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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): April 15, 1998 (April 9, 1998)
GENESCO INC.
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(Exact name of registrant as specified in its charter)
<TABLE>
<S> <C> <C>
Tennessee 1-3083 62-0211340
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(State or other jurisdiction of incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
</TABLE>
Genesco Park, 1415 Murfreesboro Road, Nashville, TN 37217
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code: (615) 367-7000
Not Applicable
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(Former name or former address, if changed since last report)
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ITEM 5. OTHER EVENTS.
On April 9, 1998, Genesco Inc. (the "Company") completed the sale
(the "Placement") of $103.5 million aggregate principal amount of 5.5%
Convertible Subordinated Notes due April 15, 2005 (the "Notes") in a private
placement to qualified institutional buyers in accordance with Rule 144A under
the Securities Act of 1933, as amended (the "Securities Act"). The Notes, which
may be redeemed at the option of the Company on and after April 17, 2001, in
whole or in part , are convertible into shares of common stock, par value $1.00
per share, of the Company (the "Common Stock") at a conversion rate of 47.5172
shares of Common Stock per $1,000 principal amount of the Notes (equivalent to a
conversion price of $21.045 per share).
The net proceeds to the Company from the Placement were approximately
$99.6 million. The Company intends to use the net proceeds from the Placement to
redeem the Company's outstanding 10-3/8% Senior Notes due 2003 (the "Senior
Notes"), to pay preferred stock dividend arrearages, and for general corporate
purposes.
The Notes and the Common Stock issuable upon their conversion have not
been registered under the Securities Act and may not be offered or sold in the
United States absent registration or an applicable exemption from registration
requirements. Pursuant to a Registration Rights Agreement between the Company
and the initial purchasers of the Notes, the Company has agreed to file with the
Securities and Exchange Commission within 90 days of the first date of original
issuance of the Notes, to cause to be declared effective within 270 days
following such date, and to keep effective for two years thereafter, a shelf
registration statement with respect to the resale of the Notes and the Common
Stock issuable upon conversion thereof. The Company will be required to pay
liquidated damages to the holders of the Notes or the underlying Common Stock
under certain circumstances if the Company is not in compliance with its
registration obligations.
A press release relating to the sale of the Notes is attached to this
Report, and incorporated herein by reference, in accordance with Rule 135c(d) of
the Securities Act.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(a) and (b) Inapplicable.
(c) Exhibits.
<TABLE>
<S> <C>
4.1 Form of 5.5% Convertible Subordinated Notes Due April 15, 2005.
4.2 Indenture, dated as of April 9, 1998, between Genesco Inc. and
United States Trust Company of New York.
10 Registration Rights Agreement, dated as of April 9, 1998, by
and among Genesco Inc., Goldman, Sachs & Co., NationsBanc
Montgomery Securities LLC, and SBC Warburg Dillon Read Inc.
99 Press Release, dated April 6, 1998 relating to the Placement.
</TABLE>
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SIGNATURES
Pursuant of the requirements of the Securities Exchange Act of 1934,
the registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
GENESCO INC.
Dated: April 15, 1998 By: /s/ Roger G. Sisson
-------------------------------
Roger G. Sisson, Esq.,
Secretary and General Counsel
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EXHIBIT INDEX
<TABLE>
<CAPTION>
No. Exhibit
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<S> <C>
4.1 Form of 5.5% Convertible Subordinated Notes Due April 15, 2005.
4.2 Indenture, dated as of April 9, 1998, between Genesco
Inc. and United States Trust Company of New York.
10 Registration Rights Agreement, dated as of April 9, 1998,
by and among Genesco Inc., Goldman, Sachs & Co.,
NationsBanc Montgomery Securities LLC, and SBC
Warburg Dillon Read Inc.
99 Press Release, dated April 6, 1998 relating to the Placement.
</TABLE>
<PAGE> 1
EXHIBIT 4.1
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON
ITS CONVERSION MAY NOT BE SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. THIS NOTE MAY ONLY BE SOLD IN
ACCORDANCE WITH THE INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT
THE CORPORATE TRUST OFFICE OF THE TRUSTEE. EACH PURCHASER OF THIS NOTE IS HEREBY
NOTIFIED THAT THE SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE
PROVISIONS OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF
GENESCO INC. THAT (A) THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(A) (1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IF AVAILABLE, (III) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES, AND THAT (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OR ANY
COMMON STOCK ISSUABLE UPON ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN CLAUSE (A) ABOVE.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND
ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO
MODIFY THE RESTRICTION ON ANY PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THERETO) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY
SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES
TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
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CONVERSION OF THIS NOTE IS SUBJECT TO CERTIFICATION AND OTHER
REQUIREMENTS, AND ANY NOTES ISSUED ON SUCH CONVERSION WILL BE SUBJECT TO THE
TRANSFER RESTRICTIONS REFERRED TO ABOVE.
GENESCO INC.
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE APRIL 15, 2005
No. 01 $103,500,000
CUSIP No. 371532AK8
GENESCO INC., a Tennessee corporation (herein called the "Company,"
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to Cede & Co. or
registered assigns, the principal sum of $103,500,000 U.S. Dollars (which
principal amount may from time to time be increased or decreased to such other
principal amounts (which, taken together with the principal amounts of all other
Outstanding Securities, shall not exceed $103,500,000 in the aggregate at any
time) by adjustments made on the records of the Trustee hereinafter referred to
in accordance with the Indenture) on April 15, 2005, and to pay interest thereon
from April 9, 1998 or from the most recent Interest Payment Date (as defined
below) to which interest has been paid or duly provided for, semi-annually in
arrears on April 15 and October 15 in each year, commencing on October 15, 1998,
and at Maturity at the rate of 5 1/2% per annum, until the principal hereof is
paid or made available for payment, provided that any amount of such principal
or interest that is overdue shall bear interest at the rate of 5 1/2% per annum
(to the extent that payment of such interest shall be legally enforceable), from
the date such amount is due until it is paid or made available for payment, and
such interest on any overdue amount shall be payable on demand. The interest so
payable, and punctually paid or duly provided for, on any Interest Payment Date
will, as provided in such Indenture, be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on the Regular Record Date for such interest, which shall be the April
1 or October 1 (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Trustee, notice thereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be
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listed, and upon such notice as may be required by such exchange, all as more
fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
in immediately available funds and in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, provided, however,
that payment of interest may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the Security Register. If this Security is a Global Security, then
each such payment will be made in accordance with the procedures of the
Depositary as then in effect.
Interest on this Security shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
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IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed under its corporate seal.
GENESCO INC.
[Corporate Seal]
By:
----------------------------------
Name:
Title:
Attest:
- ----------------------
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: April 9, 1998 UNITED STATES TRUST COMPANY
OF NEW YORK, as Trustee
By:
----------------------------------
Authorized Signatory
4
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(REVERSE OF SECURITY)
This Security is one of a duly authorized issue of securities of the
Company designated as its "5 1/2% Convertible Subordinated Notes due April 15,
2005" (herein called the "Securities"), limited in aggregate principal amount to
$103,500,000, issued and to be issued under an Indenture, dated as of April 9,
1998 (herein called the "Indenture") between the Company and United States Trust
Company of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the Holders of Senior Debt of the Company and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
No sinking fund is provided for in the Securities. The Securities may
not be redeemed at the option of the Company prior to April 17, 2001.
Thereafter, the Securities may be redeemed at the option of the Company, in
whole or in part, at the Redemption Prices set forth below. Such Redemption
Prices (expressed as a percentage of principal amount) are as follows for the
12- month period beginning on April 17, 2001 and April 15 of the years following
2001:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2001.................................... 103.1429%
2002.................................... 102.3571
2003.................................... 101.5714
2004.................................... 100.7857
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date, provided that
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders of such Securities, or one or more
Predecessor Securities, of record at the close of business on the relevant
Record Dates referred to on the face hereof, all as provided in the Indenture.
In the event of a redemption of the Securities, the Company will not be
required (a) to register the transfer or exchange of Registered Securities for a
period of 15 days immediately preceding the date notice is given identifying the
serial numbers of the Securities called for such redemption or (b) to register
the transfer or exchange of any Registered Security, or portion thereof, called
for redemption.
Notice of redemption (which notice shall be irrevocable) will be given
by first-class mail to Holders of Securities at their registered addresses as
recorded in the Security Register. Notice will be given not more than 60 nor
less than 30 days prior to the Redemption Date, as provided in the Indenture.
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In any case where the due date for the payment of the principal of,
premium, if any, or interest (including Liquidated Damages) on, any Security or
the last day on which a Holder of a Security has a right to convert its Security
shall be at any place of payment or place of conversion, as the case may be, a
day on which banking institutions at such place of payment or place of
conversion are authorized or obligated by law or executive order to close, then
payment of principal of, premium, if any, or interest (including Liquidated
Damages) on, or delivery for conversion of such Security need not be made on or
by such date at such place but may be made on or by the next succeeding day at
such place which is not a day on which banking institutions are authorized or
obligated by law or executive order to close, with the same force and effect as
if made on the date for such payment or the date fixed for redemption or
repurchase, or at the Stated Maturity or by such last day for conversion, and no
interest shall accrue for the period after such date.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at its option, at any time on or after
the last original issue date of the Securities and prior to the close of
business on April 15, 2005, or in case this Security is called for redemption or
the Holder hereof has exercised its right to require the Company to repurchase
this Security, then in respect of this Security until and including, but (unless
the Company defaults in making the payment due upon redemption or repurchase, as
the case may be) not after, the close of business on the Redemption Date or the
Repurchase Date, as the case may be, to convert this Security into newly issued
fully paid and nonassessable shares of Common Stock of the Company at an initial
Conversion Rate equal to 47.5172 shares of Common Stock per $1,000 principal
amount of Securities (or at the current adjusted Conversion Rate if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, and also a duly executed conversion notice, substantially in the form
provided in Annex A of the Indenture (including the tax certification contained
in such notice), to the Company, subject to any laws or regulations applicable
thereto and subject to the right of the Company to terminate the appointment of
the Conversion Agent (as defined below), at the Corporate Trust Office of the
Trustee in The City of New York or at such other offices or agencies outside the
United States that the Company may designate (each a "Conversion Agent"). Any
Security surrendered for conversion during a Record Date Period (except
Securities called for redemption on a Redemption Date or to be repurchased on a
Repurchase Date during, in each case, such period) must be accompanied by
payment of an amount equal to the interest payable on the Interest Payment Date
relating to such Record Date Period on the principal amount of such Security
being surrendered for conversion, and the interest payable in respect of such
Security on such Interest Payment Date shall be paid to the Holder of such
Security as of the Regular Record Date relating to such Record Date Period. The
interest payable on such Interest Payment Date with respect to any Security
which has been called for redemption on a Redemption Date, or is repurchaseable
on a Repurchase Date, occurring, in either case, during a Record Date Period,
which Security is surrendered for conversion during such Record Date Period,
shall be paid to the Holder of such Security being converted in an amount equal
to the interest that would have been payable on such Security if such Security
had been converted as of the close of business on such Interest Payment Date.
Interest payable in respect of any Security surrendered for conversion on or
after an Interest Payment Date shall be paid to
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the Holder of such Security as of the next preceding Regular Record Date,
notwithstanding the exercise of the right of conversion.
The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and such delivery will be
deemed to satisfy the Company's obligation to pay the principal amount of this
Security. No fractions of shares or scrip representing fractions of shares will
be issued on conversion, but instead of any fractional interest (calculated to
the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture, or alternatively the Company shall round up the
conversion transaction to the next higher whole share. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Company is a party or the sale or transfer of all or substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then Outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon consolidation, merger, sale or transfer by a holder of
the number of shares of Common Stock of the Company into which this Security
might have been converted immediately prior to such consolidation, merger, sale
or transfer (assuming such holder of Common Stock failed to exercise any rights
of election and received per share the kind and amount received per share by a
plurality of Non-Electing Shares). Adjustments in the Conversion Rate of less
than one percent of such price will not be required, but any adjustment that
would otherwise be required to be made will be carried forward and taken into
account in the computation of any subsequent adjustment.
Notwithstanding any provision hereof, no securities will be delivered
on conversion of this Security or any portion hereof unless the certification
and other requirements described in the Indenture are satisfied.
Subject to certain limitations in the Indenture, at any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, as amended,
upon the request of a Holder of a Restricted Security or the holder of shares of
Common Stock issued upon conversion thereof, the Company will promptly furnish
or cause to be furnished Rule 144A Information (as defined below) to such Holder
of Restricted Securities or such holder of shares of Common Stock issued upon
conversion of Restricted Securities, or to a prospective purchaser of any such
security designated by any such Holder or holder, as the case may be, to the
extent required to permit compliance by any such holder with Rule 144A under the
Securities Act. "Rule 144A Infor mation" shall be such information as is
specified pursuant to Rule 144A(d)(4) under the Securities Act (or any successor
provision thereto).
The Holder of this Security and the Common Stock of the Company
issuable upon conversion thereof is entitled to the benefits of a Registration
Rights Agreement (subject to the provisions thereof), dated as of April 9, 1998,
between the Company and the Initial Purchasers (the "Registration Rights
Agreement"). Pursuant to the Registration Rights Agreement, the
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Company has agreed for the benefit of the Holders from time to time of the
Securities and the Common Stock issuable upon conversion thereof that it will,
at its expense, (a) within 90 days after the date of issuance of the Securities,
file a shelf registration statement (the "Shelf Registration Statement") with
the Commission with respect to resales of the Securities and the Common Stock
issuable upon conversion thereof (together, the "Registrable Securities"), (b)
use its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable but no later than 270
days after the date of original issuance of the Securities (the "Settlement
Date"), and (c) use its best efforts to maintain such Shelf Registration
Statement continuously effective under the Securities Act, until the second
anniversary of the date of the effectiveness of the Shelf Registration Statement
or such earlier date as is provided in the Registration Rights Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to 270 days following the Settlement Date, such
Shelf Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on this
Security from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment date in respect of the Securities
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 of the Securities to and including the 90th day
following such Registration Default and at a rate per annum equal to one-half of
one percent (0.50%) thereof from and after the 91st day following such
Registration Default. In the event that the Shelf Registration Statement ceases
to be effective prior to the second annual anniversary of the initial effective
date of the Shelf Registration Statement or such earlier date as is provided in
the Registration Rights Agreement for a period in excess of 60 days, whether or
not consecutive, during any 12-month period, then the interest rate borne by the
Securities shall increase by an additional one-half of one percent (0.50%) per
annum from the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective to but excluding the day on which
the Shelf Registration Statement again becomes effective.
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security such mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in the preceding paragraph to the extent
that, in such context, Liquidated Damages are, were or would be payable in
respect of such Security and express mention of the payment of Liquidated
Damages (if applicable) in any provisions of this Security shall not be
construed as excluding Liquidated Damages in those provisions of this Security
where such express mention is not made.
The Holder of this Security, by its acceptance thereof, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Securities and the Common Stock issuable upon conversion thereof.
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If a Change in Control occurs, the Holder of this Security shall have
the right, at the Holder's option in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that is an integral multiple of $1,000) at a
Repurchase Price equal to 100% of the principal amount thereof plus interest
accrued to the Repurchase Date. At the option of the Company, the Repurchase
Price may be paid in cash or, except as otherwise provided in the Indenture, by
delivery of Common Stock having a fair market value equal to the Repurchase
Price. Payment may not be made in Common Stock unless the Company satisfies
certain conditions prior to the Repurchase Date as provided in the Indenture.
For purposes of this paragraph, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the Closing Prices Per Share for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the Repurchase Date.
Whenever in this Security there is a reference, in any context, to the principal
of any Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security to the
extent that such Repurchase Price is, was or would be so payable at such time,
and express mention of the Repurchase Price in any provision of this Security
shall not be construed as excluding the Repurchase Price in those provisions of
this Security when such express mention is not made.
The indebtedness evidenced by this Security is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all amounts then or thereafter to become
due on all Senior Debt of the Company, and this Security is issued subject to
such provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such
provisions, (b) authorizes and directs the Trustee on its behalf to take such
action as may be necessary or appropriate to effectuate the subordination so
provided and (c) appoints the Trustee its attorney-in-fact for any and all such
purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable to the extent, in the manner
and with the effect provided in the Indenture. Upon payment (i) of the amount of
principal so declared due and payable and (ii) of interest on any overdue
principal and overdue interest, all of the Company's obligations in respect of
the payment of the principal of and interest on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with either (a) the written consent of
the Holders of a majority in principal amount of the Securities at the time
outstanding, or (b) by the adoption of a resolution, at a meeting of Holders of
the Out standing Securities at which a quorum is present by the Holders of
66-2/3% in aggregate principal amount of the Outstanding Securities represented
at such meeting. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their
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consequences. Any such consent or waiver by the Holder of this Security shall be
conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued in exchange herefor or in lieu hereof,
whether or not notation of such consent or waiver is made upon this Security or
such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default and offered the Trustee indemnity satisfactory to it and
the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities Outstanding a direction inconsistent with such request
and shall have failed to institute any such proceedings for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or interest hereon (including any Liquidated
Damages) on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of, premium, if any, and
interest (including Liquidated Damages) on this Security at the times, places
and rate, and in the coin or currency, herein prescribed or to convert this
Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations and
satisfaction of certain requirements therein set forth, the transfer of this
Security is registrable on the Security Register upon surrender of this Security
for registration of transfer at the office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees. No
service charge shall be made to the Holder for any such registration of transfer
or exchange, but the Company may require payment of a sum sufficient to recover
any tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Security for registration of transfer
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered, as the owner thereof for
all purposes, whether or not such Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
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THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA
WITHOUT REGARD TO PRINCIPLES REGARDING CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
11
<PAGE> 12
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.1 of the Indenture, the undersigned hereby elects
to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it or
________________________________________________ an amount in cash or, at the
Company's election, Common Stock valued as set forth in the Indenture, equal to
100% of the principal amount hereof, plus interest accrued to the Repurchase
Date, as provided in the Indenture.
Dated: _________________________________
_________________________________
Signature
_________________________________
Signature Guaranteed
Principal amount to be repurchased: _______________________
Remaining principal amount following such repurchase: ___________________
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
12
<PAGE> 1
Exhibit 4.2
GENESCO INC.
ISSUER
AND
UNITED STATES TRUST COMPANY OF NEW YORK
TRUSTEE
--------------------
INDENTURE
Dated as of April 9, 1998
--------------------
$103,500,000
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE APRIL 15, 2005
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TABLE OF CONTENTS
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RECITALS..........................................................................................................1
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 1.1 Definitions..........................................................................................1
Section 1.2 Compliance Certificates and Opinions................................................................10
Section 1.4 Acts of Holders of Securities.......................................................................11
Section 1.5 Notices, Etc........................................................................................13
Section 1.6 Notice to Holders of Securities; Waiver.............................................................14
Section 1.7 Effect of Headings and Table of Contents............................................................14
Section 1.8 Successors and Assigns..............................................................................14
Section 1.9 Separability Clause.................................................................................14
Section 1.10 Benefits of Indenture..............................................................................15
Section 1.11 Governing Law......................................................................................15
Section 1.12 Legal Holidays.....................................................................................15
Section 1.13 Conflict with Trust Indenture Act...................................................................15
ARTICLE II
SECURITY FORMS
Section 2.1 Forms Generally.....................................................................................16
Section 2.2 Form of Face of Security............................................................................16
Section 2.3 Form of Reverse of Security.........................................................................20
Section 2.4 Form of Trustee's Certificate of Authentication.....................................................27
ARTICLE III
THE SECURITIES
Section 3.1 Title and Terms.....................................................................................28
Section 3.2 Denominations.......................................................................................29
Section 3.3 Execution, Authentication, Delivery and Dating......................................................29
Section 3.4 Temporary Securities................................................................................29
Section 3.5 Registration, Registration of Transfer and
Exchange; Restrictions on Transfer.........................................................30
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Section 3.6 Mutilated, Destroyed, Lost or Stolen Securities.....................................................33
Section 3.7 Payment of Interest, Interest Rights Preserved......................................................34
Section 3.8 Persons Deemed Owners...............................................................................35
Section 3.9 Cancellation........................................................................................35
Section 3.10 Computation of Interest............................................................................36
Section 3.11 CUSIP Numbers......................................................................................36
ARTICLE IV
SATISFACTION AND DISCHARGE
Section 4.1 Satisfaction and Discharge of Indenture.............................................................36
Section 4.2 Application of Trust Money..........................................................................38
ARTICLE V
REMEDIES
Section 5.1 Events of Default...................................................................................38
Section 5.2 Acceleration of Maturity; Rescission and Annulment..................................................40
Section 5.3 Collection of Indebtedness and Suits for Enforcement by Trustee.....................................41
Section 5.4 Trustee May File Proofs of Claim....................................................................42
Section 5.5 Trustee May Enforce Claims Without Possession of Securities.........................................43
Section 5.6 Application of Money Collected......................................................................43
Section 5.7 Limitation on Suits.................................................................................44
Section 5.8 Unconditional Right of Holders to Receive Principal and Interest
and to Convert.............................................................................45
Section 5.9 Restoration of Rights and Remedies..................................................................45
Section 5.10 Rights and Remedies Cumulative.....................................................................45
Section 5.11 Delay or Omission Not Waiver.......................................................................45
Section 5.12 Control by Holders of Securities...................................................................46
Section 5.13 Waiver of Past Defaults............................................................................46
Section 5.14 Undertaking for Costs..............................................................................46
Section 5.15 Waiver of Stay or Extension Laws...................................................................47
ARTICLE VI
THE TRUSTEE
Section 6.1 Certain Duties and Responsibilities.................................................................47
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Section 6.2 Notice of Defaults..................................................................................48
Section 6.3 Certain Rights of Trustee...........................................................................48
Section 6.4 Not Responsible for Recitals or Issuance of Securities..............................................50
Section 6.5 May Hold Securities, Act as Trustee Under Other Indentures..........................................50
Section 6.6 Money Held in Trust.................................................................................50
Section 6.7 Compensation and Indemnification of Trustee and Its Prior Claims....................................50
Section 6.8 Corporate Trustee Required; Eligibility.............................................................51
Section 6.9 Resignation and Removal; Appointment of Successor...................................................52
Section 6.10 Acceptance of Appointment by Successor..............................................................53
Section 6.11 Merger, Conversion, Consolidation or Succession to Business.........................................54
Section 6.12 Authenticating Agent................................................................................54
Section 6.13 Disqualification; Conflicting Interests.............................................................55
ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
Section 7.1 Company to Furnish Trustee Names and Addresses of Holders...........................................56
Section 7.2 Preservation of Information; Communications to Holders..............................................56
Section 7.3 Reports by the Company..............................................................................56
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
Section 8.1 Company May Consolidate, Etc., Only on Certain Terms................................................57
Section 8.2 Successor Substituted...............................................................................58
ARTICLE IX
SUPPLEMENTAL INDENTURES
Section 9.1 Supplemental Indentures Without Consent of Holders of Securities....................................58
Section 9.2 Supplemental Indentures with Consent of Holders of Securities.......................................59
Section 9.3 Execution of Supplemental Indentures................................................................60
Section 9.4 Effect of Supplemental Indentures...................................................................60
Section 9.5 Reference in Securities to Supplemental Indentures..................................................61
Section 9.6 Notice of Supplemental Indentures...................................................................61
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ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
Section 10.1 Purposes for Which Meetings May Be Called..........................................................61
Section 10.2 Call, Notice and Place of Meetings.................................................................61
Section 10.3 Persons Entitled to Vote at Meetings...............................................................62
Section 10.4 Quorum; Action.....................................................................................62
Section 10.5 Determination of Voting Rights; Conduct and Adjournment of Meetings................................63
Section 10.6 Counting Votes and Recording Action of Meetings....................................................64
ARTICLE XI
COVENANTS
Section 11.1 Payment of Principal and Interest..................................................................64
Section 11.2 Maintenance of Offices or Agencies.................................................................64
Section 11.3 Money for Security Payments To Be Held in Trust....................................................65
Section 11.4 Corporate Existence................................................................................66
Section 11.5 Maintenance of Properties..........................................................................67
Section 11.6 Compliance with Laws...............................................................................67
Section 11.7 Payment of Taxes and Other Claims..................................................................67
Section 11.8 Delivery of Certain Information....................................................................67
Section 11.9 Statement by Officers as to Default................................................................68
Section 11.10 Resale of Certain Securities......................................................................68
Section 11.11 Waiver of Certain Covenants.......................................................................68
Section 11.12 Registration Rights...............................................................................69
Section 11.13 Book-Entry System.................................................................................70
ARTICLE XII
REDEMPTION OF SECURITIES
Section 12.1 Right of Redemption................................................................................70
Section 12.2 Applicability of Article...........................................................................70
Section 12.3 Election to Redeem; Notice to Trustee..............................................................70
Section 12.4 Selection by Trustee of Securities to be Redeemed..................................................71
Section 12.5 Notice of Redemption...............................................................................71
Section 12.6 Deposit of Redemption Price........................................................................72
Section 12.7 Securities Payable on Redemption Date..............................................................72
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ARTICLE XIII
CONVERSION OF SECURITIES
Section 13.1 Conversion Privilege and Conversion Rate...........................................................73
Section 13.2 Exercise of Conversion Privilege...................................................................73
Section 13.3 Fractions of Shares of Common Stock................................................................75
Section 13.4 Adjustment of Conversion Rate......................................................................76
Section 13.5 Notice of Adjustments of Conversion Rate...........................................................80
Section 13.6 Notice of Certain Corporate Action.................................................................81
Section 13.7 Company to Reserve Common Stock....................................................................82
Section 13.8 Taxes on Conversions...............................................................................82
Section 13.9 Covenant as to Common Stock........................................................................82
Section 13.10 Cancellation of Converted Securities..............................................................82
Section 13.11 Provision in Case of Consolidation, Merger or Conveyance of Assets................................83
Section 13.12 Responsibility of Trustee for Conversion Provisions...............................................84
ARTICLE XIV
SUBORDINATION
Section 14.1 Securities Subordinate to Senior Debt..............................................................84
Section 14.2 Payment Over of Proceeds Upon Dissolution, Etc.....................................................84
Section 14.3 No Payment When Senior Debt in Default.............................................................86
Section 14.4 Payment Permitted If No Default....................................................................86
Section 14.5 Subrogation to Rights of Holders of Senior Debt....................................................87
Section 14.6 Provisions Solely to Define Relative Rights........................................................87
Section 14.7 Trustee to Effectuate Subordination................................................................87
Section 14.8 No Waiver of Subordination Provisions..............................................................88
Section 14.9 Notice to Trustee..................................................................................88
Section 14.10 Reliance on Judicial Order or Certificate of Liquidating Agent....................................89
Section 14.11 Trustee Not Fiduciary for Holders of Senior Debt..................................................89
Section 14.12 Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights...............................................................89
Section 14.13 Article Applicable to Paying Agents...............................................................90
Section 14.14 Payment...........................................................................................90
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ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
Section 15.1 Right to Require Repurchase........................................................................91
Section 15.2 Conditions to the Company's Election to Pay the Repurchase
Price in Common Stock......................................................................91
Section 15.3 Notices; Method of Exercising Repurchase Right, Etc................................................92
Section 15.4 Certain Definitions................................................................................95
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of the Indenture.
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<PAGE> 8
INDENTURE, dated as of April 9, 1998, between GENESCO INC., a Tennessee
corporation (herein called the "Company"), and UNITED STATES TRUST COMPANY OF
NEW YORK, a New York banking corporation, as Trustee hereunder (herein called
the "Trustee").
RECITALS
The Company has duly authorized the creation of an issue of its 5 1/2%
Convertible Subordinated Notes due April 15, 2005 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when executed by the
Company and authenticated and delivered hereunder and duly issued by the
Company, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company in accordance with their and its terms, have been
done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of the
Securities by the Holders thereof, it is mutually covenanted and agreed, for the
equal and proportionate benefit of all Holders of the Securities, as follows:
ARTICLE I
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1 DEFINITIONS.
For all purposes of this Indenture, except as otherwise expressly
provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) Unless the context otherwise requires, any reference to an
"Article" or a "Section," or to an "Annex," refers to an Article or
Section of, or an Annex attached to, this Indenture, as the case may
be;
(3) all accounting terms not otherwise defined herein have the
meanings assigned to them in accordance with generally accepted
accounting principles in the United States prevailing at the time of
any relevant computation hereunder; and
<PAGE> 9
(4) 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; provided, however
that where such words are used in any form of Security, form of notice
or form of certificate, such words shall refer only to the particular
form of Security, form of notice or form of certificate, as the case
may be, in which such words are contained.
"Act," when used with respect to any Holder of a Security, has the
meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person directly or
indirectly controlling or controlled by or under direct or indirect common
control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Members" has the meaning specified in Section 3.5.
"Applicable Procedures" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security to the extent
applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized by the Trustee
pursuant to Section 6.12 to act on behalf of the Trustee to authenticate
Securities.
"Authorized Newspaper" means a newspaper in the English language,
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.
"Board of Directors" means the board of directors of the Company, or
any committee of the board of directors of the Company, empowered to act for the
Company, as the case may be, with respect to this Indenture.
"Board Resolution" means a resolution duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant Secretary
of the Company, as the case may be, to have been duly adopted by the Board of
Directors and to be in full force and effect on the date of such certification,
shall have been delivered to the Trustee.
"Business Day" means, with respect to any particular place of payment,
place of conversion or any other place, as the case may be, each Monday,
Tuesday, Wednesday, Thursday and Friday, other than any such day on which
banking institutions in The City of New York, New York or in such particular
place are authorized or obligated by law or
2
<PAGE> 10
executive order to close. If any day on which any delivery, request, surrender,
payment or other action is required or permitted hereunder to be taken by or on
behalf of a Holder is not a Business Day in any place where such action is
permitted hereunder to be taken, then such actions may be taken at such or any
other permitted place on the next succeeding Business Day at such place with the
same force and effect as if taken at the same time on such day that is not a
business day at such place.
"Change in Control" has the meaning specified in Section 15.4.
"Closing Price Per Share" means, with respect to the Common Stock of
the Company, for any day, the reported last sales price regular way per share on
such day or, in case no such reported sale takes place on such day, the average
of the reported closing bid and asked prices regular way, in either case (i) on
the principal (as determined by the Company's Board of Directors) national
securities exchange on which the Common Stock is listed or admitted to trading
or (ii) if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market or (iii) if the Common Stock is not
listed or admitted to trading on any national securities exchange or quoted on
such National Market, the average of the closing bid and asked prices in the
over-the-counter market as furnished by any New York Stock Exchange member firm
selected from time to time by the Company for that purpose.
"Code" means the United States Internal Revenue Code of 1986, as
amended.
"Commission" means the U.S. Securities and Exchange Commission, as from
time to time constituted, created under the Exchange Act, or, if at any time
after the execution of this instrument such Commission is not existing and
performing the duties now assigned to it under applicable law, then the body
performing such duties at such time.
"Common Stock" means the Common Stock, par value $1.00 per share, of
the Company authorized at the date of this instrument as originally executed.
Subject to the provisions of Section 13.11, shares issuable on conversion or
repurchase of Securities shall include only shares of Common Stock or shares of
any class or classes of common stock resulting from any reclassification or
reclassifications thereof; provided, however, that if at any time there shall be
more than one such resulting class, the shares so issuable on conversion of
Securities shall include shares of all such classes, and 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 all such classes resulting from all such
reclassifications.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument 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 any one of its Chairman of the Board, its
Chief Executive
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<PAGE> 11
Officer, its President, or any Vice President, and by any one of its Chief
Financial Officer, Treasurer, any Assistant Treasurer, its Secretary or any
Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in Section 13.11.
"Conversion Agent" means any Person authorized by the Company to
convert Securities in accordance with Article XIII. The Company has initially
appointed the Trustee as Conversion Agent.
"Conversion Price" and "Conversion Rate" have the meanings specified in
Section 13.1 hereof, as adjusted in accordance with Section 13.4.
"Conversion Securities" means the securities delivered on conversion of
Securities (or any securities successor thereto), together with any securities
successor thereto to those so delivered on conversions.
"Corporate Trust Office" means the office of the Trustee at which at
any particular time its corporate trust business shall be principally
administered (which at the date of this Indenture is located at 114 West 47th
Street, New York, New York 10036-1532 Attention:
Patricia Stermer).
