<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or (g) of the
Securities Exchange Act of 1934
Pogo Producing Company
(Exact name of registrant as specified in its charter)
Delaware 74-1659398
(State of incorporation (I.R.S. Employer
or organization) Identification No.)
5 Greenway Plaza, Suite 2700
Houston, Texas 77046-0504
(Address of principal executive offices) (Zip Code)
Securities to be registered pursuant to Section 12(b) of the Act:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
5-1/2% Convertible Subordinated New York Stock Exchange
Notes due 2004
Securities to be registered pursuant to Section 12(g) of the Act:
None
(Title of Class)
<PAGE>
Item 1. Description of Registrant's Securities to be Registered.
A description of the Registrant's 5-1/2% Convertible Subordinated
Notes due 2004 (the "Notes") to be registered hereby is contained on pages
36 through 42, inclusive, of the Prospectus dated March 16, 1994, which was
filed with the Securities and Exchange Commission under Rule 424(b)(1) as a
supplement to the Registrant's registration statement on Form S-3 (no.
33-52425), and such description is incorporated herein by this reference.
<PAGE>
Item 2. Exhibits.
4(a). Indenture dated as of March 16, 1994 between Pogo Producing
Company and Shawmut Bank Connecticut, National Association,
as Trustee.
4(b). Form of Note, included in Exhibit 4(a).
<PAGE>
Pogo Producing Company
Signature
Pursuant to the requirements of Section 12 of the Securities Exchange
Act of 1934, the registrant has duly caused this registration statement to be
signed on its behalf by the undersigned, thereto duly authorized.
Pogo Producing Company
(Registrant)
By: /s/ D. STEPHEN SLACK
Name: D. Stephen Slack
Title: Senior Vice President,
Chief Financial Officer
and Treasurer
Date: MAY 12, 1994
POGO PRODUCING COMPANY
TO
SHAWMUT BANK CONNECTICUT, NATIONAL ASSOCIATION
Trustee
___________________
INDENTURE
Dated as of March 23, 1994
___________________
5-1/2% Convertible Subordinated Notes due 2004
___________________________________________
<PAGE>
Pogo Producing Company
Reconciliation and tie between Trust Indenture
Act of 1939 and Indenture, dated as of March 23, 1994
Trust Indenture
Act Section Indenture Section
310(a)(1). . . . . . . . . . . 609
(a)(2) . . . . . . . . . . . . 609
(a)(3) . . . . . . . . . . . . Not Applicable
(a)(4) . . . . . . . . . . . Not Applicable
(a)(5) . . . . . . . . . . . . 609
(b) . . . . . . . . . . . . . 608
. . . . . . . . . . . . . . . 610
(c) . . . . . . . . . . . . . Not Applicable
311(a) . . . . . . . . . . . 613
(b) . . . . . . . . . . . . 613
(c) . . . . . . . . . . . . Not Applicable
312(a) . . . . . . . . . . . 701
. . . . . . . . . . . . . . . 702
(b) . . . . . . . . . . . . 702
(c) . . . . . . . . . . . . 702
313(a) . . . . . . . . . . . 703
(b)(1) . . . . . . . . . . . . Not Applicable
(b)(2) . . . . . . . . . . . 703
(c) . . . . . . . . . . . . 703
(d) . . . . . . . . . . . . 703
314(a) . . . . . . . . . . . 704
(a)(4) . . . . . . . . . . . . 102
1005
(b) . . . . . . . . . . . . Not Applicable
(c)(1) . . . . . . . . . . . . 102
(c)(2) . . . . . . . . . . . . 102
(c)(3) . . . . . . . . . . . . Not Applicable
(d) . . . . . . . . . . . . Not Applicable
(e) . . . . . . . . . . . . 102
(f) . . . . . . . . . . . . 102
1005
- 1 -
<PAGE>
315(a) . . . . . . . . . . . 601
(b) . . . . . . . . . . . . 602
(c) . . . . . . . . . . . . 601
(d) . . . . . . . . . . . . 601
(e) . . . . . . . . . . . . 514
316(a) (last sentence) . . . 101
(a)(1)(A). . . . . . . . . . . 512
(a)(1)(B). . . . . . . . . . . 513
(a)(2) . . . . . . . . . . . . Not Applicable
(b) . . . . . . . . . . . . 508
(c) . . . . . . . . . . . . . 104
317(a)(1). . . . . . . . . . . 503
(a)(2) . . . . . . . . . . . . 504
(b) . . . . . . . . . . . . 1003
318(a) . . . . . . . . . . . 107
(b) . . . . . . . . . . . . Not Applicable
(c) . . . . . . . . . . . . 107
____________________
Note: This reconciliation and tie shall not, for any purpose, be
deemed to be a part of the Indenture.
- 2 -
<PAGE>
TABLE OF CONTENTS
Page
PARTIES. . . . . . . . . . . . . . . . . . . . . 1
RECITALS OF THE COMPANY. . . . . . . . . . . . . . . 1
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS OF GENERAL
APPLICATION. . . . . . . . . . . . . . . . 1
Section 101. Definitions. . . . . . . . . . . . 1
Act . . . . . . . . . . . . . . . . . . . . 2
Affiliate . . . . . . . . . . . . . . . . . 2
Authenticating Agent. . . . . . . . . . . . 2
Board of Directors. . . . . . . . . . . . . 2
Board Resolution. . . . . . . . . . . . . . 2
Business Day. . . . . . . . . . . . . . . . 2
Closing Price . . . . . . . . . . . . . . . 2
Common Stock. . . . . . . . . . . . . . . . 3
Commission. . . . . . . . . . . . . . . . . 3
Company . . . . . . . . . . . . . . . . . . 3
Company Request or Company Order. . . . . . 3
Consolidated Net Tangible Assets. . . . . . 3
Corporate Trust Office. . . . . . . . . . . 3
Corporation . . . . . . . . . . . . . . . . 3
Defaulted Interest. . . . . . . . . . . . . 4
Event of Default. . . . . . . . . . . . . . 4
Exchange Act. . . . . . . . . . . . . . . . 4
Holder. . . . . . . . . . . . . . . . . . . 4
Indenture . . . . . . . . . . . . . . . . . 4
Interest Payment Date . . . . . . . . . . . 4
Issue Date. . . . . . . . . . . . . . . . . 4
Maturity. . . . . . . . . . . . . . . . . . 4
Officers' Certificate . . . . . . . . . . . 4
Opinion of Counsel. . . . . . . . . . . . . 4
Outstanding . . . . . . . . . . . . . . . . 4
Paying Agent. . . . . . . . . . . . . . . . 5
Person. . . . . . . . . . . . . . . . . . . 5
Predecessor Security. . . . . . . . . . . . 5
Redemption Price. . . . . . . . . . . . . . 5
Regular Record Date . . . . . . . . . . . . 5
Repurchase Date . . . . . . . . . . . . . . 6
Repurchase Event. . . . . . . . . . . . . . 6
Repurchase Price. . . . . . . . . . . . . . 6
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<PAGE>
Responsible Officer . . . . . . . . . . . . 6
Securities. . . . . . . . . . . . . . . . . 6
Security. . . . . . . . . . . . . . . . . . 6
Security Register and Security Registrar. . 6
Senior Indebtedness . . . . . . . . . . . . 6
Special Record Date . . . . . . . . . . . . 7
Stated Maturity . . . . . . . . . . . . . . 7
Subsidiary. . . . . . . . . . . . . . . . . 7
Trading Day . . . . . . . . . . . . . . . . 7
Trustee . . . . . . . . . . . . . . . . . . 7
Trust Indenture Act . . . . . . . . . . . . 7
Vice President. . . . . . . . . . . . . . . 7
Section 102. Compliance Certificates and
Opinions . . . . . . . . . . . . . . . . . 7
Section 103. Form of Documents Delivered to
Trustee . . . . . . . . . . . . . . . . . 8
Section 104. Acts of Holders. . . . . . . . . . 9
Section 105. Notices, Etc., to Trustee and
Company . . . . . . . . . . . . . . . . . 9
Section 106. Notice to Holders; Waiver. . . . . 10
Section 107. Conflict with Trust Indenture Act. 10
Section 108. Effect of Headings and Table of
Contents . . . . . . . . . . . . . . . . . 10
Section 109. Successors and Assigns . . . . . . 11
Section 110. Separability Clause. . . . . . . . 11
Section 111. Benefits of Indenture. . . . . . . 11
Section 112. Governing Law. . . . . . . . . . . 11
Section 113. Legal Holidays . . . . . . . . . . 11
Section 114. Rules by Trustee, Paying Agent
and Registrar. . . . . . . . . . . . . . . 11
ARTICLE TWO
SECURITY FORMS . . . . . . . . . . . . . . . . . 12
Section 201. Forms Generally. . . . . . . . . . 12
Section 202. Form of Face of Security . . . . . 12
Section 203. Form of Reverse of Security. . . . 13
Section 204. Form of Trustee's Certificate
