with which the term is
used, or in the financial community of such place. Where successive publications
are required to be made in Authorized Newspapers, the successive publications
may be made in the same or in different newspapers in the same city meeting the
foregoing requirements and in each case on any Business Day.
"Board of Directors" means either 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.
"Book-Entry Debenture" means a Debenture evidencing all or part of the
Debentures, issued to the Depositary or its nominee, and registered in the name
of such Depositary or nominee.
"Business Day" means each Monday, Tuesday, Wednesday, Thursday and
Friday which is not a day on which banking institutions in the City of New York
or the city in which the Corporate Trust Office is located are authorized or
obligated by law or executive order to close or be closed.
"Closing Price" of any common stock on any day shall mean the last
reported sale price regular way on such day or, in case no such sale takes place
on such day, the average of the reported closing bid and asked prices regular
way of such common stock, in each case listen on the NASDAQ National Market
System or, if the common stock is not listed or admitted to trading on such
exchange, on the principal national securities exchange on which such common
stock is listed or admitted to trading, or, if not listed or admitted to trading
on any national securities exchange, the average of the closing bid and asked
prices as furnished by any NASDAQ National Market System member firm selected
from time to time by the Board of Directors of the Company for that purpose or,
if not so available in such manner, as otherwise determined in good faith by the
Board of Directors.
"Commission" means the United States Securities and Exchange
Commission.
"Common Securities" means undivided beneficial interests in the assets
of the Trust which rank pari passu with the Convertible Preferred Securities
issued by the Trust; provided, however, that, upon the occurrence of an event of
default under the Declaration, the rights of holders of Common Securities to
payment in respect to distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of the Convertible
Preferred Securities.
"Common Securities Guarantee" means any Guarantee that the Company
enters into with the Property Trustee or other Persons that operates directly or
indirectly for the benefit of holders of the Common Securities.
"Common Stock" includes any stock of any class of the Company which has
no preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company. Subject to the
anti-dilution provisions of any Debenture, however, shares of Common Stock
issuable on
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conversion of a Debenture shall include only shares of the class designated as
Class A Common Stock of the Company at the date hereof or shares of any class or
classes resulting from any reclassification or reclassifications thereof and
which have no preference in respect of the payment of dividends or the
distribution of assets upon any voluntary or involuntary liquidation,
dissolution or winding-up of the Company and which are not subject to redemption
by the Company, provided, however, that, if at any time there shall be more than
one such resulting class, the shares of each such class then so issuable shall
be substantially in the proportion which the total number of shares of such
class resulting from all such reclassifications bears to the total number of
shares of such classes resulting from all such reclassifications.
"Common Stock Fundamental Change" means any Fundamental Change in which
more than 50% of the value (as determined in good faith by the Board of
Directors) of the consideration received by holders of Common Stock consists of
common stock that for each of the ten consecutive trading days prior to the
record date for the determination of the holders of Common Stock entitled to
receive such common stock or if there is no such record date, the date on which
the holders of the Common Stock shall have the right to receive such Common
Stock, has been admitted for listing or admitted for listing subject to notice
of issuance on a national securities exchange or quoted on the Nasdaq National
Market; provided, however, that a Fundamental Change shall not be a Common Stock
Fundamental Change unless either (i) the Company continues to exist after the
occurrence of such Fundamental Change and the outstanding Convertible Preferred
Securities continue to exist as outstanding Convertible Preferred Securities or
(ii) not later than the occurrence of such Fundamental Change, the outstanding
Convertible Preferred Securities are converted into or exchanged for shares of
convertible preferred stock of an entity succeeding to the business of the
Company, which convertible preferred stock has powers, preferences, and
relative, participating, optional, or other rights, and qualifications,
limitations, and restrictions, substantially similar to those of the Convertible
Preferred Securities.
"Company" means the Person named as the "Company" in the first
paragraph of this Indenture until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Request" or "Company Order" means a written request or order
signed in the name of the Company by the Chairman of the Board of Directors or
the President or any Vice Chairman or any Vice President and by the Treasurer or
the Secretary or any Assistant Treasurer or any Assistant Secretary of the
Company and delivered to the Trustee.
"Compounded Interest" has the meaning specified in Section 2.3(c).
"Conversion Price" has the meaning specified in Section 15.1.
"Convertible Preferred Securities" means undivided beneficial interests
in the assets of the Trust which rank pari passu with the Common Securities
issued by the Trust; provided, however, that, upon the occurrence of an event of
default under the Declaration, the rights of holders of Common Securities to
payment in respect to distributions and payments upon liquidation, redemption
and otherwise are subordinated to the rights of holders of Convertible Preferred
Securities.
"Corporate Trust Office" means the principal office of the Trustee at
which at any particular time its corporate trust business shall be administered,
which as of the date hereof is located at the address set forth in the first
paragraph of this Indenture.
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"Corporation" means a corporation, association, company, joint-stock
company or business trust.
"Debenture Register" and "Debenture Registrar" have the respective
meanings specified in Section 2.5.
"Debenture" has the meaning stated in the first recital of this
Indenture and more particularly means any Debenture authenticated and delivered
under this Indenture.
"Declaration" means the Amended and Restated Declaration of Trust of
the Trust, as it may be amended from time to time in accordance with its terms.
"Default" means any event or condition that is, or after notice or
passage of time or both would be, an Event of Default.
"Deferred Interest" has the meaning specified in Section 2.3(c).
"Depositary" means The Depositary Trust Company until a successor
Depositary shall have been appointed pursuant to procedures adopted under
Section 2.5, and thereafter the term "Depositary" shall mean or include each
Person who is then a Depositary hereunder.
"Direct Action" means a proceeding instituted by a holder of
Convertible Preferred Securities directly against the Company to enforce rights
under the Debentures in certain circumstances, as specified in Section 7.16.
"Dissolution Event" means that, as a result of the occurrence and
continuation of a Special Event, the Trust is to be dissolved in accordance with
the Declaration, and the Debentures held by the Property Trustee are to be
distributed to the holders of the Trust Securities pro rata in accordance with
the Declaration.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States of America as at the time shall be legal tender
for the payment of public and private debts.
"Event of Default" has the meaning specified in Section 7.1.
"Extended Interest Payment Period" has the meaning specified in Section
2.3(c).
"Fundamental Change" means the occurrence of any Transaction or event
in connection with a plan pursuant to which all or substantially all of the
Common Stock shall be exchanged for, converted into, acquired for, or constitute
solely the right to receive securities, cash, or other property (whether by
means of an exchange offer, liquidation, tender offer, consolidation, merger,
combination, reclassification, recapitalization, or otherwise), provided, that,
in the case of a plan involving more than one such Transaction or event, for
purposes of adjustment of the conversion price, such Fundamental Change shall be
deemed to have occurred when substantially all of the Common Stock shall be
exchanged for, converted into, or acquired for or constitute solely the right to
receive securities, cash, or other property, but the adjustment shall be based
upon the consideration that a holder of Common Stock received in such
Transaction or event as a result of which more than 50% of the Common Stock
shall have been exchanged for, converted into, or acquired for or constitute
solely the right to receive securities, cash, or other property.
"Global Debenture" has the meaning specified in Section 2.3(a).
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"Guarantor" means the Company, in its capacity as guarantor under any
Trust Securities Guarantee.
"Holder," when used with respect to any Debenture, means the Person in
whose name the Debenture is registered in the Debenture Register.
"Indenture" means this instrument as originally executed or as it may
from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof
and shall include the terms of the Debentures.
"Interest Payment Date" has the meaning set forth in the form of
Debenture.
"Liquidated Damages" has the meaning set forth in Section 5.9.
"Maturity," when used with respect to any Debenture, means the date on
which the principal of such Debenture becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption or otherwise.
"Maturity Date" means the date on which the Debentures mature and on
which the principal shall be due and payable together with all accrued and
unpaid interest thereon including Compounded Interest and Additional Interest,
if any.
"Non Book-Entry Convertible Preferred Securities" has the meaning
specified in Section 2.3(a)(ii).
"Non-Stock Fundamental Change" means any Fundamental Change other than
a Common Stock Fundamental Change.
"Officers' Certificate" means a certificate signed by the Chairman of
the Board of Directors or the President or any Vice Chairman or any Vice
President and by the Treasurer or the Secretary or any Assistant Treasurer or
any Assistant Secretary of the Company and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be an
employee of or counsel for the Company, and who shall be acceptable to the
Trustee.
"Optional Redemption Price" has the meaning specified in Section
3.1(a).
"Outstanding," when used with respect to the Debentures, means, as of
the date of determination, all Debentures theretofore authenticated and
delivered under this Indenture, except:
(i) Debentures theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Debentures for whose payment or redemption of which money
or United States Government Obligations in the necessary amount has
been theretofore deposited in accordance with Article XIII 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 Debentures; provided,
however, that, if Debentures or portions of Debentures are to be
redeemed prior to the Maturity thereof, notice of such redemption has
been duly given pursuant to this Indenture or provision therefor
satisfactory to the Trustee has been made;
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(iii) Debentures in lieu of which other Debentures have been
authenticated and delivered pursuant to this Indenture, other than any
Debentures in respect of which there shall have been presented to the
Trustee proof satisfactory to it that such Debentures are held by a
bona fide purchaser in whose hands such Debentures are valid
obligations of the Company; and
(iv) Debentures converted into Common Stock pursuant to
Article XV, except as otherwise provided in Section 3.6;
provided, however, that in determining whether the Holders of the requisite
aggregate principal amount of the Outstanding Debentures have given any request,
demand, authorization, direction, notice, consent or waiver hereunder or whether
a quorum is present at a meeting of Holders of Debentures, Debentures owned by
the Company or any other obligor upon such Debentures, 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 or waiver, or upon any such determination as to the presence of a
quorum, only Debentures as to which the Trustee has Actual Knowledge to be so
owned shall be so disregarded. Debentures 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
Debentures and that the pledgee is not the Company or any other obligor upon
such Debentures or any Affiliate of the Company or of such other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of and any premium and interest on any Debentures on behalf of the
Company.
"Person" means a legal person, including any individual, corporation,
estate, partnership, joint venture, trust, association, joint stock company,
limited liability company, unincorporated association or government or any
agency or political subdivision thereof, or any other entity of whatever nature.
"Place of Payment," when used with respect to the Debentures, means the
place or places where, subject to the provisions of Section 5.2, the principal
of and any premium and interest on the Debentures are payable as specified in or
contemplated by the Debentures.
"Predecessor Debenture" of a Debenture means every previous Debenture
evidencing all or a portion of the same debt as that evidenced by such
Debenture; and, for the purposes of this definition, a Debenture authenticated
and delivered under Section 2.6 in exchange for or in lieu of a mutilated,
destroyed, lost or stolen Debenture shall be deemed to evidence the same debt as
the mutilated, destroyed, lost or stolen Debenture.
"Preferred Securities Guarantee" means any Guarantee that the Guarantor
may enter into with the Property Trustee or other Persons that operates directly
or indirectly for the benefit of holders of the Convertible Preferred
Securities.
"Redemption Date," when used with respect to any Debenture to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price," when used with respect to any Debenture to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Reference Market Price" initially means $38.79 (which is an amount
equal to 66 2/3% of the reported last sale price for the Common Stock on the
Nasdaq National Market on February 19, 1997), and in the event of any adjustment
of the Conversion Price other than as a result of a Non-Stock
7
Fundamental Change, the Reference Market Price shall also be adjusted so that
the ratio of the Reference Market Price to the Conversion Price after giving
effect to any such adjustment shall always be the same as the ratio of the
initial Reference Market Price to the initial Conversion Price of the
Debentures.
"Regular Record Date" for the interest payable on any Interest Payment
Date means the date 15 days prior to such Interest Payment Date, whether or not
such day is a Business Day.
"Responsible Officer" means, when used with respect to the Trustee, the
chairman of the board of directors, the executive committee of the board of
directors, the chairman of the trust committee, the president, any vice
president, any assistant vice president, the secretary, any assistant secretary,
the treasurer, any assistant treasurer, any trust officer or assistant trust
officer, the controller or any assistant controller or any other officer of the
Trustee customarily performing functions similar to those performed by any of
the above designated officers and also means, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge of and familiarity with the particular
subject.
"Restricted Securities Legend" means the legend restricting transfer of
the Debentures in the form set forth in Section 2.2.
"Rights" means any right of a holder of Common Stock entitling such
holder under certain circumstances to purchase an additional share or shares of
stock.
"Rights Plan" means the Rights Agreement dated as of September 16, 1995
by and between the Company and First Interstate Bank of California, as amended
from time to time.
"Senior Indebtedness" means, with respect to the Company, the principal
of, premium, if any, interest on, and any other payment due pursuant to, any of
the following, whether outstanding on the date of this Indenture or thereafter
incurred or created: (a) all indebtedness of the Company for money borrowed or
evidenced by notes, debentures, bonds or other securities (including, but not
limited to, those which are convertible or exchangeable for securities of the
Company and indebtedness owed to subsidiaries and affiliates of the Company);
(b) all indebtedness of the Company due and owing with respect to letters of
credit (including, but not limited to, reimbursement obligations with respect
thereto); (c) all obligations of the Company due and owing with respect to
reimbursement agreements under any surety bond, insurance policy, bankers'
acceptance, security purchase facility, or similar agreement or arrangement; (d)
all indebtedness or other obligations of the Company due and owing with respect
to interest rate and currency swap agreements, cap, floor and collar agreements,
currency spot and forward contracts and other similar agreements and
arrangements; (e) all indebtedness consisting of commitment or standby fees due
and payable to lending institutions with respect to credit facilities or letters
of credit available to the Company; (f) all obligations of the Company under
leases required or permitted to be capitalized under generally accepted
accounting principles; (g) all obligations of the Company issued or assumed as
the deferred purchase price of property or services, all conditional sale
obligations of the Company, and all obligations of the Company under any title
retention agreement; (h) all obligations of the Company under agreements or
arrangements with respect to deferred compensation due its employees or
employees of its Subsidiaries and its obligations under employee benefit plans;
(i) all indebtedness or obligations of others of the kinds described in any of
the preceding clauses (a), (b), (c), (d), (e), (f), (g), or (h) that are (x)
assumed by or guaranteed in any manner by the Company or in effect guaranteed
(directly or indirectly) by the Company through an agreement to purchase,
contingent or otherwise, or in its capacity as a general partner of any entity,
and all obligations of the Company under any such guarantee or other
arrangements, or (y) secured by
8
a lien on any property or asset of the Company (whether or not such obligation
is assumed by the Company); and (j) all renewals, extensions, refundings,
deferrals, amendments or modifications of indebtedness or obligations of the
kinds described in any of the preceding clauses (a), (b), (c), (d), (e), (f),
(g), (h), or (i); unless in the case of any particular indebtedness, obligation,
renewal, extension, refunding, amendment, modification or supplement, the
instrument or other document creating or evidencing the same or the assumption
or guarantee of the same expressly provides that such indebtedness, renewal,
extension, refunding, amendment, modification or supplement is subordinate to,
or is not superior to, or is pari passu with, the Debentures; provided that
Senior Indebtedness shall not include indebtedness for trade payables or
constituting the deferred purchase price of assets or services incurred in the
ordinary course of business.
"Special Redemption Price" has the meaning set forth in Section 3.2.
"Stated Maturity," when used with respect to any Debenture or any
installment of interest thereon, means the date specified in such Debenture as
the fixed date on which the principal of such Debenture or such installment of
interest is due and payable.
"Subsidiary" means, with respect to any Person, (i) any corporation at
least a majority of whose outstanding Voting Stock shall at the time be owned,
directly or indirectly, by such Person or by one or more of its Subsidiaries or
by such Person and one or more of its Subsidiaries, (ii) any general
partnership, joint venture, business trust or similar entity, at least a
majority of whose outstanding partnership or similar interests shall at the time
be owned by such Person or by one or more of its Subsidiaries or by such Person
and one or more of its Subsidiaries and (iii) any limited partnership of which
such Person or any of its Subsidiaries is a general partner.
"Trading Day" shall mean a day on which any securities are traded on
the national securities exchange or quotation system used to determine the
Closing Price.
"Trust" means the Qualcomm Financial Trust I, a Delaware statutory
business trust.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this Indenture 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, and
if at any time there is more than one such Person, "Trustee" shall mean all such
Persons.
"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 of any such amendment, the Trust Indenture
Act of 1939 as so amended.
"Trust Securities" means Common Securities and Convertible Preferred
Securities.
"Trust Securities Guarantees" means the Common Securities Guarantee and
the Preferred Securities Guarantee.
"United States" means the United States of America (including the
States and the District of Columbia), its territories, its possessions and other
areas subject to its jurisdiction.
"U.S. Government Obligations" means direct obligations of the United
States for the payment of which its full faith and credit is pledged, or
obligations of a Person controlled or supervised by and acting as an agency or
instrumentality of the United States and the payment of which is unconditionally
9
guaranteed as a full faith and credit obligation by the United States which, in
either case, are not callable or redeemable at the option of the issuer thereof,
and shall also include a depositary receipt issued by a bank (as defined in
Section 3(a)(2) of the Securities Act of 1933, as amended) as custodian with
respect to any such U.S. Government Obligations or a specific payment of
principal of or interest on any such U.S. Government Obligations held by such
custodian for the account of the holder of such depositary receipt, provided
that (except as required by law) such custodian is not authorized to make any
deduction from the amount payable to the holder of such depositary receipt from
any amount received by the custodian in respect of the U.S. Government
Obligations or the specific payment of principal of or interest on the U.S.
Government Obligations evidenced by such depositary receipt.
"Voting Stock," as applied to stock of any Person, means shares,
interests, participations or other equivalents in the equity interest (however
designated) in such Person having ordinary voting power for the election of a
majority of the directors (or the equivalent) of such Person, other than shares,
interests, participations or other equivalents having such power only by reason
of the occurrence of a contingency.
ARTICLE II
ISSUE, DESCRIPTION, EXECUTION, REGISTRATION
AND EXCHANGE OF NOTES
SECTION 2.1 DESIGNATION AND PRINCIPAL AMOUNT.
The Debentures shall be designated as "5-3/4% Convertible Subordinated
Debentures due 2012". The aggregate principal amount of Debentures that may be
authenticated and delivered pursuant to this Indenture is limited to the sum of
(i) $567,050,000 plus (ii) up to an additional $113,402,500 in the event that
the over-allotment option granted in the Purchase Agreement is exercised in full
(except for Debentures authenticated and delivered upon registration of transfer
of, or in exchange for, or in lieu of, other Debentures pursuant to Sections
2.5, 2.6, 2.7, 3.10, and 15.2). Upon the execution of this Indenture, or from
time to time thereafter, such Debentures may be executed by the Company and
delivered to the Trustee for authentication, and the Trustee shall thereupon
authenticate and deliver such Debentures upon the written order of the Company,
signed by (a) its President, any Executive or Senior Vice President or any Vice
President and (b) its Treasurer or any Assistant Treasurer or its Secretary or
any Assistant Secretary, without any further action by the Company hereunder.
SECTION 2.2 FORM OF DEBENTURES; INITIAL ISSUANCE TO PROPERTY TRUSTEE.
The Debentures and the Trustee's Certificate of Authentication to be
borne by the Debentures shall be in substantially the form set forth in Exhibit
A, which is incorporated in and made a part of this Indenture.
Any of the Debentures may have such letters, numbers or other marks of
identification (including different CUSIP numbers) and such notations, legends
and endorsements as the officer of the Company executing the same may approve
(execution thereof by such officer to be conclusive evidence of such approval)
and as are not inconsistent with the provisions of this Indenture, or as may be
required to comply with any law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any securities exchange or automated
quotation system on which the Debentures may be listed or designated for
issuance or with the procedures of the Depositary, or to conform to usage. The
Company shall furnish any such legend not contained in Exhibit A to the Trustee
in writing.
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The terms and provisions contained in the form of Debentures attached
as Exhibit A hereto shall constitute, and are hereby expressly made a part of,
this Indenture and to the extent applicable, the Company and the Trustee, by
their execution and delivery of this Indenture, expressly agree to such terms
and provisions and to be bound thereby.
The definitive Debentures shall be typewritten or printed, lithographed
or engraved or produced by any combination of these methods on steel engraved
borders or may be produced in any other manner permitted by the rules of any
securities exchange on which the Debentures may be listed, all as determined by
the officers executing such Debentures, as evidenced by their execution of such
Debentures.