"corporation" means a corporation, association, company, joint-stock
company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.7.
"Depositary" means DTC until a successor depositary shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Depositary" shall mean such successor Depositary.
"Dollar" or "$" means a dollar or other equivalent unit in such coin or
currency of the United States as at the time shall be legal tender for the
payment of public and private debts.
"DTC" means The Depository Trust Company, a New York corporation.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended, including any successor or amendatory statutes.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the U.S. Securities Exchange Act of 1934
(including any successor act thereto), as it may be amended from time to time,
and (unless the context
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<PAGE> 12
otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
"Expiration Date" has the meaning specified in Section 1.4(g).
"Global Security" has the meaning specified in Section 2.1.
"Holder" means a Person in whose name a Security is registered in the
Security Register.
"Indebtedness" means obligations (other than nonrecourse obligations)
of, or guaranteed or assumed by, the Company for borrowed money, including
obligations evidenced by bonds, debentures, notes or other similar instruments
and reimbursement and cash collateralization of letters of credit, bankers'
acceptances, interest rate hedge and currency hedge agreements.
"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
including, for all purposes of this instrument and any such supplemental
indenture, the Annexes attached to this instrument.
"Initial Purchasers" means Goldman, Sachs & Co., NationsBanc Montgomery
Securities LLC and SBC Warburg Dillon Read Inc.
"Interest Payment Date" means the Stated Maturity of an installment of
interest on the Securities.
"Liquidated Damages" has the meaning specified in Section 11.12.
"Maturity," when used with respect to any Security, means the date on
which the principal of such Security becomes due and payable as therein or
herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth in
Article XV or otherwise.
"Non-Electing Share" has the meaning specified in Section 13.11.
"Notice of Default" has the meaning specified in Section 5.1.
"Officer" means the Chairman of the Board, the Chief Executive Officer,
the President, the Chief Financial Officer, the Treasurer, the Controller, an
Assistant Treasurer, an Assistant Controller, the Secretary, an Assistant
Secretary or any Vice President of the Company.
"Officers' Certificate" means a written certificate signed by any one
of the Chairman of the Board, the Chief Executive Officer, the President, the
Chief Financial Officer or any Vice
5
<PAGE> 13
President of the Company and by any one of the Treasurer, the Controller, an
Assistant Treasurer, an Assistant Controller, the Secretary or an Assistant
Secretary of the Company, and delivered to the Trustee; provided, however, that,
for purposes of Section 11.9, an "Officers' Certificate" means a written
certificate signed by the principal executive, financial or accounting officer
of the Company and any one of the other Officers referred to above and delivered
to the Trustee.
"Opinion of Counsel" means a written opinion of counsel, who may be
counsel for the Company and any other counsel who in either case shall be
reasonably acceptable to the Trustee.
"Outstanding," when used with respect to Securities, means, as of the
date of determination, all Securities theretofore authenticated and delivered
under this Indenture, except:
(i) Securities theretofore canceled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of which money
in the necessary amount has been theretofore deposited with the Trustee
or any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities, provided that if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to
the Trustee has been made; and
(iii) Securities which have been paid pursuant to Section 3.6
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture, other than any
such Securities in respect of which there shall have been presented to
the Trustee proof satisfactory to it that such Securities are held by a
bona fide purchaser in whose hands such Securities are valid
obligations of the Company;
provided, however, that in determining whether the Holders of the requisite
principal amount of Outstanding Securities are present at a meeting of Holders
of Securities for quorum purposes or have given any request, demand,
authorization, direction, notice, consent or waiver hereunder, Securities owned
by the Company or any other obligor upon the Securities or any Affiliate of the
Company or such other obligor shall be disregarded and deemed not to be
Outstanding, except that, in determining whether the Trustee shall be protected
in conclusively relying upon any such determination as to the presence of a
quorum or upon any such request, demand, authorization, direction, notice,
consent or waiver, only Securities which a Responsible Officer of the Trustee
actually knows to be so owned shall be so disregarded. Securities 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
6
<PAGE> 14
act with respect to such Securities and that the pledgee is not the Company or
any other obligor upon the Securities or any Affiliate of the Company or such
other obligor.
"Paying Agent" means any Person authorized by the Company to pay the
principal of or interest on any Securities on behalf of the Company.
"Person" means any individual, corporation, limited liability company,
partnership, joint venture, association, joint-stock company, trust, estate,
unincorporated organization or other legal entity or government or any agency or
political subdivision thereof.
"Predecessor Security" of any particular Security means every previous
Security evidencing all or a portion of the same debt as that evidenced by such
particular Security; and, for the purposes of this definition, any Security
authenticated and delivered under Section 3.6 in exchange for or in lieu of a
mutilated, destroyed, lost or stolen Security shall be deemed to evidence the
same debt as the mutilated, destroyed, lost or stolen Security.
"Qualified Institutional Buyer" has the meaning specified in Rule 144A.
"Record Date" means any Regular Record Date or Special Record Date.
"Record Date Period" means the period from the close of business on any
Regular Record Date next preceding any Interest Payment Date to the opening of
business on such Interest Payment Date.
"Redemption Date," when used with respect to any Security to be
redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Registered Security" means any Security issued in substantially the
form set forth in Section 2.2 and registered in the Security Register. A Global
Security is a Registered Security.
"Redemption Price," when used with respect to any Security to be
redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Registration Default" has the meaning specified in Section 11.12.
"Registration Rights Agreement" has the meaning specified in Section
11.12.
"Regular Record Date" for interest payable in respect of any Security
on any Interest Payment Date means the April 1 or October 1 (whether or not a
Business Day) next preceding the relevant Interest Payment Date.
"Repurchase Date" has the meaning specified in Section 15.1.
"Repurchase Price" has the meaning specified in Section 15.1.
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<PAGE> 15
"Responsible Officer," when used with respect to the Trustee, shall
mean any officer of the Trustee within the Corporate Trust and Agency Division
of the Trustee (or any successor group of the Trustee) or any other officer of
the Trustee customarily performing functions similar to those performed by any
of the above designated officers and also, with respect to a particular
corporate trust matter, any other officer to whom such matter is referred
because of such officer's knowledge and familiarity with the particular subject.
"Restricted Securities" has the meaning specified in Section 2.1.
"Rule 144" means Rule 144 under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A" means Rule 144A under the Securities Act (including any
successor rule thereto), as the same may be amended from time to time.
"Rule 144A Information" has the meaning specified in Section 11.8.
"Securities" has the meaning ascribed to it in the first paragraph
under the caption "Recitals."
"Securities Act" means the Securities Act of 1933 (including any
successor act thereto), as it may be amended from time to time, and (unless the
context otherwise requires) includes the rules and regulations of the Commission
promulgated thereunder.
"Security Register" and "Security Registrar" have the respective
meanings specified in Section 3.5.
"Senior Debt" means the principal of (and premium, if any) and interest
(including all interest accruing subsequent to the commencement of any
bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts payable in connection with, the following, whether direct or
indirect, absolute or contingent, secured or unsecured, due or to become due,
outstanding on the date of this Indenture or thereafter created, incurred or
assumed: (a) indebtedness of the Company for money borrowed or evidenced by
credit or loan agreement, bonds, debentures, notes or similar instruments, (b)
all obligations of the Company evidenced by a note or similar instrument or
written agreement given in connection with the acquisition of any businesses,
properties or assets, including securities, (c) obligations of the Company as
lessee under leases capitalized on the balance sheet of the lessee under
generally accepted accounting principles, (d) obligations of the Company under
interest rate and currency swaps, caps, floors, collars, hedge agreements,
forward contracts, or similar agreements or arrangements intended to protect the
Company against fluctuations in interest or currency exchange rates or commodity
prices, (e) all reimbursement obligations of the Company with respect to letters
of credit, bankers' acceptances or similar facilities issued for the account of
the Company, (f) indebtedness of others of the kinds described in the preceding
clauses (a), (b), (c), (d) and (e)
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<PAGE> 16
that the Company has assumed, guaranteed or otherwise assured the payment
thereof, directly or indirectly, and/or (g) deferrals, renewals, extensions and
refundings of, or bonds, debentures, notes or other evidences of indebtedness
issued in exchange for, or amendments, modifications or supplements to, or
covenants and other obligations of the Company in connection with, the
indebtedness described in the preceding clauses (a) through (f) whether or not
there is any notice to or consent of the Holders of the Securities; except (i)
indebtedness and advances among the Company and its Subsidiaries; and (ii) any
particular indebtedness, deferral, renewal, extension or refunding, if it is
expressly stated in the governing terms or in the assumption thereof that the
indebtedness involved is not Senior Debt.
"Shelf Registration Statement" has the meaning specified in Section
11.12.
"Special Record Date" for the payment of any Defaulted Interest means a
date fixed by the Trustee pursuant to Section 3.7.
"Stated Maturity," when used with respect to any Security or any
installment of interest thereon, means the date specified in such Security as
the fixed date on which the principal of such Security or such installment of
interest is due and payable.
"Subsidiary" means a corporation more than 50% of the outstanding
voting stock of which is owned, directly or indirectly, by the Company or by one
or more other Subsidiaries, or by the Company and one or more other
Subsidiaries. For the purposes of this definition, "voting stock" means stock or
other similar interests which ordinarily has or have voting power for the
election of directors, or persons performing similar functions, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trading Days" means (i) if the Common Stock is listed or admitted for
trading on any national securities exchange, days on which such national
securities exchange is open for business or (ii) if the Common Stock is not
listed or admitted for trading on any national securities exchange, days on
which trades may be made on the Nasdaq National Market or any similar system of
automated dissemination of quotations of securities prices on which the Common
Stock is quoted or (iii) if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on such National Market or
similar system, days on which the Common Stock is traded regular way in the
over-the-counter market and for which a closing bid and a closing asked price
for the Common Stock is available.
"Trustee" means the Person named as the "Trustee" in the first
paragraph of this instrument until a successor Trustee shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Trust Indenture Act" means the United States Trust Indenture Act of
1939 (including any successor act thereto), as it may be amended from time to
time, and (unless the context otherwise requires) includes the rules and
regulations of the Commission thereunder.
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<PAGE> 17
"United States person" means a citizen or resident of the United
States, a domestic partnership, a domestic corporation or any estate or trust
the income of which is subject to United States federal income taxation
regardless of its source.
"Vice President," when used with respect to the Company, means any Vice
President, whether or not designated by a number or a word or words added before
or after the title "Vice President."
SECTION 1.2 COMPLIANCE CERTIFICATES AND OPINIONS
(a) Upon any application or request by the Company to the Trustee to
take any action under any provision of this Indenture, the Company shall furnish
to the Trustee an Officers' Certificate stating that all conditions precedent,
if any, provided for in this Indenture relating to the proposed action have been
complied with and an Opinion of Counsel stating that in the opinion of such
counsel all such conditions precedent, if any, have been complied with, except
that in the case of any such application or request as to which the furnishing
of such documents is specifically required by any provision of this Indenture
relating to such particular application or request, no additional certificate or
opinion need be furnished.
Every certificate or opinion with respect to compliance with a
condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) 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;
(3) a statement that, in the opinion of such Person, such
Person has made such examination or investigation as is necessary to
enable him to express an informed opinion as to whether or not such
covenant or condition has been complied with; and
(4) a statement as to whether, in the opinion of such Person,
such condition or covenant has been complied with.
SECTION 1.3 FORM OF DOCUMENTS DELIVERED TO THE 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.
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<PAGE> 18
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 certificate or opinion is based are
erroneous. Any such certificate or Opinion of Counsel may be based, insofar as
it relates to factual matters, upon a certificate or opinion of, or
representations by, an Officer or Officers of the Company stating that the
information with respect to such factual matters is in the possession of the
Company, unless such counsel knows, or in the exercise of reasonable care should
know, that the certificate or opinion or representations with respect to such
matters are erroneous.
Where any Person is required to make, give or execute two or more
applications, requests, consents, certificates, statements, opinions or other
instruments under this Indenture, they may, but need not, be consolidated and
form one instrument.
SECTION 1.4 ACTS OF HOLDERS OF SECURITIES.
(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 of Securities may be embodied in and evidenced by (1) one or
more instruments of substantially similar tenor signed by such Holders in person
or by agent or proxy duly appointed in writing, (2) the record of Holders of
Securities voting in favor thereof, either in person or by proxies duly
appointed in writing, at any meeting of Holders of Securities duly called and
held in accordance with the provisions of Article X or (3) a combination of such
instruments and any such record. Except as herein otherwise expressly provided,
such action shall become effective when such instrument or instruments or record
or both are delivered to the Trustee and, where it is hereby expressly required,
to the Company. Such instrument or instruments and record (and the action
embodied therein and evidenced thereby) are herein sometimes referred to as the
"Act" of the Holders of Securities signing such instrument or instruments and so
voting at such meeting. 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
Security, shall be sufficient for any purpose of this Indenture and (subject to
Section 6.1) conclusive in favor of the Trustee and the Company if made in the
manner provided in this Section. The record of any meeting of Holders of
Securities shall be proved in the manner provided in Section 10.6.
(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 him the execution thereof. Where such
execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority.
(c) The ownership of Securities shall be proven by the Security
Register.
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<PAGE> 19
(d) Any request, demand, authorization, direction, notice, consent,
waiver or other Act of the Holder of any Security shall bind every future Holder
of the same Security and the Holder of every Security issued upon the
registration of transfer thereof or in exchange therefor or in lieu thereof in
respect of anything done, omitted or suffered to be done by the Trustee or the
Company in reliance thereon, whether or not notation of such action is made upon
such Security.
(e) The Company may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to give, make or take
any request, demand, authorization, direction, notice, consent, waiver or other
action provided or permitted by this Indenture to be given, made or taken by
Holders of Securities, provided that the Company may not set a record date for,
and the provisions of this paragraph shall not apply with respect to, the giving
or making of any notice, declaration, request or direction referred to in the
next paragraph. If any record date is set pursuant to this paragraph, the
Holders of Outstanding Securities on such record date, and no other Holders,
shall be entitled to take the relevant action, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Company
from setting a new record date for any action for which a record date has
previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be canceled
and of no effect), and nothing in this paragraph shall be construed to render
ineffective any action taken by Holders of the requisite principal amount of
Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Company, at its own expense,
shall cause notice of such record date, the proposed action by Holders and the
applicable Expiration Date to be given to the Trustee in writing and to each
Holder of Securities in the manner set forth in Section 1.6.
(f) The Trustee may set any day as a record date for the purpose of
determining the Holders of Outstanding Securities entitled to join in the giving
or making of (i) any Notice of Default, (ii) any declaration of acceleration
referred to in Section 5.2, (iii) any request to institute proceedings referred
to in Section 5.7(2) or (iv) any direction referred to in Section 5.12. If any
record date is set pursuant to this paragraph, the Holders of Outstanding
Securities on such record date, and no other Holders, shall be entitled to join
in such notice, declaration, request or direction, whether or not such Holders
remain Holders after such record date; provided that no such action shall be
effective hereunder unless taken on or prior to the applicable Expiration Date
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the Trustee
from setting a new record date for any action (whereupon the record date
previously set shall automatically and without any action by any Person be
canceled and of no effect), nor shall anything in this paragraph be construed to
render ineffective any action taken by Holders of the requisite principal amount
of Outstanding Securities on the date such action is taken. Promptly after any
record date is set pursuant to this paragraph, the Trustee, at the Company's
expense, shall cause notice of such record date, the proposed action by Holders
and the
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<PAGE> 20
applicable Expiration Date to be given to the Company in writing and to each
Holder of Securities in the manner set forth in Section 1.6.
(g) With respect to any record date set pursuant to this Section, the
party hereto that sets such record date may designate any day as the "Expiration
Date" and from time to time may change the Expiration Date to any earlier or
later day, provided that no such change shall be effective unless notice of the
proposed new Expiration Date is given to the other party hereto in writing, and
to each Holder of Securities in the manner set forth in Section 1.6, on or prior
to the existing Expiration Date. If an Expiration Date is not designated with
respect to any record date set pursuant to this Section, the party hereto that
set such record date shall be deemed to have initially designated the 180th day
after such record date as the Expiration Date with respect thereto, subject to
its right to change the Expiration Date as provided in this paragraph.
Notwithstanding the foregoing, no Expiration Date shall be later than the 180th
day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder to take any
action hereunder with regard to any particular Security may do so with regard to
all or any part of the principal amount of such Security or by one or more duly
appointed agents each of which may do so pursuant to such appointment with
regard to all or any part of such principal amount.
SECTION 1.5 NOTICES, ETC.
Any request, demand, authorization, direction, notice, consent,
election, waiver or other Act of Holders of Securities or other document
provided or permitted by this Indenture to be made upon, given or furnished to,
or filed with,
(1) the Trustee by any Holder of Securities or by the Company
shall be sufficient for every purpose hereunder if made, given,
furnished or filed in writing to or with the Trustee and received at
its Corporate Trust Office, Attention: Patricia Stermer, or
(2) the Company by the Trustee or by any Holder of Securities
shall be sufficient for every purpose hereunder (unless otherwise
herein expressly provided) if in writing, mailed, first-class postage
prepaid, or telecopied and confirmed by mail, first-class postage
prepaid, or delivered by hand or overnight courier, addressed to the
Company at 1415 Murfreesboro Road, Suite 490, Nashville, Tennessee
37217-2895, telephone no.: (615) 367-7000; telecopy no.: (615)
367-7421, Attention: Chief Financial Officer, cc: General Counsel, or
at any other address previously furnished in writing to the Trustee by
the Company.
Any request, demand, authorization, direction, notice, consent,
election 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.
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<PAGE> 21
SECTION 1.6 NOTICE TO HOLDERS OF SECURITIES; WAIVER.
Except as otherwise provided herein, where this Indenture provides for
notice to Holders of any event, such notice shall be sufficiently given (unless
otherwise herein expressly provided) if in writing and mailed, first-class
postage prepaid, to each Holder affected by such event, at such Holder's
registered address as recorded in the Security Register. In any case where
notice to Holders is given by mail, neither the failure to mail such notice, nor
any defect in any notice so mailed, to any particular Holder shall affect the
sufficiency of such notice with respect to other Holders. Where this Indenture
provides for notice in any manner, such notice may be waived in writing by the
Holder entitled to receive such notice, either before or after the event, and
such waiver shall be the equivalent of such notice. Waivers of notice by Holders
shall be filed with the Trustee, but such filing shall not be a condition
precedent to the validity of any action taken in reliance upon such waiver.
Such notice shall be deemed to have been given when such notice is
mailed.
In case by reason of the suspension of regular mail service or by
reason of any other cause it shall be impracticable to give such notice by mail,
then such notification as shall be made with the approval of the Trustee shall
constitute a sufficient notification for every purpose hereunder.
SECTION 1.7 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 1.8 SUCCESSORS AND ASSIGNS.
All covenants and agreements in this Indenture by the Company shall
bind its respective successors and assigns, whether so expressed or not.
SECTION 1.9 SEPARABILITY CLAUSE.
In case any provision in this Indenture or the Securities shall be
invalid, illegal or unenforceable, the validity, legality and enforceability of
the remaining provisions shall not in any way be affected or impaired thereby.
SECTION 1.10 BENEFITS OF INDENTURE.
Nothing in this Indenture or in the Securities, express or implied,
shall give to any Person, other than the parties hereto and their successors and
assigns hereunder, the holders of Senior Debt of the Company and the Holders of
Securities and, solely with respect to this Article I and Sections 11.8, 13.8,
and 13.9, the holders of Conversion Securities, any benefit or legal or
equitable right, remedy or claim under this Indenture.
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<PAGE> 22
This Article I and Sections 11.8, 13.8 and 13.9 shall not be amended or
modified, and neither compliance by the Company with, nor any default by it
under, such Article or any such Sections, shall be waived, in any manner that
adversely affects the interest of any holder of a Conversion Security at the
time outstanding without such holder's consent.
SECTION 1.11 GOVERNING LAW.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
SECTION 1.12 LEGAL HOLIDAYS.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on which a
Holder of a Security has a right to convert his Security shall not be a Business
Day, then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of, premium, if any, or interest (including
Liquidated Damages) on, or the payment of the Repurchase Price (whether the same
is payable in cash or in shares of Common Stock) with respect to, or delivery
for conversion of, such Security need not be made on or by such day, but may be
made on or by the next succeeding Business Day with the same force and effect as
if made on the Interest Payment Date, Redemption Date, Repurchase Date, or at
the Stated Maturity or by such last day for conversion, as the case may be;
provided, however, that in the case that payment is made on such succeeding
Business Day, no interest shall accrue on the amount so payable for the period
from and after such Interest Payment Date, Redemption Date, Repurchase Date,
Stated Maturity or last day for conversion, as the case may be.
SECTION 1.13 CONFLICT WITH TRUST INDENTURE ACT.
If any provision hereof limits, qualifies or conflicts with a provision
of the Trust Indenture Act that is required under such Act to be a part of and
govern this Indenture (or would be required to be a part of and govern this
Indenture if this Indenture were required to be qualified under the Trust
Indenture Act), the latter provision shall control. If any provision of this
Indenture modifies or excludes any provision of the Trust Indenture Act that may
be so modified or excluded, the latter provision shall be deemed to apply to
this Indenture as so modified or to be excluded, as the case may be.
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<PAGE> 23
ARTICLE II
SECURITY FORMS
SECTION 2.1 FORMS GENERALLY.
The Securities shall be in substantially the forms set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or Depositary thereof, the Code and regulations thereunder,
or as may, consistently herewith, be determined by the Officers executing such
Securities, as evidenced by their execution thereof. The Company shall approve
the form of the Securities and any notation, legend or endorsement on the
Securities.
Any definitive Securities shall be printed, lithographed or engraved or
produced by any combination of these methods or may be produced in any other
manner permitted by the rules of any securities exchange on which the Securities
may be listed or quoted, as the case may be, all as determined by the Officers
executing such Securities as evidenced by their execution thereof.
In certain cases described elsewhere herein, the legends set forth in
Section 2.2 may be omitted from Securities issued hereunder.
Securities offered and sold in their initial distribution in reliance
on Rule 144A shall initially be issued in the form of one or more Global
Securities (collectively, the "Global Security") in fully registered form
without interest coupons, substantially in the form of Security set forth in
Sections 2.2 and 2.3, with such applicable legends as are provided for in
Section 2.2, except as otherwise permitted herein. Such Global Security shall be
registered in the name of a nominee of the Depositary and deposited with the
Trustee, at its New York office, as custodian for the Depositary, duly executed
by the Company and authenticated by the Trustee as hereinafter provided. The
Global Security and all other Securities evidencing the debt, or any portion of
the debt, initially evidenced by such Global Security, shall collectively be
referred to herein as the "Restricted Securities."
The Securities will be issued only in registered form. The Securities
will be issued in minimum denominations of $1,000, as provided in Section 3.2.
SECTION 2.2 FORM OF FACE OF SECURITY.
THIS NOTE (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN A TRANSACTION
EXEMPT FROM REGISTRATION UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"SECURITIES ACT"), AND THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON
ITS CONVERSION MAY NOT BE SOLD OR
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<PAGE> 24
OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH REGISTRATION OR AN APPLICABLE
EXEMPTION THEREFROM. THIS NOTE MAY ONLY BE SOLD IN ACCORDANCE WITH THE
INDENTURE, COPIES OF WHICH ARE AVAILABLE FOR INSPECTION AT THE CORPORATE TRUST
OFFICE OF THE TRUSTEE. EACH PURCHASER OF THIS NOTE IS HEREBY NOTIFIED THAT THE
SELLER OF THIS NOTE MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS OF
SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A THEREUNDER.
THE HOLDER HEREOF, BY PURCHASING THIS NOTE, AGREES FOR THE BENEFIT OF
GENESCO INC. THAT (A) THIS NOTE AND ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS
CONVERSION MAY BE RESOLD, PLEDGED OR OTHERWISE TRANSFERRED ONLY (I) TO A PERSON
WHO THE SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION MEETING THE
REQUIREMENTS OF RULE 144A, (II) TO AN INSTITUTION THAT IS AN "ACCREDITED
INVESTOR" WITHIN THE MEANING OF RULE 501(a) (1), (2), (3) OR (7) OF REGULATION D
UNDER THE SECURITIES ACT IN A TRANSACTION EXEMPT FROM THE REGISTRATION
REQUIREMENTS OF THE SECURITIES ACT, IF AVAILABLE, (III) PURSUANT TO THE
EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT, PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE REGISTRATION
STATEMENT UNDER THE SECURITIES ACT, AND IN EACH OF CASES (I) THROUGH (IV) IN
ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS OF THE STATES AND OTHER
JURISDICTIONS OF THE UNITED STATES, AND THAT (B) THE HOLDER WILL, AND EACH
SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS NOTE OR ANY
COMMON STOCK ISSUABLE UPON ITS CONVERSION FROM IT OF THE RESALE RESTRICTIONS
REFERRED TO IN CLAUSE (A) ABOVE.
THIS NOTE, ANY SHARES OF COMMON STOCK ISSUABLE UPON ITS CONVERSION AND
ANY RELATED DOCUMENTATION MAY BE AMENDED OR SUPPLEMENTED FROM TIME TO TIME TO
MODIFY THE RESTRICTION ON ANY PROCEDURES FOR RESALES AND OTHER TRANSFERS OF THIS
NOTE AND ANY SUCH SHARES TO REFLECT ANY CHANGE IN APPLICABLE LAW OR REGULATION
(OR THE INTERPRETATION THERETO) OR IN PRACTICES RELATING TO THE RESALE OR
TRANSFER OF RESTRICTED SECURITIES GENERALLY. THE HOLDER OF THIS NOTE AND ANY
SUCH SHARES SHALL BE DEEMED BY THE ACCEPTANCE OF THIS NOTE AND ANY SUCH SHARES
TO HAVE AGREED TO ANY SUCH AMENDMENT OR SUPPLEMENT.
CONVERSION OF THIS NOTE IS SUBJECT TO CERTIFICATION AND OTHER
REQUIREMENTS, AND ANY NOTES ISSUED ON SUCH CONVERSION WILL BE SUBJECT TO THE
TRANSFER RESTRICTIONS REFERRED TO ABOVE.
17
<PAGE> 25
GENESCO INC.
5 1/2% CONVERTIBLE SUBORDINATED NOTES
DUE APRIL 15, 2005
No. _________ $
CUSIP No. 371532AK8
GENESCO INC., a Tennessee corporation (herein called the "Company,"
which term includes any successor Person under the Indenture referred to on the
reverse hereof), for value received, hereby promises to pay to _______________,
or registered assigns, the principal sum of _____________ U.S. Dollars, [IF THIS
SECURITY IS A GLOBAL SECURITY, THEN INSERT -- (which principal amount may from
time to time be increased or decreased to such other principal amounts (which,
taken together with the principal amounts of all other Outstanding Securities,
shall not exceed $103,500,000 in the aggregate at any time) by adjustments made
on the records of the Trustee hereinafter referred to in accordance with the
Indenture)] on April 15, 2005, and to pay interest thereon from April 9, 1998 or
from the most recent Interest Payment Date (as defined below) to which interest
has been paid or duly provided for, semi-annually in arrears on April 15 and
October 15 in each year, commencing on October 15, 1998, and at Maturity at the
rate of 5 1/2% per annum, until the principal hereof is paid or made available
for payment, provided that any amount of such principal or interest that is
overdue shall bear interest at the rate of 5 1/2% per annum (to the extent that
payment of such interest shall be legally enforceable), from the date such
amount is due until it is paid or made available for payment, and such interest
on any overdue amount shall be payable on demand. The interest so payable, and
punctually paid or duly provided for, on any Interest Payment Date will, as
provided in such Indenture, be paid to the Person in whose name this Security
(or one or more Predecessor Securities) is registered at the close of business
on the Regular Record Date for such interest, which shall be the April 1 or
October 1 (whether or not a Business Day), as the case may be, next preceding
such Interest Payment Date. Any such interest not so punctually paid or duly
provided for will forthwith cease to be payable to the Holder on such Regular
Record Date and may either be paid to the Person in whose name this Security (or
one or more Predecessor Securities) is registered at the close of business on a
Special Record Date for the payment of such Defaulted Interest to be fixed by
the Trustee, notice thereof shall be given to Holders of Securities not less
than 10 days prior to such Special Record Date, or be paid at any time in any
other lawful manner not inconsistent with the requirements of any securities
exchange on which the Securities may be listed, and upon such notice as may be
required by such exchange, all as more fully provided in said Indenture.
Payment of the principal of and interest on this Security will be made
in immediately available funds and in such coin or currency of the United States
of America as at the time of payment is legal tender for payment of public and
private debts, at the office or agency of the Company maintained for that
purpose in the Borough of Manhattan, The City of New York, provided, however,
that payment of interest may, at the option of the Company, be made by check
mailed to the address of the Person entitled thereto as such address shall
appear in the
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<PAGE> 26
Security Register. If this Security is a Global Security, then each such payment
will be made in accordance with the procedures of the Depositary as then in
effect.
Interest on this Security shall be computed on the basis of a 360-day
year consisting of twelve 30-day months.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by
the Trustee referred to on the reverse hereof or an Authenticating Agent by the
manual signature of one of their respective authorized signatories, this
Security shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be duly
executed under its corporate seal.
GENESCO INC.
[Corporate Seal]
By
----------------------------------
Title:
Attest:
- ----------------------
Title:
19
<PAGE> 27
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities referred to in the within-mentioned
Indenture.
Dated: UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By:______________________________
Authorized Signatory
SECTION 2.3 FORM OF REVERSE OF SECURITY.
This Security is one of a duly authorized issue of securities of the
Company designated as its "5 1/2% Convertible Subordinated Notes due April 15,
2005" (herein called the "Securities"), limited in aggregate principal amount to
$103,500,000, issued and to be issued under an Indenture, dated as of April 9,
1998 (herein called the "Indenture") between the Company and United States Trust
Company of New York, as Trustee (herein called the "Trustee," which term
includes any successor trustee under the Indenture), to which the Indenture and
all indentures supplemental thereto reference is hereby made for a statement of
the respective rights, limitations of rights, duties and immunities thereunder
of the Company, the Trustee, the Holders of Senior Debt of the Company and the
Holders of the Securities and of the terms upon which the Securities are, and
are to be, authenticated and delivered.
No sinking fund is provided for in the Securities. The Securities may
not be redeemed at the option of the Company prior to April 17, 2001.
Thereafter, the Securities may be redeemed at the option of the Company, in
whole or in part, at the Redemption Prices set forth below. Such Redemption
Prices (expressed as a percentage of principal amount) are as follows for the
12-month period beginning on April 17, 2001 and on April 15 of the years
following 2001:
<TABLE>
<CAPTION>
Year Redemption Price
---- ----------------
<S> <C>
2001.................................. 103.1429%
2002.................................. 102.3571
2003.................................. 101.5714
2004.................................. 100.7857
</TABLE>
and thereafter at a Redemption Price equal to 100% of the principal amount, in
each case together with accrued interest to the Redemption Date, provided that
interest installments whose Stated Maturity is on or prior to such Redemption
Date will be payable to the Holders
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<PAGE> 28
of such Securities, or one or more Predecessor Securities, of record at the
close of business on the relevant Record Dates referred to on the face hereof,
all as provided in the Indenture.
In the event of a redemption of the Securities, the Company will not be
required (a) to register the transfer or exchange of Registered Securities for a
period of 15 days immediately preceding the date notice is given identifying the
serial numbers of the Securities called for such redemption or (b) to register
the transfer or exchange of any Registered Security, or portion thereof, called
for redemption.
Notice of redemption (which notice shall be irrevocable) will be given
by first-class mail to Holders of Securities at their registered addresses as
recorded in the Security Register. Notice will be given not more than 60 nor
less than 30 days prior to the Redemption Date, as provided in the Indenture.
In any case where the due date for the payment of the principal of,
premium, if any, or interest (including Liquidated Damages) on, any Security or
the last day on which a Holder of a Security has a right to convert its Security
shall be at any place of payment or place of conversion, as the case may be, a
day on which banking institutions at such place of payment or place of
conversion are authorized or obligated by law or executive order to close, then
payment of principal of, premium, if any, or interest (including Liquidated
Damages) on, or delivery for conversion of such Security need not be made on or
by such date at such place but may be made on or by the next succeeding day at
such place which is not a day on which banking institutions are authorized or
obligated by law or executive order to close, with the same force and effect as
if made on the date for such payment or the date fixed for redemption or
repurchase, or at the Stated Maturity or by such last day for conversion, and no
interest shall accrue for the period after such date.