of Authentication . . . . . . . . . . . . . 18
Section 205. Form of Election to Convert. . . . 18
Section 206. Form of Assignment . . . . . . . . 19
ARTICLE THREE
THE SECURITIES . . . . . . . . . . . . . . . . . 19
Section 301. Title and Terms. . . . . . . . . . 19
Section 302. Denominations. . . . . . . . . . . 20
Section 303. Execution, Authentication, Delivery
and Dating . . . . . . . . . . . . . . . . 20
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<PAGE>
Section 304. Temporary Securities . . . . . . . 21
Section 305. Registration, Registration of
Transfer and Exchange . . . . . . . . . . 21
Section 306. Mutilated, Destroyed, Lost and
Stolen Securities . . . . . . . . . . . . 22
Section 307. Payment of Interest; Interest
Rights Preserved. . . . . . . . . . . . . 23
Section 308. Persons Deemed Owners. . . . . . . 25
Section 309. Cancellation . . . . . . . . . . . 25
Section 310. Computation of Interest. . . . . . 25
ARTICLE FOUR
SATISFACTION AND DISCHARGE . . . . . . . . . . . 26
Section 401. Satisfaction and Discharge of
Indenture . . . . . . . . . . . . . . . . 26
Section 402. Application of Trust Money . . . . 27
Section 403. Reinstatement. . . . . . . . . . . 27
ARTICLE FIVE
REMEDIES . . . . . . . . . . . . . . . . . . . . 28
Section 501. Events of Default. . . . . . . . . 28
Section 502. Acceleration of Maturity;
Rescission and Annulment . . . . . . . . . 30
Section 503. Collection of Indebtedness and
Suits for Enforcement by Trustee. . . . . . 31
Section 504. Trustee May File Proofs of Claim . 31
Section 505. Trustee May Enforce Claims Without
Possession of Securities. . . . . . . . . . 32
Section 506. Application of Money Collected . . 32
Section 507. Limitation on Suits. . . . . . . . 33
Section 508. Unconditional Right of Holders
to Receive Principal, Premium and Interest
and to Convert . . . . . . . . . . . . . . 34
Section 509. Restoration of Rights and Remedies 34
Section 510. Rights and Remedies Cumulative . . 34
Section 511. Delay or Omission Not Waiver . . . 34
Section 512. Control by Holders . . . . . . . . 35
Section 513. Waiver of Past Defaults. . . . . . 35
Section 514. Undertaking for Costs. . . . . . . 36
Section 515. Waiver of Stay or Extension Laws . 36
ARTICLE SIX
THE TRUSTEE. . . . . . . . . . . . . . . . . . . 36
Section 601. Certain Duties and
Responsibilities . . . . . . . . . . . . . 36
Section 602. Notice of Defaults . . . . . . . . 37
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<PAGE>
Section 603. Certain Rights of Trustee. . . . . 37
Section 604. Not Responsible for Recitals
or Issuance of Securities . . . . . . . . 38
Section 605. May Hold Securities. . . . . . . . 38
Section 606. Money Held in Trust. . . . . . . . 38
Section 607. Compensation and Reimbursement . . 38
Section 608. Disqualification; Conflicting
Interests . . . . . . . . . . . . . . . . 39
Section 609. Corporate Trustee Required;
Eligibility . . . . . . . . . . . . . . . 39
Section 610. Resignation and Removal;
Appointment of Successor . . . . . . . . . 40
Section 611. Acceptance of Appointment by
Successor . . . . . . . . . . . . . . . . 41
Section 612. Merger, Conversion, Consolidation
or Succession to Business . . . . . . . . 41
Section 613. Preferential Collection of Claims
Against Company . . . . . . . . . . . . . 42
Section 614. Appointment of Authenticating
Agent . . . . . . . . . . . . . . . . . . 42
ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE
AND COMPANY . . . . . . . . . . . . . . . 44
Section 701. Company to Furnish Trustee Names
and Addresses of Holders . . . . . . . . . 44
Section 702. Preservation of Information;
Communications To Holders . . . . . . . . 44
Section 703. Reports by Trustee . . . . . . . . 44
Section 704. Reports by Company . . . . . . . . 45
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE . . . . . . . . . . . . . 45
Section 801. Company May Consolidate, Etc.,
Only on Certain Terms . . . . . . . . . . 45
Section 802. Successor Legal Entity Substituted 46
ARTICLE NINE
SUPPLEMENTAL INDENTURES. . . . . . . . . . . . . 46
Section 901. Supplemental Indentures Without
Consent of Holders . . . . . . . . . . . . 46
Section 902. Supplemental Indentures With Consent
of Holders . . . . . . . . . . . . . . . . 47
Section 903. Execution of Supplemental
Indentures 48
Section 904. Effect of Supplemental Indentures. 48
Section 905. Conformity with Trust Indenture
Act . . . . . . . . . . . . . . . . . . . 48
Section 906. Reference in Securities to
Supplemental Indentures. . . . . . . . . . 48
ARTICLE TEN
COVENANTS. . . . . . . . . . . . . . . . . . . . 49
- iv -
<PAGE>
Section 1001. Payment of Principal, Premium
and Interest . . . . . . . . . . . . . . . 49
Section 1002. Maintenance of Office or Agency . 49
Section 1003. Money for Security Payments to
Be Held in Trust . . . . . . . . . . . . . 49
Section 1004. Existence . . . . . . . . . . . . 51
Section 1005. Statement by Officers as to
Default . . . . . . . . . . . . . . . . . 51
Section 1006. Waiver of Certain Covenants . . . 51
ARTICLE ELEVEN
REDEMPTION OF SECURITIES . . . . . . . . . . . . 52
Section 1101. Right of Redemption . . . . . . . 52
Section 1102. Applicability of Article. . . . . 52
Section 1103. Election to Redeem; Notice to
Trustee . . . . . . . . . . . . . . . . . 52
Section 1104. Selection by Trustee of Securities
to Be Redeemed . . . . . . . . . . . . . . 52
Section 1105. Notice of Redemption. . . . . . . 53
Section 1106. Deposit of Redemption Price . . . 53
Section 1107. Securities Payable on Redemption
Date . . . . . . . . . . . . . . . . . . 54
Section 1108. Securities Redeemed in Part . . . 54
ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE. . . . . . . . . . . 55
Section 1201. Right to Require Repurchase.. . . 55
Section 1202. Notice; Method of Exercising
Repurchase Right . . . . . . . . . . . . . 55
Section 1203. Deposit of Repurchase Price . . . 56
Section 1204. Securities Not Repurchased on
Repurchase Date. . . . . . . . . . . . . . 56
Section 1205. Securities Repurchased in Part. . 56
Section 1206. "Change in Control" and
"Repurchase Event" Defined . . . . . . . . 57
ARTICLE THIRTEEN
CONVERSION OF SECURITIES . . . . . . . . . . . . 58
Section 1301. Right of Conversion . . . . . . . 58
Section 1302. Issuance of Common Stock; Time
of Conversion. . . . . . . . . . . . . . . 59
Section 1303. No Adjustments in Respect of
Interest or Dividends. . . . . . . . . . . 60
Section 1304. Adjustment of Conversion Price. . 60
Section 1305. No Fractional Shares. . . . . . . 64
Section 1306. Reclassification, Consolidation,
Merger or Sale of Assets . . . . . . . . . 64
Section 1307. Prior Notice of Certain Events. . 66
Section 1308. Shares to be Reserved; Accounting
Treatment of Consideration . . . . . . . . 66
Section 1309. Registration and Listing of
Shares . . . . . . . . . . . . . . . . . . 67
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<PAGE>
Section 1310. Taxes and Charges . . . . . . . . 67
Section 1311. Trustee and Conversion Agents
Not Liable . . . . . . . . . . . . . . . . 68
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES. . . . . . . . . . . 68
Section 1401. Securities Subordinate to Senior
Indebtedness . . . . . . . . . . . . . . . 68
Section 1402. Payment Over of Proceeds Upon
Dissolution, Etc . . . . . . . . . . . . . 68
Section 1403. Prior Payment to Senior
Indebtedness Upon Acceleration of
Securities . . . . . . . . . . . . . . . . 70
Section 1404. No Payment When Senior
Indebtedness in Default. . . . . . . . . . 70
Section 1405. Acknowledgment of Reliance. . . . 71
Section 1406. Subrogation to Rights of Holders