The Debentures initially issued to the Property Trustee shall be in the
form of one or more individual certificates in definitive, fully registered form
without coupons and shall bear the following legend (the "Restricted Securities
Legend") unless the Company determines otherwise in accordance with applicable
law:
THIS SECURITY AND ANY COMMON STOCK ISSUED ON CONVERSION HEREOF HAVE NOT
BEEN REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), OR ANY STATE SECURITIES LAWS. NEITHER THIS SECURITY NOR ANY INTEREST OR
PARTICIPATION HEREIN MAY BE OFFERED, SOLD, OR OTHERWISE TRANSFERRED IN THE
ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THE HOLDER OF
THIS SECURITY, BY ITS ACCEPTANCE HEREOF, REPRESENTS, ACKNOWLEDGES, AND AGREES
FOR THE BENEFIT OF QUALCOMM INCORPORATED (THE "COMPANY") THAT: (I) IT HAS
ACQUIRED A "RESTRICTED SECURITY" THAT HAS NOT BEEN REGISTERED UNDER THE
SECURITIES ACT; (II) IT WILL NOT OFFER, SELL OR OTHERWISE TRANSFER SUCH
SECURITY, PRIOR TO THE DATE WHICH IS THREE YEARS AFTER THE LATER OF THE ORIGINAL
ISSUE DATE HEREOF AND THE LAST DATE ON WHICH THE COMPANY OR ANY AFFILIATE OF THE
COMPANY WAS THE OWNER OF THIS SECURITY (OR ANY PREDECESSOR OF THIS SECURITY)
(THE "RESALE RESTRICTION TERMINATION DATE") EXCEPT (A) TO THE COMPANY, (B)
PURSUANT TO A REGISTRATION STATEMENT THAT HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT, (C) FOR SO LONG AS THE SECURITIES ARE ELIGIBLE FOR RESALE
PURSUANT TO RULE 144A UNDER THE SECURITIES ACT ("RULE 144A"), TO A PERSON IT
REASONABLY BELIEVES IS A "QUALIFIED INSTITUTIONAL BUYER" AS DEFINED IN RULE 144A
THAT PURCHASES FOR ITS OWN ACCOUNT OR FOR THE ACCOUNT OF A QUALIFIED
INSTITUTIONAL BUYER TO WHOM NOTICE IS GIVEN THAT THE TRANSFER IS BEING MADE IN
RELIANCE ON RULE 144A, (D) PURSUANT TO OFFERS AND SALES TO NON-U.S. PERSONS THAT
OCCUR OUTSIDE THE UNITED STATES WITHIN THE MEANING OF REGULATION S UNDER THE
SECURITIES ACT, (E) TO AN INSTITUTIONAL "ACCREDITED INVESTOR" WITHIN THE MEANING
OF SUBPARAGRAPH (a)(1), (2), (3) OR (7) OF RULE 501 UNDER THE SECURITIES ACT
THAT IS ACQUIRING THE SECURITY FOR ITS OWN ACCOUNT, OR FOR THE ACCOUNT OF SUCH
AN INSTITUTIONAL "ACCREDITED INVESTOR," FOR INVESTMENT PURPOSES AND NOT WITH A
VIEW TO, OR FOR OFFER OR SALE IN CONNECTION WITH, ANY DISTRIBUTION IN VIOLATION
OF THE SECURITIES ACT, OR (F) PURSUANT TO ANOTHER AVAILABLE EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT AND, IN EACH CASE, IN ACCORDANCE
WITH THE APPLICABLE SECURITIES LAWS OF ANY STATE OF THE UNITED STATES OR ANY
APPLICABLE JURISDICTION; AND (III) IT WILL, AND EACH SUBSEQUENT HOLDER IS
REQUIRED TO, NOTIFY ANY PURCHASER FROM IT OF THIS SECURITY OF THE RESALE
RESTRICTIONS
11
SET FORTH IN (II) ABOVE. ANY OFFER, SALE OR OTHER DISPOSITION PURSUANT TO THE
FOREGOING CLAUSE (D), (E) OR (F) IS SUBJECT TO THE RIGHT OF THE ISSUER OF THIS
SECURITY AND THE TRUSTEES FOR SUCH ISSUER (i) TO REQUIRE THE DELIVERY OF AN
OPINION OF COUNSEL, CERTIFICATION OR OTHER INFORMATION SATISFACTORY TO EACH OF
THEM IN FORM AND SUBSTANCE, AND (ii) IN EACH OF THE FOREGOING CASES, TO REQUIRE
THAT A CERTIFICATE OF TRANSFER IN THE FORM APPEARING ON THIS SECURITY IS
COMPLETED AND DELIVERED BY THE TRANSFEROR TO THE TRANSFER AGENT. THIS LEGEND
WILL BE REMOVED UPON THE REQUEST OF A HOLDER AFTER THE RESALE RESTRICTION
TERMINATION DATE.
SECTION 2.3 DENOMINATION OF DEBENTURES; PAYMENT OF INTEREST;
EXTENSION OF INTEREST PAYMENT PERIOD.
(a) Except as provided below, the Debentures shall be issued in
fully registered certificated form without coupons, in denominations of $50 in
principal amount and integral multiples thereof. Principal and interest on the
Debentures issued in certificated form will be payable, the transfer of such
Debentures will be registrable, and such Debentures will be exchangeable for
Debentures bearing identical terms and provisions at the office or agency of the
Trustee; provided, however, that payment of interest may be made at the option
of the Company by check mailed to the Holder at such address as shall appear in
the Debenture Register. Notwithstanding the foregoing, so long as the Holder of
any Debentures is the Property Trustee, the payment of the principal of and
interest (including Compounded Interest and Additional Interest, if any) on such
Debentures held by the Property Trustee will be made at such place and to such
account as may be designated by the Property Trustee.
In connection with a Dissolution Event, (i) the Debentures in
certificated form may be presented to the Trustee by the Property Trustee in
exchange for a global Debenture in an aggregate principal amount equal to the
aggregate principal amount of all outstanding Debentures (a "Global Debenture"),
to be registered in the name of the Depositary, or its nominee, and delivered by
the Trustee to the Depositary for crediting to the accounts of its participants
pursuant to the instructions of the Regular Trustees. The Company upon any such
presentation shall execute a Global Debenture in such aggregate principal amount
and deliver the same to the Trustee for authentication and delivery in
accordance with this Indenture. Payments on the Debentures issued as a Global
Debenture will be made to the Depositary; and
(ii) if any Convertible Preferred Securities are held in non
book-entry certificated form, any Convertible Preferred Security Certificate
which represents Convertible Preferred Securities other than Convertible
Preferred Securities held by the Clearing Agency or its nominee ("Non Book-Entry
Convertible Preferred Securities") will be deemed to represent beneficial
interests in Debentures having an aggregate principal amount equal to the
aggregate liquidation amount of the Non Book-Entry Convertible Preferred
Securities until such Convertible Preferred Security Certificates are presented
to the Debenture Registrar for transfer or reissuance at which time such
Convertible Preferred Security Certificates will be canceled and a Debenture,
registered in the name of the holder of the Convertible Preferred Security
Certificate or the transferee of the holder of such Convertible Preferred
Security Certificate, as the case may be, with an aggregate principal amount
equal to the aggregate liquidation amount of the Convertible Preferred Security
Certificate canceled, will be executed by the Company and delivered to the
Trustee for authentication and delivery in accordance with this Indenture. On
issue of such Debentures, Debentures with an equivalent aggregate principal
amount that were presented by the Property Trustee to the Trustee will be deemed
to have been canceled.
12
A Global Debenture may be transferred, in whole but not in part, only
to another nominee of the Depositary, or to a successor depositary selected or
approved by the Company or to a nominee of such successor Depositary.
(b) Each Debenture will bear interest at the rate specified in
Exhibit A (the "Coupon Rate") from February 25, 1997 until the principal thereof
becomes due and payable, and on any overdue principal and (to the extent that
payment of such interest is enforceable under applicable law) on any overdue
installment of interest at the Coupon Rate, compounded quarterly, payable
(subject to the provisions of this Section 2.3) quarterly in arrears on March 1,
June 1, September 1 and December 1 of each year (each, an "Interest Payment
Date"), commencing on June 1, 1997, to the Person in whose name such Debenture
or any predecessor Debenture is registered, at the close of business on the
Regular Record Date for such interest installment.
Any interest on any Debenture which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in clause (i) or (ii) below:
(i) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Debentures are registered at the
close of business on a Special Record Date (as defined herein) for the payment
of such Defaulted Interest, which shall be fixed in the following manner. The
Company shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Debenture 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
provided in this clause. Thereupon, the Trustee shall fix a Special Record Date
(the "Special Record Date") for the payment of such Defaulted Interest which
shall be not more than 15 days and not less than 10 days prior to the date of
the proposed payment and not less than 10 days after the receipt by the Trustee
of the notice of the proposed payment. The Trustee shall promptly notify the
Company of such Special Record Date and, in the name and at the expense of the
Company, shall cause notice of the proposed payment of such Defaulted Interest
and the Special Record Date therefor to be mailed, first-class postage prepaid,
to each Holder at his address as it appears in the Debenture Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed payment
of such Defaulted Interest and the Special Record Date therefore having been so
mailed, such Defaulted Interest shall be paid to the Persons in whose names the
Debentures are registered at the close of business on such Special Record Date
and shall no longer be payable pursuant to the following clause (ii).
(ii) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any securities
exchange on which the Debentures may be listed, and, if so listed, upon such
notice as may be required by such exchange, if, after notice given by the
Company to the Trustee of the proposed payment pursuant to this clause, such
manner of payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section 2.3(b),
each Debenture delivered under this Indenture upon registration of transfer of
or in exchange for or in lieu of any other Debenture shall carry the rights to
interest accrued and unpaid, and to accrue (including in each case Compounded
Interest), which were carried by such other Debenture.
13
The amount of interest payable for any period will be computed on the
basis of a 360-day year of twelve 30-day months. In the event that any date on
which interest is payable on the Debentures is not a Business Day, then payment
of interest 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), except that, if such Business Day is in the next succeeding
calendar year, such payment shall be made on the immediately preceding Business
Day, in each case with the same force and effect as if made on such date.
If, at any time while the Property Trustee is the Holder of any
Debentures, the Trust or the Property Trustee is required to pay any taxes,
duties, assessments or governmental charges of whatever nature (other than
withholding taxes) imposed by the United States, or any other taxing authority,
then, in any such case, the Company will pay as additional interest ("Additional
Interest") on the Debentures held by the Property Trustee, such additional
amounts as shall be required so that the net amounts received and retained by
the Trust and the Property Trustee after paying such taxes, duties, assessments
or other governmental charges will be equal to the amounts the Trust and the
Property Trustee would have received had no such taxes, duties, assessments or
other government charges been imposed.
(c) As long as an Event of Default shall not have occurred and be
continuing, the Company shall have the right, at any time and from time to time
during the term of the Debentures, to defer payments of interest by extending
the interest payment period of such Debentures for a period not exceeding 20
consecutive quarters (the "Extended Interest Payment Period"), during which
Extended Interest Payment Period no interest (including any Additional Interest,
Compounded Interest, and Liquidated Damages) shall be due and payable; provided
that no Extended Interest Payment Period may extend beyond the Maturity Date or
any earlier Redemption Date. To the extent permitted by applicable law, interest
at the Coupon Rate, the payment of which has been deferred because of the
extension of the interest payment period pursuant to this Section 2.3, will bear
interest thereon at the Coupon Rate compounded quarterly for each quarter of the
Extended Interest Payment Period ("Compounded Interest"). At the end of the
Extended Interest Payment Period, the Company shall pay all interest accrued and
unpaid on the Debentures, including any Additional Interest, Compounded Interest
and Liquidated Damages (together, "Deferred Interest") that shall be payable, to
the Holders of Debentures in whose names the Debentures are registered in the
Debenture Register on the first Regular Record Date after the end of the
Extended Interest Payment Period. Before the termination of any Extended
Interest Payment Period, the Company may further extend such period, provided
that such period together with all such further extensions thereof shall not
exceed 20 consecutive quarters, or extend beyond the Stated Maturity of the
Debentures. Upon the termination of any Extended Interest Payment Period and
upon the payment of all Deferred Interest then due, the Company may commence a
new Extended Interest Payment Period, subject to the foregoing requirements. No
interest shall be due and payable during an Extended Interest Payment Period,
except at the end thereof, but the Company may prepay at any time all or any
portion of the interest accrued during an Extended Interest Payment Period.
If the Property Trustee is the only registered Holder of the Debentures
at the time the Company selects an Extended Interest Payment Period, the Company
shall give written notice to the Regular Trustees, the Property Trustee and the
Trustee of its election of such Extended Interest Payment Period one Business
Day before the earlier of (i) the next succeeding date on which Distributions on
the Trust Securities issued by the Trust are payable, or (ii) the date the Trust
is required to give notice of the record date, or the date such Distributions
are payable, to the NASDAQ National Market System or other applicable
self-regulatory organization or to holders of Convertible Preferred Securities
issued by the Trust, but in any event at least 10 Business Days before such
record date.
14
If the Property Trustee is not the only Holder of the Debentures at the
time the Company elects an Extended Interest Payment Period, the Company shall
give the Holders of Debentures and the Trustee written notice of its selection
of such Extended Interest Payment Period at least 10 Business Days before the
earlier of (i) the next succeeding Interest Payment Date, or (ii) the date the
Company is required to give notice of the record date or payment date with
respect to such interest payment to the NASDAQ National Market System or other
applicable self-regulatory organization or to Holders of Debentures, but in any
event at least two Business Days before such record date.
The quarter in which any notice is given pursuant to paragraph (c) of
this Section 2.3 shall be counted as one of the 20 quarters permitted in the
maximum Extended Interest Payment Period permitted under this Section 2.3.
SECTION 2.4 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
Debentures shall be signed on behalf of the Company by both (a) its
Chairman of the Board of Directors or any Vice Chairman of the Board of
Directors or its President or one of its Vice Presidents and (b) its Treasurer
or one of its Assistant Treasurers or its Secretary or one of its Assistant
Secretaries, under its corporate seal which may, but need not, be attested. The
signature of any of these officers on Debentures may be manual or facsimile.
Debentures 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 Debentures or did not
hold such offices at the date of such Debentures. At any time and from time to
time after the execution and delivery of this Indenture, the Company may deliver
Debentures executed by the Company to the Trustee for authentication, together
with a Company Order for the authentication and delivery of Debentures, and the
Trustee in accordance with the Company Order shall authenticate and make
Debentures available for delivery.
Each Debenture shall be dated the date of its authentication.
No Debenture shall be entitled to any benefit under this Indenture or
be valid or obligatory for any purpose unless there appears on the Debenture a
certificate of authentication substantially in the form provided for herein
executed by the Trustee by manual signature, and such certificate upon any
Debenture shall be conclusive evidence, and the only evidence, that such
Debenture has been duly authenticated and delivered hereunder.
Notwithstanding the foregoing, if any Debenture shall have been
authenticated and delivered hereunder but never issued and sold by the Company,
and the Company shall deliver such Debenture to the Trustee for cancellation as
provided in Section 2.9 together with a written statement stating that such
Debenture has never been issued and sold by the Company, for all purposes of
this Indenture such Debenture shall be deemed never to have been authenticated
and delivered hereunder and shall never be entitled to the benefits of this
Indenture.
SECTION 2.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Company shall cause to be kept at an office or agency to be
maintained by the Company in accordance with Section 5.2 a register (the
"Debenture Register") in which, subject to such reasonable regulations as it may
prescribe, the Company shall provide for the registration of transfers of
15
Debentures. The Trustee is hereby appointed "Debenture Registrar" for the
purpose of registering transfers of Debentures as herein provided.
Upon due surrender for registration of transfer of any Debenture at the
office or agency of the Company maintained pursuant to Section 5.2 for such
purpose in a Place of Payment, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, in the name of the designated
transferee or transferees, one or more new Debentures of any authorized
denominations and of a like aggregate principal amount and tenor.
At the option of the Holder, Debentures may be exchanged for other
Debentures of any authorized denominations and of a like aggregate principal
amount and tenor, upon surrender of the Debentures to be exchanged at any such
office or agency. Whenever any Debentures are so surrendered for exchange, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery, the Debentures which the Holder making the exchange is entitled to
receive.
Whenever any Debentures are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and make available for
delivery, the Debentures which the Holder making the exchange is entitled to
receive.
All Debentures issued upon any registration of transfer or exchange of
Debentures shall be the valid obligations of the Company, evidencing the same
debt, and entitled to the same benefits under this Indenture, as the Debentures
surrendered upon such registration of transfer or exchange.
Every Debenture presented or surrendered for registration of transfer
or for exchange shall (if so required by the Company or the Trustee or any
transfer agent) be duly endorsed, or be accompanied by a written instrument of
transfer in the form included in Exhibit A or in other form satisfactory to the
Company and the Debenture Registrar or any transfer agent duly executed, by the
Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of transfer or
exchange of Debentures, 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 Debentures, other than
exchanges pursuant to Section 2.7, 3.7 or 15.2 not involving any transfer.
The Company shall not be required (i) to issue, register the transfer
of or exchange Debentures during a period beginning at the opening of business
15 days before any selection of Debentures to be redeemed and ending at the
close of business on the day of the mailing of the relevant notice of
redemption, or (ii) to register the transfer of or exchange any Debenture so
selected for redemption, in whole or in part, except the unredeemed portion of
any Debenture being redeemed in part.
The Debentures shall not be transferred, except in compliance with the
Restricted Securities Legend, unless any such transfer is otherwise determined
by the Company to be in compliance with applicable law. Upon any distribution of
the Debentures to the holders of the Trust Securities in accordance with the
Declaration, the Company and the Trustee shall enter into a supplemental
indenture pursuant to Section 11.1(g) to provide for transfer restrictions
(including legends, if any, to be included on the Debentures) and procedures
with respect to the Debentures substantially similar to those contained in the
Declaration to the extent applicable in the circumstances existing at the time
of such distribution and the appointment of a Depositary.
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SECTION 2.6 MUTILATED, DESTROYED, LOST AND STOLEN DEBENTURES.
If any mutilated Debenture is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Debenture of like principal amount and tenor and
bearing a number not contemporaneously outstanding, and such mutilated Debenture
shall be canceled by the Trustee in accordance with the Indenture.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Debenture and
(ii) such security or indemnity as may be required by them, then, in the absence
of notice to the Company or the Trustee that such Debenture has been acquired by
a bona fide purchaser, the Company shall, subject to the following paragraph,
execute, and the Trustee shall authenticate and make available for delivery, in
lieu of any such destroyed, lost or stolen Debenture, a new Debenture of like
principal amount and tenor and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen Debenture has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Debenture, pay such Debenture.
Upon the issuance of any new Debenture under this Section, the Company
may require 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 Debenture issued pursuant to this Section in lieu of any
destroyed, lost or stolen Debenture shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Debenture shall be at any time enforceable by anyone, and any such new
Debenture shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Debentures.
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 Debentures.
SECTION 2.7 TEMPORARY DEBENTURES.
Pending the preparation of definitive Debentures, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Debentures which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Debentures in lieu of which they
are issued, in registered form and with such appropriate insertions, omissions,
substitutions and other variations as the officers executing such Debentures may
determine, as evidenced by their execution of such Debentures.
If temporary Debentures are issued, the Company will cause definitive
Debentures to be prepared without unreasonable delay. After the preparation of
definitive Debentures, all temporary Debentures may be surrendered in exchange
therefor, at the office of the Debenture Registrar, and the Company shall
execute and the Trustee shall authenticate and deliver an equal aggregate
principal amount of definitive Debentures in certificated form in exchange for
temporary Debentures. Such exchange shall be made by the Company at its own
expense and without any charge therefor. Until so
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exchanged, temporary Debentures shall in all respects be entitled to the same
benefits and subject to the same limitations under this Indenture as Debentures
in definitive certificated form authenticated and delivered hereunder.
SECTION 2.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Debenture for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Debenture is registered as the owner of such
Debenture for the purpose of receiving payment of principal of (and premium, if
any) and (subject to Sections 2.3 and 2.5) any interest or Additional Payments
on such Debenture and for all other purposes whatsoever, whether or not such
Debenture shall be overdue, and neither the Company, the Trustee nor any agent
of the Company or the Trustee shall be affected by notice to the contrary.
SECTION 2.9 CANCELLATION.
All Debentures surrendered for payment, redemption, registration of
transfer or exchange or for credit against any sinking fund payment shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and promptly shall be canceled by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Debentures 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 Debentures previously authenticated
hereunder which the Company has not issued and sold, and all Debentures so
delivered promptly shall be canceled by the Trustee. No Debentures shall be
authenticated in lieu of or in exchange for any Debentures canceled as provided
in this Section, except as expressly permitted by this Indenture. All canceled
Debentures held by the Trustee shall be disposed of as directed by a Company
Order; provided that the Trustee shall not be required to destroy the
certificates representing the canceled Debentures.
ARTICLE III
REDEMPTION OF DEBENTURES
SECTION 3.1 OPTIONAL REDEMPTION BY COMPANY.
(a) Subject to the provisions of Sections 3.1(b), (c), and (d)
and to the other provisions of this Article III, the Company shall have the
right to redeem the Debentures, in whole or in part, from time to time, on or
after March 4, 2000, upon not less than 20 days nor more than 60 days notice to
the Holders of the Debentures, at the following prices (expressed as percentages
of the principal amount of the Debentures) (the "Optional Redemption Price"), if
redeemed during the 12-month period beginning March 4:
Year Redemption Price
---- ----------------
2000 ...................... 102%
2001 ...................... 101%
2002 and thereafter........ 100%
plus, in each case, accrued and unpaid interest (including Additional Payments,
if any) to, but excluding, the Redemption Date.
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The Optional Redemption Price shall be paid prior to 12:00
noon, New York time, on the Redemption Date or at such earlier time as the
Company determines, provided that the Company shall deposit with the Trustee an
amount sufficient to pay the Optional Redemption Price by 10:00 a.m., New York
time, on the date such Optional Redemption Price is to be paid.