Subject to and upon compliance with the provisions of the Indenture,
the Holder of this Security is entitled, at its option, at any time on or after
the last original issue date of the Securities and prior to the close of
business on April 15, 2005, or in case this Security is called for redemption or
the Holder hereof has exercised its right to require the Company to repurchase
this Security, then in respect of this Security until and including, but (unless
the Company defaults in making the payment due upon redemption or repurchase, as
the case may be) not after, the close of business on the Redemption Date or the
Repurchase Date, as the case may be, to convert this Security into newly issued
fully paid and nonassessable shares of Common Stock of the Company at an initial
Conversion Rate equal to 47.5172 shares of Common Stock per $1,000 principal
amount of Securities (or at the current adjusted Conversion Rate if an
adjustment has been made as provided in the Indenture) by surrender of this
Security, and also a duly executed conversion notice, substantially in the form
provided in Annex A of the Indenture (including the tax certification contained
in such notice), to the Company, subject to any laws or regulations applicable
thereto and subject to the right of the Company to terminate the appointment of
the Conversion Agent (as defined below), at the Corporate Trust Office of the
Trustee in The City of New York or at such other offices or agencies outside the
United States that the Company may designate (each a "Conversion
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<PAGE> 29
Agent"). Any Security surrendered for conversion during a Record Date Period
(except Securities called for redemption on a Redemption Date or to be
repurchased on a Repurchase Date during, in each case, such period) must be
accompanied by payment of an amount equal to the interest payable on the
Interest Payment Date relating to such Record Date Period on the principal
amount of such Security being surrendered for conversion, and the interest
payable in respect of such Security on such Interest Payment Date shall be paid
to the Holder of such Security as of the Regular Record Date relating to such
Record Date Period. The interest payable on such Interest Payment Date with
respect to any Security which has been called for redemption on a Redemption
Date, or is repurchaseable on a Repurchase Date, occurring, in either case,
during a Record Date Period, which Security is surrendered for conversion during
such Record Date Period, shall be paid to the Holder of such Security being
converted in an amount equal to the interest that would have been payable on
such Security if such Security had been converted as of the close of business on
such Interest Payment Date. Interest payable in respect of any Security
surrendered for conversion on or after an Interest Payment Date shall be paid to
the Holder of such Security as of the next preceding Regular Record Date,
notwithstanding the exercise of the right of conversion.
The Company shall thereafter deliver to the Holder the fixed number of
shares of Common Stock (together with any cash adjustment, as provided in the
Indenture) into which this Security is convertible and such delivery will be
deemed to satisfy the Company's obligation to pay the principal amount of this
Security. No fractions of shares or scrip repre senting fractions of shares will
be issued on conversion, but instead of any fractional interest (calculated to
the nearest 1/100th of a share) the Company shall pay a cash adjustment as
provided in the Indenture, or alternatively the Company shall round up the
conversion transaction to the next higher whole share. In addition, the
Indenture provides that in case of certain consolidations or mergers to which
the Company is a party or the sale or transfer of all or substantially all of
the assets of the Company, the Indenture shall be amended, without the consent
of any Holders of Securities, so that this Security, if then Outstanding, will
be convertible thereafter, during the period this Security shall be convertible
as specified above, only into the kind and amount of securities, cash and other
property receivable upon consolidation, merger, sale or transfer by a holder of
the number of shares of Common Stock of the Company into which this Security
might have been converted immediately prior to such consolidation, merger, sale
or transfer (assuming such holder of Common Stock failed to exercise any rights
of election and received per share the kind and amount received per share by a
plurality of Non-Electing Shares). Adjustments in the Conversion Rate of less
than one percent of such price will not be required, but any adjustment that
would otherwise be required to be made will be carried forward and taken into
account in the computation of any subsequent adjustment.
Notwithstanding any provision hereof, no securities will be delivered
on conversion of this Security or any portion hereof unless the certification
and other requirements described in the Indenture are satisfied.
Subject to certain limitations in the Indenture, at any time when the
Company is not subject to Section 13 or 15(d) of the Exchange Act, as amended,
upon the request of a Holder
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<PAGE> 30
of a Restricted Security or the holder of shares of Common Stock issued upon
conversion thereof, the Company will promptly furnish or cause to be furnished
Rule 144A Information (as defined below) to such Holder of Restricted Securities
or such holder of shares of Common Stock issued upon conversion of Restricted
Securities, or to a prospective purchaser of any such security designated by any
such Holder or holder, as the case may be, to the extent required to permit
compliance by any such holder with Rule 144A under the Securities Act. "Rule
144A Information" shall be such information as is specified pursuant to Rule
144A(d)(4) under the Securities Act (or any successor provision thereto).
The Holder of this Security and the Common Stock of the Company
issuable upon conversion thereof is entitled to the benefits of a Registration
Rights Agreement (subject to the provisions thereof), dated as of April 9, 1998,
between 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 from time to time of the Securities and
the Common Stock issuable upon conversion thereof that it will, at its expense,
(a) within 90 days after the date of issuance of the Securities, file a shelf
registration statement (the "Shelf Registration Statement") with the Commission
with respect to resales of the Securities and the Common Stock issuable upon
conversion thereof (together, the "Registrable Securities"), (b) use its best
efforts to cause such Shelf Registration Statement to be declared effective by
the Commission as promptly as practicable but no later than 270 days after the
date of original issuance of the Securities (the "Settlement Date"), and (c) use
its best efforts to maintain such Shelf Registration Statement continuously
effective under the Securities Act, until the second anniversary of the date of
the effectiveness of the Shelf Registration Statement or such earlier date as is
provided in the Registration Rights Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to 270 days following the Settlement Date, such
Shelf Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on this
Security from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment date in respect of the Securities
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 of the Securities to and including the 90th day
following such Registration Default and at a rate per annum equal to one-half of
one percent (0.50%) thereof from and after the 91st day following such
Registration Default. In the event that the Shelf Registration Statement ceases
to be effective prior to the second annual anniversary of the initial effective
date of the Shelf Registration Statement or such earlier date as is provided in
the Registration Rights Agreement for a period in excess of 60 days, whether or
not consecutive, during any 12-month period, then the interest rate borne by the
Securities shall increase by an additional one-half of one percent (0.50%) per
annum from the 61st day of the applicable 12-month period such Shelf
Registration Statement ceases to be effective to but excluding the day on which
the Shelf Registration Statement again becomes effective.
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<PAGE> 31
Whenever in this Security there is a reference, in any context, to the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security such mention shall be deemed to include mention of the payment of
Liquidated Damages payable as described in the preceding paragraph to the extent
that, in such context, Liquidated Damages are, were or would be payable in
respect of such Security and express mention of the payment of Liquidated
Damages (if applicable) in any provisions of this Security shall not be
construed as excluding Liquidated Damages in those provisions of this Security
where such express mention is not made.
The Holder of this Security, by its acceptance thereof, agrees to be
bound by the terms of the Registration Rights Agreement relating to the
Securities and the Common Stock issuable upon conversion thereof.
If a Change in Control occurs, the Holder of this Security shall have
the right, at the Holder's option in accordance with the provisions of the
Indenture, to require the Company to repurchase this Security (or any portion of
the principal amount hereof that is an integral multiple of $1,000) at a
Repurchase Price equal to 100% of the principal amount thereof plus interest
accrued to the Repurchase Date. At the option of the Company, the Repurchase
Price may be paid in cash or, except as otherwise provided in the Indenture, by
delivery of Common Stock having a fair market value equal to the Repurchase
Price. Payment may not be made in Common Stock unless the Company satisfies
certain conditions prior to the Repurchase Date as provided in the Indenture.
For purposes of this paragraph, the fair market value of shares of Common Stock
shall be determined by the Company and shall be equal to 95% of the average of
the Closing Prices Per Share for the five consecutive Trading Days ending on and
including the third Trading Day immediately preceding the Repurchase Date.
Whenever in this Security there is a reference, in any context, to the principal
of any Security as of any time, such reference shall be deemed to include
reference to the Repurchase Price payable in respect of such Security to the
extent that such Repurchase Price is, was or would be so payable at such time,
and express mention of the Repurchase Price in any provision of this Security
shall not be construed as excluding the Repurchase Price in those provisions of
this Security when such express mention is not made.
The indebtedness evidenced by this Security is, to the extent and in
the manner provided in the Indenture, subordinate and subject in right of
payment to the prior payment in full of all amounts then or thereafter to become
due on all Senior Debt of the Company, and this Security is issued subject to
such provisions of the Indenture with respect thereto. Each Holder of this
Security, by accepting the same, (a) agrees to and shall be bound by such provi
sions, (b) authorizes and directs the Trustee on its behalf to take such action
as may be necessary or appropriate to effectuate the subordination so provided
and (c) appoints the Trustee its attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the principal of
all the Securities may be declared due and payable to the extent, in the manner
and with the effect provided in the Indenture. Upon payment (i) of the amount of
principal so declared due and payable and
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<PAGE> 32
(ii) of interest on any overdue principal and overdue interest, all of the
Company's obligations in respect of the payment of the principal of and interest
on the Securities shall terminate.
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities under the Indenture at
any time by the Company and the Trustee with either (a) the written consent of
the Holders of a majority in principal amount of the Securities at the time
outstanding, or (b) by the adoption of a resolution, at a meeting of Holders of
the Outstanding Securities at which a quorum is present by the Holders of
66-2/3% in aggregate principal amount of the Outstanding Securities represented
at such meeting. The Indenture also contains provisions permitting the Holders
of specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive compliance
by the Company with certain provisions of the Indenture and certain past
defaults under the Indenture and their consequences. Any such consent or waiver
by the Holder of this Security shall be conclusive and binding upon such Holder
and upon all future Holders of this Security and of any Security issued in
exchange herefor or in lieu hereof, whether or not notation of such consent or
waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the Indenture, the
Holder of this Security shall not have the right to institute any proceeding
with respect to the Indenture or for the appointment of a receiver or trustee or
for any other remedy thereunder, unless such Holder shall have previously given
the Trustee written notice of a continuing Event of Default, the Holders of not
less than 25% in aggregate principal amount of the Outstanding Securities shall
have made written request to the Trustee to institute proceedings in respect of
such Event of Default and offered the Trustee indemnity satisfactory to it and
the Trustee shall not have received from the Holders of a majority in principal
amount of the Securities Outstanding a direction inconsistent with such request
and shall have failed to institute any such proceedings for 60 days after
receipt of such notice, request and offer of indemnity. The foregoing shall not
apply to any suit instituted by the Holder of this Security for the enforcement
of any payment of principal hereof or interest hereon (including any Liquidated
Damages) on or after the respective due dates expressed herein.
No reference herein to the Indenture and no provision of this Security
or of the Indenture shall alter or impair the obligations of the Company, which
are absolute and unconditional, to pay the principal of, premium, if any, and
interest (including Liquidated Damages) on this Security at the times, places
and rate, and in the coin or currency, herein prescribed or to convert this
Security as provided in the Indenture.
As provided in the Indenture and subject to certain limitations and
satisfaction of cer tain requirements therein set forth, the transfer of this
Security is registrable on the Security Register upon surrender of this Security
for registration of transfer at the office or agency of the Company as may be
designated by it for such purpose in the Borough of Manhattan, The City of New
York, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or
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<PAGE> 33
his attorney duly authorized in writing, and thereupon one or more new
Securities, of authorized denominations and for the same aggregate principal
amount, will be issued to the designated transferee or transferees. No service
charge shall be made to the Holder for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to recover any
tax or other governmental charge payable in connection therewith.
Prior to due presentation of this Security for registration of transfer
the Company, the Trustee and any agent of the Company or the Trustee may treat
the Person in whose name such Security is registered, as the owner thereof for
all purposes, whether or not such Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED STATES OF AMERICA
WITHOUT REGARD TO PRINCIPLES REGARDING CONFLICTS OF LAWS.
All terms used in this Security which are defined in the Indenture
shall have the meanings assigned to them in the Indenture.
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<PAGE> 34
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 15.1 of the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or the Company to pay it
or _____________________________ an amount in cash or, at the Company's
election, Common Stock valued as set forth in the Indenture, equal to 100% of
the principal amount hereof, plus interest accrued to the Repurchase Date, as
provided in the Indenture.
Dated:
--------------------------
--------------------------
Signature
--------------------------
Signature Guaranteed
Principal amount to be repurchased:
-------------------
Remaining principal amount following such repurchase:
------------------------
NOTICE: The signature to the foregoing Election must correspond to the Name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SECTION 2.4 FORM OF TRUSTEE'S CERTIFICATE OF AUTHENTICATION.
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: UNITED STATES TRUST COMPANY
OF NEW YORK,
as Trustee
By:_______________________________
Authorized Signatory
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<PAGE> 35
ARTICLE III
THE SECURITIES
SECTION 3.1 TITLE AND TERMS.
The aggregate principal amount of Securities which may be authenticated
and delivered under this Indenture is limited to $103,500,000, except for
Securities authenticated and delivered upon registration of transfer of, or in
exchange for, or in lieu of, other Securities pursuant to Sections 3.4, 3.5,
3.6, 9.5, or 13.2.
The Securities shall be known and designated as the "5 1/2% Convertible
Subordinated Notes due April 15, 2005" of the Company. Their Stated Maturity
shall be April 15, 2005 and they shall bear interest at the rate of 5 1/2% per
annum from April 9, 1998 or from the most recent Interest Payment Date to which
interest has been paid or duly provided for, as the case may be, payable
semi-annually in arrears on April 15 and October 15 of each year, commencing
October 15, 1998, and at Maturity, until the principal thereof is paid or made
available for payment, provided that any amount of such principal or interest
that is overdue shall bear interest at the rate of 5 1/2% per annum (to the
extent that payment of such interest shall be legally enforceable), from the
date such amount is due until it is paid or made available for payment, and such
interest on any overdue amount shall be payable on demand.
The principal of, premium, if any and interest on the Securities
(including Liquidated Damages), shall be payable in immediately available funds
and in such coin or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts, at the
Corporate Trust Office of the Trustee in the Borough of Manhattan, The City of
New York or, at the option of the Holder and subject to any fiscal or other laws
and regulations applicable thereto, at any other office of the Trustee or any
Paying Agent outside The City of New York; provided, however, that payment of
interest may, at the option of the Company, be made by check mailed to the
address of the Person entitled thereto as such address shall appear in the
Security Register.
The Securities shall be redeemable at the Company's option, in whole or
in part, at any time on or after April 15, 2001 as provided in the form of
Securities set forth in Sections 2.2 and 2.3 and Article XII.
The Securities shall be convertible as provided in Article XIII.
The Securities shall be subordinated in right of payment to Senior Debt
of the Company as provided in Article XIV.
The Securities shall be subject to repurchase by the Company at the
option of the Holders as provided in Article XV.
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<PAGE> 36
SECTION 3.2 DENOMINATIONS.
The Securities shall be issuable only in registered form without
coupons and only in denominations of $1,000 and any integral multiple of $1,000
in excess thereof.
SECTION 3.3 EXECUTION, AUTHENTICATION, DELIVERY AND DATING.
The Securities shall be executed on behalf of the Company by any one of
its Chairman of the Board, its Chief Executive Officer, its President, or any
one of its Vice Presidents, under a facsimile of its corporate seal reproduced
thereon attested by its Secretary or one of its Assistant Secretaries. Any such
signature may be manual or facsimile.
Securities bearing the manual or facsimile signature of individuals who
were at any time the proper Officers of the Company shall bind the Company,
notwithstanding that such individuals or any of them have ceased to hold such
offices prior to the authentication and delivery of such Securities or did not
hold such offices at the date of such Securities.
At any time and from time to time after the execution and delivery of
this Indenture, the Company may deliver Securities executed by the Company to
the Trustee for authentication, together with a Company Order for the
authentication and delivery of such Securities, and the Trustee in accordance
with such Company Order shall authenticate and make available for delivery such
Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this Indenture or be
valid or obligatory for any purpose unless there appears on such Security a
certificate of authentication substantially in the form provided for herein
executed by the Trustee or the Authenticating Agent by manual signature of an
authorized signatory, and such certificate upon such Security shall be
conclusive evidence, and the only evidence, that such Security has been duly
authenticated and delivered hereunder.
SECTION 3.4 TEMPORARY SECURITIES.
Pending the preparation of definitive Securities, the Company may
execute, and upon Company Order the Trustee shall authenticate and make
available for delivery, temporary Securities which are printed, lithographed,
typewritten, mimeographed or otherwise produced, in any authorized denomination,
substantially of the tenor of the definitive Securities in lieu of which they
are issued and with such appropriate insertions, omissions, substitutions and
other variations as the Officers executing such Securities may determine, as
evidenced by their execution of such Securities.
If temporary Securities are issued, the Company will cause definitive
Securities to be prepared without unreasonable delay. After the preparation of
definitive Securities, the
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<PAGE> 37
temporary Securities shall be exchangeable for definitive Securities upon
surrender of the temporary Securities at any office or agency of the Company
designated pursuant to Section 11.2, without charge to the Holder. Upon
surrender for cancellation of any one or more temporary Securities the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a like principal amount of definitive Securities of
authorized denominations. Until so exchanged the temporary Securities shall in
all respects be entitled to the same benefits under this Indenture as definitive
Securities.
For purposes of this Section 3.4, each Global Security shall be
considered a definitive Security.
SECTION 3.5 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE; RESTRICTIONS
ON TRANSFER.
(a) The Company shall cause to be kept at the Corporate Trust Office of
the Trustee a register (the register maintained in such office and in any other
office or agency designated pursuant to Section 11.2 being herein sometimes
collectively referred to as the "Security Register") in which, subject to such
reasonable regulations as it may prescribe, the Company shall provide for the
registration of Securities and of transfers of Securities. The Trustee is hereby
appointed "Security Registrar" for the purpose of registering Securities and
transfers of Securities as herein provided. Upon surrender for registration of
transfer of any Security at an office or agency of the Company designated
pursuant to Section 11.2 for such purpose, and subject to the other provisions
of this Section 3.5, 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 Securities of any authorized
denominations and of a like aggregate principal amount.
At the option of the Holder, and subject to the other provisions of
this Section 3.5, Securities may be exchanged for other Securities of any
authorized denominations and of a like aggregate principal amount, upon
surrender of the Securities to be exchanged at such office or agency. Whenever
any Securities are so surrendered for exchange, and subject to the other
provisions of this Section 3.5, the Company shall execute, and the Trustee shall
authenticate and make available for delivery, the Securities which the Holder
making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or exchange of
Securities shall be the valid obligations of the Company, evidencing the same
debt, and subject to the other provisions of this Section 3.5, entitled to the
same benefits under this Indenture, as the Securities surrendered upon such
registration of transfer or exchange.
Every Security presented or surrendered for registration of transfer or
for exchange shall (if so required by the Company or the Trustee) be duly
endorsed, or be accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly executed, by the
Holder thereof or his attorney duly authorized in writing.
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<PAGE> 38
No service charge shall be made to the Holder for any registration of
transfer or exchange of securities, 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 Securities, other
than exchanges pursuant to Section 3.4, 13.2 or 15.3(f) not involving any
transfer and subject to Section 13.9.
(b) Notwithstanding any other provisions of this Indenture or the
Securities (but subject to Section 2.1), transfers of a Global Security, in
whole or in part, shall be made only in accordance with this Section 3.5(b).
Transfers and exchanges subject to this Section 3.5 shall also be subject to the
other provisions of this Indenture that are not inconsistent with this Section
3.5.
A Global Security may not be transferred, in whole or in part, to any
Person other than the Depositary or a nominee thereof, and no such transfer to
any such other Person may be registered; provided that this clause shall not
prohibit any transfer of a Security that is issued in exchange for a Global
Security but is not itself a Global Security. No transfer of a Security to any
Person shall be effective under this Indenture or the Securities unless and
until such Security has been registered in the name of such Person. Nothing in
this Section 3.5(b) shall prohibit or render ineffective any transfer of a
beneficial interest in a Global Security effected in accordance with the other
provisions of this Section 3.5(b).
(c) Each Restricted Security and Global Security issued hereunder
shall, upon issuance, bear the legends required by Section 2.2 to be applied to
such a Security and such required legends shall not be removed from such
Security except as provided in the next sentence or paragraph (d) of this
Section 3.5. The legend required for a Restricted Security may be removed from a
Security if there is delivered to the Company such satisfactory evidence, which
may include an opinion of independent counsel licensed to practice law in the
State of New York, as may be reasonably required by the Company that neither
such legend nor the restrictions on transfer set forth therein are required to
ensure that transfers of such Security will not violate the registration
requirements of the Securities Act. Upon provision of such satisfactory
evidence, the Trustee, at the written direction of the Company, shall
authenticate and deliver in exchange for such Security another Security or
Securities having an equal aggregate principal amount that does not bear such
legend. If such a legend required for a Restricted Security has been removed
from a Security as provided above, no other Security issued in exchange for all
or any part of such Security shall bear such legend, unless the Company has
reasonable cause to believe that such other Security is a "restricted security"
within the meaning of Rule 144 and instructs the Trustee in writing to cause a
legend to appear thereon.
(d) The provisions of clauses (1), (2), (3) and (4) below shall apply
only to Global Securities:
(1) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary or a nominee thereof
and delivered to such
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<PAGE> 39
Depositary or a nominee thereof or custodian therefor, and each such
Global Security shall constitute a single Security for all purposes of
this Indenture.
(2) Notwithstanding any other provision in this Indenture or
the Securities, no Global Security may be exchanged in whole or in part
for Securities registered, and no transfer of a Global Security in
whole or in part may be registered, in the name of any Person other
than the Depositary or a nominee thereof unless (A) the Depositary (i)
has notified the Company that it is unwilling or unable to continue as
Depositary for such Global Security or (ii) has ceased to be a clearing
agency registered under the Exchange Act, (B) there shall have occurred
and be continuing an Event of Default with respect to such Global
Security or (C) a request for certificates has been made upon 60 days'
prior written notice given to the Trustee in accordance with the
Depositary's customary procedures and a copy of such notice has been
received by the Company from the Trustee. Any Global Security exchanged
pursuant to clause (A) above shall be so exchanged in whole and not in
part and any Global Security exchanged pursuant to clause (B) or (C)
above may be exchanged in whole or from time to time in part as
directed by the Depositary. Any Security issued in exchange for a
Global Security or any portion thereof shall be a Global Security,
provided that any such Security so issued that is registered in the
name of a Person other than the Depositary or a nominee thereof shall
not be a Global Security.
(3) Securities issued in exchange for a Global Security or any
portion thereof pursuant to clause (2) above shall be issued in
definitive, fully registered form, without interest coupons, shall have
an aggregate principal amount equal to that of such Global Security or
portion thereof to be so exchanged, shall be registered in such names
and be in such authorized denominations as the Depositary shall
designate and shall bear any legends required hereunder. Any Global
Security to be exchanged in whole shall be surrendered by the
Depositary to the Trustee, as Security Registrar. With regard to any
Global Security to be exchanged in part, either such Global Security
shall be so surrendered for exchange or, if the Trustee is acting as
custodian for the Depositary or its nominee with respect to such Global
Security, the principal amount thereof shall be reduced, by an amount
equal to the portion thereof to be so exchanged, by means of an
appropriate adjustment made on the records of the Trustee. Upon any
such surrender or adjustment, the Trustee shall authenticate and make
available for delivery the Security issuable on such exchange to or
upon the written order of the Depositary or an authorized
representative thereof.
(4) In the event of the occurrence of any of the events
specified in clause (2) above, the Company will promptly make available
to the Trustee a reasonable supply of certificated Securities in
definitive, fully registered form, without interest coupons.
(5) No member of, or participants in, the Depositary (each an
"Agent Member") nor any other Persons on whose behalf Agent Members may
act shall have any rights under this Indenture with respect to any
Global Security, or under any
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Global Security, and the Depositary or such nominee, as the case may
be, may be treated by the Company, the Trustee and any agent of the
Company or the Trustee as the absolute owner and holder of such Global
Security for all purposes whatsoever. Notwithstanding the foregoing,
nothing herein shall prevent the Company, the Trustee or any agent of
the Company or the Trustee from giving effect to any written
certification, proxy or other authorization furnished by the Depositary
or such nominee, as the case may be, or impair, as between the
Depositary, its Agent Members and any other person on whose behalf an
Agent Member may act, the operation of customary practices of such
Persons governing the exercise of the rights of a holder of any
Security.
SECTION 3.6 MUTILATED, DESTROYED, LOST OR STOLEN SECURITIES.
If any mutilated Security is surrendered to the Trustee, the Company
shall execute and the Trustee shall authenticate and make available for delivery
in exchange therefor a new Security of like tenor and principal amount and
bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee (i) evidence
to their satisfaction of the destruction, loss or theft of any Security and (ii)
such security or indemnity as may be required by them to save each of them and
any agent of either of them harmless, then, in the absence of notice to the
Company or the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and make
available for delivery, in lieu of any such destroyed, lost or stolen Security,
a new Security of like tenor and principal amount and bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security has
become or is about to become due and payable, the Company in its discretion may,
instead of issuing a new Security, pay such Security.
A Holder shall bear the cost to the Company of replacing a mutilated,
destroyed, stolen or lost Security. Upon the issuance of any new Security under
this Section, the Company also may require the payment of a sum sufficient to
cover any tax or other governmental charge that may be imposed in relation
thereto and any other expenses (including the fees and expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu of any
destroyed, lost or stolen Security shall constitute an original additional
contractual obligation of the Company, whether or not the destroyed, lost or
stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all the benefits of this Indenture equally and proportionately with
any and all other Securities duly issued hereunder.
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The provisions of this Section are exclusive and shall preclude (to the
extent lawful) all other rights and remedies with respect to the replacement or
payment of mutilated, destroyed, lost or stolen Securities.
SECTION 3.7 PAYMENT OF INTEREST, INTEREST RIGHTS PRESERVED.
Interest on any Security which is payable, and is punctually paid or
duly provided for, on any Interest Payment Date shall be paid to the Person in
whose name that Security (or one or more Predecessor Securities) is registered
at the close of business on the Regular Record Date for such interest.
Any interest on any Security 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 (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted Interest
proposed to be paid on each Security and the date of the proposed
payment, and at the same time the Company shall deposit with the
Trustee an amount of money equal to the aggregate amount proposed to be
paid in respect of such Defaulted Interest or shall make arrangements
satisfactory to the Trustee for such deposit prior to the date of the
proposed payment, such money when deposited to be held in trust for the
benefit of the Persons entitled to such Defaulted Interest as in this
Clause provided. Thereupon the Trustee shall fix a Special Record Date
for the payment of such Defaulted Interest which shall be not more than
15 days and not less than 10 days prior to the date of the proposed
payment and not less than 10 days after the receipt by the Trustee of
the notice of the proposed payment. The Trustee shall promptly notify
the Company of such Special Record Date and, in the name and at the
expense of the Company, shall cause notice of the proposed payment of
such Defaulted Interest and the Special Record Date therefor to be
mailed, first-class postage prepaid, to each Holder of Securities at
such Holder's address as it appears in the Security Register, not less
than 10 days prior to such Special Record Date. Notice of the proposed
payment of such Defaulted Interest and the Special Record Date therefor
having been so mailed, such Defaulted Interest shall be paid to the
Persons in whose names the Securities (or their respective Predecessor
Securities) are registered at the close of business on such Special
Record Date and shall no longer be payable pursuant to the following
Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on
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which the Securities may be listed, and upon such notice as may be
required by such exchange, if, after notice given by the Company to the
Trustee of the proposed payment pursuant to this Clause, such manner of
payment shall be deemed practicable by the Trustee.
Subject to the foregoing provisions of this Section and Section 3.5,
each Security delivered under this Indenture upon registration of transfer of or
in exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Any Security surrendered for conversion during a Record Date Period
(except Securities called for redemption on a Redemption Date or to be
repurchased on a Repurchase Date during, in each case, such period) must be
accompanied by payment of an amount equal to the interest payable on the
Interest Payment Date relating to such Record Date Period on the principal
amount of such Securities being surrendered for conversion, and the interest
payable in respect of such Security on such Interest Payment Date shall be paid
to the Holder of such Security as of the Regular Record Date relating to such
Record Date Period. The interest payable on such Interest Payment Date with
respect to any Security which has been called for redemption on a Redemption
Date, or is repurchaseable on a Repurchase Date, occurring, in either case,
during such Record Date Period, which Security is surrendered for conversion
during such Record Date Period, shall be paid to the Holder of such Security
being converted in an amount equal to the interest that would have been payable
on such Security if such Security had been converted as of the close of business
on such Interest Payment Date. Interest payable in respect of any Security
surrendered for conversion on or after an Interest Payment Date shall be paid to
the Holder of such Security as of the next preceding Regular Record Date,
notwithstanding the exercise of the right of conversion.
SECTION 3.8 PERSONS DEEMED OWNERS.
Prior to due presentment of a Security for registration of transfer,
the Company, the Trustee and any agent of the Company or the Trustee shall treat
the Person in whose name such Security is registered as the owner of such
Security for the purpose of receiving payment of principal of and (subject to
Sections 3.5 and 3.7) interest on such Security and for all other purposes
whatsoever, whether or not such Security 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 3.9 CANCELLATION.
All Securities surrendered for payment, redemption, repurchase,
registration of transfer or exchange or conversion shall, if surrendered to any
Person other than the Trustee, be delivered to the Trustee. All Securities so
delivered shall be canceled promptly by the Trustee. The Company may at any time
deliver to the Trustee for cancellation any Securities previously authenticated
and delivered hereunder which the Company may have acquired in any manner
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whatsoever, and all Securities so delivered shall be promptly canceled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section 3.9 except as expressly
permitted by this Indenture. All canceled Securities and any certificates in
connection therewith shall be held by the Trustee in accordance with its
customary practices until destroyed by the Trustee; provided, however, that the
Trustee shall not be required to destroy such Securities. The Company may not
issue new Securities to replace Securities it has paid in full or delivered to
the Trustee for cancellation.
SECTION 3.10 COMPUTATION OF INTEREST.
Interest on the Securities shall be computed on the basis of a 360-day
year of twelve 30-day months.
SECTION 3.11 CUSIP NUMBERS.
The Company in issuing the Securities may use "CUSIP" and "CINS"
numbers (if then generally in use), and the Trustee shall use CUSIP numbers or
CINS numbers, as the case may be, in notices of redemption, repurchase or
exchange as a convenience to the Holders; provided that any such notice may
state that no representation is made as to the correctness of such numbers
either as printed on the Securities or as contained in any notice of redemption,
repurchase or exchange and that reliance may be placed only on the other
identification numbers printed on the Securities.
ARTICLE IV
SATISFACTION AND DISCHARGE
SECTION 4.1 SATISFACTION AND DISCHARGE OF INDENTURE.
This Indenture shall upon Company Request cease to be of further effect
(except as to any surviving rights of conversion, or replacement of Securities
herein expressly provided for and any right to receive the payment of principal
of, premium, if any, or interest on, such Securities or Liquidated Damages under
the tenth paragraph on the reverse of the form of Securities set forth in
Section 2.3), and the Trustee, at the expense of the Company, shall execute
proper instruments acknowledging satisfaction and discharge of this Indenture,
when
(1) either
(A) all Securities theretofore authenticated and
delivered (other than (i) Securities which have been
destroyed, lost or stolen and which have been replaced or paid
as provided in Section 3.6 and (ii) Securities for whose
payment money has theretofore been deposited in trust or
segregated and held in
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trust by the Company and thereafter repaid to the Company or
discharged from such trust, as provided in Section 11.3) have
been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to
the Trustee for cancellation (other than Securities referred
to in clauses (i) and (ii) of clause (1)(A) above)
(i) have become due and payable, or
(ii) will have 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 clause (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust funds
(immediately available to the Holders in the case of clause (i)) in
trust for the purpose an amount sufficient to pay and discharge the
entire indebtedness on such Securities not theretofore delivered to the
Trustee for cancellation, for principal, premium, if any, and interest
(including any Liquidated Damages), to the date of such deposit (in the
case of Securities which have become due and payable) or to the Stated
Maturity or Redemption Date, as the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company including fees, expenses,
disbursements and advances incurred or made by the Trustee, its agent
or counsel in accordance with any provision of this Indenture;
(3) 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, and that any
consents required under any document evidencing and/or securing Senior
Debt have been obtained and are in full force and effect; and
(4) no Event of Default shall have occurred and be continuing
on the date of such deposit.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7 and, if money shall
have been deposited with the Trustee pursuant to clause (1)(B) of this Section
4.1, the obligations of the Trustee under
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Section 4.2 and the last paragraph of Section 11.3 shall survive. Funds held in
trust pursuant to this Section are not subject to the provisions of Article XIV.