of Senior Indebtedness. . . . . . . . . . 71
Section 1407. Provisions Solely to Define
Relative Rights. . . . . . . . . . . . . . 71
Section 1408. Trustee to Effectuate
Subordination . . . . . . . . . . . . . . 72
Section 1409. No Waiver of Subordination
Provisions. . . . . . . . . . . . . . . . 72
Section 1410. Notice to Trustee . . . . . . . . 72
Section 1411. Reliance on Judicial Order or
Certificate of Liquidating Agent . . . . . 73
Section 1412. Trustee Not Fiduciary for
Holders of Senior Indebtedness . . . . . . 74
Section 1413. Rights of Trustee as Holder of
Senior Indebtedness; Preservation of
Trustee's Rights . . . . . . . . . . . . . 74
Section 1414. Article Applicable to Paying
Agents . . . . . . . . . . . . . . . . . . 74
Section 1415. Certain Conversions Deemed
Payment . . . . . . . . . . . . . . . . . 74
- vi -
<PAGE>
INDENTURE, dated as of March 23, 1994, between POGO
PRODUCING COMPANY, a corporation duly organized and validly
existing under the laws of the State of Delaware (herein called the
"Company"), having its principal office at 5 Greenway Plaza, Suite 2700,
Houston, Texas 77046, and SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION, a national banking association, as Trustee
(herein called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue
of its 5-1/2% Convertible Subordinated Notes due 2004 (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 ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
Section 101. 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) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, or
defined by Commission rule under the Trust Indenture Act, have
the meanings assigned to them therein;
(3) all accounting terms not otherwise defined herein
have the meanings assigned to them in accordance with generally
accepted accounting principles;
<PAGE>
(4) the words "Article" and "Section" refer to an Article
and Section, respectively, of this Indenture; and
(5) 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.
Certain terms, used principally in Article Twelve, are
defined in that Article.
"Act", when used with respect to any Holder, has the
meaning specified in Section 104.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this
definition, "control" when used with respect to any specified Person means
the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Authenticating Agent" means any Person authorized by the
Trustee to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a copy of a resolution certified
by the Secretary or an Assistant Secretary of the Company to have been
duly adopted by the Board of Directors and to be in full force and effect
on the date of such certification, and delivered to the Trustee.
"Business Day" means each Monday, Tuesday, Wednesday,
Thursday and Friday that is not a day on which banking institutions in
New York, New York, Hartford, Connecticut or Houston, Texas are
authorized or obligated by law or executive order to close.
"Closing Price" for any Trading Day means the last reported
sale price (or, if none on any day, the mean between the bid and asked
quotations on such day) of the securities in question for such date, in either
case on the New York Stock Exchange or, if the securities are not listed
or admitted to trading on such exchange, on the principal national
securities exchange on which such securities are listed or admitted to
trading or, if not listed or admitted to trading on any national securities
exchange, on the National Association of Securities Dealers Automated
Quotations National Market System, or if the securities are not listed or
admitted to trading on any national securities exchange or quoted
- 2 -
<PAGE>
on such National Market System, 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 by the Company for such purpose.
"Common Stock" initially means the class designated as
Common Stock, par value $1.00 per share, of the Company as of the date
hereof.
"Commission" means the Securities and Exchange
Commission, as from time to time constituted, created under the Securities
Exchange Act of 1934, 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 the Trust Indenture Act, then the body performing
such duties at such time.
"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, and in each case
shall include any other obligor upon the Securities.
"Company Request" or "Company Order" means a written
request or order signed in the name of the Company by its Chairman of
the Board, its President or a Vice President, and by its Treasurer, an
Assistant Treasurer, its Secretary or an Assistant Secretary, and delivered
to the Trustee.
"Consolidated Net Tangible Assets" means the total of all
assets included in a consolidated balance sheet of the Company and its
Subsidiaries, prepared in accordance with generally accepted accounting
principles (and as of a date not more than 90 days prior to the date as of
which Consolidated Net Tangible Assets are to be determined), less the
sum of the following items each as included in such balance sheet:
(i) all current liabilities;
(ii) all depreciation, depletion, valuation and other
reserves;
(iii) all goodwill, trade names, trademarks, patents,
unamortized debt discount and expense and other like intangibles;
and
(iv) minority interests in the equity of Subsidiaries.
"Corporate Trust Office" means the principal office of the
Trustee at 777 Main Street, Hartford, Connecticut 06115, at which its
corporate trust business shall be administered.
"Corporation" means a corporation, partnership, association,
company, joint-stock company or business trust.
- 3 -
<PAGE>
"Defaulted Interest" has the meaning specified in
Section 307.
"Event of Default" has the meaning specified in Section 501.
"Exchange Act" means the Securities Exchange Act of 1934,
as amended.
"Holder" means a Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or
as it may from time to time be supplemented or amended by one or more
indentures supplemental hereto entered into pursuant to the applicable
provisions hereof.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
"Issue Date" means March 23, 1994.
"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 or otherwise.
"Officers' Certificate" means a certificate signed by the
principal executive officer and the principal financial officer or principal
accounting officer, of the Company, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company, and who shall be 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 cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for whose payment or redemption money
in the necessary amount has been theretofore deposited with the
Trustee or any Paying Agent (other than the Company) in trust or
set aside and segregated in trust by the Company (if the Company
shall act as its own Paying Agent) for the Holders of such
Securities in accordance with the terms of this Indenture; 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
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(iii) Securities 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 the Outstanding Securities 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 of such other obligor shall be
disregarded and deemed not to be Outstanding, except that, in determining
whether the Trustee shall be protected in relying upon any such request,
demand, authorization, direction, notice, consent or waiver, only Securities
which the Trustee 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 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 of such other obligor.