(b) If a partial redemption of the Debentures would
result in the delisting of the Convertible Preferred Securities issued by the
Trust from any national securities exchange or other organization on which the
Convertible Preferred Securities are then listed, the Company shall not be
permitted to effect such partial redemption and may only redeem the Debentures
in whole.
(c) The Company may not redeem fewer than all of the
outstanding Debentures unless all accrued and unpaid interest has been paid on
all of the outstanding Debentures.
(d) Notwithstanding the foregoing, if Debentures are
redeemed on any March 1, June 1, September 1, or December 1, accrued and unpaid
interest (and Additional Payments, if any) shall be payable to Holders of record
on the relevant record date, instead of the Holders on the Redemption Date.
(e) Notwithstanding the foregoing, the Trustee shall not
redeem any Debentures pursuant to this Section 3.1 or mail any notice of
optional redemption during the continuance of a default in payment of interest
or premium on the Debentures or of any Event of Default of which, in the case of
any Event of Default other than under Section 7.1(a) or (b), a Responsible
Officer of the Trustee has Actual Knowledge.
SECTION 3.2 TAX EVENT REDEMPTION.
If a Tax Event has occurred and is continuing and:
(a) the Company has received a Redemption Tax
Opinion; or
(b) after receiving a Dissolution Tax Opinion, the
Regular Trustees shall have been informed by tax counsel
rendering the Dissolution Tax Opinion that a No-Recognition
Opinion cannot be delivered to the Trust,
then, notwithstanding Section 3.1(a) but subject to Sections 3.1(b), (c), and
(d), the Company shall have the right upon not less than 20 days nor more than
60 days notice to the Holders of the Debentures to redeem the Debentures, in
whole or in part, for cash within 90 days following the occurrence of such Tax
Event (the "90-Day Period") at a redemption price equal to 100% of the principal
amount to be redeemed plus any accrued and unpaid interest (including Additional
Payments, if any) thereon to the date of such redemption (the "Special
Redemption Price"); provided, however, that, if at the time there is available
to the Company or the Trust the opportunity to eliminate, within the 90-Day
Period, the Tax Event by taking some ministerial action ("Ministerial Action"),
such as filing a form or making an election, or pursuing some other similar
reasonable measure which has no adverse effect on the Company, the Trust or the
Holders of the Trust Securities issued by the Trust, the Company shall pursue
such Ministerial Action in lieu of redemption; and, provided, further, that the
Company shall have no right to redeem the Debentures while the Trust is pursuing
any Ministerial Action pursuant to its obligations under the Declaration.
The Special Redemption Price shall be paid prior to 12:00 noon, New
York time, on the Redemption Date or at such earlier time as the Company
determines, provided that the Company shall
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deposit with the Trustee an amount sufficient to pay the Special Redemption
Price by 10:00 a.m., New York time, on the date such Special Redemption Price is
to be paid.
SECTION 3.3 APPLICABILITY OF ARTICLE.
Redemption of Debentures at the election of the Company, as permitted
by Section 3.1 and 3.2, shall be made in accordance with such Sections and this
Article.
SECTION 3.4 NO SINKING FUND.
The Debentures are not entitled to the benefit of any sinking fund.
SECTION 3.5 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem Debentures shall be evidenced by
an Officers' Certificate. In the case of any redemption at the election of the
Company, the Company shall, at least 45 days prior to the Redemption Date fixed
by the Company (unless a shorter notice shall be satisfactory to the Trustee),
notify the Trustee of such Redemption Date and of the principal amount of
Debentures to be redeemed.
SECTION 3.6 SELECTION BY TRUSTEE OF DEBENTURES TO BE REDEEMED.
If less than all the Debentures are to be redeemed, the particular
Debentures to be redeemed shall be selected not more than 60 days prior to the
Redemption Date by the Trustee, from the Outstanding Debentures not previously
called for redemption, on a pro rata basis, in portions equal to $50 (or any
integral multiple thereof) of the principal amount of Debentures.
If Debentures selected for partial redemption are converted into Common
Stock in part before termination of the conversion right with respect to the
portion of the Debentures so selected, the converted portion of the Debentures
shall be deemed (so far as may be) to be the portion selected for redemption.
Debentures (or portions thereof) which have been converted into Common Stock
during a selection of Debentures to be redeemed shall be treated by the Trustee
as Outstanding for the purpose of such selection. In any case where more than
one Debenture is registered in the same name, the Trustee in its discretion may
treat the aggregate principal amount so registered as if it were represented by
one Debenture.
The Trustee shall promptly notify the Company in writing of the
Debentures selected for redemption and, in the case of any Debentures selected
for partial redemption, the principal amount thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Debentures shall relate,
in the case of any Debentures redeemed or to be redeemed only in part, to the
portion of the principal amount of the Debentures which has been or is to be
redeemed.
SECTION 3.7 NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
16.4 to the Holders of Debentures to be redeemed not less than 20 nor more than
60 days prior to the Redemption Date. All
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notices of redemption shall identify the Debentures (including the CUSIP number)
to be redeemed and shall state:
(a) the Redemption Date;
(b) the Redemption Price and the amount of accrued interest
and Additional Payments, if any, to be paid upon such redemption;
(c) if less than all the Outstanding Debentures are to be
redeemed, the aggregate principal amount of Debentures to be redeemed,
the aggregate principal amount of Debentures to be outstanding after
such partial redemption, the identification (and, in the case of
partial redemption, the principal amounts) of the particular Debentures
to be redeemed, and a statement to the effect that on or after the
Redemption Date upon surrender of such Debenture a new Debenture in the
principal amount equal to the unredeemed portion will be issued;
(d) that on the Redemption Date the Redemption Price will
become due and payable upon each such Debenture to be redeemed and, if
applicable, that interest thereon will cease to accrue on and after
said date;
(e) the place or places where such Debentures are to be
surrendered for payment of the Redemption Price; and
(f) the Conversion Price then in effect, the date on which the
right to convert the Debentures to be redeemed will terminate, and the
place or places where such Debentures may be surrendered for
conversion.
A notice of redemption published as contemplated by Section 16.4 need
not identify particular Debentures to be redeemed.
Notice of redemption of Debentures to be redeemed at the election of
the Company shall be given by the Company or, at the Company's request, by the
Trustee in the name and at the expense of the Company.
SECTION 3.8 DEPOSIT OF REDEMPTION PRICE.
Prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as its own Paying
Agent, segregate and hold in trust as provided in Section 5.3) an amount of
money sufficient to pay the Redemption Price of, and (except if the Redemption
Date shall be an Interest Payment Date) accrued interest (including Additional
Payments, if any) on, all the Debentures which are to be redeemed on that date.
If any Debenture called for redemption is converted into Common Stock,
any money deposited with the Trustee or with any Paying Agent or so segregated
and held in trust for the redemption of such Debenture shall (subject to any
right of the Holder of such Debenture or any Predecessor Debenture to receive
interest as provided in this Indenture) be paid to the Company upon Company
Request or, if then held by the Company, shall be discharged from such trust.
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SECTION 3.9 DEBENTURES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Debentures so
to be redeemed shall on the Redemption Date become due and payable at the
Redemption Price therein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Debentures shall cease to bear interest. Upon surrender of any
such Debenture for redemption in accordance with said notice, such Debenture
shall be paid by the Company at the Redemption Price together with accrued
interest (including Additional Payments, if any) to the Redemption Date; subject
to the provisions of Section 3.1(d).
If any Debenture called for redemption shall not be so paid upon
surrender thereof for redemption, the principal and any premium shall, until
paid, bear interest (including Additional Payments, if any) from the Redemption
Date at the rate prescribed therefor in the Debenture.
SECTION 3.10 DEBENTURES REDEEMED IN PART.
Any Debenture 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 Trustee
shall authenticate and make available for delivery to the Holder of such
Debenture without service charge, a new Debenture or Debentures of like tenor 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 Debenture so surrendered.
ARTICLE IV
SUBORDINATION OF DEBENTURES
SECTION 4.1 DEBENTURES SUBORDINATE TO SENIOR INDEBTEDNESS.
The Company covenants and agrees, and each Holder of a Debenture, by
the Holder's acceptance thereof, likewise covenants and agrees, that, to the
extent and in the manner hereinafter set forth in this Article, the indebtedness
represented by the Debenture and the payment of the principal of (and premium,
if any) and interest (including Additional Payments) on each and all of the
Debentures are hereby expressly made subordinate and junior in right of payment
to the prior payment in full of all Senior Indebtedness of the Company, whether
outstanding at the date of this Indenture or thereafter incurred. No provision
of this Article shall prevent the occurrence of any Default or Event of Default
hereunder.
SECTION 4.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
Upon any payment by the Company or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due upon all Senior Indebtedness
of the Company shall first be paid in full, or payment thereof provided for in
money in accordance with its terms, before any payment is made by the Company on
account of the principal (and premium, if any) or interest (including Additional
Payments) on the Debentures; and upon any such dissolution or
23
winding-up or liquidation or reorganization, any payment by the Company, or
distribution of assets of the Company of any kind or character, whether in cash,
property or securities, which the Holders of the Debentures or the Trustee would
be entitled to receive from the Company, except for the provisions of this
Article, shall be paid by the Company or by any receiver, trustee in bankruptcy,
liquidating trustee, agent or other Person making such payment or distribution,
or by the Holders of the Debentures or by the Trustee under the Indenture if
received by them or it, directly to the holders of Senior Indebtedness of the
Company (pro rata to such holders on the basis of the respective amounts of
Senior Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, as their respective interests may appear, to the extent
necessary to pay such Senior Indebtedness in full, in money or money's worth,
after giving effect to any concurrent payment or distribution to or for the
holders of such Senior Indebtedness, before any payment or distribution is made
to the Holders of the Debentures or to the Trustee.
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, prohibited by the foregoing shall be received by the
Trustee before all Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, such
payment or distribution shall be held in trust for the benefit of and shall be
paid over or delivered to the holders of such Senior Indebtedness or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing such Senior Indebtedness
may have been issued, and their respective interests may appear, as calculated
by the Company, for application to the payment of all Senior Indebtedness of the
Company, as the case may be, remaining unpaid to the extent necessary to pay
such Senior Indebtedness in full in money in accordance with its terms, after
giving effect to any concurrent payment or distribution to or for the benefit of
the holders of such Senior Indebtedness.
For purposes of this Article only, the words "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, which are subordinated
in right of payment to all Senior Indebtedness which may at the time be
outstanding to substantially the same extent as, or to a greater extent than,
the Debentures are so subordinated as provided in this Article. The
consolidation of the Company with, or the merger of the Company into, another
Person or the liquidation or dissolution of the Company following the conveyance
or transfer of its properties and assets substantially as an entirety to another
Person upon the terms and conditions set forth in Article XII shall not be
deemed a dissolution, winding up, liquidation, reorganization, assignment for
the benefit of creditors or marshaling of assets and liabilities of the Company
for the purposes of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by conveyance or
transfer such properties and assets substantially as an entirety, as the case
may be, shall, as a part of such consolidation, merger, conveyance or transfer,
comply with the conditions set forth in Article XII.
SECTION 4.3 PRIOR PAYMENT TO SENIOR INDEBTEDNESS UPON ACCELERATION
OF DEBENTURES.
In the event that any Debentures are declared due and payable before
their Stated Maturity, then and in such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become due
on or in respect of all Senior Indebtedness or provision shall be made for such
payment in cash, before the Holders of the Debentures are entitled to receive
any payment (including any payment which may be payable by reason of the payment
of any other indebtedness of
23
the Company being subordinated to the payment of the Debentures) by the Company
on account of the principal of (or premium, if any) or interest (including
Additional Payments) on the Debentures or on account of the purchase or other
acquisition of Debentures.
In the event that, notwithstanding the foregoing, the Company shall
make any payment to the Trustee or the Holder of any Debenture prohibited by the
foregoing provisions of this Section, and if such fact shall, at or prior to the
time of such payment, have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over and
delivered forthwith to the Company.
SECTION 4.4 NO PAYMENT WHEN SENIOR INDEBTEDNESS IN DEFAULT.
In the event and during the continuation of any default by the Company
in the payment of principal, premium, interest or any other payment due on any
Senior Indebtedness of the Company, as the case may be, beyond any applicable
grace period with respect thereto, or in the event that the maturity of any
Senior Indebtedness of the Company, as the case may be, has been accelerated
because of a default, then no payment shall be made by the Company with respect
to the principal (including redemption payments) of, or premium, if any, or
interest (including Additional Payments) on the Debentures, unless and until
such default is cured or waived or ceases to exist or any such acceleration or
demand for payment has been rescinded.
In the event that, notwithstanding the foregoing, any payment shall be
received by the Trustee when such payment is prohibited by the preceding
paragraph of this Section 4.4, such payment shall be held in trust for the
benefit of, and shall be paid over or delivered to, the holders of Senior
Indebtedness or their respective representatives, or to the trustee or trustees
under any indenture pursuant to which any of such Senior Indebtedness may have
been issued, as their respective interests may appear, but only to the extent
that the holders of the Senior Indebtedness (or their representative or
representatives or a trustee) notify the Trustee in writing within 90 days of
such payment of the amounts then due and owing on the Senior Indebtedness and
only the amounts specified in such notice to the Trustee shall be paid to the
holders of Senior Indebtedness.
SECTION 4.5 PAYMENT PERMITTED IN CERTAIN SITUATIONS.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Debentures shall prevent (a) the Company, at any time except during
the pendency of any dissolution, winding-up, liquidation or reorganization of
the Company, whether voluntary or involuntary, or any bankruptcy, insolvency,
receivership or other proceedings of the Company referred to in Section 4.2 or
under the conditions described in Section 4.3 or 4.4, from making payments at
any time of principal of, or premium, if any, or interest (including Additional
Payments) on the Debentures, or (b) the application by the Trustee of any money
deposited with it hereunder to the payment of or on account of the principal of,
or premium, if any, or interest (including Additional Payments) on the
Debentures or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have Actual Knowledge that such
payment would have been prohibited by the provisions of this Article.
SECTION 4.6 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR INDEBTEDNESS.
Subject to the payment in full of all Senior Indebtedness or the
provision for such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Indebtedness,
24
the rights of the Holders of Debentures shall be subrogated to the extent of the
payments or distributions made to the holders of such Senior Indebtedness
pursuant to the provisions of this Article (equally and ratably with the holders
of indebtedness of the Company which by its express terms is subordinated to
indebtedness of the Company to substantially the same extent as the Debentures
are subordinated to the Senior Indebtedness and is entitled to like rights of
subrogation) to the rights of the holders of such Senior Indebtedness to receive
payments and distributions of cash, property and securities applicable to the
Senior Indebtedness until the principal of (and premium, if any) and interest on
the Debentures shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Indebtedness of any cash,
property or securities to which the Holders of Debentures or the Trustee would
be entitled except for the provisions of this Article, and no payments over
pursuant to the provisions of this Article to or for the benefit of the holders
of Senior Indebtedness by Holders of Debentures or the Trustee, shall, as among
the Company, its creditors other than holders of Senior Indebtedness, and the
Holders of Debentures, be deemed to be a payment or distribution by the Company
to or on account of the Senior Indebtedness.
SECTION 4.7 PROVISIONS SOLELY TO DEFINE RELATIVE RIGHTS.
The provisions of this Article are and are intended solely for the
purpose of defining the relative rights of the Holders of Debentures on the one
hand and the holders of Senior Indebtedness on the other hand. Nothing contained
in this Article or elsewhere in this Indenture or in the Debentures is intended
to or shall (a) impair, as among the Company, its creditors other than holders
of Senior Indebtedness and the Holders of Debentures, the obligation of the
Company, which is absolute and unconditional (and which, subject to the rights
under this Article of the holders of Senior Indebtedness, is intended to rank
equally with all other general obligations of the Company), to pay to the
Holders of Debentures the principal of (and premium, if any) and interest on the
Debentures as and when the same shall become due and payable in accordance with
their terms; or (b) affect the relative rights against the Company of the
Holders of Debentures and creditors of the Company, as the case may be, other
than the holders of Senior Indebtedness; or (c) prevent the Trustee or the
Holder of any Debenture from exercising all remedies otherwise permitted by
applicable law upon default under this Indenture, subject to the rights, if any,
under this Article of the holders of Senior Indebtedness to receive cash,
property and securities otherwise payable or deliverable to the Trustee or such
Holder.
SECTION 4.8 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Debenture by such Holder's acceptance thereof
authorizes and directs the Trustee on such Holder's behalf to take such action
as may be necessary or appropriate to effectuate the subordination provided in
this Article and appoints the Trustee such Holder's attorney-in-fact for any and
all such purposes.
SECTION 4.9 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Indebtedness to
enforce subordination as herein provided 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, provisions and covenants of this
Indenture, regardless of any knowledge thereof any such holder may have or be
otherwise charged with.
Without in any way limiting the generality of the foregoing paragraph,
the holders of Senior Indebtedness may, at any time and from time to time,
without the consent of or notice to the Trustee or
25
the Holders of Debentures, without incurring responsibility to the Holders of
Debentures and without impairing or releasing the subordination provided in this
Article or the obligations hereunder of the Holders of Debentures to the holders
of Senior Indebtedness do any one or more of the following: (a) change the
manner, place or terms of payment or extend the time of payment of, or renew or
alter, Senior Indebtedness or otherwise amend or supplement in any manner Senior
Indebtedness or any instrument evidencing the same or any agreement under which
Senior Indebtedness is outstanding; (b) sell, exchange, release or otherwise
deal with any property pledged, mortgaged or otherwise securing Senior
Indebtedness; (c) release any Person liable in any manner for the collection of
Senior Indebtedness; and (d) exercise or refrain from exercising any rights
against the Company and any other Person.
SECTION 4.10 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to a Responsible Officer
of the Trustee of any fact known to the Company which would prohibit the making
of any payment to or by the Trustee in respect of any Debentures pursuant to the
provisions of this Article. Notwithstanding the provisions of this Article or
any other provision of this Indenture, the Trustee shall not be charged with
knowledge of the existence of any facts which would prohibit the making of any
payment to or by the Trustee in respect of any Debentures pursuant to the
provisions of this Article, unless and until a Responsible Officer of the
Trustee shall have received written notice thereof from the Company or a holder
or holders of Senior Indebtedness or from any trustee therefor; and, prior to
the receipt of any such written notice, the Trustee, subject to the provisions
of Section 8.2, shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall have not received the notice
provided for in this Section at least two Business Days prior to the date upon
which, by the terms hereof, any money may become payable for any purpose
(including, without limitation, the payment of the principal of (or premium, if
any) or interest on any Debentures), then, anything herein contained to the
contrary notwithstanding, the Trustee shall have full power and authority to
receive such money and to apply the same to the purposes for which they were
received, and shall not be affected by any notice to the contrary that may be
received by it within two Business Days prior to such date.
Subject to the provisions of Section 8.2, the Trustee shall be entitled
to rely on the delivery to it of a written notice by a Person representing
himself to be a holder of Senior Indebtedness (or a trustee therefor) to
establish that such notice has been given by a holder of Senior Indebtedness (or
a trustee therefor). In the event that the Trustee determines in good faith that
further evidence is required with respect to the right of any Person as a holder
of Senior Indebtedness to participate in any payment or distribution pursuant to
this Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior Indebtedness
held by such Person, the extent to which such Person is entitled to participate
in such payment or distribution and any other facts pertinent to the rights of
such Person under this Article, and if such evidence is not furnished, the
Trustee may defer any payment to such Person pending judicial determination as
to the right of such Person to receive such payment.
SECTION 4.11 RELIANCE ON JUDICIAL ORDER OR CERTIFICATE OF LIQUIDATING
AGENT.
Upon any payment or distribution of assets of the Company referred to
in this Article, the Trustee, subject to the provisions of Section 8.2, and the
Holders of Debentures shall be entitled conclusively to rely upon any order or
decree entered by any court of competent jurisdiction in which such insolvency,
bankruptcy, receivership, liquidation, reorganization, dissolution, winding up
or similar case or proceeding is pending, or a certificate of the trustee in
bankruptcy, receiver, liquidating
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trustee, custodian, assignee for the benefit of creditors, agent or other Person
making such payment or distribution, delivered to the Trustee or to the Holders
of Debentures, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of Senior Indebtedness
and other indebtedness of the Company, as the case may be, the amount thereof or
payable thereon, the amount or amounts paid or distributed thereon and all other
facts pertinent thereto or to this Article.
SECTION 4.12 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR INDEBTEDNESS.
With respect to the holders of Senior Indebtedness, the Trustee
undertakes to perform or to observe only such of its covenants and obligations
as are specifically set forth in this Article, and no implied covenants or
obligations with respect to the holders of such Senior Indebtedness shall be
read into the Indenture against the Trustee. The Trustee shall not be deemed to
owe any fiduciary duty to the holders of Senior Indebtedness.
SECTION 4.13 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR INDEBTEDNESS,
PRESERVATION OF TRUSTEE'S RIGHTS.
The Trustee in its individual capacity shall be entitled to all the
rights set forth in this Article with respect to any Senior Indebtedness which
may at any time be held by it, to the same extent as any other holder of Senior
Indebtedness and nothing in this Indenture shall deprive the Trustee of any of
its rights as such holder.
Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 8.6.
SECTION 4.14 ARTICLE APPLICABLE TO PAYING AGENTS.
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 shall in such case (unless the context otherwise
requires) be construed as extending to and including such Paying Agent within
its meaning as fully for all intents and purposes as if such Paying Agent were
named in this Article in addition to or in place of the Trustee; provided,
however, that Section 4.13 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 4.15 CERTAIN CONVERSIONS DEEMED PAYMENT.
For the purposes of this Article only, (a) the issuance and delivery of
junior securities (or cash paid in lieu of fractional shares) upon conversion of
Debentures in accordance with Article XV, shall not be deemed to constitute a
payment or distribution on account of the principal of or premium or interest on
Debentures or on account of the purchase or other acquisition of Debentures, and
(b) the payment, issuance or delivery of cash, property or securities (other
than junior securities and cash paid in lieu of fractional shares) upon
conversion of a Debenture shall be deemed to constitute payment on account of
the principal of such Debenture. For the purposes of this Section, the term
"junior securities" means (i) shares of any stock of any class of the Company
and (ii) securities of the Company which are subordinated in right of payment to
all Senior Indebtedness which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Debentures are so subordinated as provided in this Article.
Nothing contained in this Article or elsewhere in this Indenture or in the
Debentures is intended to or shall impair, as among the Company, its creditors
other than holders of Senior Indebtedness and the Holders of Debentures, the
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right, which is absolute and unconditional, of the Holder of any Debenture to
convert such Debenture in accordance with Article XV.
ARTICLE V
CERTAIN COVENANTS
SECTION 5.1 PAYMENT OF PRINCIPAL, PREMIUM AND INTEREST.
The Company covenants and agrees that it will duly and punctually pay
the principal of and any premium and interest (including any Additional
Payments) on the Debentures in accordance with the terms of the Debentures and
this Indenture.
SECTION 5.2 MAINTENANCE OF OFFICE OR AGENCY.
The Company will maintain in the United States an office or agency
where Debentures may be presented or surrendered for payment, where Debentures
may be surrendered for registration of transfer, exchange, or conversion and
where notices and demands to or upon the Company in respect of Debentures and
this Indenture may be served. The Company will give prompt notice to the Trustee
and to the Holders as provided in Sections 16.3 and 16.4, respectively, of the
location and any change in the location, of any such office or agency. If at any
time the Company shall fail to maintain any such required office or agency in
respect of Debentures or shall fail to furnish the Trustee with the address
thereof, such presentations and surrenders of Debentures may be made and notices
and demands may be made or served at the Corporate Trust Office of the Trustee,
and the Company hereby appoints the same as its agent to receive such respective
presentations, surrenders, notices and demands.
The Company may also from time to time designate one or more other
offices or agencies where the Debentures 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
accordance with the requirements set forth above for such purposes. The Company
will give prompt written notice to the Trustee and the Holders of Debentures of
any such designation or rescission and of any change in the location of any such
other office or agency.
SECTION 5.3 MONEY FOR DEBENTURES PAYMENTS TO BE HELD IN TRUST.
If the Company shall at any time act as its own Paying Agent with
respect to Debentures, it will, on or before each due date of the principal of
and any premium or interest on any of the Debentures, segregate and hold in
trust for the benefit of the Persons entitled thereto a sum sufficient to pay
the principal and any premium or 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 to act.
Whenever the Company shall have one or more Paying Agents for
Debentures it will, prior to each due date of the principal of and any premium
or interest on any Debentures, deposit with a Paying Agent a sum sufficient to
pay the principal and any premium or interest so becoming due, such sum to be
held in trust for the benefit of the Persons entitled to such principal, premium
or interest, and (unless
28
such Paying Agent is the Trustee) the Company will promptly notify the Trustee
of its action or failure to act.
The Company will cause each Paying Agent for Debentures other than the
Trustee 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) hold all sums held by it for the payment of the principal
of and any premium or interest on Debentures in trust for the benefit
of the Persons entitled thereto until such sums shall be paid to such
Persons or otherwise disposed of as herein provided;
(b) give the Trustee notice of any default by the Company (or
any other obligor upon the Debentures) in the making of any payment of
principal of and any premium or interest on the Debentures;
(c) at any time during the continuance of any such default,
upon the written request of the Trustee, forthwith pay to the Trustee
all sums so held in trust by such Paying Agent, and
(d) comply with the provisions of the Trust Indenture Act
applicable to it as a Paying Agent.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, 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 and any premium or
interest on any Debenture and remaining unclaimed for two years after such
principal and any premium 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 the Debenture 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 an Authorized Newspaper in each Place of Payment, 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.
SECTION 5.4 EXISTENCE.
Subject to Article XII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its existence,
rights (charter and statutory) and franchises; provided, however, that the
Company shall not be required to preserve any such right or franchise if the
Board of Directors shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
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SECTION 5.5 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 signed by its principal executive officer, principal financial
officer or principal accounting officer stating whether or not to the best
knowledge of the signer 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.
The Company shall file with the Trustee, within five Business Days
after becoming aware of any Default or Event of Default, an Officers'
Certificate specifying such Default or Event of Default and what action the
Company is taking or proposes to take with respect thereto.
SECTION 5.6 LIMITATION ON DIVIDENDS AND OTHER PAYMENTS.
In the event that (i) an Event of Default shall have occurred and be
continuing, (ii) the Guarantor shall be in default with respect to its payment
of any obligations under the Preferred Securities Guarantee, or (iii) the
Company shall have given notice of its election to defer payments of interest on
Debentures pursuant to Section 2.3(c) and any Extended Interest Payment Period
shall be continuing, then, in each case, the Company shall not
(x) declare or pay any dividend on, make any distributions
with respect to, or redeem, purchase or make a liquidation payment with
respect to, any of its capital stock (other than (A) purchases or
acquisitions of shares of Common Stock in connection with the
satisfaction by the Company of its obligations under any employee
benefit plans, (B) as a result of a reclassification of capital stock
of the Company or the exchange or conversion of one class or series of
the Company's capital stock for another class or series of capital
stock of the Company, or (C) the purchase of fractional interests in
shares of the Company's capital stock pursuant to the conversion or
exchange provisions of such capital stock of the Company or the
security being converted or exchanged), or
(y) the Company shall not make any payment of interest,
principal or premium, if any, on or repay, repurchase or redeem any
debt securities (including guarantees) issued by the Company which rank
pari passu with or junior to the Debentures; or
(z) make any guarantee payments with respect to the foregoing
(other than pursuant to the Preferred Securities Guarantee).
Notwithstanding the foregoing, the Company will be permitted,
in any event, to make dividend, redemption, liquidation and guarantee payments
on capital stock of the Company, and interest, principal, redemption and
guarantee payments on debt securities issued by the Company ranking pari passu
with or junior to the Debentures, where the payment is made by way of securities
(including capital stock) that rank junior to the securities on which such
payment is being made.
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SECTION 5.7 COVENANTS AS TO THE TRUST.
For so long as the Trust Securities remain outstanding, the Company
will (a) maintain 100% direct or indirect ownership of the Common Securities of
the Trust; provided, however, that any permitted successor of the Company
hereunder may succeed to the Company's ownership of the Common Securities; (b)
not to cause, as sponsor of the Trust, or to permit, as holder of the Common
Securities, termination, dissolution or winding up of the Trust, except in
connection with a distribution of the Debentures as provided in the Declaration
and in connection with certain mergers, consolidations or amalgamations as
provided for in the Declaration, (c) use its reasonable efforts, consistent with
the terms of the Declaration, to cause the Trust (i) to remain a statutory
business trust, except in connection with a distribution of Debentures to the
holders of Trust Securities in liquidation of the Trust, the redemption of all
of the Trust Securities of the Trust, or certain mergers, consolidations or
amalgamations, each as permitted by the Declaration, and (ii) to continue to be
classified as a grantor trust for United States federal income tax purposes; and
(d) to use its reasonable efforts to cause each holder of Trust Securities to be
treated as owning an undivided beneficial interest in the Debentures.
SECTION 5.8 PAYMENT OF EXPENSES OF THE TRUST.
In connection with the offering, sale and issuance of the Debentures to
the Property Trustee and the sale of the Trust Securities by the Trust, the
Company shall:
(a) pay for all costs, fees and expenses relating to the offering, sale
and issuance of the Debentures;
(b) be responsible for and pay for all obligations (other than with
respect to the Trust Securities) of the Trust, pay for all costs and expenses of
the Trust (including, but not limited to, costs and expenses relating to the
organization of the Trust, the offering, sale and issuance of the Trust
Securities (including commissions to the Initial Purchasers in connection
therewith), the fees and expenses of the Property Trustee and the Delaware
Trustee, the costs and expenses relating to the operation of the Trust,
including without limitation, costs and expenses of accountants, attorneys,
statistical or bookkeeping services, expenses for printing and engraving and
computing or accounting equipment, paying agent(s), registrar(s), transfer
agent(s), duplicating, travel and telephone and other telecommunications
expenses and costs and expenses incurred in connection with the acquisition,
financing, and disposition of Trust assets); and
(c) pay any and all taxes (other than United States withholding taxes
attributable to the Trust or its assets), and all liabilities, costs and
expenses with respect to such taxes, of the Trust.
SECTION 5.9 REGISTRATION RIGHTS.
The holders of the Convertible Preferred Securities, the Debentures,
the Preferred Securities Guarantee, and the shares of Common Stock of the
Company issuable upon conversion of the Debentures into Common Stock
(collectively, the "Registrable Securities") are entitled to the benefits of a
Registration Rights Agreement, dated as of February 25, 1997, among the Company
and the Initial Purchasers (the "Registration Rights Agreement"). Pursuant to
the Registration Rights Agreement, the Company has agreed for the benefit of the
holders of Registrable Securities that (i) it will, at its cost, within 90 days
after the date of original issuance of the Debentures, file a shelf registration
statement (the "Shelf Registration Statement") with the Commission with respect
to the resales of the Registrable Securities, (ii) it will use all reasonable
efforts to cause such Shelf Registration Statement to be declared effective by
the Commission as promptly as practicable and in no event later than 180 days
after the
32
date of original issuance of the Debentures, and (iii) the Company will use all
reasonable efforts to maintain such Shelf Registration Statement continuously
effective under the Securities Act until three years after the latest date of
original issuance of the Debentures or such earlier date as is provided in the
Registration Rights Agreement (the "Effectiveness Period").
If (i) on or prior to 90 days following the date of original issuance
of the Registrable Debentures, a Shelf Registration Statement has not been filed
with the Commission, or (ii) on or prior to the 180th day following the date of
original issuance of the Debentures, such Shelf Registration Statement is not
declared effective (each, a "Registration Default"), additional interest
("Liquidated Damages") will accrue on the Debentures from and including the day
following such Registration Default. Liquidated Damages will be paid quarterly
in arrears, with the first quarterly payment due on the first interest or
distribution payment date, as applicable, following the date on which such
Liquidated Damages begin to accrue, and will accrue at a rate per annum equal to
an additional one-quarter of one percent (0.25%) of the principal amount, to and
including the 90th day following such Registration Default and one-half of one
percent (0.50%) thereof from and after the 91st day following such Registration
Default. Upon (x) the filing of the Shelf Registration Statement after the
90-day period described in clause (i) above or (y) the effectiveness of the
Shelf Registration Statement after the 180-day period described in clause (ii)
above, the interest rate borne by the Debentures from the date of such filing or
effectiveness, as the case may be, will be reduced to the interest rate then in
effect on the Debentures (excluding Liquidated Damages).
SECTION 5.10 PAYMENT OF TAXES AND OTHER CLAIMS.
The Company will pay or discharge or cause to be paid or discharged,
before the same shall become delinquent, (a) all taxes, assessments and
governmental charges levied or imposed upon the Company or any Subsidiary or
upon the income, profits or property of the Company or any Subsidiary, and (b)
all lawful claims for labor, materials and supplies which, if unpaid, might by
law become a lien upon the property of the Company or any Subsidiary; provided,
however, that the Company shall not be required to pay or discharge or cause to
be paid or discharged any such tax, assessment, charge or claim whose amount,
applicability or validity is being contested in good faith by appropriate
proceedings.
ARTICLE VI
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 6.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF
HOLDERS.
As required by Section 312(a) of the Trust Indenture Act, the Company
will furnish or cause to be furnished to the Trustee:
(a) semiannually, not later than March 31 and September 30 of
each year, a list, in such form as the Trustee may reasonably require,
of the names and addresses of the Holders of the Debentures ("List of
Holders") as of a date not more than 15 days prior to the delivery
thereof, provided, however, that the Company shall not be obligated to
provide such List of Holders at any time the List of Holders does not
differ from the most recent List of Holders given to the Trustee by or
on behalf of the Company, and in the absence of the provision of
32
any such List of Holders to the Trustee, then notice shall be deemed to
have been given to the Trustee that the List of Holders has not changed
since the most recent List of Holders; and
(b) at any other time, within 30 days of receipt by the
Company of a written request for a List of Holders as of a date no more
than 15 days before such List of Holders is given to the Trustee.
The Trustee shall preserve, in as current a form as is reasonably practicable,
all information contained in Lists of Holders given to it or which it receives
in the capacity as Debenture Registrar or Paying Agent (if acting in such
capacity), provided, however, that the Trustee may destroy any List of Holders
previously given to it on receipt of a new List of Holders.
SECTION 6.2 PRESERVATION OF INFORMATION; COMMUNICATIONS TO HOLDERS.
(a) The Trustee shall preserve, in as current a form as is reasonably
practicable, the names and addresses of Holders of Debentures (i) contained in
the most recent list furnished to the Trustee pursuant to Section 6.1, (ii)
received by the Trustee in its capacity as Debenture Registrar and (iii) filed
with it within the two preceding years pursuant to Section 313(c)(2) of the
Trust Indenture Act. The Trustee may (A) destroy any list furnished to it as
provided in Section 312(a) of the Trust Indenture Act upon receipt of a new list
so furnished, (B) destroy any information received by it as Paying Agent (if so
acting) hereunder upon delivering to itself as Trustee, not earlier than March
20 or September 20 of each year, a list containing the names and addresses of
the Holders of Debentures obtained from such information since the delivery of
the next previous list, if any, (C) destroy any list delivered to itself as
Trustee which was compiled from information received by it as Paying Agent (if
so acting) hereunder upon the receipt of a new list so delivered and (D) destroy
not earlier than two years after filing, any information filed with it pursuant
to Section 313(c)(2) of the Trust Indenture Act.
(b) If three or more Holders of Debentures (herein referred to as
"applicants") apply in writing to the Trustee, and furnish to the Trustee
reasonable proof that each such applicant has owned a Debenture for a period of
at least six months preceding the date of such application, and such application
states that the applicants desire to communicate with other Holders of
Debentures with respect to their rights under this Indenture or under the
Debentures and is accompanied by a copy of the form of proxy or other
communication which such applicants propose to transmit, then the Trustee shall,
within five Business Days after the receipt of such application, at its
election, either (i) afford such applicants access to the information preserved
at the time by the Trustee in accordance with Section 6.2(a), or (ii) inform
such applicants as to the approximate number of Holders of Debentures whose
names and addresses appear in the information preserved at the time by the
Trustee in accordance with Section 6.2(a), and as to the approximate cost of
mailing to such Holders the form of proxy or other communication, if any,
specified in such application.
If the Trustee shall elect not to afford such applicants access to such
information, the Trustee shall, upon the written request of such applicants,
mail to each Holder of Debentures whose name and address appears in the
information preserved at the time by the Trustee in accordance with Section
6.2(a) a copy of the form of proxy or other communication which is specified in
such request, with reasonable promptness after a tender to the Trustee of the
material to be mailed and of payment, or provision for the payment of the
reasonable expenses of mailing, unless within five days after such tender the
Trustee shall mail to such applicants and file with the Commission, together
with a copy of the material to be mailed, a written statement to the effect
that, in the opinion of the Trustee, such mailing would be contrary to the best
interests of the Holders of Debentures or would be in violation of
33
applicable law. Such written statement shall specify the basis of such opinion.
If the Commission, after opportunity for a hearing upon the objections specified
in the written statement so filed, shall enter an order refusing to sustain any
of such objections or if after the entry of an order sustaining one or more of
such objections, the Commission shall find, after notice and opportunity for
hearing, that all the objections so sustained have been met and shall enter an
order so declaring, the Trustee shall mail copies of such material to all such
Holders of Debentures with reasonable promptness after the entry of such order
and the renewal of such tender; otherwise the Trustee shall be relieved of any
obligation or duty to such applicants respecting their application.
(c) Every Holder of Debentures, 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 the
disclosure of any such information as to the names and addresses of the Holders
of Debentures in accordance with Section 6.2(b), regardless of the source from
which such information was derived and that the Trustee shall not be held
accountable by reason of mailing any material pursuant to a request made under
Section 6.2(b).
SECTION 6.3 REPORTS BY TRUSTEE.
The Trustee shall in each year transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act in the manner provided pursuant thereto. If
required by Section 313(a) of the Trust Indenture Act, the Trustee shall, within
60 days after each May 15 following the date of this Indenture deliver to
Holders a brief report, dated as of such May 15, which complies with the
provisions of Section 313(a).
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
Debentures are listed, with the Commission and with the Company. The Company
will promptly notify the Trustee when any Debentures are listed on any stock
exchange.
SECTION 6.4 REPORTS BY COMPANY.
The Company shall:
(a) file with the Trustee, within 15 days after the Company is
required to file the same with the Commission, copies of the annual
reports and of the information, documents and other reports (or copies
of such portions of any of the foregoing as the Commission may from
time to time by rules and regulations prescribe) which the Company may
be required to file with the Commission pursuant to Section 13 or
Section 15(d) of the Exchange Act; or, if the Company is not required
to file information, documents or reports pursuant to either of such
Sections, then it shall file with the Trustee and the Commission, in
accordance with rules and regulations prescribed from time to time by
the Commission, such of the supplementary and periodic information,
documents and reports which may be required pursuant to Section 13 of
the Exchange Act in respect of a security listed and registered on a
national securities exchange as may be prescribed from time to time in
such rules and regulations;
(b) file with the Trustee and the Commission, in accordance
with rules and regulations prescribed from time to time by the
Commission, such additional information, documents and reports required
to be filed with respect to compliance by the Company with the
conditions and covenants of this Indenture as may be required from time
to time by such rules and regulations; and
34
(c) transmit to all Holders, in the manner and to the extent
provided in Section 313(c) of the Trust Indenture Act, within 30 days
after the filing thereof with the Trustee, such summaries of any
information, documents and reports required to be filed by the Company
pursuant to paragraphs (a) and (b) of this Section as may be required
by rules and regulations prescribed from time to time by the
Commission.
Delivery of such reports, information and documents to the Trustee is
for informational purposes only and the Trustee's receipt of such shall not
constitute constructive notice of any information contained therein or
determinable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
ARTICLE VII
DEFAULTS AND REMEDIES
SECTION 7.1 EVENTS OF DEFAULT.
"Event of Default," wherever used herein with respect to the
Debentures, means any one or more of the following events (whatever the reason
for such Event of Default and whether it shall be voluntary or involuntary or be
effected by operation of law or pursuant to any judgment, decree or order of any
court or any order, rule or regulation of any administrative or governmental
body):
(a) default in the payment of any interest upon any Debenture,
including any Compounded Interest, Additional Interest, or Liquidated
Damages in respect thereof, when it becomes due and payable, and
continuance of such default for a period of 30 days (whether or not
such payment is prohibited by the subordination provisions set forth in
Article IV hereof); provided, however, that a valid extension of an
interest payment period by the Company in accordance with the terms of
this Indenture shall not constitute a default in the payment of
interest (including any Additional Payments) for this purpose; or
(b) default in the payment of the principal of (or premium, if
any, on) any Debenture as and when the same shall become due and
payable whether at maturity, upon redemption, by declaration or
otherwise (whether or not such payment is prohibited by the
subordination provisions set forth in Article IV hereof); or
(c) failure by the Company to issue and deliver Common Stock
or other property issuable upon an election to convert such Debentures
pursuant to Article XV (whether or not such delivery is prohibited by
the subordination provisions set forth in Article IV); or
(d) default in the performance, or breach, of any covenant or
warranty of the Company in this Indenture (other than a covenant or
warranty a default in whose performance or whose breach is elsewhere in
this Section specifically dealt with), and continuance of such default
or breach for a period of 90 days after there 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 Debentures, 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
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(e) the entry by a court having jurisdiction in the premises
of a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable federal or state
bankruptcy, insolvency, reorganization or other similar law, or
appointing a custodian, receiver, liquidation, assignee, trustee,
sequestrator or other similar official of the Company or of any
substantial part of their property, or ordering the winding up or
liquidation of its affairs, and the continuance of any such decree or
order for relief or any such other decree or order unstayed and in
effect for a period of 60 consecutive days; or
(f) the commencement by the Company of a voluntary case or
proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case or
proceeding to be adjudicated a bankrupt or insolvent, or the consent by
it to the entry of a decree or order for relief in respect of the
Company in an involuntary case or proceeding under any applicable
federal or state bankruptcy, insolvency, reorganization or other
similar law or to the commencement of any bankruptcy or insolvency case
or proceeding against it, or the filing by it of a petition or answer
or consent seeking reorganization or relief under any applicable
federal or state law, or the consent by it to the filing of such
petition or to the appointment of or taking possession by a custodian,
receiver, liquidation, assignee, trustee, sequestrator or similar
official of the Company or of any substantial part of their property,
or the making by it of an assignment for the benefit of creditors; or
(g) the voluntary or involuntary dissolution, winding-up, or
termination of the Trust except in connection with (i) the distribution
of Debentures to holders of Trust Securities in liquidation of their
interest in the Trust, (ii) the redemption of all of the outstanding
Trust Securities of the Trust or (iii) certain mergers, consolidations
or amalgamations, each as permitted by the Declaration.