SECTION 4.2 APPLICATION OF TRUST MONEY.
Subject to the provisions of the last paragraph of Section 11.3, all
money deposited with the Trustee pursuant to Section 4.1 shall be held in trust
and applied by it, in accordance with the provisions of the Securities 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 interest for
whose payment such money has been deposited with the Trustee.
All moneys deposited with the Trustee pursuant to Section 4.1 (and held
by it or any Paying Agent) for the payment of Securities subsequently converted
shall be returned to the Company upon Company Request.
If the Trustee or Paying Agent is unable to apply any amount deposited
with it by the Company in accordance with Section 4.1 hereof by reason of any
order or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, then the Company's obligations under
this Indenture and the Securities shall be revived and reinstated as though no
deposit had occurred pursuant to Section 4.1 hereof until such time as the
Trustee or Paying Agent is permitted to apply all such money in accordance with
Section 4.1 hereof; provided, however, that, if the Company makes any payment of
principal of, premium, if any, or interest (including Liquidated Damages) on any
Security following the reinstatement of its obligations, the Company shall be
subrogated to the rights of the Holders of such Securities to receive such
payment from the money held by the Trustee or Paying Agent.
ARTICLE V
REMEDIES
SECTION 5.1 EVENTS OF DEFAULT.
"Event of Default," whenever used herein, means any one of the
following events (whatever the reason for such Event of Default and whether it
shall be occasioned by the provisions of Article XIV or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) failure to pay the principal or Redemption Price of any
Security at its Maturity, whether or not such payment is prohibited
pursuant to Article XIV hereof; or
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(2) failure to pay any interest (including any Liquidated
Damages) upon any Security when it becomes due and payable, whether or
not such payment is prohibited pursuant to Article XIV hereof, and
continuance of such default for a period of 30 days; or
(3) failure to provide a Company Notice in the event of a
Change in Control as provided by Section 15.3; or
(4) failure to perform any other covenant or warranty of the
Company in this Indenture (other than a covenant 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
60 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 aggregate principal amount of the
Outstanding Securities 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
(5) Any Indebtedness by the Company in an outstanding
principal amount in excess of $5,000,000, whether such Indebtedness now
exists or shall hereafter be created, is not paid at final maturity or
the payment thereof is accelerated and such default in payment or
acceleration has not been cured or rescinded or annulled within a
period of 30 days after there shall have 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 Securities a written notice specifying such default and
requiring the Company to cause such Indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; provided, however, that
the Trustee shall have no obligation, either express or implied, to
give any notice, make any demand, make any collection, initiate any
judicial proceeding, file any proofs of claim or take any action as a
result of an Event of Default described in this clause (5), unless and
until the Trustee has received written notice of such Event of Default
from the Company, a Holder of a Security or a holder of Indebtedness of
the Company;
(6) the entry by a court having jurisdiction in the premises
of (A) 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 (B) a
decree or order adjudging the Company a bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
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(7) the commencement by the Company of a voluntary case or
proceeding under the 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, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
the making by it of an assignment for the benefit of creditors, or the
admission by it in writing of its inability to pay its debts generally
as they become due.
SECTION 5.2 ACCELERATION OF MATURITY; RESCISSION AND ANNULMENT.
If an Event of Default (other than an Event of Default specified in
Section 5.1(1), (2), (6) or (7)) occurs and is continuing, then and in every
such case the Trustee shall, at the written request of the Holders of not less
than 25% in aggregate principal amount of the Outstanding Securities, or the
Holders of not less than 25% in aggregate principal amount of the Outstanding
Securities shall directly, by notice in writing to the Company, declare the
principal of all the Securities to be due and payable immediately, and upon any
such declaration such principal and any accrued interest and any unpaid
Liquidated Damages thereon shall become immediately due and payable. If an Event
of Default specified in Section 5.1(1) or (2) occurs and is continuing, the
Holder of any Outstanding Security may, by notice in writing to the Company
(with a copy to the Trustee), declare the principal of such Security to be due
and payable immediately, and upon any such declaration such principal and
(subject to Section 3.7) any accrued interest and Liquidated Damages thereon
shall become immediately due and payable. If an Event of Default specified in
Sections 5.1(6) or (7) occurs and is continuing, the principal of, premium, if
any, and any accrued interest (including any Liquidated Damages) on, all of the
Securities then Outstanding shall ipso facto become due and payable immediately
without any declaration or other Act on the part of the Trustee or any Holder.
At any time after such 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 hereinafter in this Article V provided, the Holders of a majority
in principal amount of the Outstanding Securities, 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 Liquidated
Damages) on all Securities,
(B) the principal of any Securities which have become
due otherwise than by such declaration of acceleration and any
interest thereon at the rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at a rate of 5 1/2% per
annum, and
(D) all sums paid or advanced by the Trustee
hereunder and the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and
counsel;
and
(2) all Events of Default, other than the non-payment of the
principal of, premium, if any, and any interest (including Liquidated
Damages) on, Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided in
Section 5.13.
No such rescission or annulment shall affect any subsequent default or impair
any right consequent thereon.
SECTION 5.3 COLLECTION OF INDEBTEDNESS AND SUITS FOR ENFORCEMENT BY TRUSTEE.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when such interest becomes due and payable and such default
continues for a period of 30 days,
or
(2) default is made in the payment of the principal of any
Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and, to the extent that payment of such
interest shall be legally enforceable, interest on any overdue principal and on
any overdue interest, at a rate of 5 1/2% per annum, 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. To the extent that the payment
of any such compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel, and any other
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amounts due the Trustee under Section 6.7 hereof out of the estate in any such
proceeding, shall be denied for any reason, payment of the same shall be secured
by a lien on, and shall be paid out of, any and all distributions, dividends,
money, securities and other properties that the Holders may be entitled to
receive in such proceeding whether in liquidation or under any plan of
reorganization or arrangement or otherwise, prior to any payment to such Holder.
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
prosecute such proceeding to judgment or final decree and may enforce the same
against the Company or any other obligor upon the Securities and collect the
moneys adjudged or decreed to be payable in the manner provided by law out of
the property of the Company or any other obligor upon the Securities, wherever
situated.
If an Event of Default occurs and is continuing, the Trustee may in its
discretion proceed to protect and enforce its rights and the rights of the
Holders of Securities by such appropriate judicial proceedings as the Trustee
shall deem most effectual to protect and enforce any such rights, whether for
the specific enforcement of any covenant or agreement in this Indenture or in
aid of the exercise of any power granted herein, or to enforce any other proper
remedy.
SECTION 5.4 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
Securities or the property of the Company or of such other obligor or either of
their creditors, the Trustee (irrespective of whether the principal of, and any
interest on, the Securities shall then be due and payable as therein expressed
or by declaration or otherwise and irrespective of whether the Trustee shall
have made any demand on the Company for the payment of overdue principal or
interest) shall be entitled and empowered, by intervention in such proceeding or
otherwise to take any and all actions under the Trust Indenture Act, including,
(1) to file and prove a claim for the whole amount of
principal, premium, if any and interest (including Liquidated Damages)
owing and unpaid in respect of the Securities and take such other
actions, including participating as a member, voting or otherwise, of
any official committee of creditors appointed in such matter, 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 and each predecessor Trustee, its agents and counsel) and of
the Holders of Securities allowed in such judicial proceeding, and
(2) to collect and receive any moneys or other property
payable or deliverable on any such claim and to distribute the same,
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and any custodian, receiver, assignee, trustee, liquidator,
sequestrator or other similar official in any such judicial proceeding
is hereby authorized by each Holder of Securities by such Person's
acceptance thereof 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 Securities, to pay to the Trustee any amount
due to it for the reasonable compensation, expenses, disbursements and
advances of the Trustee, and each predecessor Trustee, its agents and
counsel and any other amounts due the Trustee under Section 6.7.
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 Security any plan of reorganization, arrangement,
adjustment, or composition affecting the Securities or the rights of
any Holder thereof or to authorize the Trustee to vote in respect of
the claim of any Holder of a Security in any such proceeding; provided,
however, that the Trustee may, on behalf of such Holders, vote for the
election of a trustee in bankruptcy or similar official and be a member
of a creditors' or other similar committee.
SECTION 5.5 TRUSTEE MAY ENFORCE CLAIMS WITHOUT POSSESSION OF SECURITIES.
All rights of action and claims under this Indenture or the Securities
may be prosecuted and enforced by the Trustee without the possession of any of
the Securities or the production thereof in any proceeding relating thereto, and
any such proceeding instituted by the Trustee shall be brought in its own name
as trustee of an express trust, and any recovery of judgment shall, after
provision for the payment of the reasonable compensation, expenses,
disbursements and advances of the Trustee, and each predecessor Trustee, its
agents and counsel, be for the ratable benefit of the Holders of the Securities
in respect of which judgment has been recovered.
SECTION 5.6 APPLICATION OF MONEY COLLECTED.
Any money collected by the Trustee pursuant to this Article V shall be
applied in the following order, at the date or dates fixed by the Trustee and,
in case of the distribution of such money on account of principal or interest,
upon presentation of the Securities 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
6.7;
SECOND: To the payment of the amounts then due and unpaid for principal
of, premium, if any, and interest (including any Liquidated Damages) on
the Securities in respect of which or for the benefit of which such
money has been collected, ratably, without preference or priority of
any kind, according to the amounts due and payable on such Securities
for principal, premium, if any, and interest (including any Liquidated
Damages), respectively; and
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THIRD: Subject to Article XIV, any remaining amounts shall be repaid to
the Company.
The Trustee, upon written notice to the Company, may fix a record date
for any payment due to Holders pursuant to this Section 5.6.
SECTION 5.7 LIMITATION ON SUITS.
No Holder of any Security shall have any right to institute any
proceeding, judicial or otherwise, with respect to this Indenture, or for the
appointment of a receiver or trustee, or for any other remedy hereunder, unless:
(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in aggregate principal
amount of the Outstanding Securities shall have made written request to
the Trustee to institute proceedings in respect of such Event of
Default in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
indemnity satisfactory to it against the costs, expenses and
liabilities to be incurred or reasonably probable to be incurred in
compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) 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 aggregate principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or 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 such
Holders.
In the event the Trustee shall receive conflicting or inconsistent
requests and indemnity from two or more groups of the Holders, each representing
less than a majority in aggregate principal amount of the Outstanding
Securities, the Trustee in its sole discretion may determine what action, if
any, shall be taken, notwithstanding any other provisions of this Indenture, and
shall have no liability to any person for such action or inaction.
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SECTION 5.8 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL AND INTEREST
AND TO CONVERT.
Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of, premium, if any, and (subject to Section
3.7) interest (including any Liquidated Damages) on such Security on the
respective Stated Maturities expressed in such Security (or, in the case of
redemption or repurchase, on the Redemption Date or Repurchase Date, as the case
may be), and to convert such Security in accordance with Article XIII, 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 5.9 RESTORATION OF RIGHTS AND REMEDIES.
If the Trustee or any Holder of a Security 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 Securities shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of the
Trustee and such Holders shall continue as though no such proceeding had been
instituted.
SECTION 5.10 RIGHTS AND REMEDIES CUMULATIVE.
Except as otherwise provided with respect to the replacement or payment
of mutilated, destroyed, lost or stolen Securities in the last paragraph of
Section 3.6, no right or remedy herein conferred upon or reserved to the Trustee
or to the Holders of Securities 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 5.11 DELAY OR OMISSION NOT WAIVER.
No delay or omission of the Trustee or of any Holder of any Security to
exercise any right or remedy accruing upon any Event of Default shall impair any
such right or remedy or constitute a waiver of any such Event of Default or any
acquiescence therein. Every right and remedy given by this Article V or by law
to the Trustee or to the Holders of Securities may be exercised from time to
time, and as often as may be deemed expedient, by the Trustee or by the Holders
of Securities, as the case may be.
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SECTION 5.12 CONTROL BY HOLDERS OF SECURITIES.
The Holders of a majority in principal amount of the Outstanding
Securities shall have the right to direct the time, method and place of
conducting any proceeding for any remedy available to the Trustee or exercising
any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture, and
(2) the Trustee may take any other action deemed proper by the
Trustee which is not inconsistent with such direction or this
Indenture.
SECTION 5.13 WAIVER OF PAST DEFAULTS.
The Holders, either (a) through the written consent of not less than a
majority in principal amount of the Outstanding Securities, or (b) by the
adoption of a resolution, at a meeting of Holders of the Outstanding Securities
at which a quorum is present, by the Holders of at least 66-2/3% in aggregate
principal amount of the Outstanding Securities represented at such meeting, may
on behalf of the Holders of all the Securities waive any past default hereunder
and its consequences, except a default (1) in the payment of the principal of,
premium, if any, or interest (including any Liquidated Damages) on any Security,
or (2) in respect of a covenant or provision hereof which under Article IX
cannot be modified or amended without the consent of the Holders of each
Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and any Event
of Default arising therefrom shall be deemed to have been cured, for every
purpose of this Indenture; but no such waiver shall extend to any subsequent or
other default or impair any right consequent thereon.
SECTION 5.14 UNDERTAKING FOR COSTS.
All parties to this Indenture agree, and each Holder of any Security by
its 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 5.14 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
aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder of any Security for the enforcement of the payment of
the principal of or interest on
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any Security on or after the respective Stated Maturity or Maturities expressed
in such Security (or, in the case of redemption or repurchase, on or after the
Redemption Date or the Repurchase Date, as the case may be) or for the
enforcement of the right to convert any Security in accordance with Article
XIII.
SECTION 5.15 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.
ARTICLE VI
THE TRUSTEE
SECTION 6.1 CERTAIN DUTIES AND RESPONSIBILITIES.
(a) If an Event of Default has occurred and is continuing, the
Trustee shall exercise the rights and powers vested in it by this
Indenture and use the same degree of care and skill in their exercise
as a prudent person would exercise or use under the circumstances in
the conduct of such person's own affairs.
(b) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and
only such duties as are specifically set forth in this
Indenture, and no implied covenants or obligations shall be
read into this Indenture against the Trustee; and
(2) in the absence of bad faith on its part, the
Trustee may conclusively rely, as to the truth of the
statements and the correctness of the opinions expressed
therein, upon certificates or opinions furnished to the
Trustee and conforming to the requirements of this Indenture;
but in the case of any such 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 they conform to the
requirements of this Indenture.
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(c) 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 wilful misconduct, except that
(1) this paragraph (c) shall not be construed to
limit the effect of paragraph (b) of this Section;
(2) the Trustee shall not be liable for any error of
judgment made in good faith by a Responsible Officer, unless
it shall be proved that the Trustee was negligent in
ascertaining the pertinent facts;
(3) 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 of a majority in
principal amount of the Outstanding Securities 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
including Sections 5.2, 5.12 and 5.13; and
(4) no provision of this Indenture shall require to
Trustee to expend or risk its own funds or incur any
liability; the Trustee shall be under no obligation to
exercise any of its rights and powers under this Indenture at
the request of any Holders, unless such Holder shall have
offered to the Trustee security and indemnity satisfactory to
it against any loss, liability or expense.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the
liability of or affording protection to the Trustee shall be subject to
the provisions of this Section.
SECTION 6.2 NOTICE OF DEFAULTS.
Within 90 days after the occurrence of any default hereunder, the
Trustee shall give to all Holders of Securities, in the manner provided in
Section 1.5, notice of such default hereunder actually known to a Responsible
Officer of the Trustee, unless such default shall have been cured or waived;
provided, however, that in the case of any default of the character specified in
Section 5.1(4), no such notice to Holders of Securities shall be given until at
least 30 days after the occurrence of such default. For the purpose of this
Section, the term "default" means any event which is, or after notice or lapse
of time or both would become, an Event of Default.
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SECTION 6.3 CERTAIN RIGHTS OF TRUSTEE.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be protected
in acting or refraining from acting upon any resolution, Officers'
Certificate, other certificate, statement, instrument, opinion, report,
notice, request, direction, consent, order, bond, debenture, note,
other evidence of indebtedness or other paper or document believed by
it to be genuine and to have been signed or presented by the proper
party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors of the Company shall 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, conclusively rely upon an
Officers' Certificate or an Opinion of Counsel;
(d) the Trustee may consult with counsel 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 Securities pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to it against the costs, expenses
and liabilities which might be incurred by it in compliance with such
request or direction;
(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, 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;
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents, attorneys, custodians or nominees and the Trustee shall
not be responsible for any misconduct or
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negligence on the part of any agent, attorney, custodian or nominee
appointed with due care by it hereunder; and
(h) the Trustee shall not be deemed to have notice of any
Event of Default unless a Responsible Officer of the Trustee has actual
knowledge thereof or unless written notice of any event which is in
fact an Event of Default is received by the Trustee at the Corporate
Trust Office of the Trustee and such notice references the Securities
and this Indenture.
SECTION 6.4 NOT RESPONSIBLE FOR RECITALS OR ISSUANCE OF SECURITIES.
The recitals contained herein and in the Securities (except the
Trustee's certificates of authentication) shall be taken as the statements of
the Company, and the Trustee assumes no responsibility for their correctness.
The Trustee makes no representations as to the validity or sufficiency of this
Indenture or of the Securities. The Trustee shall not be accountable for the use
or application by the Company of Securities or the proceeds thereof.
SECTION 6.5 MAY HOLD SECURITIES, ACT AS TRUSTEE UNDER OTHER INDENTURES.
The Trustee, any Authenticating Agent, any Paying Agent, any Conversion
Agent or any other agent of the Company or the Trustee, in its individual or any
other capacity, may become the owner or pledgee of Securities and may otherwise
deal with the Company with the same rights it would have if it were not Trustee,
Authenticating Agent, Paying Agent, Conversion Agent or such other agent.
The Trustee may become and act as trustee under other indentures under
which other securities, or certificates of interest or participation in other
Securities, of the Company are outstanding in the same manner as if it were not
Trustee hereunder.
SECTION 6.6 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 with the Company in writing.
SECTION 6.7 COMPENSATION AND INDEMNIFICATION OF TRUSTEE AND ITS PRIOR CLAIMS.
The Company agrees
(1) to pay to the Trustee from time to time such compensation
as the Company and the Trustee shall from time to time agree in writing
for all services rendered by it hereunder (which compensation shall not
be limited by any provision of law in regard to the compensation of a
trustee of an express trust);
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(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable fees,
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the fees, expenses and disbursements of its
agents and counsel), except any such fee, expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee (and its directors, officers,
employees and agents) 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 this trust, including the reasonable
costs, expenses and reasonable attorneys' fees of defending itself
against any claim or liability in connection with the exercise or
performance of any of its powers or duties hereunder.
The Trustee shall notify the Company promptly of any claim for which it
may seek indemnity. However, failure by the Trustee to so promptly notify the
Company shall not relieve the Company of its obligations under this Section 6.7
except to the extent such failure shall have materially prejudiced the Company.
The Company shall, unless the Trustee requests separate counsel, defend any such
claim and the Trustee shall cooperate in the defense of such claim. If the
Trustee is advised by counsel that it may have available to it defenses that are
in conflict with any defenses available to the Company, the Trustee may have
separate counsel and the Company shall pay the reasonable fees and expenses of
such counsel. The Company need not pay any settlement made without its consent.
When the Trustee incurs expenses or renders services in connection with
an Event or Default specified in Section 5.1(6) or Section 5.1(7), the expenses
(including the reasonable charges of its counsel) and the compensation for the
services are intended to constitute expenses of the administration under any
applicable Federal or State bankruptcy, insolvency or other similar law.
The Trustee shall have a lien prior to the Securities as to all
property and funds held by it hereunder for any amount owing it or any
predecessor Trustee pursuant to this Section 6.7, except with respect to funds
held in trust for the benefit of the Holders of particular Securities.
The provisions of this Section shall survive the termination of this
Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8 CORPORATE TRUSTEE REQUIRED; ELIGIBILITY.
There shall at all times be a Trustee hereunder which shall be a
corporation organized and doing business under the laws of the United States of
America, any State thereof, or the District of Columbia, authorized under such
laws to exercise corporate trust powers, having a combined capital and surplus
of at least $50,000,000, subject to supervision or examination by
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Federal or State authority, in good standing and having an established place of
business in the Borough of Manhattan, The City of New York. If such corporation
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 corporation shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
SECTION 6.9 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 6.10.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If the instrument of acceptance by a
successor Trustee required by this Section 6.9 shall not have been
delivered to the Trustee within 30 days after the giving of such notice
of resignation, the resigning Trustee may petition any court of
competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by an Act of the
Holders of a majority in principal amount of the Outstanding
Securities, delivered to the Trustee and the Company.
(d) If at any time:
(1) the Trustee shall cease to be eligible under
Section 6.8 and shall fail to resign after written request
therefor by the Company or by any Holder of a Security who has
been a bona fide Holder of a Security for at least six months,
or
(2) 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, or (ii) subject to Section 5.14, any Holder of a Security
who has been a bona fide Holder of a Security for at least six months
may, on behalf of himself and all others similarly situated, petition
any court of competent jurisdiction for the removal of the Trustee and
the appointment of a successor Trustee.
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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, the Company, by a Board Resolution, shall
promptly appoint a successor Trustee and shall comply with the
applicable requirements of this Section 6.9 and Section 6.10. If,
within one year after such resignation, removal or incapability, or the
occurrence of such vacancy, a successor Trustee shall be appointed by
Act of the Holders of a majority in principal amount of the Outstanding
Securities 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 6.10, become the successor Trustee and supersede the successor
Trustee appointed by the Company. If no successor Trustee shall have
been so appointed by the Company or the Holders of Securities and
accepted appointment in the manner required by this Section 6.9 and
Section 6.10, any Holder of a Security who has been a bona fide Holder
of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction
for the appointment of a successor Trustee.
(f) The Company shall give notice of each resignation and each
removal of the Trustee and each appointment of a successor Trustee to
all Holders of Securities in the manner provided in Section 1.5. Each
notice shall include the name of the successor Trustee and the address
of its Corporate Trust Office.
Notwithstanding the replacement of the Trustee pursuant to this Section
6.9, the Company's obligations under Section 6.7 shall continue for the benefit
of the retiring Trustee.
The retiring Trustee shall not be liable for the acts or omissions of
any successor Trustee hereunder.
SECTION 6.10 ACCEPTANCE OF APPOINTMENT BY SUCCESSOR.
Every successor Trustee appointed hereunder shall execute, acknowledge
and deliver to the Company and to the retiring Trustee an instrument accepting
such appointment, and thereupon the resignation or removal of the retiring
Trustee shall become effective and such successor Trustee, without any further
act, deed or conveyance, shall become vested with all the rights, powers, trusts
and duties of the retiring Trustee; but, on the request of the Company or the
Successor Trustee, such retiring Trustee shall, upon payment of its charges,
execute and deliver an instrument transferring to such successor Trustee all the
rights, powers and trusts of the retiring Trustee and shall duly assign,
transfer and deliver to such successor Trustee all property and money held by
such retiring Trustee hereunder. Upon request of any such successor Trustee, the
Company shall execute any and all instruments for more fully and certainly
vesting in and confirming to such successor Trustee all such rights, powers and
trusts.
No successor Trustee shall accept its appointment unless at the time of
such acceptance such successor Trustee shall be eligible under this Article.
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SECTION 6.11 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 of the corporate trust
business of the Trustee, shall be the successor of the Trustee hereunder,
provided such corporation shall be otherwise 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 Securities 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 Securities so authenticated with the same effect
as if such successor Trustee had itself authenticated such Securities.
SECTION 6.12 AUTHENTICATING AGENT.
The Trustee may appoint an Authenticating Agent or Agents acceptable to
the Company with respect to the Securities which shall be authorized to act on
behalf of the Trustee to authenticate Securities issued upon exchange,
registration of transfer, partial redemption or substitution pursuant to this
Indenture. Securities 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, and every reference in this Indenture to the
authentication and delivery of Securities by the Trustee or the Trustee's
certificate of authentication 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 at all times be a corporation organized and
doing business under the laws of the United States of America or any State
thereof and authorized under such laws to act as Authenticating Agent, having a
combined capital and surplus of not less than $50,000,000 or its equivalent in
another currency or composite currencies and subject to supervision or
examination by government authority. If such Authenticating Agent publishes
reports of condition at least annually, pursuant to law or to the requirements
of said supervising or examining authority, then for the purposes of this
Section 6.12, 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
6.12, such Authenticating Agent shall resign immediately in the manner and with
the effect specified in this Section 6.12.
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 an Authenticating Agent, shall continue to be an
Authenticating Agent, provided such corporation shall be otherwise eligible
under this Section 6.12, without the execution or filing of any paper or any
further act on the part of the Trustee or the Authenticating Agent.
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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 6.12, the Trustee may appoint a successor
Authenticating Agent which shall be acceptable to the Company. 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 6.12.
If an Authenticating Agent is appointed with respect to the Securities
pursuant to this Section 6.12, the Securities may have endorsed thereon, in
addition to or in lieu of the Trustee's certification of authentication, an
alternative certificate of authentication in the following form:
This is one of the Securities referred to in the within-mentioned
Indenture.
DATED: _____________________________, as Trustee
By __________________________,
as Authenticating Agent
By __________________________
Authorized Signatory
SECTION 6.13 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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ARTICLE VII
HOLDER'S LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1 COMPANY TO FURNISH TRUSTEE NAMES AND ADDRESSES OF HOLDERS.
The Company will furnish or cause to be furnished to the Trustee
(a) semi-annually, not more than 15 days after the Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders of Securities as of
such Regular Record Date, and
(b) at such other times as the Trustee may reasonably request
in writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee in its
capacity as Security Registrar.
SECTION 7.2 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 contained in the most recent
list furnished to the Trustee as provided in Section 7.1 and the names and
addresses of Holders received by the Trustee in its capacity as Security
Registrar. The Trustee may destroy any list furnished to it pursuant to Section
7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders with
respect to their rights under this Indenture or under the Securities, and the
corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act for holders of securities issued under an indenture
qualified pursuant to the Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the same,
agrees with the Company and the Trustee that neither the Company nor the Trustee
nor any agent of either of them shall be held accountable by reason of any
disclosure of information as to names and addresses of Holders made pursuant to
the Trust Indenture Act or the Code.
SECTION 7.3 REPORTS BY THE COMPANY.
(a) The Company shall 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
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the Commission may by rules and regulations prescribe) which the Company is
required to file with the Commission pursuant to Section 13 or 15(d) of the
Exchange Act. In the event the Company is not subject to Section 13 or 15(d) of
the Exchange Act, it shall file with the Trustee upon request the information
required to be delivered pursuant to Rule 144A(d)(4) under the Securities Act.
(b) The Company shall file with the Trustee such additional
information, documents and reports with respect to compliance by the Company
with the conditions and covenants provided for in this Indenture as may be
reasonably requested from time to time by the Trustee.
ARTICLE VIII
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1 COMPANY MAY CONSOLIDATE, ETC., ONLY ON CERTAIN TERMS.
The Company shall not consolidate with or merge into any other Person
or, directly or indirectly, convey, transfer, sell or lease or otherwise dispose
of all or substantially all of its properties and assets to any Person (other
than a wholly owned Subsidiary of the Company), and the Company shall not permit
any Person (other than a wholly owned Subsidiary of the Company) to consolidate
with or merge into the Company or convey, transfer, sell or lease all or
substantially all of its properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer, sell or lease all or substantially
all of its properties and assets to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or sale, or which leases, all or
substantially all of the properties and assets of the Company shall be
a corporation, limited liability company, partnership or trust, shall
be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, the due and punctual payment of the principal
of, premium, if any, and interest (including Liquidated Damages
payable, if any, pursuant to Section 11.12) on all of the Securities,
as applicable, and the performance or observance of every covenant of
this Indenture on the part of the Company to be performed or observed
and shall have provided for conversion rights in accordance with
Article XIII;
(2) immediately after giving effect to such transaction, no
Event of Default, and no event which, after notice or lapse of time or
both, would become an Event of Default, shall have occurred and be
continuing; and
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(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, sale or lease and, if a
supplemental indenture is required in connection with such transaction,
such supplemental indenture comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been complied with.
SECTION 8.2 SUCCESSOR SUBSTITUTED.
Upon any consolidation of the Company with, or merger of the Company
into, any other Person or any conveyance, transfer, sale or lease of all or the
properties and assets of the Company in accordance with Section 8.1, the
successor Person formed by such consolidation or into which the Company is
merged or to which such conveyance, transfer or lease is made shall succeed to,
and be substituted for, and may exercise every right and power of, the Company
under this Indenture with the same effect as if such successor Person had been
named as the Company herein, and thereafter the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE IX
SUPPLEMENTAL INDENTURES
SECTION 9.1 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS OF SECURITIES.
Without the consent of any Holders of Securities, 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, for any of the
following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities as permitted by
this Indenture; or
(2) to add to the covenants of the Company for the benefit of
the Holders of Securities, or to surrender any right or power herein
conferred upon the Company; or
(3) to secure the Securities; or
(4) to modify the restrictions on, and procedures for, resale
and other transfers of the Securities to the extent required by any
change in applicable law or regulation (or the interpretation thereof)
or in practice relating to the resale or transfer of restricted
securities generally; or
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(5) to make provision with respect to the conversion rights of
Holders of Securities pursuant to Section 13.12; or
(6) to accommodate the issuance, if any, of Securities in
book-entry or definitive form and matters related thereto which do not
adversely affect the interest of the Holders of Securities; or
(7) to comply with any requirements of the Commission in order
to effect and maintain the qualification of this Indenture under the
Trust Indenture Act; or
(8) to cure any ambiguity, to correct or supplement any
provision herein, which may be inconsistent with any other provision
herein or which is otherwise defective, or to make any other provisions
with respect to matters or questions arising under this Indenture as
the Company and the Trustee may deem necessary or desirable, provided,
such action pursuant to this clause (8) shall not adversely affect the
interests of the Holders of Securities in any material respect.
Upon Company Request, accompanied by a Board Resolution authorizing the
execution of any such supplemental indenture, and subject to and upon receipt by
the Trustee of the documents described in Section 9.3 hereof, the Trustee shall
join with the Company in the execution of any supplemental indenture authorized
or permitted by the terms of this Indenture and any further appropriate
agreements and stipulations which may be therein contained.
SECTION 9.2 SUPPLEMENTAL INDENTURES WITH CONSENT OF HOLDERS OF SECURITIES.
With either (a) the written consent of the Holders of not less than a
majority in aggregate principal amount of the Outstanding Securities, by the Act
of said Holders delivered to the Company and the Trustee, or (b) by the adoption
of a resolution, at a meeting of Holders of the Outstanding Securities at which
a quorum is present, by the Holders of 66-2/3% in aggregate principal amount of
the Outstanding Securities represented at such meeting, 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 Securities under this
Indenture; provided, however, that no such supplemental indenture shall, without
the consent or affirmative vote of the Holder of each Outstanding Security
affected thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security, or reduce the principal
amount thereof or the rate of interest payable thereon or any premium
payable upon redemption or mandatory repurchase thereof or change the
obligation of the Company to pay Liquidated Damages pursuant to Section
11.12, or change the place or currency in which any Security or the
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 or
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repurchase, on or after the Redemption Date or Repurchase Date, as the
case may be) or, except as permitted by Section 13.12, adversely affect
the right to convert any Security as provided in Article XIII, or
modify the provisions of this Indenture with respect to the
subordination of the Securities in a manner adverse to the Holders of
Securities, or
(2) reduce the requirements of Section 10.4 for quorum or
voting, or reduce the percentage in aggregate principal amount of the
Outstanding Securities the consent of whose Holders is required for any
such supplemental indenture or the consent of whose Holders is required
for any waiver provided for in this Indenture, or
(3) modify the obligation of the Company to maintain an office
or agency in The City of New York pursuant to Section 11.2, or
(4) modify any of the provisions of this Section, Section 5.13
or Section 11.11, except to increase any percentage contained herein or
therein or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby, or
(5) modify any of the provisions of Sections 11.8, 11.10 or
11.12, or
(6) modify any provisions of Article XIII, XIV or XV in a
manner adverse to the Holders.