"Paying Agent" means any Person authorized by the
Company to pay the principal of (and premium, if any) or interest on any
Securities on behalf of the Company.
"Person" means any individual, Corporation 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 306 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.
"Purchase Agreement" has the meaning specified in Section
301.
"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.
"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.
"Regular Record Date" for the interest payable on any
Interest Payment Date means the 1st of March or 1st of September
(whether or not a Business Day), as the case may be, next preceding such
Interest Payment Date.
"Repurchase Date" has the meaning specified in Section
1201.
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"Repurchase Event" has the meaning specified in Section
1206.
"Repurchase Price" has the meaning specified in Section
1201.
"Responsible Officer", when used with respect to the
Trustee, means any person in the Corporate Trust Administration
Department of the Trustee familiar with corporate trust matters.
"Securities" has the meaning set forth in the recitals of this
Indenture.
"Security" means any of the Securities.
"Security Register" and "Security Registrar" have the
respective meanings specified in Section 305.
"Senior Indebtedness" means the principal of, premium, if
any, and unpaid interest (including, without limitation, any interest accruing
subsequent to the commencement of a case or other proceeding under any
bankruptcy or other similar law with respect to the Company) on, and
other obligations in respect of, the following, whether outstanding at the
date hereof or thereafter incurred or created: (a) indebtedness of the
Company for money borrowed (including purchase-money obligations)
evidenced by notes or other written obligations, (b) indebtedness of the
Company evidenced by notes, debentures, bonds or other securities issued
under the provisions of an indenture or similar instrument, (c) indebtedness
secured by any mortgage, pledge, lien or other encumbrance existing on
property which is owned or held by the Company subject to such
mortgage, pledge or encumbrance, whether or not indebtedness secured
thereby shall have been assumed by the Company, (d) obligations of the
Company as lessee under capitalized leases and under leases of property
made as part of any sale and leaseback transactions, (e) obligations of the
Company in respect of letters of credit issued for its account and "swaps"
of interest rates, commodity prices or foreign currencies (and other interest
rate, commodity price or foreign currency hedging agreements) to which
the Company is a party, (f) indebtedness of others of any of the kinds
described in the preceding clauses (a) through (e) assumed or guaranteed
by the Company and (g) renewals, extensions and refundings of, and
indebtedness and obligations of a successor Person issued in exchange for
or in replacement of, indebtedness or obligations of the kinds described in
the preceding clauses (a) through (f); provided, however, that the following
shall not constitute Senior Indebtedness: (i) any indebtedness or obligation
which by its terms refers explicitly to the Securities and states that such
indebtedness or obligation shall not be senior in right of payment thereto,
(ii) any indebtedness or obligation of the Company in respect of the
Securities and (iii) any indebtedness or obligation of the Company to any
Subsidiary. Notwithstanding the foregoing, all indebtedness and
obligations of the Company in respect of each of the following shall rank
equally with the Securities and shall not constitute "Senior Indebtedness"
hereunder: (x) the 8% Convertible Subordinated Debentures due 2005 and
(y) the 10.25% Convertible Subordinated Notes due 1999.
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"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Trustee pursuant to Section 307.
"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 or other voting or managing ownership interest 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 which
ordinarily has voting power for the election of directors, whether at all
times or only so long as no senior class of stock has such voting power by
reason of any contingency.
"Trading Day", with respect to any stock exchange or
securities market, means any Monday, Tuesday, Wednesday, Thursday or
Friday on which such stock exchange or securities market is open for
business.
"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 Trust Indenture Act of
1939 as in force at the date as of which this instrument was executed,
except as provided in Section 905; provided, however, that in the event the
Trust Indenture Act is amended after such date, Trust Indenture Act means,
to the extent required by any such amendment, the Trust Indenture Act as
so amended.
"Vice President", when used with respect to the Company
or the Trustee, means any vice president, whether or not designated by a
number or a word or words added before or after the title "vice president".
Section 102. Compliance Certificates and Opinions.
Upon any application or request by the Company to the
Trustee to take any action under any provision of this Indenture, the
Company shall furnish to the Trustee an Officers' Certificate stating that
all conditions precedent, if any, provided for in this Indenture relating to
the proposed action have been complied with and an Opinion of Counsel
stating that in the opinion of such counsel all such conditions precedent,
if any, have been complied with, except that in the case of any such
application or request as to which the furnishing of such documents is
specifically required by any provision of this Indenture relating to such
particular application or request, no additional certificate or opinion need
be furnished.
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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 each such
individual, he has made such examination or investigation as is
necessary to enable him to express an informed opinion as to
whether or not such covenant or condition has been complied with;
and
(4) a statement as to whether, in the opinion of each
such individual, such condition or covenant has been complied
with.
Section 103. Form of Documents Delivered to Trustee.
In any case where several matters are required to be
certified by, or covered by an opinion of, any specified Person, it is not
necessary that all such matters be certified by, or covered by the opinion
of, only one such Person, or that they be so certified or covered by only
one document, but one such Person may certify or give an opinion with
respect to some matters and one or more other such Persons as to other
matters, and any such Person may certify or give an opinion as to such
matters in one or several documents.
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows that the
certificate or opinion or representations with respect to the matters upon
which his certificate or opinion is based are erroneous. Any such
certificate or Opinion of Counsel may be based, insofar as it relates to
factual matters, upon a certificate or opinion of, or representations by, an
officer or officers of the Company stating that the information with respect
to such factual matters is in the possession of the Company, unless such
counsel knows 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 104. Acts of Holders.
(a) Any request, demand, authorization, direction, notice,
consent, waiver
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or other action provided by this Indenture to be given or
taken by Holders may be embodied in and evidenced by one or more
instruments of substantially similar tenor signed by such Holders in person
or by agent duly appointed in writing; and, except as herein otherwise
expressly provided, such action shall become effective when such
instrument or instruments are delivered to the Trustee and, where it is
hereby expressly required, to the Company. Such instrument or
instruments (and the action embodied therein and evidenced thereby) are
herein sometimes referred to as the "Act" of the Holders signing such
instrument or instruments. Proof of execution of any such instrument or
of a writing appointing any such agent shall be sufficient for any purpose
of this Indenture and (subject to Section 601) conclusive in favor of the
Trustee and the Company, if made in the manner provided in this Section.
(b) The fact and date of the execution by any Person of
any such instrument or writing may be proved by the affidavit of a witness
of such execution or by a certificate of a notary public or other officer
authorized by law to take acknowledgments of deeds, certifying that the
individual signing such instrument or writing acknowledged to him the
execution thereof. Where such execution is by a signer acting in a
capacity other than his individual capacity, such certificate or affidavit
shall also constitute sufficient proof of his authority. The fact and date of
the execution of any such instrument or writing, or the authority of the
Person executing the same, may also be proved in any other manner which
the Trustee deems sufficient.
(c) The ownership of Securities shall be proved by the
Security Register.
(d) Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued
upon the registration of transfer thereof or in exchange therefor or in lieu
thereof in respect of anything done, omitted or suffered to be done by the
Trustee or the Company in reliance thereon, whether or not notation of
such action is made upon such Security.
Section 105. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, waiver or Act of Holders or other document provided or permitted
by this Indenture to be made upon, given or furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if made, given, furnished or filed in writing to
or with the Trustee at its Corporate Trust Office, Attention:
Corporate Trust Administration Department, or
(2) the Company by the Trustee or by any Holder shall
be sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing
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and mailed, first-class postage
prepaid, to the Company addressed to it at the address of its
principal office specified in the first paragraph of this instrument or
at any other address previously furnished in writing to the Trustee
by the Company. If a notice or communication is mailed in the
manner provided above, it is duly given, whether or not received
by the addressee.