SECTION 7.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default described in clause (a), (b), (c), (d), or (g)
of Section 7.1 above occurs and is continuing, then, and in each and every such
case, unless the principal of all of the Debentures shall have already become
due and payable, either the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Debentures then Outstanding hereunder, by
notice in writing to the Company (and to the Trustee if given by the Holders of
Debentures), may declare the entire principal of all Debentures and all interest
accrued thereon (including any Additional Payments) and any other amounts
payable hereunder to be due and payable immediately, and upon any such
declaration the same shall become immediately due and payable.
If an Event of Default described in clause (e) or (f) of Section 7.1
occurs, the entire principal of all Debentures and all interest accrued thereon
(including any Additional Payments) and any other amounts payable hereunder
shall become immediately due and payable, without any declaration or other act
on the part of the Trustee or the Holders.
At any time after a declaration of acceleration has been made and
before a judgment or decree for payment of the money due has been obtained by
the Trustee as provided in this Article hereinafter, the Holders of a majority
in aggregate principal amount of the Outstanding Debentures, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if:
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay --
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(A) all overdue interest (including any Additional
Interest, Compounded Interest and Liquidated Damages) on all
Debentures,
(B) the principal of any Debentures which have become
due otherwise than by such declaration of acceleration and
interest thereon at the rate borne by the Debentures, and
(C) all sums paid or advanced by the Trustee and each
predecessor Trustee hereunder and the reasonable compensation,
expenses, disbursements and advances of the Trustee and each
predecessor Trustee and their respective agents and counsel;
and
(2) all Events of Default, other than the non-payment of
the principal of Debentures that have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 7.13.
No such rescission shall affect any subsequent default or impair any
right consequent thereon.
In case the Trustee shall have proceeded to enforce any right with
respect to Debentures under this Indenture and such proceedings shall have been
discontinued or abandoned because of such rescission or annulment or for any
other reason or shall have been determined adversely to the Trustee, then and in
every such case the Company and the Trustee shall be restored respectively to
their former positions and rights hereunder, and all rights, remedies and powers
of the Company and the Trustee shall continue as though no such proceedings had
been taken.
SECTION 7.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY
TRUSTEE.
The Company covenants that if,
(a) default is made in the payment of any interest
(including Additional Payments) on any Debenture when such interest
becomes due and payable and such default continues for a period of 30
days (provided that a valid extension of the interest payment period by
the Company pursuant to this Indenture shall not constitute a default
in the payment of any interest (including Additional Payments) for this
purpose), or
(b) default is made in the payment of the principal of
any Debenture at Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of Debentures, the whole amount then due and payable on Debentures for
principal and interest (including any Additional Payments) and, to the extent
that payment of such interest shall be legally enforceable under applicable law,
interest on any overdue principal and on any overdue interest, at the rate per
annum stated in the Debentures; 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 under Section 8.6.
If the Company fails to pay such amounts forthwith upon such demand,
the Trustee, in its own name and as trustee of an express trust, may institute a
judicial proceeding for the collection of the sums so due and unpaid, may (in
addition to exercising any other rights pursuant to Section 7.2) prosecute such
proceeding to judgment or final decree and may enforce the same against the
Company or any other obligor upon the Debentures and collect the moneys adjudged
or decreed to be payable in
37
the manner provided by law out of the property of the Company or any other
obligor upon the Debentures, wherever situated.
If an Event of Default with respect to Debentures occurs and is
continuing, the Trustee may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Debentures by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, either at law or in equity or in bankruptcy or otherwise 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 7.4 TRUSTEE MAY FILE PROOFS OF CLAIM.
In case of the pendency of any receivership, insolvency, liquidation,
bankruptcy, reorganization, arrangement, adjustment, composition or other
judicial proceeding relative to the Company or any other obligor upon the
Debentures or the property of the Company or of such other obligor or their
creditors, the Trustee (irrespective of whether the principal of Debentures
shall then be due and payable as therein expressed or by declaration or
otherwise and irrespective of whether the Trustee shall have made any demand on
the Company for the payment of overdue principal or interest) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest (including Additional
Interest) owing and unpaid in respect of the Debentures and to file
such other papers or documents as may be necessary or advisable in
order to have the claims of the Trustee (including any claim for the
reasonable compensation, expenses, disbursements and advances of the
Trustee, its agents and counsel) and of the Holders of Debentures
allowed in such judicial proceeding, and
(b) 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 of Debentures 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 of Debentures, 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 8.6.
Nothing herein contained shall be deemed to authorize the Trustee to
authorize or consent to or accept or adopt on behalf of any Holder of a
Debenture any plan of reorganization, arrangement, adjustment or composition
affecting the Debentures or the rights of any Holder thereof or to authorize the
Trustee to vote in respect of the claim of any Holder of Debentures in any such
proceeding.
SECTION 7.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF
DEBENTURES.
All rights of action and claims under this Indenture or under any of
the terms established with respect to the Debentures may be prosecuted and
enforced by the Trustee without the possession of any of the Debentures 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 due under Section 8.6, be
38
for the ratable benefit of the Holders of the Debentures in respect of which
such judgment has been recovered.
SECTION 7.6 APPLICATION OF MONEY COLLECTED.
Subject to the provisions of Article IV, any money collected by the
Trustee pursuant to this Article with respect to Debentures 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 any premium or
interest, upon presentation of the Debentures, and the notation thereon of the
payment if only partially paid and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under Section 8.6;
SECOND: To the payment of the amounts then due and unpaid for principal
of and interest (including any Additional Payments) on the Debentures in respect
of which such money has been collected, ratably, without preference or priority
of any kind, according to the amounts due and payable on Debentures for
principal and any premium and interest, respectively.
SECTION 7.7 LIMITATION ON SUITS.
No Holder of any Debenture 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 Debentures 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 shall have offered to the Trustee
reasonable indemnity 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 Debentures;
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.
39
SECTION 7.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND
INTEREST AND TO CONVERT.
Notwithstanding any other provision in this Indenture, but subject to
Article IV of this Indenture, the Holder of any Debenture shall have the right,
which is absolute and unconditional, to receive payment of the principal of and
(subject to Section 2.3) interest (including any Additional Payments) on the
Debentures on the Stated Maturity or Maturities expressed in the Debentures (or,
in the case of redemption, on the Redemption Date) and to convert such Debenture
into Common Stock in accordance with Article XV and to institute suit for the
enforcement of any such payment and right to convert, and such rights shall not
be impaired without the consent of such Holder.
SECTION 7.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of Debentures 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 of Debentures 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 7.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Debentures in the last paragraph of
Section 2.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Debentures 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 7.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Debenture
to exercise any right or remedy accruing upon any Event of Default occurring and
continuing as aforesaid shall impair any such right or remedy or constitute a
waiver of any such Event of Default or an acquiescence therein.
Subject to the provisions of Section 7.7, every right and remedy given
by this Article or by law to the Trustee or to the Holders of Debentures may be
exercised from time to time, and as often as may be deemed expedient, by the
Trustee or by the Holders of Debentures, as the case may be.
SECTION 7.12 CONTROL BY HOLDERS OF DEBENTURES.
The Holders of a majority in aggregate principal amount of the
Outstanding Debentures shall have the right to direct the time, method and place
of conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred on the Trustee, with respect to the
Debentures, provided that,
40
(a) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(b) the Trustee may take any other action deemed proper by the
Trustee that is not inconsistent with such direction.
SECTION 7.13 WAIVER OF PAST DEFAULTS.
The Holders of not less than a majority in principal amount of the
Outstanding Debentures may on behalf of the Holders of all the Debentures waive
any past default hereunder with respect to the Debentures and its consequences,
except a default
(a) in the payment of the principal of (or premium, if any) or
any interest (including Additional Interest, Compounded Interest and
Liquidated Damages) on any Debenture as and when the same shall become
due by the terms of Debentures otherwise than by acceleration (unless
such default has been cured and sums sufficient to pay all matured
installments of interest (including Additional Interest, Compounded
Interest and Liquidated Damages) and principal and any premium has been
deposited with the Trustee (in accordance with Section 7.2)), or
(b) in the covenants contained in Sections 5.6 and 5.7, or
(c) in respect of a covenant or provision hereof which under
Article XI cannot be modified or amended without the consent of the
Holder of each Outstanding Debenture affected; provided, however, that
if the Debentures are held by the Trust or a trustee of such trust,
such waiver or modification to such waiver shall not be effective until
the holders of a majority in liquidation preference of Trust Securities
of the Trust shall have consented to such waiver or modification to
such waiver; provided further, that if the consent of the Holder of
each Outstanding Debenture is required, such waiver shall not be
effective until each holder of the Trust Securities of the Trust shall
have consented to such waiver.
Upon any such waiver, the default covered thereby shall cease to exist,
and any Event of Default arising therefrom shall be deemed to have been cured,
for every purpose of this Indenture and the Company, the Trustee and the holders
of the Debentures shall be restored to their former positions and rights
hereunder, respectively; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 7.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Debenture
by such Holder's acceptance thereof shall be deemed to have agreed, that any
court may in its discretion require, in any suit for the enforcement of any
right or remedy under this Indenture, or in any suit against the Trustee for any
action taken, suffered or omitted by it as Trustee, the filing by any party
litigant in such suit of an undertaking to pay the costs of such suit, and that
such court may in its discretion assess reasonable costs, including reasonable
attorneys' fees and expenses, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by such
party litigant; but the provisions of this Section shall not apply to any suit
instituted by the Company, to any suit instituted by the Trustee, to any suit
instituted by any Holder or group of Holders holding in the aggregate more than
10% in principal amount of the Outstanding Debentures, or to any suit instituted
by any Holder of any Debenture for the enforcement of the payment of the
principal of or any premium or interest
41
(including Additional Payments) on such Debenture on or after the Stated
Maturity or Maturities expressed in such Debenture (or, in the case of
redemption, on or after the Redemption Date) or the right to convert such
Debenture in accordance with the provisions of this Indenture.
SECTION 7.15 WAIVER OF STAY OR EXTENSION LAWS.
The Company covenants (to the extent that it may lawfully do so) that
it will not at any time insist upon, or plead, or in any manner whatsoever claim
or take the benefit or advantage of, any stay or extension law wherever enacted,
now or at any time hereafter in force, which 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.
SECTION 7.16 ENFORCEMENT BY HOLDERS OF CONVERTIBLE PREFERRED
SECURITIES.
(a) Notwithstanding anything to the contrary contained herein, if the
Property Trustee as Holder of the Debentures fails to enforce its rights under
the Debentures (other than rights arising from an Event of Default described in
Section 7.16(b)) for a period of 30 days after any holder of Convertible
Preferred Securities shall have made a written request to the Property Trustee
to enforce such rights, such holder of Convertible Preferred Securities may, to
the fullest extent permitted by law, institute a Direct Action to enforce the
Property Trustee's rights as Holder of the Debentures, without first instituting
any legal proceeding against the Property Trustee or any other Person.
(b) Notwithstanding anything to the contrary contained herein, if an
Event of Default has occurred and is continuing and such Event of Default is
attributable to the failure of the Company to pay interest (including any
Additional Payments) or principal on the Debentures on the date such interest or
principal is otherwise payable, the Company acknowledges that, in such event, a
holder of Convertible Preferred Securities may institute a Direct Action for
enforcement of payment to such Holder of the principal of or interest on the
Debentures having a principal amount equal to the aggregate liquidation amount
of the Preferred Securities of such Holder, on or after the respective due date
specified in the Debentures, without first instituting any legal proceeding
against the Property Trustee or any other Person.
(c) Notwithstanding any payment made to such holder of Convertible
Preferred Securities by the Company in connection with a Direct Action, the
Company shall remain obligated to pay the principal of or interest on the
Debentures held by the Trust or the Property Trustee and the Company shall be
subrogated to the rights of the holder of such Convertible Preferred Securities
with respect to payments on the Convertible Preferred Securities to the extent
of any payments made by the Company to such holder in any Direct Action.
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ARTICLE VIII
CONCERNING THE TRUSTEE
SECTION 8.1 DUTIES AND RESPONSIBILITIES OF THE TRUSTEE; DURING
DEFAULT; PRIOR TO DEFAULT.
With respect to the Holders of Debentures issued hereunder, the
Trustee, prior to the occurrence of an Event of Default with respect to the
Debentures and after the curing or waiving of all Events of Default which may
have occurred with respect to Debentures, undertakes to perform such duties and
only such duties as are specifically set forth in this Indenture. In case an
Event of Default with respect to the Debentures has occurred (which has not been
cured or waived), the Trustee shall exercise with respect to the Debentures such
of the rights and powers vested in it by this Indenture, and shall use the same
degree of care and skill in their exercise, as a prudent man would exercise or
use under the circumstances in the conduct of his own affairs. No provision of
this Indenture shall be construed to relieve the Trustee from liability for its
own negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(a) prior to the occurrence of an Event of Default with
respect to the Debentures and after the curing or waiving of all such
Events of Default with respect to the Debentures which may have
occurred:
(i) the duties and obligations of the Trustee with
respect to the Debentures shall be determined solely by the
express provisions of this Indenture, and the Trustee shall
not be liable except for the performance of such duties and
obligations as are specifically set forth in this Indenture,
and no implied covenants or obligations shall be read into
this Indenture against the Trustee; and
(ii) in the absence of bad faith on the part of the
Trustee, the Trustee may conclusively rely, as to the truth of
the statements and the correctness of the opinions expressed
therein, upon any statements, certificates or opinions
furnished to the Trustee and conforming to the requirements of
this Indenture; but in the case of any such statements,
certificates or opinions which by any provision hereof are
specifically required to be furnished to the Trustee, the
Trustee shall be under a duty to examine the same to determine
whether or not, on their face, they conform to the
requirements of this Indenture, but shall otherwise have no
duty to determine the accuracy or completeness thereof or
whether the same comply with applicable laws;
(b) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer or Responsible
Officers of the Trustee, unless it shall be proved that the Trustee was
negligent in ascertaining the pertinent facts;
(c) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders pursuant to Section 7.12 relating to
the time, method and place of conducting any proceeding for any remedy
available to the Trustee, or exercising any trust or power conferred
upon the Trustee, under this Indenture; and
43
(d) whether or not therein 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 8.1
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.
SECTION 8.2 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of the Trust Indenture Act:
(a) the Trustee may rely and shall be protected in acting or
refraining from acting upon any resolution, 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
or as otherwise expressly provided herein 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 selection 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 of Debentures pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
reasonable security or indemnity against the costs, expenses and
liabilities which might be incurred by it in compliance with such
request or direction; provided, however, that nothing contained in this
Section 8.2(e) shall be taken to relieve the Trustee, upon the
occurrence of an Event of Default, from its obligations expressly
created hereunder to exercise the rights and powers vested in it by
this Indenture;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney; and
44
(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.
SECTION 8.3 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF DEBENTURES.
The recitals contained herein and in the Debentures (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee or any Authenticating Agent assumes no
responsibility for their correctness. The Trustee makes no representations as to
the validity or sufficiency of this Indenture or of any Debentures. The Trustee
or any Authenticating Agent shall not be accountable for the use or application
by the Company of Debentures or the proceeds thereof.
SECTION 8.4 MAY HOLD DEBENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Debenture
Registrar or any other agent of the Company, in its individual or any other
capacity, may become the owner or pledgee of Debentures and, subject to Sections
8.9 and 8.11, may otherwise deal with the Company with the same rights it would
have if it were not Trustee, Authenticating Agent, Paying Agent, Debenture
Registrar or such other agent.
SECTION 8.5 MONEY HELD IN TRUST.
Money held by the Trustee in trust hereunder need not be segregated
from other funds except to the extent required by law. The Trustee shall be
under no liability for interest on any money received by it hereunder except as
otherwise agreed in writing with the Company.
SECTION 8.6 COMPENSATION AND REIMBURSEMENT.
The Company agrees:
(a) to pay to the Trustee or any predecessor Trustee from time
to time such 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 or any predecessor 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 compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or advance
as may be attributable to its negligence or bad faith; and
(c) to indemnify the Trustee and any predecessor Trustee for,
and to hold it harmless against, any and all loss, damage, claim,
liability or expense, including taxes (other than taxes based on the
income of the Trustee) incurred without negligence or bad faith on its
part, arising out of or in connection with the acceptance or
administration of the trust or trusts
45
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.
When the Trustee incurs expenses or renders services in connection with
an Event of Default specified in Section 7.1(e) or Section 7.1(f), the expenses
(including the reasonable charges and expenses of its counsel) and the
compensation for the services are intended to constitute expenses of
administration under any applicable federal or state bankruptcy, insolvency or
other similar laws.
The provisions of this Section 8.6 shall survive the termination of
this Indenture.
SECTION 8.7 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 8.8.
(b) The Trustee may resign at any time with respect to the
Debentures by giving written notice thereof to the Company. If the instrument of
acceptance by a successor Trustee required by Section 8.8 shall not have been
delivered to the Trustee within 30 days after the giving of such notice of
resignation, the resigning Trustee may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures.
(c) The Trustee may be removed at any time with respect to the
Debentures by Act of the Holders of a majority in principal amount of the
Outstanding Debentures delivered to the Trustee and to the Company. If the
instrument of acceptance by a successor Trustee required by Section 8.8 shall
not have been delivered to the Trustee within 30 days after the delivery of such
Act of removal, the Trustee being removed may petition any court of competent
jurisdiction for the appointment of a successor Trustee with respect to the
Debentures.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
310(b) of the Trust Indenture Act after written request
therefor by the Company or by any Holder of a Debenture who
has been a bona fide Holder of a Debenture for at least six
months, or
(2) the Trustee shall cease to be eligible under
Section 8.10 and Section 310(a) of the Trust Indenture Act and
shall fail to resign after written request therefor by the
Company or by any Holder of a Debenture who has been a bona
fide Holder of a Debenture for at least six months, 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 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, (i) the
Company by a Board Resolution may remove the Trustee with
respect to all Debentures, or (ii) subject to Section 7.14 any
Holder of a Debenture who has been a bona fide Holder of a
Debenture 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 with
respect to all Debentures and the appointment of a successor
Trustee or Trustees.
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(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, with
respect to the Debentures, the Company, by a Board Resolution, shall promptly
appoint a successor Trustee or Trustees with respect to the Debentures (it being
understood that at any time there shall be only one Trustee with respect to the
Debentures) and shall comply with the applicable requirements of Section 8.8.
If, within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee with respect to the Debentures
shall be appointed by Act of the Holders of a majority in principal amount of
Outstanding Debentures 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 8.8,
become the successor Trustee with respect to the Debentures and to that extent
supersede the successor Trustee appointed by the Company. If no successor
Trustee with respect to the Debentures shall have been so appointed by the
Company or the Holders of Debentures and accepted appointment in the manner
required by Section 8.8, any Holder of a Debenture who has been a bona fide
Holder of a Debenture 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 with respect to the Debentures.
(f) The Company shall give notice of each resignation and each removal
of the Trustee with respect to the Debentures and each appointment of a
successor Trustee with respect to the Debentures in the manner provided in
Section 16.4. Each notice shall include the name of the successor Trustee with
respect to the Debentures and the address of its Corporate Trust Office.
SECTION 8.8 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
(a) In case of the appointment hereunder of a successor Trustee with
respect to all Debentures, 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 written
request of the Company or the successor Trustee, such retiring Trustee shall,
upon payment of its charges, execute and deliver an instrument transferring to
such successor Trustee all the rights, powers and trusts of the retiring Trustee
and shall duly assign, transfer and deliver to such successor Trustee all
property and money held by such retiring Trustee hereunder.
(b) Upon the written 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 paragraph (a) of this Section.
(c) 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 8.9 DISQUALIFICATION; CONFLICTING INTERESTS.
If the Trustee has or shall acquire a conflicting interest within the
meaning of the Trust Indenture Act, the Trustee shall either eliminate such
interest or resign, to the extent and in the manner provided by, and subject to
the provisions of, the Trust Indenture Act and this Indenture.
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SECTION 8.10 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall be at all times a Trustee hereunder which shall be a Person
that is eligible pursuant to the Trust Indenture Act to act as such and has a
combined capital and surplus of at least $50,000,000. If such Person 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 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 hereunder specified in this Article.
SECTION 8.11 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 Debentures), 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 8.12 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 Debentures 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 Debentures so authenticated with the same effect
as if such successor Trustee had itself authenticated such Debentures.