It shall not be necessary for any Act of Holders of Securities 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 9.3 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 6.1) shall be fully protected in relying upon, an
Opinion of Counsel stating that the execution of such supplemental indenture is
authorized or permitted by this Indenture and an Officers' Certificate to the
effect that all conditions precedent have been satisfied. 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 9.4 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
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of this Indenture for all purposes; and every Holder of Securities theretofore
or thereafter authenticated and delivered hereunder shall be bound thereby.
SECTION 9.5 REFERENCE IN SECURITIES TO SUPPLEMENTAL INDENTURES.
Securities authenticated and delivered after the execution of any
supplemental indenture pursuant to this Article may, and shall if required by
the Trustee, bear a notation in form approved by the Trustee as to any matter
provided for in such supplemental indenture. If the Company shall so determine,
new Securities so modified as to conform, in the opinion of the Company and the
Trustee, to any such supplemental indenture may be prepared and executed by the
Company and authenticated and delivered by the Trustee in exchange for
Outstanding Securities.
SECTION 9.6 NOTICE OF SUPPLEMENTAL INDENTURES.
Promptly after the execution by the Company and the Trustee of any
supplemental indenture pursuant to the provisions of Section 9.2, the Company
shall give notice to all Holders of Securities, in the manner provided in
Section 1.6, of such fact, setting forth in general terms the substance of such
supplemental indenture. Any failure of the Company to give such notice, or any
defect therein, shall not in any way impair or affect the validity of any such
supplemental indenture.
ARTICLE X
MEETINGS OF HOLDERS OF SECURITIES
SECTION 10.1 PURPOSES FOR WHICH MEETINGS MAY BE CALLED.
A meeting of Holders of Securities 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 Securities.
SECTION 10.2 CALL, NOTICE AND PLACE OF MEETINGS.
(a) The Trustee may at any time call a meeting of Holders of Securities
for any purpose specified in Section 10.1, to be held at such time and at such
place in The City of New York as the Trustee shall determine. Notice of every
meeting of Holders of Securities, 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 1.6, not less than 21 nor more
than 180 days prior to the date fixed for the meeting.
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(b) In case at any time the Company, pursuant to a Board Resolution, or
the Holders of at least 10% in aggregate principal amount of the Outstanding
Securities shall have requested the Trustee to call a meeting of the Holders of
Securities 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 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 Securities in the
amount specified, as the case may be, may determine the time and the place in
The City of New York for such meeting and may call such meeting for such
purposes by giving notice thereof as provided in paragraph (a) of this Section.
SECTION 10.3 PERSONS ENTITLED TO VOTE AT MEETINGS.
To be entitled to vote at any meeting of Holders of Securities, a
Person shall be (a) a Holder of one or more Outstanding Securities, or (b) a
Person appointed by an instrument in writing as proxy for a Holder or Holders of
one or more Outstanding Securities by such Holder or Holders. 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, 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 Securities 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 Securities, 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 not less than 10 days as
determined by the chairman of the meeting prior to the adjournment of such
adjourned meeting (subject to repeated applications of this sentence). 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 of
the principal amount of the Outstanding Securities which shall constitute a
quorum.
Subject to the foregoing, at the reconvening of any meeting adjourned
for a lack of a quorum, the persons entitled to vote 25% in aggregate principal
amount of the Outstanding Securities at the time shall constitute a quorum for
the taking of any action set forth in the notice of the original meeting.
At a meeting or an adjourned meeting duly reconvened and at which a
quorum is present as aforesaid, any resolution and all matters (except as
limited by the proviso to
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Section 9.2) shall be effectively passed and decided if passed or decided by the
Persons entitled to vote not less than 66 2/3% in aggregate principal amount of
Outstanding Securities represented and voting at such meeting.
Any resolution passed or decisions taken at any meeting of Holders of
Securities duly held in accordance with this Section shall be binding on all the
Holders of Securities, 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 Securities in regard to proof of the holding of Securities 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 Securities shall be proved in
the manner specified in Section 1.4 and the appointment of any proxy shall be
proved in the manner specified in Section 1.4. 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 1.4 or other proof.
(b) The Trustee shall, by an instrument in writing, appoint a temporary
chairman (which may be the Trustee) of the meeting, unless the meeting shall
have been called by the Company or by Holders of Securities as provided in
Section 10.2(b), in which case the Company or the Holders of Securities 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 Securities represented at the meeting.
(c) At any meeting, each Holder of a Security or proxy shall be
entitled to one vote for each $1,000 principal amount of Securities held or
represented by him; provided, however, that no vote shall be cast or counted at
any meeting in respect of any Security 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 Security or proxy.
(d) Any meeting of Holders of Securities 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
Securities represented at the meeting, and the meeting may be held as so
adjourned without further notice.
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SECTION 10.6 COUNTING VOTES AND RECORDING ACTION OF MEETINGS.
The vote upon any resolution submitted to any meeting of Holders of
Securities shall be by written ballots on which shall be subscribed the
signatures of the Holders of Securities or of their representatives by proxy and
the principal amounts and serial numbers of the Outstanding Securities 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
Securities shall be prepared by the secretary of the meeting and there shall be
attached to said record the original reports of the inspectors of votes on any
vote by ballot taken thereat and affidavits by one or more Persons having
knowledge of the facts setting forth a copy of the notice of the meeting and
showing that said notice was 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 permanent 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
COVENANTS
SECTION 11.1 PAYMENT OF PRINCIPAL AND INTEREST.
The Company will duly and punctually pay the principal of and interest
on the Securities in accordance with the terms of the Securities and this
Indenture.
SECTION 11.2 MAINTENANCE OF OFFICES OR AGENCIES.
The Company hereby appoints the Corporate Trust Office of the Trustee
as its agent in The City of New York where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration of
transfer or exchange, where conversion notices, certificates and other items
required to be delivered to effect conversion may be delivered and where notices
and demands to or upon the Company in respect of the Securities and this
Indenture may be served.
The Company hereby appoints the Corporate Trust Office of the Trustee
as Paying Agent for the payment of principal of and interest on the Securities
and as Conversion Agent for the Conversion of any of the Securities in
accordance with Article XIII, and appoints the Corporate Trust Office of the
Trustee as transfer agent where Securities may be surrendered for registration
of transfer or exchange.
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The Company may at any time and from time to time vary or terminate the
appoint ment of any such agent or appoint any additional agents with or without
cause for any or all of such purposes; provided, however, that until all of the
Securities have been delivered to the Trustee for cancellation, or moneys
sufficient to pay the principal of and interest on the Securities have been made
available for payment and either paid or returned to the Company pursuant to the
provisions of Section 11.3, the Company will maintain in the Borough of
Manhattan, The City of New York, an office or agency where Securities may be
presented or surrendered for payment, where Securities may be surrendered for
registration of transfer or exchange, where Securities may be surrendered for
conversion and where notices and demands to or upon the Company, in respect of
the Securities and this Indenture may be served. The Company will give prompt
written notice to the Trustee, and will give notice to Holders of Securities in
the manner specified in Section 1.5, of the appointment or termination of any
such agents and 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, or shall fail to furnish the Trustee with the address thereof,
presentations and surrenders may be made and notices and demands may be served
on and Securities may be surrendered for conversion to 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.
SECTION 11.3 MONEY FOR SECURITY PAYMENTS TO BE HELD IN TRUST.
If the Company at any time shall act as its own Paying Agent, it will,
on or before each due date of the principal of or interest on any of the
Securities, segregate and hold in trust for the benefit of the Persons entitled
thereto a sum sufficient to pay the principal or interest so becoming due until
such sums shall be paid to such Persons or otherwise disposed of as herein
provided and the Company will promptly notify the Trustee of its action or
failure so to act.
Whenever the Company shall have one or more Paying Agents, it will,
prior to or on each due date of the principal of or interest on any Securities,
deposit with a Paying Agent a sum sufficient to pay the principal, premium, if
any, or interest so becoming due, such sum to be held in trust for the benefit
of the Persons entitled to such principal, premium, if any, or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly notify the
Trustee of any failure so to act.
The Company will cause each Paying Agent other than the Trustee or
affiliate of 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:
(1) hold all sums held by it for the payment of the principal
of or interest on Securities in trust for the benefit of the Persons
entitled thereto until such sums shall be paid to such Persons or
otherwise disposed of as herein provided;
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(2) give the Trustee written notice of any default by the
Company (or any other obligor upon the securities) in the making of any
payment of principal or interest; and
(3) 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.
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, premium, if any,
or interest (together with any Liquidated Damages in respect thereof) on any
Security and remaining unclaimed for two years after such principal or interest
(together with any Liquidated Damages in respect thereof) has become due and
payable shall be paid to the Company on Company Request, or (if then held by the
Company) shall be discharged from such trust; and the Holder of such Security
shall thereafter, as a general unsecured 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 making any such repayment, may at the expense of the
Company cause to be published once, in an Authorized Newspaper in the Borough of
Manhattan, The City of New York, notice that such money remains unclaimed and
that, after a date specified therein, which shall not be less than 30 days from
the date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
SECTION 11.4 CORPORATE EXISTENCE.
Subject to Article VIII, the Company will do or cause to be done all
things necessary to preserve and keep in full force and effect its corporate
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 of the Company 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 11.5 MAINTENANCE OF PROPERTIES.
The Company will cause all material properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all necessary
equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section 11.5 shall prevent the Company from
discontinuing the operation or maintenance of any of such properties if such
discontinuance is, in the judgment of the Company, desirable in the conduct of
its business or the business of any Subsidiary and not disadvantageous in any
material respect to the Holders.
SECTION 11.6 COMPLIANCE WITH LAWS.
The Company will comply, and cause each Subsidiary to comply, with the
requirements of all applicable laws, ordinances, rules, regulations, and
requirements of any governmental authority (including, without limitation, ERISA
and the rules and regulations thereunder), except where the necessity of
compliance therewith is contested in good faith by appropriate proceedings or
where the failure to comply would not have a material adverse effect upon the
Company and its Subsidiaries taken as a whole.
SECTION 11.7 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, (1) 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 (2)
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 and for which disputed amounts adequate reserves in accordance with
generally accepted accounting principals have been made.
SECTION 11.8 DELIVERY OF CERTAIN INFORMATION.
At any time when the Company is not subject to Section 13 or 15(d) of
the Exchange Act, upon the request of a Holder of a Restricted Security or the
holder of shares of Common Stock issued upon conversion thereof, the Company
will promptly furnish or cause to be furnished Rule 144A Information (as defined
below) to such Holder of Restricted Securities or such holder of Common Stock
issued upon conversion of Restricted Securities, or to a prospective purchaser
of such security designated by any such Holder or holder, as the case may be, to
the extent required to permit compliance by such holder with Rule 144A in
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connection with the resale of such Security by such Holder; provided, however,
that the Company shall not be required to furnish such information in connection
with any request made on or after the date which is two years from the later of
(i) the date such a security (or any predecessor security) was acquired from the
Company or (ii) the date such a security (or any predecessor security) was last
acquired from the Company or an "affiliate" of the Company within the meaning of
Rule 144. "Rule 144A Information" shall be such information as is specified
pursuant to Rule 144A(d)(4) under the Securities Act (or any successor provision
thereto).
SECTION 11.9 STATEMENT BY OFFICERS AS TO DEFAULT.
The Company shall deliver to the Trustee within 120 days after the end
of each fiscal year of the Company an Officers' Certificate stating whether or
not to the best knowledge of the signers thereof the Company is in default in
the performance and observance of any of the terms, provisions and conditions of
this Indenture (without regard to any period of grace or requirement of notice
provided hereunder) and, if the Company shall be in default, specifying all such
defaults and the nature and status thereof of which they may have knowledge.
The Company will also deliver to the Trustee, forthwith upon any
Officer becoming aware of any Event of Default, an Officers' Certificate
specifying with particularity such default or Event of Default and further
stating what action the Company has taken, is taking or proposes to take with
respect thereto.
Any notice required to be given under this Section 11.9 shall be
delivered to the Trustee at its Corporate Trust Office and need not comply with
the requirements of Section 1.5.
SECTION 11.10 RESALE OF CERTAIN SECURITIES.
During the period beginning on the last date of original issuance of
the Securities and ending on the date that is two years from such date, the
Company will not, and will not permit any of its "affiliates" (as defined under
Rule 144) to, resell (x) any Securities which constitute "restricted securities"
under Rule 144 or (y) any securities into which such Securities have been
converted under this Indenture, which constitute "restricted securities" under
Rule 144 that in either case have been reacquired by any of them. The Trustee
shall have no responsibility in respect of the Company's performance of its
agreement in the preceding sentence.
SECTION 11.11 WAIVER OF CERTAIN COVENANTS.
The Company may omit in any particular instance to comply with any
covenant or condition set forth in Sections 11.5 or 11.7 if before the time for
such compliance the Holders of at least a majority in principal amount of the
Outstanding Securities (or such lesser amount as shall have acted at a meeting
pursuant to the provisions of this Indenture) shall either waive
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such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
SECTION 11.12 REGISTRATION RIGHTS.
The holders of the Securities and the Common Stock issuable upon
conversion thereof are entitled to the benefits of a Registration Rights
Agreement, dated as of April 9, 1998, between 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 from
time to time of the Securities and the Common Stock issuable upon conversion
thereof that it will, at its expense, (i) within 90 days after the date of
issuance of the original Securities, file a shelf registration statement (the
"Shelf Registration Statement") with the Commission with respect to resales of
the Securities and the Common Stock issuable upon conversion thereof, (ii) use
its best efforts to cause such Shelf Registration Statement to be declared
effective by the Commission as promptly as practicable but no later than 270
days after the date of original issuance of the Securities (the "Settlement
Date") and (iii) use its best efforts to maintain such Shelf Registration
Statement continuously effective under the Securities Act until the second
annual anniversary of the date of the effectiveness of the Shelf Registration
Statement or such earlier date as is provided in the Registration Rights
Agreement.
If (i) on or prior to 90 days following the date of original issuance
of the Securities, a Shelf Registration Statement has not been filed with the
Commission, or (ii) on or prior to 270 days following the Settlement Date, such
Shelf Registration Statement is not declared effective (each, a "Registration
Default"), additional interest ("Liquidated Damages") will accrue on the
Securities from and including the day following such Registration Default to but
excluding the day on which such Registration Default has been cured. Liquidated
Damages will be paid semi-annually in arrears, with the first semi-annual
payment due on the first Interest Payment Date in respect of the Securities
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 of the Securities to and including the 90th day
following such Registration Default and at a rate per annum equal to one-half of
one percent (0.50%) thereof from and after the 91st day following such
Registration Default. In the event that the Shelf Registration Statement ceases
to be effective prior to the second annual anniversary of the initial effective
date of the Shelf Registration Statement or such earlier date as is provided in
the Registration Rights Agreement for a period in excess of 60 days, whether or
not consecutive, during any 12-month period, then the interest rate borne by the
Securities shall increase by an additional one-half of one percent (0.50%) per
annum on the 61st day of the applicable 12-month period such Shelf Registration
Statement ceases to be effective to but excluding the day on which the Shelf
Registration Statement again becomes effective.
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Whenever in this Indenture there is mentioned, in any context, the
payment of the principal of, premium, if any, or interest on, or in respect of,
any Security, such mention shall be deemed to include mention of the payment of
Liquidated Damages provided for in this Section to the extent that, in such
context, Liquidated Damages are, were or would be payable in respect thereof
pursuant to the provisions of this Section and express mention of the payment of
Liquidated Damages (if applicable) in any provisions hereof shall not be
construed as excluding Liquidated Damages in those provisions hereof where such
express mention is not made.
SECTION 11.13 BOOK-ENTRY SYSTEM.
If the Securities cease to trade in the Depositary's book-entry
settlement system, the Company covenants and agrees that it shall use reasonable
efforts to make such other book-entry arrangements that it determines are
reasonable for the Securities.
ARTICLE XII
REDEMPTION OF SECURITIES
SECTION 12.1 RIGHT OF REDEMPTION.
The Securities shall be redeemable at the Company's option, in whole or
in part, under the circumstances and at the Redemption Prices specified in the
form of Securities set forth in Sections 2.2 and 2.3.
SECTION 12.2 APPLICABILITY OF ARTICLE.
Redemption of Securities at the election of the Company, as permitted
or required by any provision of the Securities or this Indenture, shall be made
in accordance with such provision and this Article XII.
SECTION 12.3 ELECTION TO REDEEM; NOTICE TO TRUSTEE.
The election of the Company to redeem any Securities shall be evidenced
by a Board Resolution. In the case of any redemption at the election of the
Company of all of the Securities, the Company shall, at least 45 but not more
than 75 days prior to the Redemption Date fixed by the Company (unless a shorter
notice shall be satisfactory to the Trustee), notify the Trustee in writing of
such Redemption Date. If the Securities are to be redeemed pursuant to an
election of the Company which is subject to a condition specified in the forms
of Securities set forth in Section 2.2, the Company shall furnish the Trustee
with (a) an Officers' Certificate stating that the Company is entitled to effect
such redemption and setting forth a statement of facts demonstrating the same
and (b) an Opinion of Counsel to the effect that the
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Company is entitled to effect such redemption, and such redemption is not
otherwise in violation of any provisions of Senior Debt.
SECTION 12.4 SELECTION BY TRUSTEE OF SECURITIES TO BE REDEEMED.
If less than all the Securities are to be redeemed, the particular
Securities to be redeemed shall be selected by the Trustee within three Business
Days after it receives the notice described in 12.3, from the Outstanding
Securities not previously called for redemption, by such method as the Trustee
may deem fair and appropriate.
If any Registered Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the portion
of the Security so selected, the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed may be
treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each Security
Registrar in writing of the securities selected for redemption and, in the case
of any Securities selected for partial redemption, the principal amount and
certificate numbers thereof to be redeemed.
For all purposes of this Indenture, unless the context otherwise
requires, all provisions relating to the redemption of Securities shall relate,
in the case of any Securities redeemed or to be redeemed only in part, to the
portion of the principal amount of such Securities which has been or is to be
redeemed.
SECTION 12.5 NOTICE OF REDEMPTION.
Notice of redemption shall be given in the manner provided in Section
1.6 to the Holders of Securities to be redeemed. Notice shall be given at least
once not less than 30 nor more than 60 days prior to the Redemption Date.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price, and the amount of accrued interest,
if any,
(3) if less than all Outstanding Securities are to be
redeemed, the aggregate principal amount of the Securities to be
redeemed;
(4) that on the Redemption Date, the Redemption Price, and
accrued interest, if any, will become due and payable upon each
Security to be redeemed, and that interest thereon shall cease to
accrue on and after said date,
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(5) the Conversion Rate, the date on which the right to
convert the Securities will terminate and the places where the
Securities may be surrendered for conversion,
(6) the name and address of the Paying Agent,
(7) that the Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption Price, and
(8) the place or places where the Securities are to be
surrendered for payment of the Redemption Price and accrued interest,
if any.
Notice of redemption of Securities 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 of and at the expense of the Company, and such notice, when
given to the Holders, shall be irrevocable.
SECTION 12.6 DEPOSIT OF REDEMPTION PRICE.
On or prior to any Redemption Date, the Company shall deposit with the
Trustee or with a Paying Agent (or, if the Company is acting as Paying Agent,
segregate and hold in trust as provided in Section 11.3) 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 on, all the Securities which
are to be redeemed on that date other than any Securities called for redemption
on that date which have been converted prior to the date of such deposit.
If any Security called for redemption is converted, any money deposited
with the Trustee or with a Paying Agent or so segregated and held in trust for
the redemption of such Security shall (subject to any right of the Holder of
such Security or any Predecessor Security to receive interest as provided in the
last paragraph of Section 3.7) be paid to the Company on Company Request or, if
then held by the Company, shall be discharged from such trust.
SECTION 12.7 SECURITIES PAYABLE ON REDEMPTION DATE.
Notice of redemption having been given as aforesaid, the Securities so
to be redeemed shall, on the Redemption Date, become due and payable at the
Redemption Price herein specified, and from and after such date (unless the
Company shall default in the payment of the Redemption Price and accrued
interest) such Securities shall cease to bear interest. Upon surrender of any
such Security for redemption in accordance with said notice, the Holder of such
Security shall be paid the Redemption Price, together with accrued interest to
the Redemption Date; provided, however, that installments of interest whose
Stated Maturity is on or prior to the Redemption Date shall be payable to the
Holders of such Securities, or one or more Predecessor Securities, registered as
such at the close of business on the relevant Record Dates according to their
terms and the provisions of Section 3.7.
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If any Security called for redemption shall not be so paid upon
surrender thereof for redemption, the principal of, premium, if any, and, to the
extent permitted by applicable law, accrued interest on such Security shall,
until paid, bear interest from the Redemption Date at the rate of interest borne
by the Security and such Security shall remain convertible until the principal
of such Security (or portion thereof, as the case may be) shall have been paid
or duly provided for.
ARTICLE XIII
CONVERSION OF SECURITIES
SECTION 13.1 CONVERSION PRIVILEGE AND CONVERSION RATE.
Subject to and upon compliance with the provisions of this Article, at
the option of the Holder thereof, any Security or any portion of the principal
amount thereof which is $1,000 or any integral multiple of $1,000 in excess
thereof, may be converted at any time following the last original issue date of
the Securities at the principal amount thereof, or of such portion thereof, into
fully paid and nonassessable Common Stock of the Company (calculated as to each
conversion to the nearest 1/100 of a share) at the Conversion Rate, determined
as hereinafter provided, in effect at the time of conversion. Such conversion
right shall expire at the close of business on April 15, 2005; subject, in the
case of conversion of a Global Security, to any applicable book-entry procedures
of the Depositary for such conversion. In case a Security or portion thereof is
called for redemption at the election of the Company or is delivered for
repurchase at the option of the Holder, such conversion right in respect of the
Security or portion thereof so called shall expire at the close of business on
the Redemption Date or the Repurchase Date, unless the Company defaults in
making the payment due upon redemption or the repurchase, as the case may be
(subject as aforesaid to any applicable book-entry procedures).
The rate at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Rate") shall be initially 47.5172
shares of Common Stock for each $1,000 principal amount of Securities. The
Conversion Rate shall be adjusted in certain instances as provided in this
Article XIII. The price at which shares of Common Stock shall be delivered upon
conversion (herein called the "Conversion Price") shall at any time be equal to
$1,000 divided by the then applicable Conversion Rate (and rounded to the
nearest cent).
SECTION 13.2 EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege with respect to any
Security or portion thereof, the Holder of any Security to be converted or any
other person acting on its behalf shall surrender such Security, duly endorsed
or assigned to the Company or in blank at any office or agency of the Company
maintained for that purpose pursuant to Section 11.2, accompanied by a duly
signed conversion notice substantially in the form set forth in Annex A stating
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that the Holder elects to convert such Security or, if less than the entire
principal amount thereof is to be converted, the portion thereof to be
converted. Alternatively, if such security is represented by a Global Security,
conversion may be effected by written order given to the Trustee in accordance
with the applicable procedures of the Depositary then in effect. Each Security
surrendered for conversion (in whole or in part) during a Record Date Period
shall (except in the case of any Security or portion thereof which has been
called for redemption on a Redemption Date or repurchase on a Repurchase Date
occurring within such period) be accompanied by payment in New York Clearing
House funds or other funds acceptable to the Company of an amount equal to the
interest payable on the Interest Payment Date relating to such Record Date
Period on the principal amount of such Security being surrendered for
conversion, and the interest payable in respect of such Security on such
Interest Payment Date shall be paid to the Holder of the such Security as of the
Regular Record Date relating to such Record Date Period. The interest payable on
such Interest Payment Date with respect to any Security which has been called
for redemption on a Redemption Date, or is repurchaseable on a Repurchase Date,
occurring, in either case, during a Record Date Period, which Security is
surrendered for conversion during such Record Date Period, shall be paid to the
Holder of such Security being converted in an amount equal to the interest that
would have been payable on such Security if such Security had been converted as
of the close of business on such Interest Payment Date. Interest payable in
respect of any Security surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such Security as of the next
preceding Regular Record Date, notwithstanding the exercise of the right of
conversion.
Holders that surrender Securities for conversion on a date that is not
an Interest Payment Date will not receive any interest for the period from the
Interest Payment Date next preceding the date of conversion to the date of
conversion or for any later period, even if the Securities are surrendered after
a notice of redemption (except for the payment of interest on Securities called
for redemption on a Redemption Date or to be repurchased on a Repurchase Date
between a Regular Record Date and the Interest Payment Date to which it
relates). No other payment or adjustment for interest, or for any dividends in
respect of Common Stock, will be made upon conversion. Holders of shares of
Common Stock issued upon conversion will not be entitled to receive any
dividends payable to holders of shares of Common Stock as of any record time
before the close of business on the conversion date.
Securities shall be deemed to have been converted immediately prior to
the close of business on the day of surrender of such Securities for conversion
in accordance with the foregoing provisions, and at such time the rights of the
Holders of such Securities as Holders shall cease, and the Person or Persons
entitled to receive the Common Stock issuable upon conversion shall be treated
for all purposes as the record holder or holders of such Common Stock at such
time. As promptly as practicable on or after the conversion date, the Company
shall issue and deliver, out of its authorized but previously unissued shares of
Common Stock, at the office of such Conversion Agent a certificate or
certificates for the number of full shares of newly issued Common Stock issuable
upon conversion, together with payment in lieu of any fraction of a share, as
provided in Section 13.3.
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All shares of Common Stock delivered upon such conversion of Restricted
Securities shall bear a restrictive legend substantially in the form of the
legend required to be set forth on the Restricted Securities pursuant to Section
2.2 and shall be subject to the restrictions on transfer provided in such
legend. Neither the Trustee nor any agent maintained for the purpose of such
conversion shall have any responsibility for the inclusion or content of any
such restrictive legend on such Common Stock; provided, however, that the
Trustee or any agent maintained for the purpose of such conversion 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
agent maintained for the purpose of such conversion certificates for such Common
Stock, written notice that the Securities delivered for conversion are
Restricted Securities.
In the case of any Security which is converted in part only, upon such
conversion the Company shall execute and the Trustee shall authenticate and
deliver to the Holder thereof, at the expense of the Company, a new Security or
Securities of authorized denominations in an aggregate principal amount equal to
the unconverted portion of the principal amount of such Security. A Security may
be converted in part, but only if the principal amount of such Security to be
converted is any integral multiple of $1,000 and the principal amount of such
security to remain outstanding after such conversion is equal to $1,000 or any
integral multiple of $1,000 in excess thereof.
If shares of Common Stock to be issued upon conversion of a Security,
or Securities to be issued upon conversion of a Security in part only, are to be
registered in a name other than that of the Holder of such Security, the
Security Registrar shall, prior to the conversion of such Security, record in
the Security Register the transfer of that portion of the Security to be so
converted in the name of the person in whose name such Common Stock or
Securities are to be registered.
SECTION 13.3 FRACTIONS OF SHARES OF COMMON STOCK.
No fractional shares of Common Stock or scrip certificates in respect
thereof shall be issued upon conversion of any Security or Securities. If more
than one Security shall be surrendered for conversion at one time by the same
Holder, the number of full shares which shall be issuable upon conversion
thereof shall be computed on the basis of the aggregate principal amount of the
Securities so surrendered. Instead of any fractional shares of Common Stock
which would otherwise be issuable upon conversion of any Security or Securities,
the Company shall pay a cash adjustment in respect of such fraction (calculated
to the nearest 1/100 of a share) in an amount in Dollars equal to the same
fraction of the current market price per Common Share (calculated in accordance
with Section 13.4(8) below) at the close of business on the day of conversion,
or at the Company's option, the Company shall round up the conversion
transaction to the next higher whole share.
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SECTION 13.4 ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be subject to adjustments from time to time
as follows:
(1) In case at any time after the date hereof, the Company
shall pay or make a dividend or other distribution on any class of
capital stock of the Company payable in shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day
following the date fixed for the determination of shareholders entitled
to receive such dividend or other distribution shall be increased by
dividing such Conversion Rate by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the total
number of shares constituting such dividend or other distribution, such
increase to become effective immediately after the opening of business
on the day following the date fixed for such determination. If, after
any such date fixed for determination, any dividend or distribution is
not in fact paid, the Conversion Rate shall be immediately readjusted,
effective as of the date the Board of Directors determines not to pay
such dividend or distribution, to the Conversion Rate that would have
been in effect if such determination date had not been fixed. For the
purposes of this paragraph (1), the number of shares of Common Stock at
any time outstanding shall not include shares held in the treasury of
the Company but shall include shares issuable in respect of scrip
certificates, if any, issued in lieu of fractions of shares of Common
Stock. The Company will not pay any dividend or make any distribution
on shares of Common Stock held in the treasury of the Company.
(2) In case at any time after the date hereof, the Company
shall issue rights, warrants or options to all holders of its Common
Stock entitling them to subscribe for or purchase shares of Common
Stock at a price per share less than the current market price per share
(determined as provided in paragraph (8) of this Section 13.4) of the
Common Stock on the date fixed for the determination of shareholders
entitled to receive such rights, warrants or options, the Conversion
Rate in effect at the opening of business on the day following the date
fixed for such determination shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of business
on the date fixed for such determination plus the number of shares of
Common Stock which the aggregate of the offering price of the total
number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and the
denominator shall be the number of shares of Common Stock outstanding
at the close of business on the date fixed for such determination plus
the number of shares of Common Stock so offered for subscription or
purchase, such increase to become effective immediately after the
opening of business on the day following the date fixed for such
determination. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares
held in the treasury of the Company but will include shares issuable in
respect of scrip certificates, if any,
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issued in lieu of fractions of shares of Common Stock. The Company will
not issue any rights or warrants in respect of shares of Common Stock
held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
Conversion Rate in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately increased, and, conversely in case outstanding
shares of Common Stock shall each be combined into a smaller number of
shares of Common Stock, the Conversion Rate in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately reduced, such increase or
reduction, as the case may be, to become effective immediately after
the opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness, shares of capital stock, or assets (including securities,
but excluding any rights, warrants or options referred to in paragraph
(2) of this Section 13.4, any dividend or distribution paid exclusively
in cash, any dividend or distribution referred to in paragraph (1) of
this Section 13.4 and any merger or consolidation to which Section
13.11 applies), the Conversion Rate shall be adjusted so that the same
shall equal the rate determined by dividing the Conversion Rate in
effect immediately prior to the close of business on the date fixed for
the determination of shareholders entitled to receive such distribution
by a fraction of which the numerator shall be the current market price
per share (determined as provided in paragraph (8) of this Section
13.4) of the Common Stock on the date fixed for such determination less
the then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board
Resolution filed with the Trustee) of the portion of the assets, shares
or evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per
share of Common Stock, such adjustment to become effective immediately
prior to the opening of business on the day following the date fixed
for the determination of shareholders entitled to receive such
distribution.
(5) In case the Company shall, by dividend or otherwise, make
a distribution to all holders of its Common Stock consisting
exclusively of cash (excluding any cash that is distributed upon a
merger or consolidation or a sale or transfer of all or substantially
all of the assets of the Company to which Section 13.11 applies or as
part of a distribution referred to in paragraph (4) of this Section
13.4) in an aggregate amount that, combined together with (I) the
aggregate amount of any other distributions to all holders of its
Common Stock made exclusively in cash within the 12 months preceding
the date of payment of such distribution and in respect of which no
adjustment pursuant to this paragraph (5) has been made and (II) the
aggregate of any cash plus the fair market value (as determined by the
Board of Directors, whose
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determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of consideration payable in respect of any
tender offer by the Company or any of its Subsidiaries for all or any
portion of the Common Stock concluded within the 12 months preceding
the date of payment of such distribution and in respect of which no
adjustment pursuant to paragraph (6) of this Section 13.4 has been
made, exceeds 10% of the product of the current market price per share
of the Common Stock on the date for the determination of holders of
shares of Common Stock entitled to receive such distribution times the
number of shares of Common Stock outstanding on such date (the
"aggregate current market price"), then, and in each such case,
immediately after the close of business on such date for determination,
the Conversion Rate shall be increased so that the same shall equal the
rate determined by dividing the Conversion Rate in effect immediately
prior to the close of business on the date fixed for determination of
the shareholders entitled to receive such distribution by a fraction
(i) the numerator of which shall be equal to the current market price
per share (determined as provided in paragraph (8) of this Section
13.4) of the Common Stock on the date fixed for such determination less
an amount equal to the quotient of (x) the excess of such combined cash
tender amount over such aggregate current market price divided by (y)
the number of shares of Common Stock outstanding on such date for
determination and (ii) the denominator of which shall be equal to the
current market price per share (determined as provided in paragraph (8)
of this Section 13.4) of the Common Stock on such date for
determination.