Section 106. Notice to Holders; Waiver.
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 his address as it appears in the
Security Register, not later than the latest date, and not earlier than the
earliest date, prescribed for the giving of such notice. In any case where
notice to Holders is given by mail, neither the failure to mail such notice,
nor any defect in any notice so mailed, to any particular Holder shall affect
the sufficiency of such notice with respect to other Holders. Where this
Indenture provides for notice in any manner, such notice may be waived
in writing by the Person entitled to receive such notice, either before or
after the event, and such waiver shall be the equivalent of such notice.
Waivers of notice by Holders shall be filed with the Trustee, but such
filing shall not be a condition precedent to the validity of any action taken
in reliance upon such waiver. If the Company mails a notice or
communication to the Holders, it shall mail a copy to the Trustee and each
Registrar, Paying Agent or co-registrar. If a notice or communication is
mailed in the manner provided above, it is duly given, whether or not
received by the addressee.
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 107. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with
another provision hereof which is required to be included in this Indenture
by any of the provisions of the Trust Indenture Act, such required
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.
Section 108. 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.
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Section 109. Successors and Assigns.
All covenants and agreements in this Indenture by the
Company shall bind its successors and assigns, whether so expressed or
not.
Section 110. Separability Clause.
In case any provision in this Indenture or in 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 111. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Indebtedness and the Holders
of Securities, any benefit or any legal or equitable right, remedy or claim
under this Indenture.
Section 112. Governing Law.
This Indenture and the Securities shall be governed by and
construed in accordance with the laws of the State of New York, without
regard to the principles of conflicts of law.
Section 113. Legal Holidays.
In any case where any Interest Payment Date, Redemption
Date or Stated Maturity of any Security or the last date on which a Holder
has the right to convert his Securities shall not be a Business Day, then
(notwithstanding any other provision of this Indenture or of the Securities)
payment of interest or principal (and premium, if any) or conversion of the
Securities need not be made on such date, but may be made on the next
succeeding Business Day with the same force and effect as if made on the
Interest Payment Date or Redemption Date, or at the Stated Maturity, or
on such last day for conversion, provided that no interest shall accrue for
the period from and after such Interest Payment Date, Redemption Date or
Stated Maturity, as the case may be.
Section 114. Rules by Trustee, Paying Agent and Registrar.
The Trustee may make reasonable rules for action by or a
meeting of Holders. The Registrar and Paying Agent may make
reasonable rules for their functions.
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ARTICLE TWO
SECURITY FORMS
Section 201. Forms Generally.
The Securities and the Trustee's certificates of authentication
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 as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The 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, all as determined by the
officers executing such Securities, as evidenced by their execution of such
Securities.
Section 202. Form of Face of Security.
POGO PRODUCING COMPANY
5-1/2% Convertible Subordinated
Note due 2004
No. _________________ $______________
POGO PRODUCING COMPANY, a corporation duly
organized and existing under the laws of Delaware (herein called the
"Company", which term includes any successor Person under the Indenture
hereinafter referred to), for value received, hereby promises to pay to
________________, or registered assigns, the principal sum of
___________________________________________ Dollars on March 15,
2004, and to pay interest thereon from March 23, 1994 or from the most
recent Interest Payment Date to which interest has been paid or duly
provided for, semiannually on March 15 and September 15, in each year,
commencing September 15, 1994, at the rate of 5-1/2% per annum until the
principal hereof is paid or made available for payment. Interest on the
Securities shall be computed on the basis of a 360-day year consisting of
twelve 30-day months. 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 March 1st or
September 1st (whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such
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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
whereof 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 premium, if any) and interest on this
Security will be made at the office or agency of the Company maintained
for that purpose in New York, New York, 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. The Company, however, may pay
principal and interest by check payable in such money. At the option of
the Company, payment of interest may be made by check mailed on or
before the due date to the address of the Person entitled thereto as such
address shall appear in the Security Register.
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. The
Indenture includes limitations on the right of the Holder to institute a
proceeding, judicial or otherwise, with respect to the Indenture, for the
appointment of a receiver or trustee, or for any other remedy under the
Indenture.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under the
Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this
instrument to be duly executed under its corporate seal.
Dated:
POGO PRODUCING COMPANY
By:___________________________
Attest:
______________________________
Section 203. Form of Reverse of Security.
This Security is one of a duly authorized issue of Securities
of the Company
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designated as its 5-1/2% Convertible Subordinated Notes
due 2004 (herein called the "Securities"), limited in aggregate principal
amount to $75,000,000 (subject to increase to up to $86,250,000 aggregate
principal amount), issued and to be issued under an Indenture, dated as of
March 23, 1994 (herein called the "Indenture"), between the Company and
Shawmut Bank Connecticut, National Association, as Trustee (herein called
the "Trustee", which term includes any successor trustee under the
Indenture), to which Indenture and all indentures supplemental thereto
reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee, the holders of Senior Indebtedness and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
Subject to the provisions of the Indenture, the Holder hereof
has the right, at his option, at any time prior to maturity, to convert the
principal amount of this Security (or any portion of the principal amount
hereof which is an integral multiple of $1,000) into fully paid and
nonassessable shares of Common Stock of the Company at the conversion
price of $22.188 of principal amount of this Security per share of Common
Stock, subject to such adjustment, if any, of the conversion price and the
securities or other property issuable upon conversion as may be required
by the provisions of the Indenture (except that, in case this Security (or
any portion hereof) shall be called for redemption before maturity, such
right shall terminate at the close of business on the Business Day
immediately preceding the Redemption Date for this Security (or such
portion hereof), unless in any such case the Company shall default in
payment due upon such redemption), but only upon surrender of this
Security for the purpose of such conversion to the Company at the
designated office or agency of the Company in New York, New York or
any other office or agency designated by the Company for such purpose
pursuant to the provisions of the Indenture, accompanied by written notice
that the Holder elects to convert this Security or any portion hereof and
specifying the name or names (with address or addresses) in which a
certificate or certificates for shares of Common Stock are to be issued and
(if so required by the Company or the Trustee) by a written instrument or
instruments of transfer in form satisfactory to the Company and the Trustee
duly executed by the registered Holder or his duly authorized legal
representative and transfer tax stamps or funds therefor, if required
pursuant to the provisions of the Indenture and, in case such surrender
shall be made during the period from the close of business on any Regular
Record Date to the opening of business on the next succeeding Interest
Payment Date (unless this Security or the portion thereof being converted
has been called for redemption), also accompanied by payment in funds
acceptable to the Company of an amount equal to the interest payable on
such Interest Payment Date on the principal amount of this Security then
being converted. Subject to the aforesaid requirement with respect to
payment in the event of conversion after the close of business on a Regular
Record Date, no adjustment is to be made on conversion for interest
accrued hereon or for dividends on shares of Common Stock issued on
conversion; provided, however, that upon a call for redemption by the
Company, accrued and unpaid interest to the Redemption Date shall be
payable with respect to Notes converted after the redemption call and prior
to the Redemption Date. No fractional shares are issuable upon any
conversion, but in lieu thereof the Company shall pay therefor in cash
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as provided in the Indenture.