SECTION 8.13 APPOINTMENT OF AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents with respect
to Debentures which shall be authorized to act on behalf of the Trustee to
authenticate Debentures issued upon original issue or upon exchange,
registration of transfer or partial redemption thereof or pursuant to Section
2.6, and Debentures 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 Debentures 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 shall be acceptable to the Company. 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.
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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 the corporate agency or
corporate trust business of such 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 such Authenticating Agent.
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 shall be acceptable to the Company and shall promptly give notice of
such appointment to all Holders of Debentures pursuant to Section 16.4. 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.
The Company agrees to pay to each Authenticating Agent from time to
time reasonable compensation for its services under this Section.
If an appointment with respect to Debentures is made pursuant to this
Section, the Debentures 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 Debentures referred to in the within-mentioned
Indenture.
__________________________________
By _______________________________
Authenticating Agent
By _______________________________
Authorized Signatory
If all of the Debentures may not be originally issued at one time, and
if the Company has an Affiliate eligible to be appointed as an Authenticating
Agent hereunder or the Trustee does not have an office capable of authenticating
Debentures upon original issuance located in a Place of Payment where the
Company wishes to have Debentures authenticated upon original issuance, the
Trustee, if so requested by the Company in writing (which writing need not
comply with Section 16.1 and need not be accompanied by an Opinion of Counsel),
shall appoint in accordance with this Section an Authenticating Agent (which if
so requested by the Company, shall be such Affiliate of the Company) having an
office in a Place of Payment designated by the Company with respect to the
Debentures.
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SECTION 8.14. NOTICE OF DEFAULTS.
If a Default occurs hereunder with respect to Debentures, the Trustee
shall give the Holders of Debentures 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 7.1(d), no such notice to Holders
shall be given until at least 30 days after the occurrence thereof.
ARTICLE IX
ACTS OF HOLDERS
SECTION 9.1 ACTS OF HOLDERS.
(a) Any request, demand, authorization, direction, notice, consent,
waiver or other action provided or permitted by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more instruments of
substantially similar tenor signed by such Holders in person or by agent duly
appointed in writing. Except as herein otherwise expressly provided, such action
shall become effective when such instrument or instruments are delivered to the
Trustee and, where it is hereby expressly required, to the Company. Such
instrument or instruments (and the action embodied therein and evidenced
thereby) are herein sometimes referred to as the "Act" of the Holders signing
such instrument or instruments. Proof of execution of any such instrument or of
a writing appointing any such agent or proxy, or of the holding by any Person of
a Debenture, shall be sufficient for any purpose of this Indenture and (subject
to Section 8.1) conclusive in favor of the Trustee and the Company, if made in
the manner provided in this Section.
(b) The fact and date of the execution by any Person of any such
instrument or writing may be proved 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 such notary public or other such
officer the execution thereof. Where such execution is by a signer acting in a
capacity other than the signer's individual capacity, such certificate or
affidavit shall also constitute sufficient proof of the signer's 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 reasonably deems sufficient.
(c) The principal amount of Debentures held by any Person, and the date
of holding the same, shall be proved by the Debenture Register.
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of a Debenture shall bind every future Holder
of the same Debenture and the Holder of every Debenture 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 Debenture.
(e) The Company may, in the circumstances permitted by the Trust
Indenture Act, fix any day as the record date for the purpose of determining the
Holders of Outstanding Debentures entitled to give, make or take any request,
demand, authorization, direction, notice, consent, waiver or other action, or to
vote on any action, authorized or permitted to be given or taken by Holders. If
not set by the Company prior to the first solicitation of a Holder 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
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pursuant to Section 6.1) prior to such first solicitation or vote, as the case
may be. With regard to any record date, only the Holders on such date (or their
duly designated proxies) shall be entitled to give or take, or vote on, the
relevant action. With regard to any action that may be given or taken hereunder
only by Holders of a requisite principal amount of Outstanding Debentures (or
their duly appointed agents) and for which a record date is set pursuant to this
paragraph, the Company may, at its option, set an expiration date after which no
such action purported to be given or taken by any Holder shall be effective
hereunder unless given or taken on or prior to such expiration date by Holders
of the requisite principal amount of Outstanding Debentures on such record date
(or their duly appointed agents). On or prior to any expiration date set
pursuant to this paragraph, the Company may, on one or more occasions at its
option, extend such date to any later date. Nothing in this paragraph shall
prevent any Holder (or any duly appointed agent thereof) from giving or taking,
after any expiration date, any action identical to, or, at any time, contrary to
or different from, any action given or taken, or purported to have been given or
taken, hereunder by a Holder on or prior to such date, in which event the
Company may set a record date in respect thereof pursuant to this clause.
ARTICLE X
MEETINGS OF HOLDERS OF DEBENTURES
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Debentures may be called at any time and from
time to time pursuant to this Article to make, give or take any request, demand,
authorization, direction, notice, consent, waiver or other action provided by
this Indenture to be made, given or taken by Holders of Debentures.
SECTION 10.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Debentures
for any purpose specified in Section 10.1, to be held at such time and at such
place in the Borough of Manhattan, The City of New York as the Trustee shall
determine. Notice of every meeting of Holders of Debentures setting forth the
time and the place of such meeting and in general terms the action proposed to
be taken at such meeting, shall be given, in the manner provided in Section
16.4, not less than 21 nor more than 180 days prior to the date fixed for the
meeting (or, in the case of a meeting of Holders with respect to Debentures all
or part of which are represented by a Book-Entry Debenture, not less than 20 nor
more than 40 days).
(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 25% in principal amount of the Outstanding Debentures
shall have requested the Trustee to call a meeting of the Holders of Debentures
for any purpose specified in Section 10.1, by written request setting forth in
reasonable detail the action proposed to be taken at the meeting, and the
Trustee shall not have mailed the first notice of such meeting within 21 days
after receipt of such request or shall not thereafter proceed to cause the
meeting to be held as provided herein, then the Company or the Holders of
Debentures in the amount above specified, as the case may be, may determine the
time and the place in the Borough of Manhattan, The City of New York for such
meeting and may call such meeting for such purposes by giving notice thereof as
provided in Subsection (a) of this Section.
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SECTION 10.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
Upon the calling of a meeting of Holders with respect to the Debentures
all or part of which are represented by a Book-Entry Debenture, a record date
shall be established for determining Holders of Outstanding Debentures entitled
to vote at such meeting, which record date shall be the close of business on the
day the notice of the meeting of Holders is given in accordance with Section
10.2. The Holders on such record date, and their designated proxies, and only
such Persons, shall be entitled to vote at any meeting of Holders. To be
entitled to vote at any meeting of Holders a Person shall (a) be a Holder of one
or more Debentures or (b) be a Person appointed by an instrument in writing as
proxy by a Holder of one or more Debentures; provided, however, that in the case
of any meeting of Holders with respect to the Debentures all or part of which
are represented by a Book-Entry Debenture, only Holders, or their designated
proxies, of record on the record date established pursuant to Section 10.3
hereof shall be entitled to vote at such meeting. The only Persons who shall be
entitled to be present or to speak at any meeting of Holders shall be the
Persons entitled to vote at such meeting and their counsel and any
representatives of the Trustee and its counsel and any representatives of the
Company and its counsel.
SECTION 10.4 QUORUM; ACTION.
The Persons entitled to vote a majority in principal amount of the
Outstanding Debentures shall constitute a quorum for a meeting of Holders of
Debentures; provided, however, that if any action is to be taken at such meeting
with respect to a consent or waiver which this Indenture expressly provides may
be given by the Holders of a specified percentage in aggregate principal amount
of Outstanding Debentures that is less or greater than a majority in principal
amount of the Outstanding Debentures, then, with respect to such action (and
only such action) the Persons entitled to vote such lesser or greater percentage
in principal amount of the Outstanding Debentures shall constitute a quorum. In
the absence of a quorum within 30 minutes of the time appointed for any such
meeting, the meeting shall, if convened at the request of Holders of Debentures,
be dissolved. In any other case the meeting may be adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such meeting. In the absence of a quorum at any such adjourned
meeting, such adjourned meeting may be further adjourned for a period of not
less than 10 days as determined by the chairman of the meeting prior to the
adjournment of such adjourned meeting. Notice of the reconvening of any
adjourned meeting shall be given as provided in Section 10.2(a), except that
such notice need be given only once not less than five days prior to the date on
which the meeting is scheduled to be reconvened. Notice of the reconvening of an
adjourned meeting shall state expressly the percentage, as provided above, of
the principal amount of the outstanding Debentures which shall constitute a
quorum. Notwithstanding the foregoing, no meeting of Holders with respect to
Debentures which is represented in whole or in part by a Book-Entry Debenture,
shall be adjourned to a date more than 90 days after the record date for such
meeting unless the Trustee shall send out a new notice of meeting and establish,
in accordance with Section 10.3, a new record date for Holders entitled to vote
at such meeting.
Except as limited by the proviso to Section 11.2, any resolution
presented to a meeting or adjourned meeting duly reconvened at which a quorum is
present as aforesaid may be adopted by the affirmative vote of the Holders of a
majority in principal amount of the Outstanding Debentures; provided, however,
that, except as limited by the proviso to Section 11.2, any resolution with
respect to any consent or waiver which this Indenture expressly provides may be
given by the Holders of a specified percentage in aggregate principal amount of
Outstanding Debentures that is less or greater than a majority in principal
amount of the Outstanding Debentures may be adopted at a meeting or an
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adjourned meeting duly convened and at which a quorum is present as aforesaid
only by the affirmative vote of the Holders of such specified percentage in
principal amount of the Outstanding Debentures.
Any resolution passed or decision taken at any meeting of Holders of
Debentures duly held in accordance with this Section shall be binding on all the
Holders of Debentures, whether or not present or represented at the meeting.
SECTION 10.5 DETERMINATION OF VOTING RIGHTS; CONDUCT AND ADJOURNMENT
OF MEETINGS.
(a) Notwithstanding any other provisions of this Indenture, the Trustee
may make such reasonable regulations as it may deem advisable for any meeting of
Holders of Debentures in regard to proof of the holding of Debentures and of the
appointment of proxies and in regard to the appointment and duties of inspectors
of votes, the submission and examination of proxies, certificates and other
evidence of the right to vote, and such other matters concerning the conduct of
the meeting as it shall deem appropriate. Except as otherwise permitted or
required by any such regulations, the holding of Debentures shall be proved in
the manner specified in Section 9.1 and the appointment of any proxy shall be
proved in the manner specified in Section 9.1 or by having the signature of the
person executing the proxy witnessed or guaranteed by any trust company, bank or
banker authorized by Section 9.1. Such regulations may provide that written
instruments appointing proxies, regular on their face, may be presumed valid and
genuine without the proof specified in Section 9.1 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman of the meeting, unless the meeting shall have been called by the
Company or by Holders of Debentures as provided in Section 10.2(b), in which
case the Company or the Holders of Debentures calling the meeting, as the case
may be, shall in like manner appoint a temporary chairman. A permanent chairman
and a permanent secretary of the meeting shall be elected by vote of the Persons
entitled to vote a majority in principal amount of the Outstanding Debentures
represented at the meeting.
(c) At any meeting each Holder of a Debenture or proxy shall be
entitled to one vote for each $ 50 principal amount of the Outstanding
Debentures held or represented by him; provided, however, that no vote shall be
cast or counted at any meeting in respect of any Debenture challenged as not
Outstanding and ruled by the chairman of the meeting to be not Outstanding. The
chairman of the meeting shall have no right to vote, except as a Holder of a
Debenture or proxy.
(d) Any meeting of Holders of Debentures duly called pursuant to
Section 10.2 at which a quorum is present may be adjourned from time to time by
Persons entitled to vote a majority in principal amount of the Outstanding
Debentures represented at the meeting; and the meeting may be held as so
adjourned without further notice.
SECTION 10.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Debentures shall be by written ballots on which shall be subscribed the
signatures of the Holders of Debentures or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Debentures held or
represented by them. The permanent chairman of the meeting shall appoint two
inspectors of votes who shall count all votes cast at the meeting for or against
any resolution and who shall make and file with the secretary of the meeting
their verified written reports in duplicate of all votes cast at the meeting. A
record, at least in duplicate, of the proceedings of each meeting of Holders of
Debentures shall be prepared by the secretary of the meeting and there shall be
attached to said record the original
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reports of the inspectors of votes on any vote by ballot taken thereat and
affidavits by one or more persons having knowledge of the facts setting forth a
copy of the notice of the meeting and showing that said notice was given as
provided in Section 10.2 and, if applicable, Section 10.4. Each copy shall be
signed and verified by the affidavits of the chairman and secretary of the
meeting and one such copy shall be delivered to the Company, and another to the
Trustee to be preserved by the Trustee, the latter to have attached thereto the
ballots voted at the meeting. Any record so signed and verified shall be
conclusive evidence of the matters therein stated.
ARTICLE XI
SUPPLEMENTAL INDENTURES
SECTION 11.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Without the consent of any Holders of Debentures, the Company, when
authorized by a Board Resolution, 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 any of the following purposes:
(a) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants of
the Company herein and in the Debentures; or
(b) to add to the covenants of the Company for the benefit of
the Holders of Debentures or to surrender any right or power herein
conferred upon the Company; or
(c) to add any additional Events of Default; or
(d) to evidence and provide for the acceptance of appointment
thereunder by a successor Trustee with respect to the Debentures and to
add to or change any of the provisions of this Indenture as shall be
necessary to provide for or facilitate the administration of the trusts
hereunder by more than one Trustee, pursuant to the requirements of
Section 8.8; or
(e) to make provision with respect to the conversion rights of
Holders pursuant to the requirements of Article XV; or
(f) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein, or to make any other provisions with respect to matters or
questions arising under this Indenture, provided that such action shall
not, in the opinion of the Board of Directors, adversely affect the
interests of the Holders of Debentures in any material respect; or
(g) to make provision for transfer procedures, certification,
book-entry provisions, the form of restricted securities legends, if
any, to be placed on the Debentures, and all other matters required
pursuant to Section 2.5 or otherwise necessary, desirable, or
appropriate in connection with the issuance of Debentures to holders of
Trust Securities in the event of a distribution of Debentures by the
Trust if a Special Event occurs and is continuing.
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SECTION 11.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS.
With the consent of the Holders of not less than a majority in
aggregate principal amount of the Outstanding Debentures affected by such
supplemental indenture, by Act of said Holders delivered to the Company and the
Trustee, the Company, when authorized by a Board Resolution, 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 of modifying in any manner the rights of the
Holders of Debentures under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent of each Holder of each
Outstanding Debenture,
(a) change the Stated Maturity of the principal of, or (except
as contemplated by Section 2.3(c)) any installment of interest
(including any Additional Payments) on, any Debenture, or reduce the
principal amount thereof or the rate of interest thereon or any premium
payable upon the redemption thereof, or change the coin or currency in
which any Debenture or any premium or interest thereon is payable, or
impair the right to institute suit for the enforcement of any such
payment on or after the Stated Maturity thereof (or, in the case of
redemption, on or after the Redemption Date); or
(b) reduce the percentage in principal amount of the
Outstanding Debentures, the consent of whose Holders is required for
any such supplemental indenture, or the consent of whose Holders is
required for any waiver of certain defaults hereunder and their
consequences provided for in this Indenture, or reduce the requirements
of Section 10.4 for quorum or voting; or
(c) modify any of the provisions of this Section or Section
7.13, except to increase any such percentage or to provide that certain
other provisions of this Indenture cannot be modified or waived without
the consent of the Holder of each Outstanding Debenture; or
(d) make any change that adversely affects the right to
convert any Debenture into Common Stock as provided in Article XV or
decrease the conversion rate or increase the conversion price of any
such Debenture, or
(e) make any change in Article IV that adversely affects the
rights of any Holders of Outstanding Debentures.
So long as any Convertible Preferred Securities are outstanding, no
supplemental indenture shall, without the consent of each holder of Convertible
Preferred Securities, amend Section 7.16 so as to eliminate or materially impair
the right of such holders to institute Direct Actions in the circumstances set
forth therein.
It shall not be necessary for any Act of Holders of Debentures 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 11.3 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 8.2) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this
55
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 11.4 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 Debentures theretofore or thereafter authenticated and delivered hereunder
shall be bound thereby.
SECTION 11.5 CONFORMITY WITH TRUST INDENTURE ACT.
Every supplemental indenture executed pursuant to this Article shall
conform to the requirements of the Trust Indenture Act of 1939, as amended, in
effect on such date.
SECTION 11.6 REFERENCE IN DEBENTURES TO SUPPLEMENTAL INDENTURES.
Debentures 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 as to any matter provided for in such supplemental
indenture. If the Company shall so determine, new Debentures so modified as to
conform, in the opinion of the Company, to any such supplemental indenture may
be prepared and executed by the Company and authenticated and delivered by the
Trustee in exchange for Outstanding Debentures.
ARTICLE XII
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
SECTION 12.1 COMPANY MAY CONSOLIDATE, ETC. ON CERTAIN TERMS.
The Company shall not merge or consolidate with any other corporation
or sell or convey all or substantially all of its assets to any Person and
another corporation may not consolidate with or merge into, or transfer its
properties and assets substantially or as an entity to the Company, unless (a)
either the Company shall be the continuing corporation, or the successor
corporation (if other than the Company) shall be a corporation organized under
the laws of the United States of America or any State thereof and shall
expressly assume the due and punctual payment of the principal of and interest
on all the Debentures, according to their tenor, and the due and punctual
performance and observance of all of the covenants and conditions of this
Indenture to be performed or observed by the Company, by supplemental indenture
satisfactory to the Trustee, executed and delivered to the Trustee by such
corporation, (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 (c) such merger or consolidation or such sale or conveyance is permitted
under the Declaration and Trust Securities Guarantee and does not give rise to
any breach or violation of the Declaration or Trust Securities Guarantee.
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SECTION 12.2 SUCCESSOR CORPORATION SUBSTITUTED.
In case of any such consolidation, merger, sale or conveyance, and
following such an assumption by the successor corporation, such successor
corporation shall succeed to and be substituted for the Company, with the same
effect as if it had been named herein. Such successor corporation may cause to
be signed, and may issue either in its own name or in the name of the Company
prior to such succession any or all of the Debentures 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
securities which previously shall have been signed and delivered by the officers
of the Company, to the Trustee for authentication, and any Debentures which such
successor corporation thereafter shall cause to be signed and delivered to the
Trustee for that purpose. All of the Debentures so issued shall in all respects
have the same legal rank and benefit under this Indenture as the Debentures
theretofore or thereafter issued in accordance with the terms or this Indenture
as though all of such Debentures 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
Debentures thereafter to be issued as may be appropriate.
In the event of any such sale or conveyance (other than a conveyance by
way of lease) the Company or any successor corporation which shall theretofore
have become such in the manner described in this Article shall be discharged
from all obligations and covenants under this Indenture and the Debentures and
may be liquidated and dissolved.
SECTION 12.3 OPINION OF COUNSEL TO TRUSTEE.
The Trustee may receive an Opinion of Counsel, prepared in accordance
with Section 16.1, as conclusive evidence that any such consolidation, merger,
sale, lease or conveyance, and any such assumption, and any such liquidation or
dissolution, complies with the applicable provisions of this Indenture.
ARTICLE XIII
SATISFACTION AND DISCHARGE
SECTION 13.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of registration of transfer or exchange of
Debentures herein expressly provided for), and the Trustee, at the expense of
the Company, shall execute proper instruments acknowledging satisfaction and
discharge of this Indenture, when:
(a) either
(1) all Debentures theretofore authenticated and
delivered (other than (i) Debentures which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 2.6, and (ii) Debentures for whose
payment money has
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theretofore been deposited in trust or segregated and held in
trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 5.3) have
been delivered to the Trustee for cancellation; or
(2) all such Debentures not theretofore
delivered to the Trustee for cancellation,
(i) have become due and payable, or
(ii) will become due and payable at
their Stated Maturity within one year, or
(iii) are to be called for redemption
within one year under arrangements satisfactory to
the Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose, an amount sufficient to pay
and discharge the entire indebtedness on such Debentures not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and any interest (including
any Additional Payments) to the date of such deposit (in the
case of Debentures which have become due and payable) or to
the Stated Maturity or Redemption Date, as the case may be;
(b) the Company has paid or caused to be paid all other
sums payable hereunder by the Company; and
(c) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and
discharge of this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this
Indenture, the obligations of the Company to the Trustee under Section 8.6, the
obligations of the Company to any Authenticating Agent under SECTION 8.13 and,
if money shall have been deposited with the Trustee pursuant to clause (a)(2) of
this Section, the obligations of the Trustee under Section 13.2 and the last
paragraph of Section 5.3 shall survive.
SECTION 13.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 5.3, all
money deposited with the Trustee pursuant to Section 13.1 shall be held in trust
and applied by it, in accordance with the provisions of the Debentures and this
Indenture, to the payment, either directly or through any Paying Agent
(including the Company acting as its own Paying Agent) as the Trustee may
determine, to the Persons entitled thereto, of the principal (and premium, if
any) and any interest for whose payment such money has been deposited with the
Trustee.
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ARTICLE XIV
IMMUNITY OF INCORPORATORS, SHAREHOLDERS,
OFFICERS, DIRECTORS AND EMPLOYEES.