(6) In case a tender or exchange offer made by the Company or
any Subsidiary for all or any portion of the Common Stock shall expire
and such tender or exchange offer (as amended upon the expiration
thereof) shall require the payment to shareholders (based on the
acceptance (up to any maximum specified in the terms of the tender
offer) of Purchased Shares (as defined below)) of an aggregate
consideration having a fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) that combined together with
(I) the aggregate of the cash plus the fair market value (as determined
by the Board of Directors, whose determination shall be conclusive and
described in a Board Resolution), as of the expiration of such tender
or exchange offer, of consideration payable in respect of any other
tender or exchange offer, by the Company or any Subsidiary for all or
any portion of the Common Stock expiring within the 12 months preceding
the expiration of such tender or exchange offer and in respect of which
no adjustment, pursuant to this paragraph (6) has been made and (II)
the aggregate amount of any distributions to all holders of the
Company's Common Stock within 12 months preceding the expiration of
such tender or exchange offer and in respect of which no adjustment
pursuant to paragraph (5) of this Section 13.4 has been made (the
"combined tender and cash amount") exceeds 10% of the product of the
current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section 13.4) as of the last time
(the "Expiration Time") tenders or exchanges could have been made
pursuant to such tender or exchange offer (as it may be amended) times
the number of shares of Common Stock outstanding
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(including any tendered or exchanged shares) on the Expiration Time,
then, and in each such case, immediately prior to the opening of
business on the day after the date of the Expiration Time, the
Conversion Rate shall be adjusted so that the same shall equal the rate
determined by dividing the Conversion Rate immediately prior to the
close of business on the date of the Expiration Time by a fraction (i)
the numerator of which shall be equal to (A) the product of (I) the
current market price per share of Common Stock (determined as provided
in paragraph (8) of this Section 13.4) on the date of the Expiration
Time multiplied by (II) the number of shares of Common Stock
outstanding (including any tendered or exchanged shares) on the date of
the Expiration Time less (B) the combined tender and cash amount, and
(ii) the denominator of which shall be equal to the product of (A) the
current market price per share of the Common Stock (determined as
provided in paragraph (8) of this Section 13.4) as of the Expiration
Time multiplied by (B) the number of shares of Common Stock outstanding
(including any tendered or exchanged shares) as of the Expiration Time
less the number 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").
(7) The reclassification of Common Stock into securities other
than Common Stock (other than any reclassification upon a consolidation
or merger to which Section 13.11 applies) shall be deemed to involve
(a) a distribution of such securities other than Common Stock to all
holders of Common Stock (and the effective date of such
reclassification shall be deemed to be "the date fixed for the
determination of shareholders entitled to receive such distribution"
and "the date fixed for such determination" within the meaning of
paragraph (4) of this Section 13.4), and (b) a subdivision or
combination, as the case may be, of the number of shares of Common
Stock outstanding immediately prior to such reclassification into the
number of shares of Common Stock outstanding immediately thereafter
(and the effective date of such reclassification shall be deemed to be
"the day upon which such subdivision becomes effective" or "the day
upon which such combination becomes effective," as the case may be, and
"the day upon which such subdivision or combination becomes effective"
within the meaning of paragraph (3) of this Section 13.4).
(8) For the purpose of any computation under paragraphs (2),
(4), (5) or (6) of this Section 13.4, the current market price per
share of Common Stock on any date shall be deemed to be the average of
the daily Closing Prices Per Share for the five consecutive Trading
Days selected by the Company commencing not more than 10 Trading Days
before, and ending not later than, the earlier of the day in question
and the day before the "ex" date with respect to the issuance or
distribution requiring such computation. For purposes of this
paragraph, the term "'ex' date," when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades
regular way on the applicable securities exchange or in the applicable
securities market without the right to receive such issuance or
distribution.
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(9) No adjustment in the Conversion Rate shall be required
unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (9)) would require an increase or decrease of
at least one percent in such rate; provided, however, that any
adjustments which by reason of this paragraph (9) are not required to
be made shall be carried forward and taken into account in any
subsequent adjustment. All calculations under this Article shall be
made to the nearest cent or to the nearest one-hundredth of a share, as
the case may be.
(10) The Company may make such increases in the Conversion
Rate, for the remaining term of the Securities or any shorter term, in
addition to those required by paragraphs (1), (2), (3), (4), (5) and
(6) of this Section 13.4, as it considers to be advisable in order to
avoid or diminish any income tax to any holders of shares of Common
Stock resulting from any dividend or distribution of stock or issuance
of rights or warrants to purchase or subscribe for stock or from any
event treated as such for United States federal income tax purposes or
for any other reasons. The Company shall have the power to resolve any
ambiguity or correct any error in this paragraph (10) and its actions
in so doing, absent manifest error, shall be final and conclusive.
(11) To the extent permitted by applicable law, the Company
from time to time may increase the Conversion Rate by any amount for
any period of time if the period is at least twenty (20) days, the
increase is irrevocable during such period, and the Board of Directors
shall have made a determination that such increase would be in the best
interests of the Company, which determination shall be conclusive;
provided, however, that no such increase shall be taken into account
for purposes of determining whether the Closing Price Per Share of the
Common Stock exceeds the Conversion Price by 105% in connection with an
event which would otherwise be a Change of Control pursuant to Section
15.4. Whenever the Conversion Rate is increased pursuant to the
preceding sentence, the Company shall give notice of the increase to
the Holders in the manner provided in Section 1.6 at least fifteen (15)
days prior to the date the increased Conversion Rate takes effect, and
such notice shall state the increased Conversion Rate and the period
during which it will be in effect.
SECTION 13.5 NOTICE OF ADJUSTMENTS OF CONVERSION RATE.
Whenever the Conversion Rate is adjusted as herein provided:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 13.4 and shall prepare a certificate signed by
the Chief Financial Officer of the Company setting forth the adjusted
Conversion Rate and showing in reasonable detail the facts upon which
such adjustment is based, and such certificate shall forthwith promptly
be filed with the Trustee and with each Conversion Agent; and
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(2) a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate shall forthwith
be prepared, and as soon as practicable after it is prepared, such
notice shall be provided by the Company to all Holders in accordance
with Section 1.6.
Neither the Trustee nor any Conversion Agent shall be under any duty or
responsibility with respect to any such certificate or the information and
calculations contained therein, except to exhibit the same to any Holder of
Securities desiring inspection thereof at its office during normal business
hours.
SECTION 13.6 NOTICE OF CERTAIN CORPORATE ACTION.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that would
require an adjustment pursuant to Section 13.4; or
(2) the Company shall authorize the granting to the holders of
its Common Stock of rights, options or warrants to subscribe for or
purchase any shares of capital stock of any class or of any other
rights; or
(3) of any reclassification of the Common Stock of the
Company, or of any consolidation, merger or share exchange to which the
Company is a party and for which approval of any shareholders of the
Company is required, or of the conveyance, transfer, sale or lease of
all or substantially all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company;
then the Company shall cause to be filed at each office or agency maintained for
the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to all Holders in accordance with Section 1.6, at least 20
days (or 10 days in any case specified in clause (1) or (2) above) prior to the
applicable record or effective date hereinafter specified, a notice stating (x)
the date on which a record is to be taken for the purpose of such dividend,
distribution, rights, options or warrants, or, if a record is not to be taken,
the effective date as of which the holders of Common Stock of record to be
entitled to such dividend, distribution, rights, options or warrants are to be
determined, or (y) the date on which such reclassification, consolidation,
merger, share exchange, conveyance, transfer, sale, lease, 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 Common Stock for securities, cash or other property deliverable
upon such reclassification, consolidation, merger, share exchange, conveyance,
transfer, sale, lease, dissolution, liquidation or winding up. Neither the
failure to give such notice or the notice referred to in
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the following paragraph nor any defect therein shall affect the legality or
validity of the proceedings described in clauses (1) through (4) of this
Section 13.6. If at the time the Trustee shall not be the Conversion Agent, a
copy of such notice and any notice referred to in the following paragraph shall
also forthwith be filed by the Company with the Trustee.
The Company shall cause to be filed at each office or agency maintained
for the purpose of conversion of Securities pursuant to Section 11.2, and shall
cause to be provided to all Holders in accordance with Section 1.6, notice of
any tender offer by the Company or any Subsidiary for all or any portion of the
Common Stock at or about the time that such notice of tender offer is provided
to the public generally.
SECTION 13.7 COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available, free from
preemptive rights, out of its authorized but previously unissued Common Stock,
for the purpose of effecting the conversion of Securities, the full number of
shares of Common Stock then issuable upon the conversion of all such Outstanding
Securities.
SECTION 13.8 TAXES ON CONVERSIONS.
Except as provided in the next sentence, the Company will pay any and
all transfer, stamp, documentary and other similar taxes and duties that may be
payable in respect of the issue or delivery of shares of Common Stock on
conversion of Securities pursuant hereto. A Holder delivering a Security for
conversion will be required to pay any tax or duty 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 Security or Securities 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 duty or has established to the satisfaction of the Company that such tax or
duty has been paid.
SECTION 13.9 COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which may be
delivered upon conversion of Securities will be newly issued shares, upon such
delivery, will have been duly authorized and validly issued and will be fully
paid and nonassessable and, except as provided in Section 13.8, the Company will
pay all taxes, liens and charges with respect to the issue thereof.
SECTION 13.10 CANCELLATION OF CONVERTED SECURITIES.
All Securities 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 3.9.
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SECTION 13.11 PROVISION IN CASE OF CONSOLIDATION, MERGER OR CONVEYANCE OF
ASSETS.
In case of 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 any reclassification, conversion,
exchange or cancellation of outstanding shares of Common Stock of the Company)
or any conveyance, sale, transfer or lease of all or substantially all of the
assets of the Company, the Person formed by such consolidation or resulting from
such merger or which acquires such assets, as the case may be, shall execute and
deliver to the Trustee a supplemental indenture executed in accordance with
Article IX providing that the Holder of such Security then Outstanding shall
have the right thereafter, during the period such Security shall be convertible
as specified in Section 13.1, to convert such Security only into the kind and
amount of securities, cash and other property receivable upon such
consolidation, merger, sale, transfer or lease by a holder of the number of
shares of Common Stock of the Company into which such Security might have been
converted immediately prior to such consolidation, merger, sale or transfer,
assuming such holder of Common Stock of the Company (i) is not a Person with
which the Company consolidated or merged with or which merged into or with the
Company or to which such conveyance, sale, transfer or lease was made, as the
case may be ("Constituent Person"), or an Affiliate of a Constituent Person and
(ii) failed to exercise its rights of election, if any, as to the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease (provided that if the kind or amount
of securities, cash and other property receivable upon such consolidation,
merger, conveyance, sale, transfer or lease is not the same for each share of
Common Stock of the Company held immediately prior to such consolidation,
merger, conveyance, sale, transfer or lease by other than a Constituent Person
or an Affiliate thereof and in respect of which such rights of election shall
not have been exercised ("Non-Electing Share"), then for the purpose of this
Section 13.11 the kind and amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer by the holders of
each Non-Electing Share shall be deemed to be the kind and amount so receivable
per share by a plurality of the Non-Electing Shares). Such supplemental
indenture shall provide for adjustments which, for events subsequent to the
effective date of such supplemental indenture, shall be as nearly equivalent as
may be practicable to the adjustments provided for in this Article. The above
provisions of this Section 13.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.6 promptly upon such execution.
Neither the Trustee, any Paying Agent nor any Conversion Agent shall be
under any responsibility to determine the correctness of any provisions
contained in any such supplemental indenture relating either to the kind or
amount of shares of stock or other securities or property or cash receivable by
Holders of Securities upon the conversion of their Securities after any such
consolidation, merger, conveyance, sale, transfer or lease or to any such
adjustment, but may accept as conclusive evidence of the correctness of any such
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provisions, and shall be protected in relying upon, an Opinion of Counsel with
respect thereto, which the Company shall cause to be furnished to the Trustee
upon request.
SECTION 13.12 RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
The Trustee, subject to the provisions of Section 6.1, and any
Conversion Agent shall not at any time be under any duty or responsibility to
any Holder of Securities to determine whether any facts exist which may require
any adjustment of the Conversion Rate, or with respect to the nature, extent or
amount of any such adjustment when made, or with respect to the method employed,
or herein or in any supplemental indenture provided to be employed, in making
the same, or whether a supplemental indenture need be entered into. Neither the
Trustee, subject to the provisions of Section 6.1, 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 other securities or property or
cash, which may at any time be issued or delivered upon the conversion of any
Security; and it or they do not make any representation with respect thereto.
Neither the Trustee, subject to the provisions of Section 6.1, nor any
Conversion Agent shall be responsible for any failure of the Company to make any
cash payment or to issue, transfer or deliver any shares of Common Stock or
share certificates or other securities or property or cash upon the surrender of
any Security for the purpose of conversion; and the Trustee, subject to the
provisions of Section 6.1, and any Conversion Agent shall not be responsible for
any failure of the Company to comply with any of the covenants of the Company
contained in this Article.
ARTICLE XIV
SUBORDINATION
SECTION 14.1 SECURITIES SUBORDINATE TO SENIOR DEBT.
The Company covenants and agrees, and each Holder of a Security, by its
acceptance thereof, likewise covenants and agrees, that, to the extent and in
the manner hereinafter set forth in this Article (subject to the provisions of
Article IV), the indebtedness represented by the Securities, and the payment of
the principal of, interest on and all other amounts, if any, owing with respect
to each and all of the Securities are hereby expressly made subordinate and
subject in right of payment to the prior payment in full in cash or other
immediately available funds of all Senior Debt of the Company.
SECTION 14.2 PAYMENT OVER OF PROCEEDS UPON DISSOLUTION, ETC.
In the event of (a) any insolvency or bankruptcy case or proceeding, or
any receivership, liquidation, reorganization or other similar case or
proceeding in connection therewith, relative to the Company or to its creditors,
as such, or to its assets, or (b) any liquidation, dissolution or other winding
up of the Company, whether voluntary or involuntary
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and whether or not involving insolvency or bankruptcy, or (c) any assignment for
the benefit of creditors or any other marshaling of assets and liabilities of
the Company, then and in any such event specified in (a), (b) or (c) above (each
such event, if any, herein sometimes referred to as a "Proceeding") the holders
of Senior Debt shall be entitled to receive payment in full of all amounts due
or to become due on or in respect of all Senior Debt, in cash before the Holders
of the Securities are entitled to receive any payment on account of principal
of, premium, if any, or interest (including Liquidated Damages) on the
Securities or on account of the purchase, redemption or other acquisition of
Securities by the Company or any Subsidiary of the Company, and to that end the
holders of all Senior Debt shall be entitled to receive, for application to the
payment thereof, any payment or distribution of any kind or character, whether
in cash, property or securities, which may be payable or deliverable in respect
of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, securities or other property, before all Senior Debt is paid in
full, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to a Responsible Officer of the Trustee or,
as the case may be, such Holder, then and in such event such payment or
distribution shall be paid over or delivered forthwith to the trustee in
bankruptcy, receiver, liquidating trustee, custodian, assignee, agent or other
Person making payment or distribution of assets of the Company for application
to the payment of all Senior Debt, to the extent necessary to pay all Senior
Debt in full, after giving effect to any concurrent payment or distribution to
or for the holders of Senior Debt.
For purposes of this Article only, the words "any payment or
distribution of any kind or character, whether in cash, property or securities"
shall not be deemed to include a payment or distribution of stock or securities
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 shares of stock or securities are subordinated in right of payment to all
then outstanding Senior Debt to substantially the same extent as, or to a
greater extent then, the Securities 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, transfer, sale or lease of all or substantially all of its
properties and assets to another Person upon the terms and conditions set forth
in Article VIII shall not be deemed a Proceeding 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, transfer, sale or lease such
properties and assets, as the case may be, shall, as a part of such
consolidation, merger, conveyance, transfer, sale or lease comply with the
conditions set forth in Article VIII.
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SECTION 14.3 NO PAYMENT WHEN SENIOR DEBT IN DEFAULT.
In the event that any Securities are declared or otherwise shall become
due and payable before their Stated Maturity, then and in such event the holders
of the Senior Debt outstanding at the time such Securities so become due and
payable shall be entitled to receive payment in full of all amounts due or to
become due on or in respect of all Senior Debt in cash or other immediately
available funds or otherwise in a manner satisfactory to the holders of such
Senior Debt, before the Holders of the Securities are entitled to receive any
payment by the Company on account of the principal of, premium, if any, or
interest (including Liquidated Damages) on the Securities or on account of the
purchase or other acquisition of the Securities.
In the event and during the continuation of any default in the payment
of any amount owing in respect of any Senior Debt beyond any applicable grace
period with respect thereto, or in the event that any event of default with
respect to any Senior Debt shall have occurred and be continuing permitting the
holders of such Senior Debt (or a trustee or other representative on behalf of
the holders thereof) to declare such Senior Debt due and payable prior to the
date on which it would otherwise have become due and payable, unless and until
such event of default shall have been cured or waived or shall have ceased to
exist and such acceleration shall have been rescinded or annulled, or in the
event any judicial proceeding shall be pending with respect to any such default
in payment or event of default, then no payment shall be made by the Company on
account of principal of, premium, if any, or interest (including Liquidated
Damages) on the Securities, or on account of the purchase, redemption or other
acquisition of the Securities.
In the event that, notwithstanding the foregoing provisions of this
Section, the Trustee or the Holder of any Security shall have received any
payment or distribution of assets of the Company of any kind or character,
whether in cash, securities or other property, before all Senior Debt is paid in
full, and if such fact shall, at or prior to the time of such payment or
distribution, have been made known to the Trustee or, as the case may be, such
Holder, then and in such event such payment or distribution shall be paid over
or delivered forthwith to the trustee in bankruptcy, receiver, liquidating
trustee, custodian, assignee, agent or other Person making payment or
distribution of assets of the Company for application to the payment of all
Senior Debt remaining unpaid, to the extent necessary to pay all Senior Debt in
full, after giving effect to any concurrent payment or distribution to or for
the holder of Senior Debt.
The provisions of this Section shall not apply to any payment with
respect to which Section 14.2 would be applicable.
SECTION 14.4 PAYMENT PERMITTED IF NO DEFAULT.
Nothing contained in this Article or elsewhere in this Indenture or in
any of the Securities shall prevent (a) the Company, at any time except during
the pendency of any proceeding referred to in Section 14.2 or under the
conditions described in Section 14.3, from making payments at any time of
principal of, premium, if any, or interest (including
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Liquidated Damages) on the Securities, 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, premium, if any, or interest (including Liquidated Damages) on the
Securities or the retention of such payment by the Holders, if, at the time of
such application by the Trustee, it did not have knowledge that such payment
would have been prohibited by the provisions of this Article.
SECTION 14.5 SUBROGATION TO RIGHTS OF HOLDERS OF SENIOR DEBT.
Subject to the payment in full of all Senior Debt, the Holders of the
Securities shall be subrogated to the extent of the payments or distributions
made to the holders of such Senior Debt pursuant to the provisions of this
Article, to the rights of the holders of such Senior Debt to receive payments
and distributions of cash, property and securities applicable to the Senior Debt
until the principal of, premium, if any, and interest (including Liquidated
Damages) on the Securities shall be paid in full. For purposes of such
subrogation, no payments or distributions to the holders of the Senior Debt of
any cash, property or securities to which the Holders of the Securities 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 the holders of
Senior Debt by Holders of the Securities or the Trustee, shall, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to or on
account of the Senior Debt.
SECTION 14.6 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 the Securities on the
one hand and the holders of Senior Debt on the other hand. Nothing contained in
this Article or elsewhere in this Indenture or in the Securities is intended to
or shall (a) impair, as among the Company, the creditors of the Company other
than holders of Senior Debt and the Holders of the Securities, the obligation of
the Company, which is absolute and unconditional to pay to the Holders of the
Securities the principal of, premium, if any, and interest (including Liquidated
Damages) on the Securities 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 the Securities and creditors of the Company other than
the holders of Senior Debt; or (c) prevent the Trustee or the Holder of any
Security 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 Debt to receive cash, property and securities otherwise
payable or deliverable to the Trustee or such Holder.
SECTION 14.7 TRUSTEE TO EFFECTUATE SUBORDINATION.
Each Holder of a Security by his acceptance thereof authorizes and
directs the Trustee on his behalf to take such action as may be necessary or
appropriate to effectuate the subordination provided in this Article and
appoints the Trustee his attorney-in-fact for any and all such purposes.
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SECTION 14.8 NO WAIVER OF SUBORDINATION PROVISIONS.
No right of any present or future holder of any Senior Debt 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 Debt may, at any time and from time to time, without the
consent of or notice to the Trustee or the Holders of the Securities, without
incurring responsibility to the Holders of the Securities and without impairing
or releasing the subordination provided in this Article or the obligations
hereunder of the Holders of the Securities to the holders of Senior Debt, do any
one or more of the following: (i) change the manner, place or terms of payment
or the time of payment of, or renew or alter, Senior Debt, or otherwise amend or
supplement in any manner Senior Debt or any instrument evidencing the same or
any agreement under which Senior Debt is outstanding; (ii) sell, exchange,
release or otherwise deal with any property pledged, mortgaged or otherwise
securing Senior Debt; (iii) release any Person liable in any manner for the
collection of Senior Debt; and (iv) exercise or refrain from exercising any
rights against the Company and any other Person.
SECTION 14.9 NOTICE TO TRUSTEE.
The Company shall give prompt written notice to 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 the Securities. 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 the Securities, unless
and until the Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor or
representative thereof; and, prior to the receipt of any such written notice,
the Trustee shall be entitled in all respects to assume that no such facts
exist; provided, however, that if the Trustee shall not have 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 interest on
any Security), 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 purpose for which such money was received and shall not be
affected by any notice to the contrary which may be received by it within two
Business Days prior to such date. The Trustee shall not be charged with
knowledge of the curing of any such default or the elimination of the act or
condition preventing any such payment unless and until the Trustee shall have
received an Officer's Certificate to such effect.
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Subject to the provisions of Section 6.1, the Trustee shall be entitled
to rely on the delivery to it of a written notice, by a Person representing
itself to be a holder of Senior Debt (or a trustee therefor or representative
thereof) to establish that such notice has been given by a holder of Senior Debt
(or a trustee therefor or representative thereof). 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 Debt 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 Debt 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 14.10 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 6.1, and the
Holders of the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such Proceeding is
pending, or a certificate of the trustee in bankruptcy, receiver, liquidating
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 Securities, for the purpose of ascertaining the Persons entitled to
participate in such payment or distribution, the holders of the Senior Debt and
other indebtedness of the Company, the amount thereof or payable thereon, the
amount or amounts paid or distributed thereon and all other facts pertinent
thereto or to this Article.
SECTION 14.11 TRUSTEE NOT FIDUCIARY FOR HOLDERS OF SENIOR DEBT.
The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Senior Debt and shall not be liable to any such holders if it shall
in good faith, mistakenly pay over or distribute to Holders of Securities or to
the Company or to any other Person cash, property or securities to which any
holders of Senior Debt shall be entitled by virtue of this Article or otherwise.
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 Senior Indebtedness shall be read into this
Indenture against the Trustee.
SECTION 14.12 RIGHTS OF TRUSTEE AS HOLDER OF SENIOR DEBT; 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 Debt which may at
any time be held by it, to the same extent as any other holder of Senior Debt,
and nothing in this Indenture shall deprive the Trustee of any of its rights as
such holder.
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Nothing in this Article shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 6.7.
SECTION 14.13 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 14.12 shall not apply to the Company or any Affiliate of
the Company if it or such Affiliate acts as Paying Agent.
SECTION 14.14 PAYMENT.
For the purposes of this Article only, (1) the issuance and delivery of
junior securities upon conversion of Securities in accordance with Article XIII
or upon the repurchase of Securities in accordance with Article XV shall not be
deemed to constitute a payment or distribution on account of the principal of,
premium, if any, or interest on Securities or on account of the purchase or
other acquisition of Securities, and (2) the payment, issuance or delivery of
cash, property or securities (other than junior securities) upon conversion of a
Security shall be deemed to constitute payment on account of the principal of,
premium, if any, or interest on such Security. For the purposes of this Section,
the term "junior securities" means (a) shares of any stock of any class of the
Company and any cash, property or securities into which the Securities are
convertible pursuant to Article XIII and (b) securities of the Company which are
subordinated in right of payment to all Senior Debt 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 Securities are so subordinated as
provided in this Article. Nothing contained in this Article or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as among the
Company, its creditors other than holders of Senior Debt and the Holders of the
Securities, the right, which is absolute and unconditional, of the Holder of any
Security to convert such Security in accordance with Article XIII or to exchange
such Security for Common Stock in accordance with Article XV if the Company
elects to satisfy the obligations under Article XV by the delivery of Common
Stock.
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ARTICLE XV
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE IN CONTROL
SECTION 15.1 RIGHT TO REQUIRE REPURCHASE.
In the event that a Change in Control shall occur, then each Holder
shall have the right, at the Holder's option, but subject to the provisions of
Section 15.3, to require the Company to repurchase, and upon the exercise of
such right the Company shall repurchase, all of such Holder's Securities, or any
portion of the principal amount thereof that is equal to $1,000 or any integral
multiple of $1,000 in excess thereof, on the date (the "Repurchase Date") that
is 45 days after the date of the Company Notice (as defined in Section 15.3) at
a purchase price equal to 100% of the principal amount of the Securities to be
repurchased plus interest accrued to the Repurchase Date (the "Repurchase
Price"); provided, however, that installments of interest on Securities whose
Stated Maturity is on or prior to the Repurchase Date shall be payable, in cash,
to the Holders of such Securities, or one or more Predecessor Securities,
registered as such on the relevant Record Date according to their terms and the
provisions of Section 3.7. Such right to require the repurchase of the
Securities shall not continue after a discharge of the Company from its
obligations with respect to the Securities in accordance with Article IV, unless
a Change in Control shall have occurred prior to such discharge. At the option
of the Company, the Repurchase Price may be paid in cash or, subject to the
fulfillment by the Company of the conditions set forth in Section 15.2, by
delivery of shares of Common Stock having a fair market value equal to the
Repurchase Price. Whenever in this Indenture there is a reference, in any
context, to the principal of any Security as of any time, such reference shall
be deemed to include reference to the Repurchase Price payable in respect of
such Security to the extent that such Repurchase Price is, was or would be so
payable at such time, and express mention of the Repurchase Price in any
provision of this Indenture shall not be construed as excluding the Repurchase
Price in those provisions of this Indenture when such express mention is not
made; provided that for purposes of Article XIV, such reference shall be deemed
to include reference to the Repurchase Price only to the extent the Repurchase
Price is payable in cash.
SECTION 15.2 CONDITIONS TO THE COMPANY'S ELECTION TO PAY THE REPURCHASE PRICE
IN COMMON STOCK.
The Company may elect to pay the Repurchase Price by delivery of shares
of Common Stock pursuant to Section 15.1 if and only if the following conditions
shall have been satisfied:
(a) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair market value as of the Repurchase
Date of not less than the Repurchase Price. For purposes of Section
15.1 and this Section 15.2, the fair market value of shares of Common
Stock shall be determined by the Company and shall be equal to 95% of
the average of the Closing Prices Per Share for the five consecutive
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Trading Days immediately preceding the second Trading Day prior to the
Repurchase Date;
(b) The Repurchase Price shall be paid only in cash in the
event any shares of Common Stock to be issued upon repurchase of
Securities hereunder (i) require registration under any federal
securities law before such shares may be freely transferrable without
being subject to the transfer restrictions under the Securities Act
upon repurchase and if such registration is not completed or does not
become effective prior to the Repurchase Date, and/or (ii) require
registration with or approval of any governmental authority under any
state law or any other federal law before such shares may be validly
issued or delivered upon repurchase and if such registration is not
completed or does not become effective or such approval is not obtained
prior to the Repurchase Date;
(c) Payment of the Repurchase Price may not be made in shares
of Common Stock unless such stock is, or shall have been, approved for
listing on the New York Stock Exchange or listed or quoted on a
national securities exchange or quotation system, in either case, prior
to the Repurchase Date; and
(d) All shares of Common Stock which may be issued upon
repurchase of Securities will be issued out of the Company's authorized
but unissued Common Stock and, will upon issuance, be duly and validly
issued and fully paid and non-assessable and free of any preemptive
rights.
If all of the conditions set forth in this Section 15.2 are not
satisfied in accordance with the terms thereof, the Repurchase Price shall be
paid by the Company only in cash.
SECTION 15.3 NOTICES; METHOD OF EXERCISING REPURCHASE RIGHT, ETC.
(a) Unless the Company shall have theretofore called for
redemption all of the Outstanding Securities, on or before the 30th day
after the occurrence of a Change in Control, the Company or, at the
request and expense of the Company on or before the 15th day after such
occurrence, the Trustee, shall give to all Holders of Securities, in
the manner provided in Section 1.6, notice (the "Company Notice") of
the occurrence of the Change in Control and of the repurchase right set
forth herein arising as a result thereof. The Company shall also
deliver a copy of such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be
exercised,
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(3) the Repurchase Price and whether the Repurchase
Price shall be paid by the Company in cash or by delivery of
shares of Common Stock,
(4) a description of the procedure which a Holder
must follow to exercise a repurchase right, and the place or
places where such Securities are to be surrendered for payment
of the Repurchase Price and accrued interest, if any,
(5) that on the Repurchase Date the Repurchase Price,
and accrued interest, if any, will become due and payable upon
each such Security designated by the Holder to be repurchased,
and that interest thereon shall cease to accrue on and after
said date,
(6) the Conversion Rate then in effect, the date on
which the right to convert the principal amount of the
Securities to be repurchased will terminate and the place or
places where such Securities may be surrendered for
conversion, and
(7) the place or places that the certificate set
forth in Section 2.3 shall be delivered, and the form of such
certificate.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder's right to exercise a repurchase
right or affect the validity of the proceedings for the repurchase of
Securities.
If any of the foregoing provisions or other provisions of this
Article are inconsistent with applicable law, such law shall govern.
(b) To exercise a repurchase right, a Holder shall deliver to
the Trustee or any Paying Agent on or before the 30th day after the
date of the Company Notice (i) written notice in the form set forth in
Section 2.3 of the Holder's exercise of such right, which notice shall
set forth the name of the Holder, the principal amount of the
Securities to be repurchased (and, if any Security is to repurchased in
part, the serial number thereof, the portion of the principal amount
thereof to be repurchased and the name of the Person in which the
portion thereof to remain Outstanding after such repurchase is to be
registered) and a statement that an election to exercise the repurchase
right is being made thereby, and, in the event that the Repurchase
Price shall be paid in shares of Common Stock, the name or names (with
addresses) in which the certificate or certificates for shares of
Common Stock shall be issued, and (ii) the Securities with respect to
which the repurchase right is being exercised. Such written notice
shall be irrevocable, except that the right of the Holder to convert
the Securities with respect to which the repurchase right is being
exercised shall continue until the close of business on the Repurchase
Date.
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<PAGE> 101
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be
paid to the Trustee or the Paying Agent the Repurchase Price in cash or
shares of Common Stock, as provided above, for payment to the Holder on
the Repurchase Date or, if shares of Common Stock are to be paid, as
promptly after the Repurchase Date as practicable, together with
accrued and unpaid interest to the Repurchase Date payable with respect
to the Securities as to which the purchase right has been exercised;
provided, however, that installments of interest that mature on or
prior to the Repurchase Date shall be payable in cash, in the case of
Securities, to the Holders of such Securities, or one or more
Predecessor Securities, registered as such at the close of business on
the relevant Regular Record Date, in each case according to the terms
and provisions of Article Three.