The Securities are subject to redemption upon not less than
30 nor more than 60 days' notice by first-class mail, postage prepaid, at
any time on or after March 15, 1998, as a whole or in part, at the election
of the Company, at the following Redemption Prices (expressed as
percentages of the principal amount): if redeemed during the 12-month
period beginning March 15 of the years indicated,
Year Redemption Price Year Redemption Price
1998 . . . . . 103.30% 2001 . . . . . 101.65%
1999 . . . . . 102.75% 2002 . . . . . 101.10%
2000 . . . . . 102.20% 2003 . . . . . 100.55%
; provided, however, that in the case of any such redemption, the
Redemption Price shall include accrued and unpaid interest to the
Redemption Date, but 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 redemption or conversion of this Security in
part only, a new Security or Securities for the unredeemed or unconverted
portion hereof will be issued in the name of the Holder hereof upon the
cancellation hereof.
Under certain circumstances involving a Change in Control
(as defined in the Indenture), the Company may be required to offer to
purchase the Securities at a purchase price equal to 100% of the principal
amount thereof, together with accrued and unpaid interest to the
Repurchase Date.
The indebtedness evidenced by the Securities is, to the
extent and in the manner provided in the Indenture, expressly subordinate
and subject in right of payment to the prior payment in full of any Senior
Indebtedness of the Company or provision for such payment, whether
outstanding at the date of the Indenture or thereafter incurred, and this
Security is issued subject to the provisions of the Indenture with respect
thereto. Each Holder of this Security, by his acceptance hereof, agrees to
and shall be bound by such provisions of the Indenture and authorizes and
directs the Trustee in his behalf to take such action as may be necessary
or appropriate to effectuate such subordination and appoints the Trustee
his attorney-in-fact for any and all such purposes.
If an Event of Default, as defined in the Indenture, shall
occur and be continuing, the principal of all the Securities may be declared
due and payable in the manner and with the effect provided in the
Indenture.
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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 the
consent of the Holders of at least a majority in aggregate principal amount
of the Securities at the time Outstanding. The Indenture also contains
provisions permitting the Holders of at least a majority in aggregate
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
upon the registration of transfer hereof or in exchange herefor or in lieu
hereof, whether or not notation of such consent or waiver is made upon
this Security.
The Indenture provides that no Holder of any Security may
enforce any remedy under the Indenture except in the case of failure of the
Trustee to act after notice of default and after request by the Holders of
25% in aggregate principal amount of the Outstanding Securities and the
offer and, if requested, provision to the Trustee of reasonable indemnity
satisfactory to the Trustee; provided, however, that such provision shall not
prevent the Holder hereof from enforcing payment of the principal of (and
premium, if any) or interest on this Security after the same shall have
become due.
Initially, the Trustee will act as Paying Agent, Security
Registrar and as the agent where notices and demands to or upon the
Company in respect of the Notes may be served. The Company may
appoint and change any Paying Agent, Security Registrar or agent for
notices without notice, other than notice to the Trustee. The Company or
one of its subsidiaries may act as Paying Agent, Security Registrar or agent
for notices.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, subject to the subordination
provisions, to pay the principal of (and premium, if any) and interest on
this Security at the times, place 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 therein set forth, the transfer of this Security is registrable in
the Security Register, upon surrender of this Security for registration of
transfer at the office or agency of the Company in New York, New York,
duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar and 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.
The Securities are issuable only in registered form without coupons in
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denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set
forth, Securities are exchangeable for a like aggregate principal amount of
Securities of a different authorized denomination, as requested by the
Holder surrendering the same.
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 cover any tax or other governmental charge payable
in connection therewith.
Prior to due presentment 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 this Security is registered as
the owner hereof for all purposes, whether or not this Security be overdue,
and neither the Company, the Trustee nor any such agent shall be affected
by notice to the contrary.
This Security and the rights of the Holder hereof shall be
governed by and construed in accordance with the laws of the State of
New York without regard to principles of 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.
OPTION OF HOLDER TO ELECT PURCHASE
If you want to elect to have this Security purchased by the
Company pursuant to Article Twelve of the Indenture, check the box: [ ]
If you want to elect to have only part of this Security
purchased by the Company pursuant to Article Twelve of the Indenture,
state the amount (in integral multiples of $1,000): $___________
Date: ____________ Your Signature: ___________________
(Sign exactly as your
name appears on the
other side of this
Security)
Your Social Security or
Tax Identification Number: _____________________________________
Signature Guarantee: ___________________________________________
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The
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Securities Transfer Agents Medallion Program (STAMP); (2) The New
York Stock Exchange Medallion Signature Program (MSP); or (3) The
Stock Exchange Medallion Program (SEMP).
Section 204. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the within-
mentioned Indenture.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By____________________________
Authorized Signatory
Section 205. Form of Election to Convert.
To Pogo Producing Company:
The undersigned owner of this Security hereby irrevocably
exercises the option to convert this Security, or the portion below
designated, into shares of Common Stock of Pogo Producing Company in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon conversion, together
with any check in payment for fractional shares, be issued in the name of
and delivered to the undersigned, unless a different name has been
indicated in the assignment below. If shares are to be issued in the name
of a Person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Dated:
Portion of Security to be converted
($1,000 or an integral multiple thereof):
$_______________ ___________________________
Signature (for conversion only)
Please Print or Type Name and
Address, Including Zip Code,
and Social Security or Other
Identifying Number:
_________________________
_________________________
_________________________
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Section 206. Form of Assignment.
ASSIGNMENT
For value received ___________________________________________
hereby sell(s), assign(s) and transfer(s) unto _______________
_______________________________________, ______________________
[Please insert social security or other identifying number of assignee], the
within Security, hereby irrevocably constituting and appointing
______________________________ attorney to transfer the said Security
on the books of the Company, with full power of substitution in the
premises.
Date: _____________________ ________________________________
Signature(s)
Note: The signature(s) to this
assignment must correspond
with the name as it appears
upon the face of the within
Security in every particular,
without alteration, or
enlargement or any change
whatever.
_________________________
Signature Guarantee
Note: Signature(s) must be guaranteed by an eligible guarantor institution
which is a member of one of the following recognized signature
Guarantee Programs: (1) The Securities Transfer Agents Medallion
Program (STAMP); (2) The New York Stock Exchange Medallion
Signature Program (MSP); or (3) The Stock Exchange Medallion
Program (SEMP).
ARTICLE THREE
THE SECURITIES
Section 301. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to the sum of
(a) $75,000,000 and (b) such aggregate principal amount (which may not
exceed $11,250,000 aggregate principal amount) of Securities, if any, as
shall be purchased by the "Underwriters" at the "Second Closing Time"
(both as defined in the Purchase Agreement) pursuant to and in accordance
with the terms and provisions of the Purchase Agreement, dated
March 16, 1994, between the Company and Merrill Lynch & Co., Merrill
Lynch, Pierce, Fenner & Smith Incorporated,
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Goldman, Sachs & Co. and PaineWebber Incorporated, except for Securities
authenticated and delivered upon registration of transfer of, or in exchange
for, or in lieu of, other Securities pursuant to Section 304, 305, 306, 906,
1108, 1205 or 1301.
The Securities shall be known and designated as the "5-1/2%
Convertible Subordinated Notes due 2004" of the Company. Their Stated
Maturity shall be March 15, 2004 and they shall bear interest at the rate
of 5-1/2% per annum, from March 23, 1994 or from the most recent Interest
Payment Date to which interest has been paid or duly provided for, as the
case may be, payable semiannually on March 15 and September 15,
commencing September 15, 1994, until the principal thereof is paid or
made available for payment.
The principal of (and premium, if any) and interest on the
Securities shall be payable at the office or agency of the Company in New
York, New York, maintained for such purpose and at any other office or
agency maintained by the Company for such purpose; provided, however,
that at the option of the Company payment of interest may be made by
check mailed on or before the due date to the address of the Person
entitled thereto as such address shall appear in the Security Register.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be subject to repurchase at the option
of the Holders as provided in Article Twelve.