No recourse under or upon any obligation, covenant or agreement of this
Indenture, or of a Debenture, or for any claim based thereon or otherwise in
respect thereof, shall be had against any incorporator, shareholder, officer,
director or employee, as such, past, present or future, of the Company or of any
successor corporation, either directly or through the Company, whether by virtue
of any constitution, statute or rule of law, or by the enforcement of any
assessment or penalty or otherwise; it being expressly understood that this
Indenture and the obligations issued hereunder are solely corporate obligations
of the Company, and that no such personal liability whatever shall attach to, or
is or shall be incurred by, the incorporators, shareholders, officers, directors
or employees, as such, of the Company or of any successor corporation, or any of
them, because of the creation of the indebtedness hereby authorized, or under or
by reason of the obligations or agreements contained in this Indenture or in any
of the Debentures or implied therefrom; and that any and all such personal
liability, either at common law or in equity or by constitution or statute, of,
and any and all such rights and claims against, every such incorporator,
shareholder, officer, director or employee, as such, because of the creation of
the indebtedness hereby authorized, or under or by reason of the obligations or
agreements contained in this Indenture or in any of the Debentures or implied
therefrom, are hereby expressly waived and released as a condition of, and as a
consideration for, the execution of this Indenture and the issue of such
Debentures.
All payments of interest and other amounts, if any, to be made by the
Trustee hereunder shall be made only from the money deposited with the Trustee
and only to the extent that the Trustee shall have sufficient income or proceeds
to make such payments in accordance with the terms of this Indenture, and each
Holder thereof, by its acceptance of a Debenture, agrees that it will look
solely to the income and proceeds deposited with the Trustee to the extent
available for distribution to such Holder as provided and that the Trustee, its
incorporators, shareholders, officers, directors and employees are not
personally liable in any manner to such Holder for any amounts payable or any
liability under this Indenture or any Debenture.
ARTICLE XV
CONVERSION OF DEBENTURES
SECTION 15.1 CONVERSION RIGHTS.
Subject to and upon compliance with the provisions of this Article XV,
the Debentures are convertible, at the option of the Holder, at any time
beginning April 26, 1997 and prior to the close of business on February 24,
2012, (or, in the case of Debentures called for redemption, prior to the close
of business on the Business Day prior to the corresponding Redemption Date) into
fully paid and nonassessable shares of Common Stock at an initial conversion
rate of 0.6882 shares of Common Stock for each $50 in aggregate principal amount
of Debentures (equal to a Conversion Price of $72.6563 per share of Common
Stock), subject to adjustment as described in this Article XV. A Holder of
Debentures may convert any portion of the principal amount of the Debentures
into that number of fully paid and nonassessable shares of Common Stock obtained
by dividing the principal amount of the Debentures to be converted by such
Conversion Price. All calculations under this Article XV shall be made to the
nearest cent or to the nearest 1/100th of a share, as the case may be.
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SECTION 15.2 CONVERSION PROCEDURES.
(a) In order to convert all or a portion of the Debentures,
the Holder thereof shall deliver to the Conversion Agent an irrevocable Notice
of Conversion setting forth the principal amount of Debentures to be converted,
together with the name or names, if other than the Holder, in which the shares
of Common Stock should be issued upon conversion and, if such Debentures are
definitive Debentures, surrender to the Conversion Agent the Debentures to be
converted, duly endorsed or assigned to the Company or in blank. In addition, a
holder of Convertible Preferred Securities may exercise its right under the
Declaration to convert such Convertible Preferred Securities into Common Stock
by delivering to the Conversion Agent an irrevocable Notice of Conversion
setting forth the information called for by the preceding sentence and directing
the Conversion Agent (i) to exchange such Convertible Preferred Securities for a
portion of the Debentures held by the Trust (at an exchange rate of $50
principal amount of Debentures for each Convertible Preferred Security) and (ii)
to immediately convert such Debentures, on behalf of such holder, into Common
Stock pursuant to this Article XV and, if such Convertible Preferred Securities
are in definitive form, surrendering such Convertible Preferred Securities, duly
endorsed or assigned to the Trust or in blank. So long as any Convertible
Preferred Securities are outstanding, the Trust shall not convert any Debentures
except pursuant to a Notice of Conversion delivered to the Conversion Agent by a
holder of Convertible Preferred Securities.
If a Notice of Conversion is delivered on or after a Regular
Record Date and prior to the subsequent Interest Payment Date, the Holder on the
Regular Record Date will be entitled to receive the interest payable on the
subsequent Interest Payment Date on the portion of Debentures to be converted
notwithstanding the conversion thereof prior to such Interest Payment Date.
Except as otherwise provided in the immediately preceding sentence, in the case
of any Debenture which is converted, interest whose payment date is after the
date of conversion of such Debenture shall not be payable, and the Company shall
not make nor be required to make any other payment, adjustment or allowance with
respect to accrued but unpaid interest (including Additional Payments) on the
Debentures being converted, which shall be deemed to be paid in full. Each
conversion shall be deemed to have been effected immediately prior to the close
of business on the day on which the Notice of Conversion was received (the
"Conversion Date") by the Conversion Agent from the Holder or from a holder of
the Convertible Preferred Securities effecting a conversion thereof pursuant to
its conversion rights under the Declaration, as the case may be.
The Person or Persons entitled to receive Common Stock
issuable upon such conversion shall be treated for all purposes as the record
holder or holders of such Common Stock as of the Conversion Date. As promptly as
practicable on or after the Conversion Date, the Company shall issue and deliver
at the office of the Conversion Agent, unless otherwise directed by the Holder
in the Notice of Conversion, a certificate or certificates for the number of
full shares of Common Stock issuable upon such conversion, together with the
cash payment, if any, in lieu of any fraction of any share to the Person or
Persons entitled to receive the same. The Conversion Agent shall deliver such
certificate or certificates to such Person or Persons.
(b) The Company's delivery upon conversion of the fixed number
of shares of Common Stock into which the Debentures are convertible (together
with the cash payment, if any, in lieu of fractional shares) shall be deemed to
satisfy the Company's obligation to pay the principal amount at Maturity of the
portion of Debentures so converted and any unpaid interest (including Additional
Payments) accrued on such Debentures at the time of such conversion.
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(c) No fractional shares of Common Stock will be issued as a
result of conversion, but in lieu thereof, the Company shall pay to the
Conversion Agent a cash adjustment in an amount equal to the same fraction of
the Closing Price of such fractional interest on the date on which the
Debentures were duly surrendered to the Conversion Agent for conversion, or, if
such day is not a Trading Day, on the next Trading Day, and the Conversion Agent
in turn will make such payment, if any, to the Holder of the Debentures or the
holder of the Convertible Preferred Securities so converted.
(d) In the event of the conversion of any Debenture in part
only, a new Debenture or Debentures for the unconverted portion thereof will be
issued in the name of the Holder thereof upon the cancellation thereof in
accordance with this Section 15.2.
(e) In effecting the conversion transactions described in this
Section 15.2, the Conversion Agent is acting as agent of the holders of
Convertible Preferred Securities (in the exchange of Convertible Preferred
Securities for Debentures) and as agent of the Holders of Debentures (in the
conversion of Debentures into Common Stock), as the case may be. The Conversion
Agent is hereby authorized (i) to exchange Debentures held by the Trust from
time to time for Convertible Preferred Securities in connection with the
conversion of such Convertible Preferred Securities in accordance with this
Article XV and (ii) to convert all or a portion of the Debentures into Common
Stock and thereupon to deliver such shares of Common Stock in accordance with
the provisions of this Article XV and to deliver to the Trust a new Debenture or
Debentures for any resulting unconverted principal amount.
SECTION 15.3 CONVERSION PRICE ADJUSTMENTS.
The Conversion Price shall be adjusted from time to time as follows:
(a) In case the Company shall, while any of the Debentures are
outstanding, (i) pay a dividend or make a distribution with respect to Common
Stock in shares of Common Stock, (ii) subdivide outstanding shares of Common
Stock, (iii) combine outstanding shares of Common Stock into a smaller number of
shares or (iv) issue by reclassification of shares of Common Stock any shares of
capital stock of the Company, the conversion privilege and the Conversion Price
for the Debentures shall be adjusted so that the Holder of any Debenture
thereafter surrendered for conversion shall be entitled to receive the number of
shares of capital stock of the Company which such Holder would have owned
immediately following such action had such Debenture been converted immediately
prior thereto. An adjustment made pursuant to this Subsection (a) shall become
effective immediately after the record date in the case of a dividend or other
distribution and shall become effective immediately after the effective date in
case of a subdivision, combination or reclassification (or immediately after the
record date if a record date shall have been established for such event). If, as
a result of an adjustment made pursuant to this Subsection (a), the Holder of
any Debenture thereafter surrendered for conversion shall become entitled to
receive shares of two or more classes or series of capital stock of the Company,
the Board of Directors (whose determination shall be conclusive and shall be
described in a Board Resolution filed with the Trustee) shall determine the
allocation of the adjusted Conversion Price for the Debentures between or among
shares of such classes or series of capital stock.
(b) In case the Company shall, while any of the Debentures are
outstanding, issue rights or warrants to all holders of Common Stock entitling
them (for a period expiring within 45 days after the record date mentioned
below) to subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share of Common Stock (as determined
pursuant to Subsection (g) below) on the record date mentioned below, the
Conversion Price for the Debentures shall be adjusted so that the Conversion
Price shall equal the price determined by multiplying the
61
Conversion Price in effect immediately prior to the date of issuance of such
rights or warrants by a fraction of which the numerator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of shares which the aggregate offering price of the
total number of shares so offered for subscription or purchase would purchase at
such current market price, and of which the denominator shall be the number of
shares of Common Stock outstanding on the date of issuance of such rights or
warrants plus the number of additional shares of Common Stock offered for
subscription or purchase. Such adjustment shall become effective immediately
after the record date for the determination of stockholders entitled to receive
such rights or warrants. To the extent that shares of Common Stock are not so
delivered after the expiration of such rights or warrants, the Conversion Price
shall be readjusted to the Conversion Price which would then be in effect if
such date fixed for the determination of stockholders entitled to receive such
rights or warrants had not been fixed. For the purposes of this subsection, the
number of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company. The Company shall not issue any
rights or warrants in respect of shares of Common Stock held in the treasury of
the Company. In case any rights or warrants referred to in this subsection in
respect of which an adjustment shall have been made shall expire unexercised
within 45 days after the same shall have been distributed or issued by the
Company, the Conversion Price shall be readjusted at the time of such expiration
to the Conversion Price that would have been in effect if no adjustment had been
made on account of the distribution or issuance of such expired rights or
warrants.
(c) Subject to the last sentence of this subsection (c), in
case the Company shall, by dividend or otherwise, distribute to all holders of
Common Stock evidences of its indebtedness, shares of any class or series of
capital stock, cash or assets or rights or warrants to subscribe for or purchase
any of its securities (excluding any rights or warrants referred to in
subsection (b), any dividend or distribution paid exclusively in cash and any
dividend or distribution referred to in subsection (a) of this Section 15.3),
the Conversion Price shall be reduced so that the Conversion Price shall equal
the price determined by multiplying the Conversion Price in effect immediately
prior to the effectiveness of the Conversion Price reduction contemplated by
this subsection (c) by a fraction of which the numerator shall be the current
market price per share (determined as provided in subsection (g)) of the Common
Stock on the date fixed for the payment of such distribution (the "Reference
Date") less the fair market value (as determined in good faith by the Board of
Directors, whose determination shall be conclusive and described in a resolution
of the Board of Directors), on the Reference Date, of the portion of the
evidences of indebtedness, shares of capital stock, cash and assets so
distributed or of such subscription rights or warrants applicable to one share
of Common Stock and of which the denominator shall be such current market price
per share of the Common Stock, such reduction to become effective immediately
prior to the opening of business on the day following the Reference Date;
provided, however, that in the event the numerator shall be less than one, in
lieu of the foregoing adjustment, adequate provision shall be made so that each
Holder of Debentures shall have the right to receive upon conversion the amount
of such distribution such Holder would have received had such Holder converted
each Debenture immediately prior to the Reference Date. In the event that such
dividend or distribution is not so paid or made, the Conversion Price shall
again be adjusted to be the Conversion Price which would then be in effect if
such dividend or distribution had not occurred. If the Board of Directors
determines the fair market value of any distribution for purposes of this
subsection (c) by reference to the actual or when issued trading market for any
securities comprising such distribution, it must in doing so consider the prices
in such market over the same period used in computing the current market price
per share of Common Stock (determined as provided in subsection (g)). For
purposes of this subsection (c), any dividend or distribution that includes
shares of Common Stock or rights or warrants to subscribe for or purchase shares
of Common Stock shall be deemed instead to be (i) a dividend or distribution of
the evidences of indebtedness, shares of capital stock, cash or assets other
than such shares of Common Stock or such rights or warrants (making any
Conversion Price reduction
62
required by this subsection (c)) immediately followed by (ii) a dividend or
distribution of such shares of Common Stock or such rights or warrants (making
any further Conversion Price reduction required by subsection (a) or (b)),
except (A) the Reference Date of such dividend or distribution as defined in
this subsection (c) shall be substituted as (1) "the record date in the case of
a dividend or other distribution," and (2) "the record date for the
determination of stockholders entitled to receive such rights or warrants" and
(3) "the date fixed for such determination" within the meaning of subsections
(a) and (b) and (B) any shares of Common Stock included in such dividend or
distribution shall not be deemed outstanding for purposes of computing any
adjustment of the Conversion Price in subsection (a).
(d) In case the Company shall pay or make a dividend or other
distribution on the Common Stock exclusively in cash (excluding any quarterly
cash dividend on Common Stock to the extent that the aggregate cash dividend per
share of Common Stock in any quarter does not exceed the greater of (i) the
amount per share of Common Stock of the immediately preceding quarterly dividend
on Common Stock to the extent such preceding quarterly dividend did not require
an adjustment of the Conversion Price pursuant to this subsection (d) (as
adjusted to reflect subdivisions or combinations of Common Stock), and (ii)
3.125% of the current market price per share determined as provided in
subsection (g), and excluding any dividend or distribution in connection with
the liquidation, dissolution or winding-up of the Company), the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion Price in effect immediately prior to the
effectiveness of the Conversion Price reduction contemplated by this subsection
(d) by a fraction of which the numerator shall be the current market price per
share (determined as provided in subsection (g)) of Common Stock on the date
fixed for the payment of such distribution less the amount of cash so
distributed (and not excluded as provided above) applicable to one share of
Common Stock and of which the denominator shall be such current market price per
share of the Common Stock (determined as provided in subsection (g)), such
reduction to become effective immediately prior to the opening of business on
the day following the date fixed for the payment of such distribution; provided,
however, that in the event the portion of the cash so distributed applicable to
one share of Common Stock is equal to or greater than the current market price
per share (as defined in subsection (g)) of Common Stock on the record date
mentioned above, in lieu of the foregoing adjustment, adequate provision shall
be made so that each Holder of Debentures shall have the right to receive upon
conversion the amount of cash such Holder would have received had such Holder
converted each Debenture immediately prior to the record date for the
distribution of the cash. If an adjustment is required to be made pursuant to
this subsection (d) as a result of a distribution that is a quarterly dividend,
such adjustment shall be based upon the amount by which such distribution
exceeds the amount of the quarterly cash dividend permitted to be excluded as
provided above. If an adjustment is required to be made pursuant to this
subsection (d) as a result of a distribution that is not a quarterly dividend,
such adjustment shall be based upon the full amount of the distribution. In the
event that such dividend or distribution is not so paid or made, the Conversion
Price shall again be adjusted to be the Conversion Price which would then be in
effect if such record date had not been fixed.
(e) In case a tender or exchange offer (other than an odd-lot offer)
made by the Company or any Subsidiary of the Company for all or any portion of
the Common Stock shall expire and such tender or exchange offer shall involve
the payment by the Company or such Subsidiary of consideration per share of
Common Stock having a fair market value (as determined in good faith by the
Board of Directors, whose determination shall be conclusive and described in a
resolution of the Board of Directors) at the last time (the "Expiration Time")
tenders or exchanges may be made pursuant to such tender or exchange offer (as
it shall have been amended) that exceeds the Closing Price of the Common Stock
on the Trading Day next succeeding the Expiration Time, the Conversion Price
shall be reduced so that the same shall equal the price determined by
multiplying the Conversion
63
Price in effect immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this subsection (e) by a fraction (which shall not be
greater than one) of which the numerator shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the Expiration
Time multiplied by the Closing Price of Common Stock on the Trading Day next
succeeding the Expiration Time and of which the denominator shall be the sum of
(i) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (ii) the product of the number of shares of the Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Closing
Price of Common Stock on the Trading Day next succeeding the Expiration Time,
such reduction to become retroactively effective immediately prior to the
opening of business on the day following the Expiration Time.
(f) In case a tender or exchange offer made by a Person other
than the Company or any Subsidiary of the Company for all or any portion of the
Common Stock shall expire and such tender or exchange offer shall involve the
payment by a Person other than the Company or any Subsidiary of the Company of
consideration per share of Common Stock having a fair market value (as
determined in good faith by the Board of Directors, whose determination shall be
conclusive and described in a resolution of the Board of Directors) at the
applicable Expiration Time that exceeds the Closing Price of the Common Stock on
the Trading Day next succeeding the applicable Expiration Time in which as of
the closing date of the offer the Board of Directors of the Company is not
recommending rejection of the offer, the Conversion Price shall be reduced so
that the same shall equal the price determined by multiplying the Conversion
Price in effect immediately prior to the effectiveness of the Conversion Price
reduction contemplated by this subsection (f) by a fraction (which shall not be
greater than one) of which the numerator shall be the number of shares of Common
Stock outstanding (including any tendered or exchanged shares) at the Expiration
Time multiplied by the Closing Price of the Common Stock on the Trading Day next
succeeding the Expiration Time and of which the denominator shall be the sum of
(i) the fair market value (determined as aforesaid) of the aggregate
consideration payable to stockholders based on the acceptance (up to any maximum
specified in the terms of the tender or exchange offer) of all shares validly
tendered or exchanged and not withdrawn as of the Expiration Time (the shares
deemed so accepted, up to any such maximum, being referred to as the "Purchased
Shares") and (ii) the product of the number of shares of Common Stock
outstanding (less any Purchased Shares) at the Expiration Time and the Closing
Price of the Common Stock on the Trading Day next succeeding the Expiration
Time, such reduction to become retroactively effective immediately prior to the
opening of business on the day following the Expiration Time; provided, however,
that the reduction of the Conversion Price contemplated by this subsection (f)
will only be made if the tender offer or exchange offer is made for an amount
which increases that Person's ownership of Common Stock to more than 25% of the
total shares of Common Stock outstanding and provided, further, that the
reduction of the Conversion Price contemplated by this subsection (f) will not
be made if as of the close of the offer, the offering documents with respect to
such offer disclose a plan or an intention to cause the Company to engage in a
consolidation or merger of the Company or a sale of all or substantially all of
the assets of the Company.
(g) For the purpose of any computation under subsections (b),
(c) or (d), the current market price per share of Common Stock on any date in
question shall be deemed to be the average of the daily Closing Prices for the
ten Trading Day period ending on the earlier of the day in question and, if
applicable, the day before the "ex" date with respect to the issuance or
distribution requiring such computation; provided, however, that if more than
one event occurs that would require an adjustment pursuant to subsections (a)
through (f), inclusive, the Board of Directors may make such
64
adjustments to the Closing Prices during such ten Trading Day period as it deems
appropriate to effectuate the intent of the adjustments in this Section 15.3, in
which case any such determination by the Board of Directors shall be set forth
in a Board Resolution and shall be conclusive. For purposes of this paragraph,
the term "ex" date, (1) when used with respect to any issuance or distribution,
means the first date on which the Common Stock trades regular way on the NASDAQ
National Market System or on such successor securities exchange as the Common
Stock may be listed or in the relevant market from which the Closing Prices were
obtained without the right to receive such issuance or distribution, and (2)
when used with respect to any tender or exchange offer, means the first date on
which the Common Stock trades regular way on such securities exchange or in such
market after the Expiration Time of such offer.
(h) The Company may make such reductions in the Conversion
Price, in addition to those required by subsections (a) through (f), 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. The Company from time to time may elect
to reduce the Conversion Price by any amount for any period of time if the
period is at least 20 days, the reduction is irrevocable during the period, and
the Board of Directors shall have made a determination that such reduction would
be in the best interest of the Company, which determination shall be conclusive.
Whenever the Conversion Price is reduced pursuant to the preceding sentence, the
Company shall mail to Holders of record of the Debentures a notice of the
reduction at least 15 days prior to the date the reduced Conversion Price takes
effect, and such notice shall state the reduced Conversion Price and the period
it will be in effect.
(i) No adjustment in the Conversion Price shall be required
unless such adjustment would require an increase or decrease of at least 1% in
the Conversion Price; provided, however, that any adjustments which by reason of
this subsection (i) are not required to be made shall be carried forward and
taken into account in determining whether any subsequent adjustment shall be
required.
(j) If any action would require adjustment of the Conversion
Price pursuant to more than one of the provisions described above, only one
adjustment shall be made and such adjustment shall be the amount of adjustment
that has the highest absolute value to the Holder of Debentures.