(d) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal
amount of such Security (or portion thereof, as the case may be) shall,
until paid, bear interest to the extent permitted by applicable law
from the Repurchase Date at the rate of 5 1/2% per annum, and each
Security shall remain convertible into shares of Common Stock until the
principal of such Security (or portion thereof, as the case may be)
shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part shall
be surrendered to the Trustee (with, if the Company or the Trustee so
requires, due endorsement by, or a written instrument of transfer in
form satisfactory to the Company and the Trustee duly executed by, the
Holder thereof or such Holder's attorney duly authorized in writing),
and the Company shall execute, and the Trustee shall authenticate and
make available for delivery to the Holder of such Security without
service charge, a new Security or Securities, containing identical
terms and conditions, each in an authorized denomination in aggregate
principal amount equal to and in exchange for the unrepurchased portion
of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately
prior to the close of business on the Repurchase Date and the Person or
Persons in whose name or names any certificate or certificates for
shares of Common Stock shall be issuable upon such repurchase shall be
deemed to have become on the Repurchase Date the holder or holders of
record of the shares represented thereby; provided, however, that any
surrender for repurchase on a date when the stock transfer books of the
Company shall be closed shall constitute the Person or Persons in whose
name or names the certificate or certificates for such shares are to be
issued as the recordholder or holders thereof for all purposes at the
opening of business on the next succeeding day on which such stock
transfer books are open. No payment or adjustment shall be made for
dividends or distributions on any shares of Common Stock issued upon
repurchase of any Security declared prior to the Repurchase Date.
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<PAGE> 102
(g) No fractions of shares shall be issued upon repurchase of
Securities. If more than one Security shall be repurchased from the
same Holder and the Repurchase Price shall be payable in shares of
Common Stock, the number of full shares which shall be issuable upon
such repurchase shall be computed on the basis of the aggregate
principal amount of the Securities so repurchased. Instead of any
fractional shares of Common Stock which would otherwise be issuable on
the repurchase of any Security or Securities, the Company will deliver
to the applicable Holder its check for the current market value of such
fractional share. The current market value of a fraction of a share is
determined by multiplying the current market price of a full share by
the fraction, and rounding the result to the nearest cent. For purposes
of this Section, the current market price of a Common Stock is the
Closing Price Per Share of the Common Stock on the last Trading Day
prior to the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Securities shall be made without charge
to the Holder of Securities being repurchased for such certificates or
for any tax or duty in respect of the issuance or delivery of such
certificates or the securities represented thereby; provided, however,
that the Company shall not be required to pay any tax or duty which may
be payable in respect of (i) income of the Holder or (ii) any transfer
involved in the issuance or delivery of certificates for shares of
Common Stock in a name other than that of the Holder of the Securities
being repurchased, and no such issuance or delivery shall be made
unless and until the Person requesting such issuance or delivery has
paid to the Company the amount of any such tax or duty or has
established, to the satisfaction of the Company, that such tax or duty
has been paid.
(i) All Securities delivered for repurchase shall be delivered
to the Trustee, the Paying Agent or any other agents (as shall be set
forth in the Company Notice) to be canceled by or at the direction of
the Trustee, which shall dispose of the same as provided in Section
3.9.
SECTION 15.4 CERTAIN DEFINITIONS.
For purposes of this Article XV,
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3, as in effect on the date of the original
execution of this Indenture, promulgated by the Commission pursuant to
the Exchange Act;
(b) a "Change in Control" shall be deemed to have occurred at
the time, after the original issuance of the Securities, of:
(i) the acquisition by any Person of beneficial
ownership, directly or indirectly, through a purchase, merger
or other acquisition transaction or series of transactions, of
shares of capital stock of the Company entitling such Person
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<PAGE> 103
to exercise 50% or more of the total voting power of all
shares of capital stock of the Company entitled to vote
generally in the election of directors (any shares of voting
stock of which such person or group is the beneficial owner
that are not then outstanding being deemed outstanding for
purposes of calculating such percentage) other than any such
acquisition by the Company, any Subsidiary of the Company or
any employee benefit plan of the Company; or
(ii) any consolidation of the Company with, or merger
of the Company into, any other Person, any merger of another
Person into the Company, or any conveyance, sale, transfer or
lease of all or substantially all of the assets of the Company
to another Person (other than (a) any such transaction (x)
which does not result in any reclassification, conversion,
exchange or cancellation of outstanding shares of capital
stock of the Company and (y) pursuant to which the holders of
Common Stock immediately prior to such transaction are
entitled to exercise, directly or indirectly, 50% or more of
the total voting power of all shares of capital stock entitled
to vote generally in the election of directors of the
continuing or surviving corporation immediately after such
transaction and (b) any merger which is effected solely to
change the jurisdiction of incorporation of the Company and
results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of
Common Stock);
provided, however, that a Change in Control shall not be deemed to have
occurred if the Closing Price Per Share of the Common Stock for any
five Trading Days within the period of 10 consecutive Trading Days
ending immediately after the later of the date of the Change in Control
or the date of the public announcement of the Change in Control (in the
case of a Change in Control under Clause (i) above) or the period of 10
consecutive Trading Days ending immediately prior to the date of the
Change in Control (in the case of a Change in Control under Clause (ii)
above) shall equal or exceed 105% of the Conversion Price in effect on
such Trading Day; and
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<PAGE> 104
(c) the term "Person" shall include any syndicate or group
which would be deemed to be a "person" under Section 13(d)(3) of the
Exchange Act, as in effect on the date of the original execution of
this Indenture.
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<PAGE> 105
----------------------
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.
IN WITNESS WHEREOF, the parties hereto have caused this Indenture to be
duly executed, and their respective corporate seals to be hereunto affixed and
attested, all as of the day and year first above written.
GENESCO INC.
By
---------------------------------
Name:
Title:
[SEAL]
Attest:
- -----------------------------
Name:
-----------------------
Title:
-----------------------
UNITED STATES TRUST COMPANY
OF NEW YORK,
not in its individual capacity but
solely as Trustee
By
---------------------------------
Name:
Title:
[SEAL]
Attest:
- -----------------------------
Name:
-----------------------
Title:
-----------------------
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<PAGE> 106
ANNEX A
FORM OF CONVERSION NOTICE
[Notice pursuant to Section 13.2 of the Indenture]
United States Trust Company of New York,
as Conversion Agent
114 W. 47th Street
New York, New York 10036
Re: GENESCO INC.
5 1/2% Convertible Subordinated Notes
due April 15, 2005 (the "Securities")
Reference is hereby made to the Indenture, dated as of April 9, 1998
(the "Indenture"), between Genesco Inc., as Issuer, and United States Trust
Company of New York, as Trustee. Capitalized terms used but not defined herein
shall have the meanings given to them in the Indenture.
This letter relates to the Securities specified below, which are
registered in the name of the undersigned (the "Holder"). The Holder hereby
irrevocably exercises its right to convert such Securities, or the portion
thereof, if any, specified below, into shares of Common Stock and, except to the
extent specified or required as described below, directs that certificates
representing such Shares of Common Shares, together with any check in payment
for a fractional share and any Security representing any unconverted principal
amount, be issued and delivered through the facilities of the Depositary, for
credit to the account(s) of the Person(s) indicated below.
The Holder acknowledges and agrees that no shares of Common Stock will
be delivered on conversion until any amount payable by the Holder on account of
interest is paid, any certificates evidencing specified Securities not held in
book-entry form are duly endorsed or assigned to the Company or in blank and
surrendered and any taxes or other charges or documents required in connection
with a transfer on conversion, and any other required items, are delivered to
the Conversion Agent.
(Continued on next page)
A-1
<PAGE> 107
The Holder acknowledges and agrees that, notwithstanding this request
for conversion, the Company may require that the shares of Common Stock
delivered on conversion of the specified Securities be delivered in certificated
form subject to a restrictive legend, or that additional certifications be
delivered on behalf of the relevant beneficial owner(s), if it determines that
doing so is necessary to comply with the requirements of the Securities Act or
otherwise, as provided in the Indenture.
Conversion of the specified Securities is subject to the requirements
established by the Company as well as to the procedures of the Depositary, all
as in effect from time to time. The specified Securities will be deemed to have
been converted as of the close of business on the first day on which this
conversion notice and all other required items have been delivered to the
Conversion Agent as provided above and, upon such conversion, shall cease to
accrue interest or be Outstanding (subject to the Holder's right to receive the
Conversion Securities as provided in the Indenture). Prior to such conversion,
the Holder will have no rights in the Conversion Securities.
Please provide the information requested below, as applicable.
(Continued on next page)
A-2
<PAGE> 108
1. PLEASE SPECIFY THE SECURITIES HELD AND THE PORTION THEREOF TO BE
CONVERTED:
Principal amount held: $
------------------------------------------
CUSIP number(s):
--------------------------------------------------
Depositary (DTC) account where held:
------------------------------
Principal amount being converted (if less than all):$
-------------
2. UNLESS AND TO THE EXTENT OTHERWISE SPECIFIED BELOW, all
Securities (together with any unconverted Securities) will be delivered
in book-entry form to the DTC account specified in Item 1 above.
3. IF OTHER ARRANGEMENTS ARE DESIRED, please specify the type, number and
form of securities to be delivered on conversion and the names(s) of
the account holder(s) or registered owner(s), by checking the
appropriate boxes and providing the information requested:
[ ] Common Shares
[ ] Book-Entry
Number of shares of Common Stock:
--------------------
DTC Account:
-----------------------------------------
[ ] Certificates
Number of shares of Common Stock:
--------------------
Registered Owner:
------------------------------------
(Continued on next page)
A-3
<PAGE> 109
[ ] Unconverted Securities
[ ] Certificates
Principal Amount: $ *
---------------------------------
Registered Owner:
------------------------------------
[ ] Book-Entry
Principal Amount: $
---------------------------------
DTC Account:
----------------------------------------
Please sign and date this notice in the space provided below.
DATE:
-----------------------------------
Name of Holder
-----------------------------------
Signature(s) of Holder
Title(s):
(If the Holder is a corporation,
partnership or fiduciary, the title
of the Person signing on behalf of
the Holder must be stated.)
- --------
* Aggregate principal amount of each certificate must equal $1,000 or any
amount in excess thereof in integral multiples of $1,000.
(Continued on next page)
A-4
<PAGE> 110
Signature(s) must be guaranteed by a commercial bank or trust company or a
member firm of a U.S. national securities exchange or a member of the National
Association of Securities Dealers, Inc. if shares of Common Stock or unconverted
Securities are to be delivered other than to and in the name of the registered
owner.
- --------------------------------
Signature Guarantee
A-5
<PAGE> 1
EXHIBIT 10
GENESCO INC.
$103,500,000
5 1/2% CONVERTIBLE SUBORDINATED NOTES DUE APRIL 15, 2005
REGISTRATION RIGHTS AGREEMENT
Dated as of
April 9, 1998
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
SBC Warburg Dillon Read Inc.
As representatives of the several
Purchasers named in Schedule I to
the Purchase Agreement
c/o Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Ladies and Gentlemen:
Genesco Inc., a Tennessee corporation (the "Company"), proposes to
issue and sell to the Purchasers (as defined herein), upon the terms set forth
in a purchase agreement dated April 6, 1998 (the "Purchase Agreement") between
the Purchasers and the Company, its 5 1/2% Convertible Subordinated Notes Due
April 15, 2005 (the "Securities"). As an inducement to the Purchasers to enter
into the Purchase Agreement and in satisfaction of a condition to the
obligations of the Purchasers thereunder, the Company agrees with the
Purchasers, (i) for the benefit of the Purchasers and (ii) for the benefit of
the holders (as defined herein) from time to time of the Securities and the
Common Stock, par value $1.00 per share (the "Common Stock"), of the Company
issuable upon conversion of the Securities (collectively, the "Registrable
Securities"), including the Purchasers, as follows:
1. Definitions. (a) Capitalized terms used herein without definition
shall have their respective meanings set forth in or pursuant to the Purchase
Agreement or the Offering Circular, dated April 6, 1998, in respect of the
Securities. As used in this Agreement, the following capitalized defined terms
shall have the following meanings:
"Act" or "Securities Act" means the United States Securities Act of
1933, as amended.
<PAGE> 2
"Affiliate" of any specified person means any other person which,
directly or indirectly, is in control of, is controlled by, or is under common
control with such specified person. For purposes of this definition, control of
a person means the power, direct or indirect, to direct or cause the direction
of the management and policies of such person whether by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Commission" means the United States Securities and Exchange
Commission.
"DTC" means The Depository Trust Company.
"Effectiveness Period" has the meaning set forth in Section 2(b)
hereof.
"Effective Time" means the date on which the Commission declares the
Shelf Registration Statement effective or on which the Shelf Registration
Statement otherwise becomes effective.
"Electing Holder" has the meaning set forth in Section 3(a)(3) hereof.
"Exchange Act" means the United States Securities and Exchange Act of
1934, as amended.
The term "holder" means, when used with respect to any Security, the
holder (as defined in the Indenture) and, with respect to any Common Stock, the
record holder of such Common Stock.
"Indenture" means the Indenture, dated as of April 9, 1998, between the
Company and United States Trust Company of New York, as amended and supplemented
from time to time in accordance with its terms.
"Managing Underwriters" means the investment banker or investment
bankers and manager or managers that shall administer an underwritten offering,
if any, as set forth in Section 6 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"NASD Rules" means the Rules of the NASD, as amended from time to time.
"Notice and Questionnaire" means a Notice of Registration Statement and
Selling Securityholder Questionnaire substantially in the form of Exhibit A
hereto.
2
<PAGE> 3
"Person" shall mean an individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
"Prospectus" means the prospectus included in any Shelf Registration
Statement (including, without limitation, any preliminary prospectus, any final
prospectus and any prospectus that discloses information previously omitted from
a prospectus filed as part of an effective registration statement in reliance
upon Rule 430A under the Act), as amended or supplemented by any prospectus
supplement, with respect to the terms of the offering of any portion of the
Registrable Securities covered by the Shelf Registration Statement and by all
other amendments and supplements to such prospectus, including all material
incorporated by reference in such prospectus and all documents filed after the
date of such prospectus by the Company under the Exchange Act and incorporated
by reference therein.
"Purchasers" means the Purchasers named in Schedule I to the Purchase
Agreement.
"Purchase Agreement" means the Purchase Agreement, dated April 6, 1998,
between the Purchasers and the Company.
"Registrable Securities" means all or any portion of the Securities
issued from time to time under the Indenture in registered form and the shares
of Common Stock issuable upon conversion of such Securities, including any
Securities initially issued in bearer form and constituting the unsold allotment
of a distributor (within the meaning of Regulation S under the Securities Act)
of such Securities and later exchanged for Securities in registered form;
provided, however, that a security ceases to be a Registrable Security when it
is no longer a Restricted Security.
"Restricted Security" means any Security or share of Common Stock
issuable upon conversion thereof except any such Security or share of Common
Stock which (i) has been effectively registered under the Securities Act and
sold in a manner contemplated by the Shelf Registration Statement, (ii) has been
transferred in compliance with Rule 144 under the Securities Act (or any
successor provision thereto) or is transferable pursuant to paragraph (k) of
such Rule 144 (or any successor provision thereto), (iii) has been sold in
compliance with Regulation S under the Securities Act (or any successor thereto)
and does not constitute the unsold allotment of a distributor within the meaning
of Regulation S under the Securities Act, or (iv) has otherwise been transferred
and a new Security or share of Common Stock not subject to transfer restrictions
under the Securities Act has been delivered by or on behalf of the Company in
accordance with Section 3.5 of the Indenture.
"Shelf Registration" means a registration effected pursuant to Section
2 hereof.
"Shelf Registration Statement" means a shelf registration statement of
the Company pursuant to the provisions of Section 2 hereof filed with the
Commission which covers some or
3
<PAGE> 4
all of the Registrable Securities, as applicable, on an appropriate form under
Rule 415 under the Act, or any similar rule that may be adopted by the
Commission, amendments and supplements to such registration statement, including
post-effective amendments, in each case including the Prospectus contained
therein, all exhibits thereto and all material incorporated by reference
therein.
"Suspension Event" shall mean either a Material Event Suspension Event
or a Report Suspension Event, each of which shall to have the meanings set forth
in Section 3(j).
"Trustee" shall mean United States Trust Company of New York or its
successor from time to time under the Indenture.
"Trust Indenture Act" means the Trust Indenture Act of 1939, or any
successor thereto, and the rules, regulations and forms promulgated thereunder,
as the same shall be amended from time to time.
"underwriter" means any underwriter of Registrable Securities in
connection with an offering thereof under a Shelf Registration Statement.
(b) Wherever there is a reference in this Agreement to a
percentage of the "principal amount" of Registrable Securities or to a
percentage of Registrable Securities, Common Stock shall be treated as
representing the principal amount of Securities which was surrendered for
conversion or exchange in order to receive such number of shares of Common
Stock.
2. Shelf Registration. (a) The Company shall, within 90 calendar days
following the First Time of Delivery (as defined in the Purchase Agreement ),
file with the Commission a Shelf Registration Statement relating to the offer
and sale of the Registrable Securities by the holders from time to time in
accordance with the methods of distribution elected by such holders and set
forth in such Shelf Registration Statement and, thereafter, shall use its best
efforts to cause such Shelf Registration Statement to be declared effective
under the Act by the Commission as promptly as practicable but no later than 270
calendar days after the First Time of Delivery; provided, however, that no
holder shall be entitled to have the Registrable Securities held by it covered
by such Shelf Registration unless such holder is an Electing Holder. If, at the
time the Company is required to file the Shelf Registration Statement pursuant
to this Section 2, the Company is not eligible to file a registration statement
on Form S-3 to register resales by securityholders, the Company shall initially
file a registration statement on Form S-1 and shall comply with the provisions
of the immediately preceding sentence. The Company shall, upon becoming eligible
to use Form S-3 to register resales by securityholders (whether pursuant to a
ruling or waiver from the Commission or otherwise), file as soon as practicable
a Shelf Registration Statement on Form S-3 or convert the existing Shelf
Registration Statement to Form S-3 relating to the offer and sale of the
Registrable Securities by the holders from time to time, but in no event shall
the Company file or convert such Shelf Registration Statement later than the
earlier of (i) 10 days after the date on which
4
<PAGE> 5
the Company becomes eligible to use Form S-3 and (ii) the date on which the
Company files its Annual Report on Form 10-K for its fiscal year ended January
30, 1999 provided that the Company is otherwise eligible to use Form S-3 to
register resales by securityholders on such date. Thereafter, the Company shall
use its best efforts to cause such new or amended Shelf Registration Statement
to be declared effective under the Act by the Commission as promptly as
practicable.
(b) The Company shall use its best efforts:
(i) To keep the Shelf Registration Statement continuously
effective in order to permit the Prospectus forming part thereof to be
usable by holders for a period of two years from the later of (x) the
Effective Time of the Shelf Registration Statement and (y) the last
Time of Delivery (as defined in the Purchase Agreement), or such
shorter period that will terminate when there are no Registrable
Securities outstanding (in either case, such period being referred to
herein as the ("Effectiveness Period");
(ii) After the Effective Time of the Shelf Registration
Statement, promptly upon the request of any holder of Registrable
Securities that is not then an Electing Holder, to take any action
reasonably necessary in such time period as is reasonably practicable
to enable such holder to use the Prospectus forming a part thereof for
resales of Registrable Securities, including, without limitation, any
action necessary to identify such holder as a selling securityholder in
the Shelf Registration Statement; provided, however, that nothing in
this subparagraph shall relieve such holder of the obligation to return
a completed and signed Notice and Questionnaire to the Company in
accordance with Section 3(a)(2) hereof; and
(iii) If at any time the Securities, pursuant to Article XIII of
the Indenture, are convertible into securities other than Common Stock,
to cause such other securities to be included in the Shelf Registration
Statement no later than the date on which the Securities may then be
convertible into such securities.
The Company shall be deemed not to have used its best efforts (within the
meaning of Section 11.12 of the Indenture) to keep the Shelf Registration
Statement effective during the Effectiveness Period if the Company voluntarily
takes any action that would result in any Electing Holders not being able to
offer and sell any such Registrable Securities during such period, unless (i)
such action is required by applicable law, or (ii) a Suspension Event occurs and
the Company complies with Section 3(j).
3. Registration Procedures. In connection with any Shelf Registration
Statement, the following provisions shall apply:
5
<PAGE> 6
(a) (1) Not less than 30 calendar days prior to the Effective
Time of the Shelf Registration Statement, the Company shall mail the
Notice and Questionnaire to the holders of Registrable Securities. No
holder shall be entitled to be named as a selling securityholder in the
Shelf Registration Statement as of the Effective Time, and no holder
shall be entitled to use the Prospectus forming a part thereof for
resales of Registrable Securities at any time, unless such holder has
returned a completed and signed Notice and Questionnaire to the Company
by the deadline for response set forth therein; provided, however,
holders of Registrable Securities shall have at least 28 calendar days
from the date on which the Notice and Questionnaire is first mailed by
the Company to return a completed and signed Notice and Questionnaire
to the Company.
(2) After the Effective Time of the Shelf Registration
Statement, the Company shall, upon the request of any holder of
Registrable Securities that is not then an Electing Holder, promptly
send a Notice and Questionnaire to such holder. The Company shall not
be required to take any action to name such holder as a selling
securityholder in the Shelf Registration Statement or to enable such
holder to use the Prospectus forming a part thereof for resales of
Registrable Securities until such holder has returned a completed and
signed Notice and Questionnaire to the Company.
(3) The term "Electing Holder" shall mean any holder of
Registrable Securities that has returned a completed and signed Notice
and Questionnaire to the Company in accordance with Section 3(a)(1) or
3(a)(2) hereof.
(b) The Company shall furnish to each Electing Holder under
Section 3(a)(1), prior to the Effective Time, a copy of any Shelf
Registration Statement initially filed with the Commission, and shall
furnish to all Electing Holders, prior to the filing thereof with the
Commission, copies of each amendment thereto and each amendment or
supplement, if any, to the Prospectus included therein and shall use
its best efforts to reflect in each such document, when so filed with
the Commission, such comments as the holders and their respective
counsel reasonably may propose.
(c) Subject to Section 3(j), the Company shall promptly take such
action as may be necessary so that (i) any Shelf Registration Statement
and any amendment thereto and any Prospectus forming part thereof and
any amendment or supplement thereto (and each report or other document
incorporated therein by reference in each case) complies in all
material respects with the Securities Act and the Exchange Act and the
respective rules and regulations thereunder, (ii) any Shelf
Registration Statement and any amendment thereto does not, when it
becomes effective, contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or
necessary to make the statements therein not misleading, and (iii) any
Prospectus forming part of any Shelf Registration Statement, and any
amendment or supplement to such
6
<PAGE> 7
Prospectus, does not at any time during the Effectiveness Period
include an untrue statement of a material fact or omit to state a
material fact necessary in order to make the statements, in the light
of the circumstances under which they were made, not misleading.
(d) The Company shall promptly advise each Electing Holder and
shall confirm such advice in writing if so requested by any such
holder:
(i) when a Shelf Registration Statement and any amendment
thereto has been filed with the Commission and when the Shelf
Registration Statement or any post-effective amendment thereto
has become effective;
(ii) of any request by the Commission for amendments or
supplements to the Shelf Registration Statement or the Prospectus
included therein or for additional information;
(iii) of the issuance by the Commission of any stop order
suspending effectiveness of the Shelf Registration Statement or
the initiation of any proceedings for such purpose;
(iv) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the securities
included in the Shelf Registration Statement for sale in any
jurisdiction or the initiation of any proceeding for such
purpose;
(v) of the happening of any event or the existence of any
state of facts that requires the making of any changes in the
Shelf Registration Statement or the Prospectus so that, as of
such date, the Shelf Registration Statement and the Prospectus
comply with the Securities Act and the Exchange Act and the rules
and regulations thereunder and otherwise do not contain an untrue
statement of a material fact and do not omit to state a material
fact required to be stated therein or necessary to make the
statements therein (in the case of the Prospectus, in light of
the circumstances under which they were made) not misleading
(which advice shall be accompanied by an instruction to suspend
the use of the Prospectus until the requisite changes have been
made); and
(vi) of the occurrence of a Suspension Event.
(e) The Company shall use its best efforts to prevent the
issuance, and if issued to obtain the withdrawal, of any order
suspending the effectiveness of any Shelf Registration Statement at the
earliest possible time.
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<PAGE> 8
(f) The Company shall furnish to each Electing Holder, without
charge, at least one copy of such Shelf Registration Statement and any
post-effective amendment thereto, including financial statements and
schedules, and, if such holder so requests in writing, all reports,
other documents and exhibits included or incorporated by reference in
the Shelf Registration Statement.
(g) The Company shall, during the Effectiveness Period, deliver
to each Electing Holder, without charge, as many copies of the
Prospectus (including each preliminary Prospectus) included in such
Shelf Registration Statement and any amendment or supplement thereto as
such holder may reasonably request; and the Company consents (except
during the continuance of any event described in Section 3(d)(v) or
(vi)) to the use of the Prospectus or any amendment or supplement
thereto by each of the selling Electing Holders in connection with the
offering and sale of the Registrable Securities covered by the
Prospectus or any amendment or supplement thereto during the
Effectiveness Period.
(h) Prior to any offering of Registrable Securities pursuant to
any Shelf Registration Statement, the Company shall, if required by
applicable law, (i) register or qualify or cooperate with the Electing
Holders and their respective counsel in connection with the
registration or qualification of such Registrable Securities for offer
and sale under the securities or blue sky laws of such jurisdictions
within the United States as any Electing Holder may reasonably request,
(ii) keep such registrations or qualifications in effect and comply
with such laws so as to permit the continuance of offers and sales in
such jurisdictions for so long as may be necessary to enable any
Electing Holder or underwriter, if any, to complete its distribution of
Registrable Securities pursuant to the Shelf Registration Statement and
(iii) take any and all other actions necessary or advisable to enable
the offer and sale in such jurisdictions of the Registrable Securities
covered by such Shelf Registration Statement; provided, however, that
in no event shall the Company be obligated to (i) qualify as a foreign
corporation or as a dealer in securities in any jurisdiction where it
would not otherwise be required to so qualify but for this Section 3(h)
or (ii) file any general consent to service of process in any
jurisdiction where it is not as of the date hereof then so subject.
(i) Unless any Registrable Securities shall be in book-entry only
form, the Company shall cooperate with the Electing Holders to
facilitate the timely preparation and delivery of certificates
representing Registrable Securities to be sold pursuant to any Shelf
Registration Statement which certificates, if so required by any
securities exchange upon which any Registrable Securities are listed,
shall be penned, lithographed or engraved, or produced by any
combination of such methods, on steel engraved borders, and which
certificates shall be free of any restrictive legends and in such
permitted denominations and registered in such names as holders may
request in
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<PAGE> 9
connection with the sale of Registrable Securities pursuant to such
Shelf Registration Statement.
(j) Upon the occurrence of any event contemplated by Section
3(d)(v) above, the Company shall promptly prepare a post-effective
amendment to any Shelf Registration Statement or an amendment or
supplement to the related Prospectus or file any other required
document so that, as thereafter delivered to purchasers of the
Registrable Securities included therein, the Prospectus will not
include an untrue statement of a material fact or omit to state any
material fact necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
Notwithstanding the foregoing, the Company may postpone, for a period
not to exceed 30 days, supplementing or amending the Shelf Registration
Statement if (i) the Company is in possession of material non-public
information related to a proposed financing, recapitalization,
acquisition, business combination or other material transaction and the
Board of Directors of the Company determines (in good faith in a
written resolution) that disclosure of such information would have a
material adverse effect on the business or operations of the Company
and its subsidiaries and disclosure of such information, but for the
effectiveness of the Shelf Registration Statement is not otherwise
required by law and (ii) the Company delivers notice (which shall
include a statement to the effect that the Board of Directors has made
such determination and adopted such resolution) to the Electing Holders
and any placement agent or underwriter as contemplated by Section
3(d)(v) to the effect that Electing Holders may not make offers or
sales under the Shelf Registration Statement (a "Material Event
Suspension Event"); provided, however, that the Company may deliver
only two such notices within any 12-month period. Promptly upon the
earlier of (x) public disclosure of such material non-public
information, (y) the date on which such non-public information is no
longer material and (z) 30 days after the date notice is given by the
Company pursuant to clause (ii) above, the Company shall supplement or
amend the Shelf Registration Statement as required by the immediately
preceding sentence and give notice to the Electing Holders that offers
and sales under the Shelf Registration Statement may be resumed. In
addition, if the Shelf Registration Statement filed with the Commission
pursuant to Section 2 is on Form S-1, during the period commencing on
the date such Shelf Registration Statement on Form S-1 is declared
effective and ending on the date the Company is required pursuant to
Section 2 to file or convert a Shelf Registration Statement on Form
S-3, the Company may give notice to Electing Holders pursuant to
Section 3(d)(vi) that offers and sales under such Shelf Registration
Statement, and the use of the related Prospectus, are suspended during
the period commencing on (i) the date on which the Company files with
the Commission a Quarterly Report on Form 10-Q or an Annual Report on
Form 10-K or (ii) the date on which an event occurs requiring the
Company to file a Current Report on Form 8-K and, in each case, ending
on the date on which a post-effective amendment to the Shelf
Registration Statement updating the related Prospectus to reflect the
information
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<PAGE> 10
contained in such Quarterly Report on Form 10-Q or Annual Report on
Form 10-K or the event reported by the Company in its Current Report on
Form 8-K (in any such case, an "Exchange Act Report") is declared
effective (a "Report Suspension Event"), provided, however, that the
Company shall file any such post-effective amendment to such Shelf
Registration Statement not later than the day on which it files any
such Exchange Act Report and shall use its best efforts to cause such
post-effective amendment to be declared effective as promptly as
practicable. If the Company notifies the Electing Holders of the
occurrence of any event contemplated by Section 3(d)(v) or 3(d)(vi),
each Electing Holder agrees, as a consequence of the inclusion of any
of such holder's Registrable Securities in the Shelf Registration
Statement, to suspend the use of the Prospectus until the requisite
changes to the Prospectus have been made.
(k) Not later than the Effective Time of any Shelf Registration
Statement hereunder, the Company shall provide a CUSIP number for the
Securities registered under such Shelf Registration Statement.
(l) The Company shall use its best efforts to comply with all
applicable rules and regulations of the Commission and shall make
generally available to their securityholders or otherwise provide in
accordance with Section 11(a) of the Securities Act as soon as
practicable, but in any event not later than eighteen months after (i)
the effective date of the applicable Shelf Registration Statement, (ii)
the effective date (as defined in Rule 158(c) under the Securities Act)
of each post-effective amendment to the Shelf Registration Statement,
and (iii) the date of each filing by the Company with the Commission of
an Annual Report on Form 10-K that is incorporated by reference in the
Shelf Registration Statement, an earnings statement satisfying the
provisions of Section 11(a) of the Securities Act and the rules and
regulations of the Commission thereunder (including, at the option of
the Company, Rule 158).
(m) Not later than the Effective Time of the Shelf Registration
Statement, the Company shall cause the Indenture and the Securities to
be qualified under the Trust Indenture Act in a timely manner and, in
connection with such qualification, the Company shall cooperate with
the Trustee under the Indenture and the Holders (as defined in the
Indenture) to effect such changes to the Indenture as may be required
for such Indenture to be so qualified in accordance with the terms of
the Trust Indenture Act; and the Company shall execute, and shall use
all reasonable efforts to cause the Trustee to execute, all documents
that may be required to effect such changes and all other forms and
documents required to be filed with the Commission to enable such
Indenture to be so qualified in a timely manner. In the event that any
such amendment or modification referred to in this Section 3(m)
involves the appointment of a new trustee under the Indenture, the
Company shall appoint a new trustee thereunder pursuant to the
applicable provisions of the Indenture.
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(n) The Company may require each holder of Registrable Securities
to be sold pursuant to any Shelf Registration Statement to furnish to
the Company such information regarding the holder and the distribution
of such Registrable Securities as may be required by applicable law or
regulation for inclusion in such Shelf Registration Statement and the
Company may exclude from such registration the Registrable Securities
of any holder that fails to furnish such information within a
reasonable time after receiving such request.
(o) The Company shall, if requested, promptly include or
incorporate in a Prospectus supplement or post-effective amendment to a
Shelf Registration Statement, such information as the Managing
Underwriters reasonably agree should be included therein and to which
the Company does not reasonably object and shall make all required
filings of such Prospectus supplement or post-effective amendment as
soon as practicable after they are notified of the matters to be
included or incorporated in such Prospectus supplement or
post-effective amendment.