The Securities shall be convertible as provided in Article
Thirteen.
The Securities shall be subordinated in right of payment to
Senior Indebtedness as provided in Article Fourteen.
Section 302. Denominations.
The Securities shall be issuable only in registered form
without coupons and only in denominations of $1,000 and any integral
multiple thereof.
Section 303. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company
by its Chairman of the Board, its President or one of its Vice Presidents,
under its corporate seal reproduced thereon attested by its Secretary or one
of its Assistant Secretaries. The signature of any of these officers on the
Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the 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
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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
deliver 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 by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
Section 304. Temporary Securities.
Pending the preparation of definitive Securities, the
Company may execute, and upon Company Order the Trustee shall
authenticate and deliver, temporary Securities which are printed,
lithographed, typewritten, mimeographed or otherwise produced, in any
authorized denomination, substantially of the tenor of the definitive
Securities in lieu of which they are issued and with such appropriate
insertions, omissions, substitutions and other variations as the officers
executing such Securities may determine, as evidenced by their execution
of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 1002, without charge to the Holder. Upon surrender for
cancellation of any one or more temporary Securities the Company shall
execute and the Trustee shall authenticate and deliver in exchange therefor
a like principal amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all
respects be entitled to the same benefits under this Indenture as definitive
Securities.
Section 305. Registration, Registration of Transfer and Exchange.
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 1002 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
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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 1002
for such purpose, the Company shall execute, and the Trustee shall
authenticate and deliver, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations
and of a like aggregate principal amount.
At the option of the Holder, 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, the Company shall execute, and the Trustee shall
authenticate and deliver, 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 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.
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 304,
906, 1108, 1205 or 1301 not involving any transfer.
Neither the Company nor the Trustee nor any agent of either
shall be required (i) to issue, register the transfer of or exchange any
Security during a period beginning at the opening of business 15 days
before the day of the mailing of a notice of redemption of Securities
selected for redemption under Section 1104 and ending at the close of
business on the day of such mailing or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part,
except the unredeemed portion of any Security being redeemed in part.
Section 306. Mutilated, Destroyed, Lost and Stolen Securities.
If any mutilated Security is surrendered to the Trustee, the
Company shall execute and the Trustee shall authenticate and deliver in
exchange therefor a new Security
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<PAGE>
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 actual notice to the Company or the Trustee that such Security
has been acquired by a bona fide purchaser, the Company shall execute
and upon a Company Request the Trustee shall authenticate and deliver,
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.
Upon the issuance of any new Security under this Section,
the Company may require the payment of a sum sufficient to cover any tax
or other governmental charge that may be imposed in relation thereto and
any other reasonable expenses (including the expenses of the Trustee)
connected therewith.
Every new Security issued pursuant to this Section in lieu
of any mutilated, destroyed, lost or stolen Security shall constitute an
original additional contractual obligation of the Company, whether or not
the mutilated, destroyed, lost or stolen Security shall be at any time
enforceable by anyone, and shall be entitled to all the benefits of this
Indenture equally and proportionately with any and all other Securities duly
issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies with respect
to the replacement or payment of mutilated, destroyed, lost or stolen
Securities.
Section 307. 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:
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<PAGE>
(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 at his address as it appears in the Security Register,
not less than 10 days prior to such Special Record Date. Notice of
the proposed payment of such Defaulted Interest and the Special
Record Date therefor having been so mailed, such Defaulted
Interest shall be paid to the Persons in whose names the Securities
(or 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 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, 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.
In the case of any Security which is converted after any
Regular Record Date and on or prior to the next succeeding Interest
Payment Date (other than any Security whose Maturity is prior to such
Interest Payment Date), interest whose Stated Maturity is on such Interest
Payment Date shall be payable on such Interest Payment Date
notwithstanding such conversion, and such interest (whether or not
punctually paid or duly provided for) shall be paid to the Person in whose
name that Security (or one or more
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<PAGE>
Predecessor Securities) is registered at
the close of business on such Regular Record Date. Upon a call for
redemption by the Company, accrued and unpaid interest to the
Redemption Date shall be payable with respect to Securities converted after
the notice of redemption has been mailed and prior to the Redemption
Date. Except as otherwise expressly provided in this paragraph, in the
case of any Security which is converted, interest whose Stated Maturity is
after the date of conversion of such Security shall not be payable.
Section 308. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the
Trustee may treat the Person in whose name such Security is registered as
the owner of such Security for the purpose of receiving payment of and
principal of (and premium, if any) and (subject to Section 307) 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 309. Cancellation.
All Securities surrendered for payment, redemption,
registration of transfer or exchange or conversion shall, if surrendered to
any Person other than the Trustee, be delivered to the Trustee and shall be
promptly cancelled by it. The Company may at any time deliver to the
Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by
the Trustee. No Securities shall be authenticated in lieu of or in exchange
for any Securities cancelled as provided in this Section, except as expressly
permitted by this Indenture. All cancelled Securities held by the Trustee
shall be disposed of as directed by a Company Order. The Company shall,
within 120 days of a request therefor by the Trustee, deliver a Company
Order directing the destruction of cancelled Securities. If the Company
fails to respond to such a request within such 120-day period, the Trustee
may destroy any or all cancelled Securities, in which case the Trustee shall
deliver a certificate as to such destruction to the Company.
Section 310. Computation of Interest.
Interest on the Securities shall be computed on the basis of
a 360-day year consisting of twelve 30-day months.
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ARTICLE FOUR
SATISFACTION AND DISCHARGE
Section 401. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange
of Securities herein expressly provided for), and the Trustee, on demand
of and 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 306 and (ii) Securities for
whose payment money has theretofore been deposited in
trust or segregated and held in trust by the Company and
thereafter repaid to the Company or discharged from such
trust, as provided in Section 1003) have been delivered to
the Trustee for cancellation; or
(B) all such Securities not theretofore delivered
to the Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their
Stated Maturity within one year, or
(iii) are to be called for redemption within
one year under arrangements satisfactory to the
Trustee for the giving of notice of redemption by
the Trustee in the name, and at the expense, of the
Company,
and the Company, in the case of (i), (ii) or (iii) above, has
irrevocably deposited or caused to be irrevocably deposited
with the Trustee as trust funds 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 (and premium, if
any) and interest 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; and
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(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.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 607, the
obligations of the Trustee to any Authenticating Agent under Section 614
and, if money shall have been deposited with the Trustee pursuant to
subclause (B) of clause (1) of this Section, the obligations of the Trustee
under Section 402 and the last paragraph of Section 1003 shall survive.
Section 402. Application of Trust Money.
Subject to the provisions of the last paragraph of
Section 1003, all money deposited with the Trustee pursuant to
Section 401 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 premium, if any) and interest for whose
payment such money has been deposited with the Trustee. All moneys
deposited with the Trustee pursuant to Section 401 (and held by it or any
Paying Agent) for the payment of Securities subsequently converted shall
be returned to the Company upon Company Request.
Section 403. Reinstatement.
If the Trustee or Paying Agent is unable to apply any money
deposited with respect to Securities of any series in accordance with
Section 401 by reason of any legal proceeding or by reason of any order
or judgment of any court or governmental authority enjoining, restraining
or otherwise prohibiting such application, the Company's obligations under
this Indenture with respect to the Securities of such series and the
Securities of such series shall be revived and reinstated as though no
deposit had occurred pursuant to Section 401 until such time as the Trustee
or Paying Agent is permitted to apply all such money in accordance with
Section 401; provided, however, that if the Company has made any
payment of principal of (or premium, if any) or interest on any Securities
because of 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.