(k) No adjustment in the Conversion Price shall be required
for a transaction referred to in clauses (a) through (d) above if the Holders of
the Debentures are to participate in the transaction on a basis and with notice
that the Board of Directors determine to be fair and appropriate in light of the
basis and notice on which the Holders of the Debentures participate in the
transaction.
SECTION 15.4 CONVERSION PRICE ADJUSTMENT - RIGHTS UNDER SHAREHOLDERS
RIGHTS PLAN.
If the distribution date for the Rights provided in the Rights
Plan, as presently constituted or under any similar plan occurs prior to the
date a Debenture is converted, a Holder of the Debentures who coverts such
Debentures after the distribution date are not entitled to receive the Rights
that would otherwise be attached (but for the date of conversion) to the shares
of Common Stock received upon such conversion; provided, however, that an
adjustment shall be made to the Conversion Price pursuant to clause 15.2(b) as
if the Rights were being distributed to the common stockholders of the Company
immediately prior to such conversion. If such an adjustment is made and the
Rights are
65
later redeemed, invalidated or terminated, then a corresponding reversing
adjustment shall be made to the Conversion Price, on an equitable basis, to take
account of such event.
SECTION 15.5 CONVERSION PRICE ADJUSTMENT - MERGER, CONSOLIDATION OR
SALE OF ASSETS OF THE COMPANY.
In the event that the Company is a party to any transaction
(including, without limitation, a merger other than a merger that does not
result in a reclassification, conversion, exchange or cancellation of Common
Stock), consolidation, sale of all or substantially all of the assets of the
Company, recapitalization or reclassification 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 of Common Stock) or any
compulsory share exchange (each of the foregoing being referred to as a
"Transaction"), in each case, as a result of which shares of Common Stock shall
be converted into the right to receive, or shall be exchanged for, (i) in the
case of any Transaction other than a Transaction involving a Common Stock
Fundamental Change (and subject to funds being legally available for such
purpose under applicable law at the time of such conversion), securities, cash
or other property, each Debenture shall thereafter be convertible into the kind
and, in the case of a Transaction which does not involve a Fundamental Change,
amount of securities, cash and other property receivable upon the consummation
of such Transaction by a holder of that number of shares of Common Stock into
which a Debenture was convertible immediately prior to such Transaction, or (ii)
in the case of a Transaction involving a Common Stock Fundamental Change, common
stock, each Debenture shall thereafter be convertible (in the manner described
herein) into common stock of the kind received by holders of Common Stock (but
in each case after giving effect to any adjustment discussed in paragraphs (f)
and (g) relating to a Fundamental Change if such Transaction constitutes a
Fundamental Change). The holders of Debentures or Preferred Securities will have
no voting rights with respect to any Transaction described in this section.
(b) If any Fundamental Change occurs, then the Conversion
Price effect will be adjusted immediately after such Fundamental Change as
described paragraph (c) below. In addition, in the event of a Common Stock
Fundamental Change, each Debenture shall be convertible solely into Common Stock
of the kind received by holders of Common Stock as a result of such Common Stock
Fundamental Change.
(c) The Conversion Price in the case of any Transaction
involving a Fundamental Change will be adjusted immediately after such
Fundamental Change:
(i) in the case of a Non-Stock Fundamental
Change, the conversion price of the Debentures will thereupon become
the lower of (A) the Conversion Price in effect immediately prior to
such Non-Stock Fundamental Change, but after giving effect to any other
prior adjustments, and (B) the result obtained by multiplying the
greater of the Applicable Price or the then applicable Reference Market
Price by a fraction of which the numerator will be $50 and the
denominator will be (x) the amount of the redemption price for the
Debenture if the redemption date were the date of such Non-Stock
Fundamental Change (or, for the period commencing on the first date of
original issuance of the Debentures and through March 3, 1998, and the
twelve-month period commencing March 4, 1998 and March 4, 1999, the
product of 102% multiplied by $50) plus (y) any then-accrued and unpaid
interest on the Debentures; and
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(ii) in the case of a Common Stock Fundamental
Change, the conversion price of the Debentures in effect immediately
prior to such Common Stock Fundamental Change, but after giving effect
to any other prior adjustments, will thereupon be adjusted by
multiplying such Conversion Price by a fraction of which the numerator
will be the Purchaser Stock Price and the denominator will be the
Applicable Price; provided, however, that in the event of a Common
Stock Fundamental Change in which (A) 100% of the value of the
consideration received by a holder of Common Stock is common stock of
the successor, acquiror, or other third party (and cash, if any, is
paid only with respect to any fractional interests in such common stock
resulting from such Common Stock Fundamental Change) and (B) all of the
Common Stock will have been exchanged for, converted into, or acquired
for common stock (and cash with respect to fractional interests) of the
successor, acquiror, or other third party, the Conversion Price of the
Debentures in effect immediately prior to such Common Stock Fundamental
Change will thereupon be adjusted by multiplying such Conversion Price
by a fraction of which the numerator will be one and the denominator
will be the number of shares of common stock of the successor,
acquiror, or other third party received by a holder of one share of
Common Stock as a result of such Common Stock Fundamental Changes.
(d) In a Non-Stock Fundamental Change Transaction where
the initial value received per share of Common Stock (measured as described in
the definition of Applicable Price) is lower than the then applicable Conversion
Price of the Debentures but greater than or equal to the "Reference Market
Price", the Conversion Price will be adjusted as described above, with the
effect that each Debenture will be convertible into securities, cash or property
of the same type received by the holders Common Stock in the Transaction but in
an amount per Debenture that would at the time of the Transaction have had a
value equal to the then applicable Redemption Price per Debenture in Section 3.1
(or, for periods prior to the applicable amount Debenture set forth in clause
(i) of paragraph (c) above with respect to conversion prices for Non-Stock
Fundamental Changes).
In a Non-Stock Fundamental Change Transaction where the
initial value received per share of Common Stock (measured as described in the
definition of Applicable Price) is lower than both the Conversion Price of the
Debentures in effect prior to any adjustment described above and the Reference
Market Price, the Conversion Price will be adjusted as described above but
calculated as though such initial value had been the Reference Market Price.
SECTION 15.6 MERGER, CONSOLIDATION, OR SALE OF ASSETS.
(a) In the event that the Company shall be a party to any
transaction, (including without limitation (i) any recapitalization or
reclassification of the 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 of the Common Stock), (ii) any consolidation of the
Company with, or merger of the Company into, any other Person, any merger of
another Person into the Company (other than a merger which does not result in a
reclassification, conversion, exchange or cancellation of outstanding shares of
Common Stock of the Company), (iii) any sale or transfer of all or substantially
all of the assets of the Company or (iv) any compulsory share exchange),
pursuant to which either shares of Common Stock shall be converted into the
right to receive other securities, cash or other property, or, in the case of a
sale or transfer of all or substantially all of the assets of the Company, the
holders of Common Stock shall be entitled to receive other securities, cash or
other property, then lawful provision shall be made as part of the terms of such
transaction whereby the Holder of each Debenture then outstanding shall have the
right thereafter to convert such Debenture only into the kind
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and amount of the securities, cash or other property that would have been
receivable upon such recapitalization, reclassification, consolidation, merger,
sale, transfer or share exchange by a holder of the number of shares of Common
Stock issuable upon conversion of such Debenture immediately prior to such
recapitalization, reclassification, consolidation, merger, sale, transfer or
share exchange, subject to funds being legally available for such purpose under
applicable law at the time of such conversion.
(b) The company or the Person formed by such consolidation or
resulting from such merger or which acquired such assets or which acquires the
Company's shares, as the case may be, shall make provision in its certificate or
articles of incorporation or other constituent document to establish such right.
Such certificate or articles of incorporation or other constituent document
shall provide for adjustments which, for events subsequent to the effective date
of such certificate or articles of incorporation or other constituent document,
shall be as nearly equivalent as may be practicable to the adjustments provided
for in this Article XV. The above provisions shall similarly apply to successive
transactions of the foregoing type.
SECTION 15.7 NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the Conversion Price is adjusted as herein provided:
(a) the Company shall compute the adjusted Conversion Price
and shall prepare a certificate signed by the Chief Financial Officer or the
Treasurer of the Company setting forth the adjusted Conversion Price and showing
in reasonable detail the facts upon which such adjustment is based, and such
certificate shall forthwith be filed with the Trustee and the transfer agent for
the Convertible Preferred Securities and the Debentures; and
(b) a notice stating the Conversion Price has been adjusted
and setting forth the adjusted Conversion Price shall as soon as practicable be
mailed by the Company to all record holders of Convertible Preferred Securities
and the Debentures at their last addresses as they appear upon the transfer
books of the Trust and the Company.
SECTION 15.8 PRIOR NOTICE OF CERTAIN EVENTS.
In case:
(a) the Company shall (i) declare any dividend (or any other
distribution) on its Common Stock, other than (A) a dividend payable in shares
of Common Stock or (B) a dividend payable in cash that would not require an
adjustment pursuant to Section 15.3(c) or (d) or (ii) authorize a tender or
exchange offer that would require an adjustment pursuant to Section 15.3(e);
(b) the Company shall authorize the granting to all holders of
Common Stock of rights or warrants to subscribe for or purchase any shares of
stock of any class or series or of any other rights or warrants;
(c) of any reclassification of Common Stock (other than a
subdivision or combination of the 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 shall be required, or of the sale or
transfer of all or substantially all of the assets of the Company or of any
compulsory share exchange whereby the Common Stock is converted into other
securities, cash or other property; or
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(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; then the Company shall (i) if any Convertible
Preferred Securities are outstanding, cause to be filed with the Trustee and the
transfer agent for the Convertible Preferred Securities, and shall cause to be
mailed to the holders of record of the Convertible Preferred Securities, at
their last addresses as they shall appear upon the transfer books of the Trust
or (ii) cause to be filed with the Trustee and mailed to all Holders at their
last addresses as they shall appear in the Debenture Register, at least 15 days
prior to the applicable record or effective date hereinafter specified, a notice
stating (A) the date on which a record (if any) is to be taken for the purpose
of such dividend, distribution, 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, rights or warrants are to be determined or (B)
the date on which such reclassification, consolidation, merger, sale, transfer,
share exchange, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, sale, transfer, share exchange, dissolution, liquidation
or winding up (but no failure to mail such notice or any defect therein or in
the mailing thereof shall affect the validity of the corporate action required
to be specified in such notice).
SECTION 15.9 DIVIDEND OR INTEREST REINVESTMENT PLANS.
Notwithstanding the foregoing provisions, the issuance of any shares of
Common Stock pursuant to any 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 such plan, and the issuance
of any shares of Common Stock or options or rights to purchase such shares
pursuant to any employee benefit plan or program of the Company or pursuant to
any option, warrant, right or exercisable, exchangeable or convertible security
outstanding as of the date hereof, shall not be deemed to constitute an issuance
of Common Stock or exercisable, exchangeable or convertible securities by the
Company to which any of the adjustment provisions described above applies. There
shall also be no adjustment of the Conversion Price in case of the issuance of
any stock (or securities convertible into or exchangeable for stock) of the
Company except as specifically described in this Article XV.
SECTION 15.10 CERTAIN ADDITIONAL RIGHTS.
In case the Company shall, by dividend or otherwise, declare or make a
distribution on the Common Stock referred to in Section 15.3(c) or 15.3(d), the
Holder of Debentures, upon the conversion thereof subsequent to the close of
business on the date fixed for the determination of stockholders entitled to
receive such distribution and prior to the effectiveness of the Conversion Price
adjustment in respect of such distribution, shall also be entitled to receive
for each share of Common Stock into which Debentures are converted, the portion
of the shares of Common Stock, rights, warrants, evidences of indebtedness,
shares of capital stock, cash and assets so distributed applicable to one share
of Common Stock; provided, however, that, at the election of the Company (whose
election shall be evidenced by a resolution of the Board of Directors) with
respect to all Holders so converting, the Company may, in lieu of distributing
to such Holder any portion of such distribution not consisting of cash or
securities of the Company, pay such Holder an amount in cash equal to the fair
market value thereof (as determined in good faith by the Board of Directors,
whose determination shall be conclusive and described in a resolution of the
Board of Directors). If any conversion of Debentures described in the
immediately preceding sentence occurs prior to the payment date for a
distribution to holders of Common Stock which the Holder of Debentures so
converted is entitled to receive in accordance with
69
the immediately preceding sentence, the Company may elect (such election to be
evidenced by a Board Resolution) to distribute to such Holder a due bill for the
shares of Common Stock, rights, warrants, evidences of indebtedness, shares of
capital stock, cash or assets to which such Holder is so entitled, provided,
that such due bill (a) meets any applicable requirements of the principal
national securities exchange or other market on which the Common Stock is then
traded and (b) requires payment or delivery of such shares of Common Stock,
rights, warrants, evidences of indebtedness, shares of capital stock, cash or
assets no later than the date of payment or delivery thereof to holders of
shares of Common Stock receiving such distribution.
SECTION 15.11 RESERVATION OF SHARES OF COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but unissued Common Stock or treasury
shares, for the purpose of effecting the conversion of Debentures, the full
number of shares of Common Stock then issuable upon the conversion of all
outstanding Debentures.
SECTION 15.12 PAYMENT OF CERTAIN TAXES UPON CONVERSION.
The Company will pay any and all taxes that may be payable in respect
of the issue or delivery of shares of Common Stock on conversion of Debentures
pursuant hereto. The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue and
delivery of shares of Common Stock in a name other than that of the Holder of
the Debenture or Debentures to be converted, and no such issue or delivery shall
be made unless and until the person requesting such issue has paid to the
Company the amount of any such tax, or has established, to the satisfaction of
the Company, that such tax has been paid.
SECTION 15.13 NONASSESSABILITY.
The Company covenants that all shares of Common Stock which may be
issued upon conversion of Debentures will upon issue in accordance with the
terms hereof be duly and validly issued and fully paid and nonassessable.
SECTION 15.14 DUTIES OF TRUSTEE REGARDING CONVERSION.
Neither the Trustee nor any Conversion Agent shall at any time be under
any duty or responsibility to any Holder of Debentures that is convertible into
Common Stock to determine whether any facts exist which may require any
adjustment of the Conversion Price, or with respect to the nature or extent of
any such adjustment when made, or with respect to the method employed, whether
herein or in any supplemental indenture (or whether a supplemental indenture
need be entered into), any resolutions of the Board of Directors or written
instrument executed by one or more officers of the Company provided to be
employed in making the same. Neither the Trustee nor any Conversion Agent shall
be accountable with respect to the validity or value (or the kind or amount) of
any shares of Common Stock, or of any securities or property, which may at any
time be issued or delivered upon the conversion of any Debentures and neither
the Trustee nor any Conversion Agent makes any representation with respect
thereto. Neither the Trustee nor any Conversion Agent shall be responsible for
any failure of the Company to issue, transfer or deliver any shares of Common
Stock or stock certificates or other securities or property upon the surrender
of any Debenture for the purpose of conversion or to comply with any of the
covenants of the Company contained in this Article XV or in the applicable
supplemental indenture, resolutions of the Board of Directors or written
instrument
70
executed by one or more duly authorized officers of the Company. All Debentures
delivered for conversion shall be delivered to the Trustee to be canceled by or
at the direction of the Trustee, which shall dispose of the same as provided in
Section 2.9.
SECTION 15.15 REPAYMENT OF CERTAIN FUNDS UPON CONVERSION.
Any funds which at any time shall have been deposited by the Company or
on its behalf with the Trustee or any other paying agent for the purpose of
paying the principal of, and premium, if any, and interest, if any, on any of
the Debentures and which shall not be required for such purposes because of the
conversion of such Debentures as provided in this Article XV shall after such
conversion be repaid to the Company by the Trustee upon the Company's written
request.
SECTION 15.16 RESTRICTIONS ON COMMON STOCK ISSUABLE UPON CONVERSION.
(a) Shares of Common Stock to be issued upon conversion of a Debenture
in respect of Restricted Preferred Securities (as defined in the Declaration)
shall bear such restrictive legends as the Company may provide in accordance
with applicable law. Neither the Trustee nor the Conversion Agent shall have any
responsibility for the inclusion or content of any such restrictive legend on
such Common Stock; provided, however, that the Trustee or the Conversion Agent
shall have provided to the Company or to the Company's transfer agent for such
Common Stock, prior to or concurrently with a request to the Company to deliver
to such Conversion Agent certificates for such Common Stock, written notice that
the Convertible Preferred Securities delivered for conversion are Restricted
Preferred Securities.
(b) If shares of Common Stock to be issued upon conversion of a
Debenture in respect of Restricted Preferred Securities are to be registered in
a name other than that of the Holder of such Convertible Preferred Security,
then the Person in whose name such shares of Common Stock are to be registered
must deliver to the Conversion Agent a certificate satisfactory to the Company
and signed by such Person, as to compliance with the restrictions on transfer
applicable to such Convertible Preferred Security. Neither the Trustee nor any
Conversion Agent or Registrar shall be required to register in a name other than
that of the Holder shares of Common Stock or such Certificate Preferred
Securities issued upon conversion of any such Convertible Preferred Security in
respect of such Convertible Preferred Securities not so accompanied by a
properly completed certificate.
ARTICLE XVI
MISCELLANEOUS PROVISIONS
SECTION 16.1 COMPLIANCE CERTIFICATES AND OPINIONS.
Except as otherwise expressly provided by this Indenture, upon any
application or request by the Company to the Trustee to take any action under
any provision of this Indenture, the Company shall furnish to the Trustee an
Officers' Certificate stating that all conditions precedent, if any, provided
for in this Indenture relating to the proposed action have been complied with
and an Opinion of Counsel stating that in the opinion of such counsel all such
conditions precedent, if any, have been complied with, except that in the case
of any such application or request as to which the furnishing of such documents
is specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need be
furnished. Every certificate or
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opinion by or on behalf of the Company with respect to compliance with a
condition or covenant provided for in this Indenture, except for certificates
provided for in Section 5.5, 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,
the individual has made such examination or investigation as is
necessary to enable such individual 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 16.2 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 such officer's 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 16.3 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,
(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 the Trustee at its Corporate Trust Office,
Attention: Corporate Trust Trustee Administration, or
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(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 it at the address of its principal
office specified in the first paragraph of this Indenture, to the
attention of its Chief Financial Officer, or at any other address
previously furnished in writing to the Trustee by the Company.
SECTION 16.4 NOTICE TO HOLDERS OF DEBENTURES; WAIVER.
Except as otherwise expressly provided herein, where this Indenture
provides for notice to Holders of Debentures of any event, such notice shall be
sufficiently given to Holders of Debentures if in writing and mailed,
first-class postage prepaid, to each Holder of a Debenture affected by such
event, at the address of such Holder as it appears in the Debenture Register,
not earlier than the earliest date, and not later than the latest date,
prescribed for the giving of such notice.
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 to
Holders of Debentures by mail, then such notification as shall be made with the
approval of the Trustee shall constitute sufficient notice to such Holders for
every purpose hereunder. In any case where notice to Holders of Debentures is
given by mail, neither the failure to mail such notice, nor any defect in any
notice mailed to any particular Holder of a Debenture shall affect the
sufficiency of such notice with respect to other Holders of Debentures.
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 of Debentures 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.
SECTION 16.5 LANGUAGE OF NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent or
waiver required or permitted under this Indenture shall be in the English
language, except that any published notice may be in an official language of the
country of publication.
SECTION 16.6 CONFLICT WITH REQUIRED PROVISIONS OF THE TRUST INDENTURE
ACT.
If and to the extent that any provision of this Indenture limits,
qualifies or conflicts with another provision included in this Indenture which
is required to be included in this Indenture by any of Sections 310 to 318,
inclusive, of the Trust Indenture Act, such required provision shall control.
SECTION 16.7 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 16.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its successors and assigns, whether so expressed or not.
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SECTION 16.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Debentures shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 16.10 BENEFITS OF INDENTURE.
Nothing in this Indenture or the Debentures, express or implied, shall
give to any Person, other than the parties hereto, any Authenticating Agent, any
Paying Agent, any Debentures Registrar and their successors hereunder and the
Holders of Debentures, any benefit or any legal or equitable right, remedy or
claim under this Indenture.
SECTION 16.11 GOVERNING LAW.
This Indenture and the Debentures shall be governed by and construed in
accordance with the laws of the State of New York, without regard to the
conflicts of laws principles thereof.
SECTION 16.12 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date, sinking
fund payment date, Maturity or Stated Maturity of a Debenture shall not be a
Business Day at any Place of Payment, then (notwithstanding any other provision
of this Indenture or of the Debentures other than a provision in Debentures
which specifically states that such provision shall apply in lieu of this
Section) payment of interest or principal (and premium, if any) 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 or Redemption Date, or at the Stated Maturity,
provided that no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date or Stated Maturity,
as the case may be, to such succeeding Business Day.
SECTION 16.13 EXECUTION IN COUNTERPARTS.
This instrument may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed as of the day and year first above written.
QUALCOMM INCORPORATED
By: /s/ Anthony S. Thornley
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Name: Anthony S. Thornley
Title: Senior Vice President and Chief
Financial Officer
WILMINGTON TRUST COMPANY
By: /s/ James P. Lawler
----------------------------------------
Name: James P. Lawler
Title: Vice President
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