(p) The Company shall enter into such customary agreements
(including underwriting agreements in customary form) and take all
other appropriate actions in order to expedite or facilitate the
registration or the disposition of the Registrable Securities, and in
connection therewith, if an underwriting agreement is entered into,
cause the same to contain indemnification provisions and procedures
substantially identical to those set forth in Section 5 (or such other
provisions and procedures acceptable to the Managing Underwriters, if
any) with respect to all parties to be indemnified pursuant to Section
5.
(q) The Company shall:
(i) make reasonably available for inspection by the Electing
Holders, any underwriter participating in any disposition
pursuant to such Shelf Registration Statement, and any attorney,
accountant or other agent retained by such holders or any such
underwriter all relevant financial and other records, pertinent
corporate documents and properties of the Company and its
subsidiaries;
(ii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, cause the Company's officers,
directors and employees to supply all information reasonably
requested by such holders or any such underwriter, attorney,
accountant or agent in connection with any such Shelf
Registration Statement, in each case, as is customary for similar
due diligence examinations; provided, however, that any
information that is designated in writing by the Company, in good
faith, as confidential at the time of delivery of such
information shall be kept confidential by such holders or any
such underwriter, attorney, accountant or agent, unless such
disclosure is made in connection with a court
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<PAGE> 12
proceeding or required by law, or such information becomes
available to the public generally or through a third party
without an accompanying obligation of confidentiality; and
provided further that, if the foregoing inspection and
information gathering would otherwise disrupt the Company's
conduct of business, such inspection and information gathering
shall, to the greatest extent possible, be coordinated on behalf
of the Electing Holders and the other parties entitled thereto by
one counsel designated by and on behalf of such Electing Holders
and other parties;
(iii) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, make such representations and
warranties to the Electing Holders registered thereunder and to
the Managing Underwriters, in form, substance and scope as are
customarily made by the Company to underwriters in primary
underwritten offerings and covering matters including, but not
limited to, those set forth in the Purchase Agreement;
(iv) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain opinions of counsel to the
Company and updates thereof (which counsel and opinions (in form,
scope and substance) shall be reasonably satisfactory to the
Managing Underwriters) addressed to each selling holder and the
underwriters covering such matters as are customarily covered in
opinions requested in primary underwritten offerings of equity
and convertible debt securities and such other matters as may be
reasonably requested by such holders and underwriters (it being
agreed that the matters to be covered by such opinion or written
statement by such counsel delivered in connection with such
opinions shall include, without limitation, as of the date of the
opinion and as of the effective date of the Shelf Registration
Statement or most recent post-effective amendment thereto, as the
case may be, the absence from such Shelf Registration Statement
and the Prospectus included therein, as then amended or
supplemented, including the documents incorporated by reference
therein, of an untrue statement of a material fact or the
omission to state therein a material fact required to be stated
therein or necessary to make the statements therein (in the case
of a Prospectus, in light of the circumstances under which they
were made,) not misleading;
(v) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, obtain "cold comfort" letters and
updates thereof from the independent public accountants of the
Company (and, if necessary, any other independent public
accountants of any subsidiary of the Company or of any business
acquired by the Company for which financial statements and
financial data are, or are required to be, included in the Shelf
Registration Statement), addressed to each selling holder and the
underwriters in customary form and covering matters
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<PAGE> 13
of the type customarily covered in "cold comfort" letters in
connection with primary underwritten offerings;
(vi) in connection with any underwritten offering conducted
pursuant to Section 6 hereof, deliver such documents and
certificates as may be reasonably requested by any such holders
participating in such underwritten offering and the Managing
Underwriters, including those to evidence compliance with Section
3(i) and with any customary conditions contained in the
underwriting agreement or other agreement entered into by the
Company.
The foregoing actions set forth in clauses (iii), (iv), (v) and (vi) of
this Section 3(q) shall be performed at each closing under any
underwritten offering to the extent required thereunder.
(r) The Company will use its best efforts to cause the Common
Stock issuable upon conversion of the Securities to be listed for
quotation on the New York Stock Exchange or other stock exchange or
trading system on which the Common Stock primarily trades on or prior
to the Effective Time of any Shelf Registration Statement hereunder.
(s) In the event that any broker-dealer registered under the
Exchange Act shall be an "affiliate" (as defined in Rule 2720(b)(1) of
the NASD Rules (or any successor provision thereto)) of the Company or
has a "conflict of interest" (as defined in Rule 2720(b)(7) of the NASD
Rules (or any successor provision thereto)) and such broker-dealer
shall underwrite any Registrable Securities or participate as a member
of an underwriting syndicate or selling group or assist in the
distribution thereof, whether as a holder of such Registrable
Securities or as an underwriter, a placement or sales agent or a broker
or dealer in respect thereof, or otherwise, the Company shall assist
such broker-dealer in complying with the requirements of the NASD
Rules, including, without limitation, by (A) engaging a "qualified
independent underwriter" (as defined in Rule 2720(b)(15) of the NASD
Rules (or any successor provision thereto)) to participate in the
preparation of the Shelf Registration Statement relating to such
Registrable Securities, to exercise usual standards of due diligence in
respect thereto, and to recommend the public offering price of such
Registrable Securities, (B) indemnifying any such qualified
independent underwriter to the extent of the indemnification of
underwriters provided in Section 5 hereof and (C) providing such
information to such broker-dealer as may be required in order for such
broker-dealer to comply with the requirements of the NASD Rules.
(t) The Company shall use its best efforts to take all other
steps necessary to effect the registration, offering and sale of the
Registrable Securities covered by the Shelf Registration Statement
contemplated hereby.
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4. Registration Expenses. The Company shall bear all fees and expenses
incurred in connection with the performance of its obligations under Sections 2,
3 and 6 hereof. In addition, in the event of an underwritten offering of
Registrable Securities conducted pursuant to Section 6 hereof, or if in any
other event the Company requires that inspection and information gathering be
coordinated by counsel for the Electing Holders as provided in Section 3(q)(ii)
hereof, the Company shall pay the reasonable fees and expenses of a single
counsel selected by the Electing Holders of not less than 25% of the Registrable
Securities covered by the Shelf Registration Statement to act as counsel
therefor in connection therewith. The Electing Holders participating in such
offering (or, in any such other event, participating in such inspection and
information gathering) shall be responsible, on a pro rata basis based on the
respective amount of their Registrable Securities included in such offering, for
all fees and expenses of such counsel in excess of $75,000. Except as set forth
herein, all fees and expenses of counsel to the Electing Holders shall be borne
by the Electing Holders.
5. Indemnification and Contribution.
(a) Indemnification by the Company. Upon the registration of the
Registrable Securities pursuant to Section 2 hereof, the Company shall indemnify
and hold harmless each Electing Holder and each underwriter, selling agent or
other securities professional, if any, which facilitates the disposition of
Registrable Securities, and each of their respective officers and directors and
each person who controls such Electing Holder, underwriter, selling agent or
other securities professional within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act (each such person being sometimes referred
to as an "Indemnified Person") against any losses, claims, damages or
liabilities, joint or several, to which such Indemnified Person may become
subject under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in any Shelf Registration Statement under which such Registrable
Securities are to be registered under the Securities Act, or any Prospectus
contained therein or furnished by the Company to any Indemnified Person, or any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and the
Company hereby agrees to reimburse such Indemnified Person for any legal or
other expenses reasonably incurred by them in connection with investigating or
defending any such action or claim as such expenses are incurred; provided,
however, that the Company shall not be liable to any such Indemnified Person in
any such case to the extent that any such loss, claim, damage or liability
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in such Shelf Registration Statement or
Prospectus, or amendment or supplement, in reliance upon and in conformity with
written information furnished to the Company by such Indemnified Person
expressly for use therein.
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(b) Indemnification by the Holders and any Agents and Underwriters.
Each Electing Holder agrees, as a consequence of the inclusion of any of such
holder's Registrable Securities in such Shelf Registration Statement, and each
underwriter, selling agent or other securities professional, if any, which
facilitates the disposition of Registrable Securities shall agree, as a
consequence of facilitating such disposition of Registrable Securities,
severally and not jointly, to (i) indemnify and hold harmless the Company, its
directors, officers who sign any Shelf Registration Statement and each person,
if any, who controls the Company within the meaning of either Section 15 of the
Securities Act or Section 20 of the Exchange Act, against any losses, claims,
damages or liabilities to which the Company or such other persons may become
subject, under the Securities Act or otherwise, insofar as such losses, claims,
damages or liabilities (or actions in respect thereof) arise out of or are based
upon an untrue statement or alleged untrue statement of a material fact
contained in such Shelf Registration Statement or Prospectus, or any amendment
or supplement, or arise out of or are based upon the omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, in each case to the
extent, but only to the extent, that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such holder,
underwriter, selling agent or other securities professional expressly for use
therein, and (ii) reimburse the Company for any legal or other expenses
reasonably incurred by the Company in connection with investigating or defending
any such action or claim as such expenses are incurred.
(c) Notices of Claims, Etc. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of notice of the commencement of any
action, such indemnified party shall, if a claim in respect thereof is to be
made against an indemnifying party under this Section 5, notify such
indemnifying party in writing of the commencement thereof; but the omission so
to notify the indemnifying party shall not relieve it from any liability which
it may have to any indemnified party otherwise than under this Section 5. In
case any such action shall be brought against any indemnified party and it shall
notify an indemnifying party of the commencement thereof, such indemnifying
party shall be entitled to participate therein and, to the extent that it shall
wish, jointly with any other indemnifying party similarly notified, to assume
the defense thereof, with counsel satisfactory to such indemnified party (who
shall not, except with the consent of the indemnified party, be counsel to the
indemnifying party), and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, such
indemnifying party shall not be liable to such indemnified party under this
Section 5 for any legal expenses of other counsel or any other expenses, in each
case subsequently incurred by such indemnified party, in connection with the
defense thereof other than reasonable costs of investigation. No indemnifying
party shall, without the written consent of the indemnified party, effect the
settlement or compromise of, or consent to the entry of any judgment with
respect to, any pending or threatened action or claim in respect of which
indemnification or contribution may be sought hereunder (whether or not the
indemnified party is an actual or potential party to such action or claim)
unless such settlement, compromise or
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<PAGE> 16
judgment (i) includes an unconditional release of the indemnified party from all
liability arising out of such action or claim and (ii) does not include a
statement as to, or an admission of, fault, culpability or a failure to act, by
or on behalf of any indemnified party.
(d) Contribution. If the indemnification provided for in this Section 5
is unavailable to or insufficient to hold harmless an indemnified party under
subsection (a) or (b) above in respect of any losses, claims, damages or
liabilities (or actions in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions in respect thereof) in such proportion as is appropriate to reflect the
relative fault of the indemnifying party and the indemnified party in connection
with the statements or omissions which resulted in such losses, claims, damages
or liabilities (or actions in respect thereof), as well as any other relevant
equitable considerations. The relative fault of such indemnifying party and
indemnified party shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or omission or
alleged omission to state a material fact relates to information supplied by
such indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 5(d) were determined by
pro rata allocation (even if the Electing Holders or any underwriters, selling
agents or other securities professionals or all of them were treated as one
entity for such purpose) or by any other method of allocation which does not
take account of the equitable considerations referred to in this Section 5(d).
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities (or actions in respect thereof) referred to above
shall be deemed to include any legal or other fees or expenses reasonably
incurred by such indemnified party in connection with investigating or defending
any such action or claim. No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. The obligations of the Electing Holders and any underwriters,
selling agents or other securities professionals in this Section 5(d) to
contribute shall be several in proportion to the percentage of principal amount
of Registrable Securities registered or underwritten, as the case may be, by
them and not joint.
(e) Notwithstanding any other provision of this Section 5, in no event
will any (i) Electing Holder be required to undertake liability to any person
under this Section 5 for any amounts in excess of the dollar amount of the
proceeds to be received by such holder from the sale of such holder's
Registrable Securities (after deducting any fees, discounts and commissions
applicable thereto) pursuant to any Shelf Registration Statement under which
such Registrable Securities are to be registered under the Securities Act and
(ii) underwriter, selling agent or other securities professional be required to
undertake liability to any person hereunder for any amounts in excess of the
discount, commission or other compensation payable to such
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<PAGE> 17
underwriter, selling agent or other securities professional with respect to the
Registrable Securities underwritten by it and distributed to the public.
(f) The obligations of the Company under this Section 5 shall be in
addition to any liability which the Company may otherwise have to any
Indemnified Person and the obligations of any Indemnified Person under this
Section 5 shall be in addition to any liability which such Indemnified Person
may otherwise have to the Company. The remedies provided in this Section 5 are
not exclusive and shall not limit any rights or remedies which may otherwise be
available to an indemnified party at law or in equity.
6. Underwritten Offering. Any holder of Registrable Securities covered
by the Shelf Registration Statement who desires to do so may sell such
Registrable Securities in an underwritten offering. In any such underwritten
offering, the investment banker or bankers and manager or managers that will
administer the offering will be selected by, and the underwriting arrangements
with respect thereto will be approved by the holders of a majority of the
Registrable Securities to be included in such underwritten offering; provided,
however, that (i) such investment bankers and managers and underwriting
arrangements must be reasonably satisfactory to the Company and (ii) the Company
shall not be obligated to arrange for more than one underwritten offering during
the Effectiveness Period. No holder may participate in any underwritten offering
contemplated hereby unless such holder (a) agrees to sell such holder's
Registrable Securities in accordance with any approved underwriting
arrangements, (b) completes and executes all reasonable questionnaires, powers
of attorney, indemnities, underwriting agreements, lock-up letters and other
documents required under the terms of such approved underwriting arrangements
and (c) holders have requested that at least 20% of the outstanding Registrable
Securities be included in such underwritten offering. The holders participating
in any underwritten offering shall be responsible for any expenses customarily
borne by selling securityholders, including underwriting discounts and
commissions and, subject to Section 4, fees and expenses of counsel to the
selling securityholders. The Company shall pay all expenses customarily borne by
issuers, including but not limited to filing fees, the fees and disbursements of
its counsel and independent public accountants and any printing expenses
incurred in connection with such underwritten offering.
7. Miscellaneous.
(a) Other Registration Rights. The Company may grant registration
rights that would permit any Person that is a third party the right to
piggy-back on any Shelf Registration Statement, provided, however, that if the
Managing Underwriter, if any, of an underwritten offering conducted pursuant to
Section 6 hereof notifies the Company and the Electing Holders that the total
amount of securities which the Electing Holders and the holders of such
piggy-back rights intend to include in any Shelf Registration Statement is so
large as to materially adversely affect the success of such offering (including
the price at which such securities can be sold), then only the amount, the
number or kind of securities to be offered for
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<PAGE> 18
the account of holders of such piggy-back rights will be reduced to the extent
necessary to reduce the total amount of securities to be included in such
offering to the amount, number or kind recommended by the Managing Underwriter
prior to any reduction in the amount of Registrable Securities to be included.
(b) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, qualified, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of the
holders of a majority in aggregate principal amount of Registrable Securities
then outstanding. Each holder of Registrable Securities outstanding at the time
of any such amendment, waiver or consent or thereafter shall be bound by any
amendment, waiver or consent effected pursuant to this Section 7(b), whether or
not any notice, writing or marking indicating such amendment, waiver or consent
appears on the Registrable Securities or is deliverable to such holder.
(c) Notices. All notices and other communications provided for or
permitted hereunder shall be given as provided for in the Indenture.
The Purchasers or the Company by notice to the other may designate
additional or different addresses for subsequent notices or communications.
(d) Parties in Interest; Successors and Assigns. The parties to this
Agreement intend that all holders of Registrable Securities shall be entitled to
receive the benefits of this Agreement by reason of such election with respect
to the Registrable Securities which are included in a Shelf Registration
Statement. This Agreement shall inure to the benefit of and be binding upon the
successors and assigns of each of the parties and the holders, including,
without the need for an express assignment or any consent by the Company
thereto, subsequent holders of Registrable Securities. The Company hereby agrees
to extend the benefits of this Agreement to any holder of Registrable Securities
and any such holder may specifically enforce the provisions of this Agreement as
if an original party hereto.
(e) Counterparts. This agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be an original and all of which taken
together shall constitute one and the same agreement.
(f) Headings. The headings in this agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(g) Governing Law. This agreement shall be governed by and construed in
accordance with the laws of the State of New York, without giving effect to any
provisions relating to conflicts of laws.
18
<PAGE> 19
(h) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstances, is held
invalid, illegal or unenforceable in any respect for any reason, the validity,
legality and enforceability of any such provision in every other respect and of
the remaining provisions hereof shall not be in any way impaired or affected
thereby, it being intended that all of the rights and privileges of the parties
shall be enforceable to the fullest extent permitted by law.
(i) Survival. The respective indemnities, agreements, representations,
warranties and other provisions set forth in this Agreement or made pursuant
hereto shall remain in full force and effect, regardless of any investigation
(or any statement as to the results thereof) made by or on behalf of any
Electing Holder, any director, officer or partner of such holder, any agent or
underwriter, any director, officer or partner of such agent or underwriter, or
any controlling person of any of the foregoing, and shall survive the transfer
and registration of the Registrable Securities of such holder.
19
<PAGE> 20
Please confirm that the foregoing correctly sets forth the agreement
between the Company and you.
Very truly yours,
GENESCO INC.
By:
-------------------------------
Name:
Title:
The foregoing Registration Rights Agreement is hereby confirmed and accepted as
of the date first above written.
Goldman, Sachs & Co.
NationsBanc Montgomery Securities LLC
SBC Warburg Dillon Read Inc.
- -------------------------------
(Goldman, Sachs & Co.)
On behalf of each of the Purchasers
Listed in Schedule I to the Purchase Agreement
20
<PAGE> 21
Exhibit A
GENESCO INC.
INSTRUCTION TO DTC PARTICIPANTS
____________ __, 199__
URGENT - IMMEDIATE ATTENTION REQUESTED
DEADLINE FOR RESPONSE: _______ ___, 199__
The Depository Trust Company ("DTC") has identified you as a DTC
Participant through which beneficial interests in Genesco Inc. (the "Company")
5 1/2% Convertible Subordinated Notes due April 15, 2005 (the "Securities") are
held.
The Company is in the process of registering the Securities under
the Securities Act of 1933 for resale by the beneficial owners thereof. In order
to have their Securities included in the registration statement, beneficial
owners must complete and return the enclosed Notice of Registration Statement
and Selling Securityholder Questionnaire.
It is important that beneficial owners of the Securities receive
a copy of the enclosed materials as soon as possible as their rights to have the
Securities included in the registration statement depend upon their returning
the Notice and Questionnaire by ________ __, 199_. Please forward a copy of the
enclosed documents to each beneficial owner that holds interests in the
Securities through you. If you require more copies of the enclosed materials or
have any questions pertaining to this matter, please contact Roger G. Sission,
General Counsel, Genesco Inc., Genesco Park, 1415 Murfreesboro Road, Nashville,
Tennessee 37217-2895, Telephone No. (615) 367-7000.
<PAGE> 22
GENESCO INC.
Notice of Registration Statement
and
Selling Securityholder Questionnaire
________ __, 199_
Reference is hereby made to the Registration Rights Agreement
(the "Registration Rights Agreement") between Genesco Inc. (the "Company") and
the Purchasers named therein. Pursuant to the Registration Rights Agreement, the
Company has filed with the United States Securities and Exchange Commission (the
"Commission") a registration statement on Form S-___ (the "Shelf Registration
Statement") for the registration and resale under Rule 415 of the Securities Act
of 1933, as amended (the "Securities Act"), of the Company's 5 1/2% Convertible
Subordinated Notes due April 15, 2005 (the "Securities") and the shares of
common stock, par value $1.00 per share (the "Common Stock"), issuable upon
conversion thereof. A copy of the Registration Rights Agreement is attached
hereto. All capitalized terms not otherwise defined herein shall have the
meanings ascribed thereto in the Registration Rights Agreement.
Each beneficial owner of Registrable Securities (as defined
below) is entitled to have the Registrable Securities beneficially owned by it
included in the Shelf Registration Statement. In order to have Registrable
Securities included in the Shelf Registration Statement, this Notice of
Registration Statement and Selling Securityholder Questionnaire ("Notice and
Questionnaire") must be completed, executed and delivered to the Company's
counsel at the address set forth herein for receipt on or before _________ __,
199__. Beneficial owners of Registrable Securities who do not complete, execute
and return this Notice and Questionnaire by such date (i) will not be named as
selling securityholders in the Shelf Registration Statement and (ii) may not use
the Prospectus forming a part thereof for resales of Registrable Securities.
Certain legal consequences arise from being named as a selling
securityholder in the Shelf Registration Statement and related Prospectus.
Accordingly, holders and beneficial owners of Registrable Securities are advised
to consult their own securities law counsel regarding the consequences of being
named or not being named as a selling securityholder in the Shelf Registration
Statement and related Prospectus.
A-2
<PAGE> 23
The term "Registrable Securities" is defined in the Registration
Rights Agreement to mean all or any portion of the Securities issued from time
to time under the Indenture in registered form and the shares of Common Stock
issuable upon conversion of such Securities, including any Securities initially
issued in bearer form and constituting the unsold allotment of a distributor
(within the meaning of Regulation S under the Securities Act) of such Securities
and later exchanged for Securities in registered form; provided, however, that a
security ceases to be a Registrable Security when it is no longer a Restricted
Security.
The term "Restricted Security" is defined in the Registration
Rights Agreement to mean any Security or share of Common Stock issuable upon
conversion thereof except any such Security or share of Common Stock which (i)
has been effectively registered under the Securities Act and sold in a manner
contemplated by the Shelf Registration Statement, (ii) has been transferred in
compliance with Rule 144 under the Securities Act (or any successor provision
thereto) or is transferable pursuant to paragraph (k) of such Rule 144 (or any
successor provision thereto), (iii) has been sold in compliance with Regulation
S under the Securities Act (or any successor thereto) and does not constitute
the unsold allotment of a distributor within the meaning of Regulation S under
the Securities Act, or (iv) has otherwise been transferred and a new Security or
share of Common Stock not subject to transfer restrictions under the Securities
Act has been delivered by or on behalf of the Company in accordance with Section
3.5 of the Indenture.
ELECTION
The undersigned holder (the "Selling Securityholder") of
Registrable Securities hereby elects to include in the Shelf Registration
Statement the Registrable Securities beneficially owned by it and listed below
in Item (3). The undersigned, by signing and returning this Notice and
Questionnaire, agrees to be bound with respect to such Registrable Securities by
the terms and conditions of this Notice and Questionnaire and the Registration
Rights Agreement, including, without limitation, Section 5 of the Registration
Rights Agreement, as if the undersigned Selling Securityholder were an original
party thereto.
Upon any sale of Registrable Securities pursuant to the Shelf
Registration Statement, the Selling Securityholder will be required to deliver
to the Company and Trustee the Notice of Transfer set forth in Appendix A to the
Prospectus. This Notice of Transfer is set forth as Exhibit B to the
Registration Rights Agreement.
The Selling Securityholder hereby provides the following
information to the Company and represents and warrants that such information is
accurate and complete:
A-3
<PAGE> 24
QUESTIONNAIRE
(i) (i) Full Legal Name of Selling Securityholder:
----------------------------------------------------------------
(ii) Full Legal Name of Registered Holder (if not the same as in (a)
above) of Registrable Securities Listed in (3) below:
----------------------------------------------------------------
(iii) Full Legal Name of DTC Participant (if applicable and if not the
same as (b) above) Through Which Registrable Securities Listed in
(3) below are Held:
----------------------------------------------------------------
A-4
<PAGE> 25
(j) Address for Notices to Selling Securityholder:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
Telephone:
--------------
Fax:
--------------
Contact Person:
--------------
(k) Beneficial Ownership of Securities and shares of Common Stock issued
upon conversion of Securities:
Except as set forth below in this Item (3), the undersigned does not
beneficially own any Securities or shares of Common Stock issued upon conversion
of any Securities.
(i) Principal amount of Registrable Securities (as defined in the
Registration Rights Agreement) beneficially owned:______________
CUSIP No(s). of such Registrable Securities:____________________
Number of shares of Common Stock (if any) issued upon conversion
of such Registrable Securities:_________________________________
(ii) Principal amount of Securities other than Registrable Securities
beneficially owned:_____________________________________________
CUSIP No(s). of such other Securities:__________________________
Number of shares of Common Stock (if any) issued upon conversion
of such other Securities:_______________________________________
(iii) Principal amount of Registrable Securities which the undersigned
wishes to be included in the Shelf Registration Statement:
________________________________________________________________
CUSIP No(s). of such Registrable Securities to be included in
the Shelf Registration Statement:_______________________________
A-5
<PAGE> 26
Number of shares of Common Stock (if any) issued upon conversion
of Registrable Securities which are to be included in the Shelf
Registration Statement:_________________________________________
(l) Beneficial Ownership of Other Securities of the Company:
Except as set forth below in this Item (4), the undersigned Selling
Securityholder is not the beneficial or registered owner of any shares of Common
Stock or any other securities of the Company, other than the Securities and
shares of Common Stock listed above in Item (3).
State any exceptions here:
(m) Relationships with the Company:
Except as set forth below, neither the Selling Securityholder nor any
of its affiliates, officers, directors or principal equity holders (5% or more)
has held any position or office or has had any other material relationship with
the Company (or its predecessors or affiliates) during the past three years.
State any exceptions here:
(n) Plan of Distribution:
Except as set forth below, the undersigned Selling Securityholder
intends to distribute the Registrable Securities listed above in Item (3) only
as follows (if at all): Such Registrable Securities may be sold from time to
time directly by the undersigned Selling Securityholder or, alternatively,
through underwriters, broker-dealers or agents. Such Registrable Securities may
be sold in one or more transactions at fixed prices, at prevailing market prices
at the time of sale, at varying prices determined at the time of sale, or at
negotiated prices. Such sales may be effected in transactions (which may involve
crosses or block transactions) (i) on any national securities exchange or
quotation service on which the Registered Securities may be listed or quoted at
the time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or services or in the over-the-counter market,
or (iv) through the writing of options. In connection with sales of the
A-6
<PAGE> 27
Registrable Securities or otherwise, the Selling Securityholder may enter into
hedging transactions with broker-dealers, which may in turn engage in short
sales of the Registrable Securities in the course of hedging the positions they
assume. The Selling Securityholder may also sell Registrable Securities short
and deliver Registrable Securities to close out such short positions, or loan or
pledge Registrable Securities to broker-dealers that in turn may sell such
securities.
State any exceptions here:
Note: In no event may such method(s) of distribution take the form of
an underwritten offering of the Registrable Securities without the prior
agreement of the Company.
By signing below, the Selling Securityholder acknowledges that it
understands its obligation to comply, and agrees that it will comply, with the
provisions of the Exchange Act and the rules and regulations thereunder,
particularly Rule 10b-6.
In the event that the Selling Securityholder transfers all or any
portion of the Registrable Securities listed in Item (3) above after the date on
which such information is provided to the Company, the Selling Securityholder
agrees to notify the transferee(s) at the time of the transfer of its rights and
obligations under this Notice and Questionnaire and the Registration Rights
Agreement.
By signing below, the Selling Securityholder consents to the disclosure
of the information contained herein in its answers to Items (1) through (6)
above and the inclusion of such information in the Shelf Registration Statement
and related Prospectus. The Selling Securityholder understands that such
information will be relied upon by the Company in connection with the
preparation of the Shelf Registration Statement and related Prospectus.
In accordance with the Selling Securityholder's obligation under
Section 3(a) of the Registration Rights Agreement to provide such information as
may be required by law for inclusion in the Shelf Registration Statement, the
Selling Securityholder agrees to promptly notify the Company of any inaccuracies
or changes in the information provided herein which
A-7
<PAGE> 28
may occur subsequent to the date hereof at any time while the Shelf Registration
Statement remains in effect. All notices hereunder and pursuant to the
Registration Rights Agreement shall be made in writing, by hand-delivery,
first-class mail, or air courier guaranteeing overnight delivery as follows:
(i) To the Company:
Genesco Inc.
Genesco Park
1415 Murfreesboro Road
Nashville, Tennessee 37217-2895
Attn: Roger G. Sisson, General Counsel
(ii) With a copy to:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238-2700
Attn: J. Gentry Barden
Once this Notice and Questionnaire is executed by the Selling
Securityholder and received by the Company's counsel, the terms of this Notice
and Questionnaire, and the representations and warranties contained herein,
shall be binding on, shall inure to the benefit of and shall be enforceable by
the respective successors, heirs, personal representatives, and assigns of the
Company and the Selling Securityholder (with respect to the Registrable
Securities beneficially owned by such Selling Securityholder and listed in Item
(3) above. This Agreement shall be governed in all respects by the laws of the
State of New York.
A-8
<PAGE> 29
IN WITNESS WHEREOF, the undersigned, by authority duly given, has
caused this Notice and Questionnaire to be executed and delivered either in
person or by its duly authorized agent.
Dated:
-----------------
-------------------------------------------------
Selling Securityholder
(Print/type full legal name of beneficial
owner of Registrable Securities)
By:
---------------------------------------------
Name:
Title:
PLEASE RETURN THE COMPLETED AND EXECUTED NOTICE AND
QUESTIONNAIRE FOR RECEIPT ON OR BEFORE ___________ __, 199__ TO THE COMPANY'S
COUNSEL AT:
Bass, Berry & Sims PLC
2700 First American Center
Nashville, Tennessee 37238-2700
Attn: J. Gentry Barden
A-9
<PAGE> 30
Exhibit B
NOTICE OF TRANSFER PURSUANT TO REGISTRATION STATEMENT
[Name of Trustee]
Genesco Inc.
[Address of Trustee]
Attention: [Corporate Trust Services]
Re: Genesco Inc. (the "Company")
5 1/2% Convertible Subordinated Notes due April 15, 2005 (the
"Notes")
Dear Sirs:
Please be advised that _____________________ has transferred
$___________ aggregate principal amount of the above-referenced Notes pursuant
to an effective Registration Statement on Form [S-1][S-3] (File No. 333-____)
filed by the Company.
We hereby certify that the prospectus delivery requirements, if
any, of the Securities Act of 1933, as amended, have been satisfied and that the
above-named beneficial owner of the Notes is named as a "Selling Holder" in the
Prospectus dated ___________, 199__ or in supplements thereto, and that the
aggregate principal amount of the Notes transferred are the Notes listed in such
Prospectus opposite such owner's name.
Dated:
Very truly yours,
----------------------------
(Name)
By:
----------------------------
(Authorized Signature)
<PAGE> 1
EXHIBIT 99
GENESCO COMPLETES PRIVATE PLACEMENT OF $90 MILLION OF CONVERTIBLE
SUBORDINATED NOTES
NASHVILLE, Tenn., April 6 -- Genesco Inc. (NYSE:GCO) today announced that it has
sold $90 million aggregate principal amount of Convertible Subordinated Notes
due April 15, 2005 in a private placement under Rule 144A of the Securities Act
of 1933 to qualified institutional buyers. The Company may issue an additional
15% aggregate principal amount of Notes to cover over-allotments. The Notes bear
interest at 5.5% and are convertible into the Company's common stock at a
conversion price of $21.045 per share. The Notes are not callable until April
17, 2001.
The Company intends to use the net proceeds from a private placement, estimated
to be approximately $86.5 million, to redeem its 10 3/8% Senior Notes due 2003,
to pay preferred stock dividend arrearages, and for general corporate purposes.
The Notes, and the Common Stock issuable upon conversion thereof, have not been
registered under the Securities Act of 1933, as amended, and may not be offered
or sold in the United States absent registration or an applicable exemption from
registration requirements. This press release shall not constitute an offer to
sell or the solicitation of an offer to buy any securities described herein.
Genesco, based in Nashville, markets and distributes branded footwear. The
Company also operates the Volunteer Leather Company, a leather tanning and
finishing business. Genesco's owned and licensed footwear brands, sold through
both wholesale and retail channels of distribution, include Johnston & Murphy,
Dockers Footwear and Nautica Footwear. Genesco's products are sold at wholesale
to more than 2,700 retailers, including the Company's own network of 587
footwear retail stores in the U.S., operated principally under the names Jarman,
Journeys and Johnston & Murphy.