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ARTICLE FIVE
REMEDIES
Section 501. Events of Default.
"Event of Default", wherever 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 Fourteen 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) default in the payment of any interest upon any
Security when it becomes due and payable, whether or not such
payment is prohibited by the provisions of Article Fourteen, and
continuance of such default for a period of 30 days; or
(2) default in the payment of the principal of (or
premium, if any, on) any Security at its Maturity, whether or not
such payment is prohibited by the provisions of Article Fourteen;
or
(3) default in the payment of the Repurchase Price in
respect of any Security on the Repurchase Date and continuance of
such default for more than 10 days thereafter in accordance with
the provisions of Article Twelve, whether or not such payment is
prohibited by the provisions of Article Fourteen; or
(4) default in the performance, or breach, of any
covenant or warranty of the Company in this Indenture (other than
a covenant or warranty, a default in whose performance or whose
breach is elsewhere in this Section specifically dealt with), and
continuance of such default or breach for a period of 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) default under any bond, debenture, note or other
evidence of indebtedness for money borrowed or under any
mortgage, indenture or other instrument under which there may be
issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company or under any
guarantee of payment by the Company of indebtedness for money
borrowed, whether such indebtedness or guarantee now exists or
shall hereafter be created, which default extends beyond any period
of grace provided with respect thereto and which default relates to
(a) the obligation to pay the principal of or interest on any such
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<PAGE>
indebtedness or guarantee or (b) an obligation other than the
obligation to pay the principal of or interest on any such
indebtedness, if the effect of such event of default is to cause the
acceleration of a principal amount of such indebtedness and such
other indebtedness or guarantee shall not have been paid within ten
days after there has been given 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 event of default and stating that such notice
is a "Notice of Default" hereunder; provided, however, that no
default under this Section 501(5) shall exist if all such defaults do
not relate to such indebtedness or such guarantees with an
aggregate principal amount in excess of 5% of Consolidated Net
Tangible Assets; and provided further, that if any such event of
default has been cured or waived and any acceleration with respect
thereto rescinded, or if such other indebtedness has been repaid or
otherwise discharged, the Event of Default arising under this
Section 501(5) by virtue thereof shall not be deemed to have
occurred and any acceleration under this Section 501(5) pursuant
to Section 502 hereof shall ipso facto be rescinded so long as such
rescission does not conflict with any judgment or decree;
(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
(7) the commencement by the Company of a voluntary
case or proceeding under any applicable federal or state bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable federal or state bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or relief under
any applicable federal or state law, or the consent by it to the filing
of such petition or to the appointment of or taking possession by a
custodian, receiver, liquidator, assignee, trustee, sequestrator or
similar official of the Company or of any substantial part of its
property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay its
debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any
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<PAGE>
such action.
Section 502. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default occurs and is continuing, then and in
every such case the Trustee or the Holders of not less than 25% in
aggregate principal amount of the Outstanding Securities may declare the
principal of all the Securities and the interest accrued thereon to be due
and payable immediately, by a notice in writing to the Company (and to
the Trustee if given by Holders) and upon any such declaration such
principal and interest shall become immediately due and payable.
At any time after such a declaration of acceleration has been
made and before a judgment or decree for payment of the money due has
been obtained by the Trustee as hereinafter in this Article provided, the
Holders of a majority in aggregate 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
(A) all overdue interest on all Securities,
(B) the principal of (and premium, if any, on)
any Securities which have become due otherwise than by
such declaration of acceleration and 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 the rate borne by
the Securities, and
(D) all sums paid or advanced or liabilities
incurred 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 nonpayment of
the principal of Securities which have become due solely by such
declaration of acceleration, have been cured or waived as provided
in Section 513.
No such rescission shall affect any subsequent default or impair any right
consequent thereon.
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Section 503. 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 (or
premium, if any, on) 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 premium, if any) and interest, and, to
the extent that payment of such interest shall be legally enforceable,
interest on any overdue principal (and premium, if any) and on any
overdue interest, at the rate borne by the Securities, 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.
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 by such appropriate judicial proceedings as the Trustee,
being advised by counsel, 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 504. Trustee May File Proofs of Claim.
In case of the pendency of any receivership, insolvency,
liquidation, bankruptcy, reorganization, arrangement, adjustment,
composition or other judicial proceeding relative to the Company or any
other obligor upon the Securities or the property of the Company or of
such other obligor or their creditors, the Trustee (irrespective of whether
the principal of the Securities shall then be due and payable as therein
expressed or by declaration or otherwise and irrespective of whether the
Trustee shall have made any demand on the Company for the payment of
overdue principal or interest) shall be entitled
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and empowered, by intervention in such proceeding or otherwise,
(i) to file and prove a claim for the whole amount of
principal (and premium, if any) and interest owing and unpaid in
respect of the Securities, subject to the provisions of Article
Fourteen, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel)
and of the Holders allowed in such judicial proceeding, subject to
the provisions of Article Fourteen, and
(ii) subject to the provisions of Article Fourteen, to
collect and receive any moneys or other property payable or
deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
other similar official in any such judicial proceeding is hereby authorized
by each Holder to make such payments to the Trustee and, in the event
that the Trustee shall consent to the making of such payments directly to
the Holders, to pay to the Trustee any amount due it for the reasonable
compensation, expenses, disbursements and advances of the Trustee, its
agents and counsel, and any other amounts due the Trustee under
Section 607.
Nothing herein contained shall be deemed to authorize the
Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder in any such
proceeding.
Section 505. 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, its agents and counsel, be for the ratable benefit of the Holders of
the Securities in respect of which such judgment has been recovered. In
any such proceeding brought by the Trustee, the Trustee shall be deemed
to represent all Holders without the necessity of joining any Holders as
parties.
Section 506. Application of Money Collected.
Subject to Article Fourteen, any money collected by the
Trustee pursuant to this Article shall be applied in the following order, at
the date or dates fixed by the Trustee and, in the case of the distribution
of such money on account of principal (or premium, if
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any) 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 costs and expenses in
connection with the collection of such money and to the payment
of all amounts due the Trustee under Section 607; and
SECOND: To the payment of the amounts then due and
unpaid for principal of (and premium, if any) and interest 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 (and premium, if any) and interest,
respectively.
Section 507. 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 offer and, if requested,
provide to the Trustee indemnity satisfactory to the Trustee against
the costs, expenses and liabilities to be incurred in compliance with
such request;
(4) the Trustee for 60 days after its receipt of such
notice, request and offer and, if requested, provision 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 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 Holders, or to obtain or to seek to obtain priority or preference over
any other Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all the
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Holders.
Section 508. Unconditional Right of Holders to Receive Principal,
Premium 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, subject to the subordination provisions in Article Fourteen,
to receive payment of the principal of (and premium, if any) and (subject
to Section 307) interest on such Security on the respective Stated
Maturities expressed in such Security (or, in the case of redemption, on the
Redemption Date) and to institute suit for the enforcement of any such
payment, and such rights shall not be impaired without the consent of such
Holder.
Section 509. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding
to enforce any right or remedy under this Indenture and such proceeding
has been discontinued or abandoned for any reason, or has been
determined adversely to the Trustee or to such Holder, then and in every
such case, subject to any determination in such proceeding, the Company,
the Trustee and the Holders shall be restored severally and respectively to
their former positions hereunder and thereafter all rights and remedies of
the Trustee and the Holders shall continue as though no such proceeding
had been instituted.
Section 510. 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 306, no right or remedy herein conferred
upon or reserved to the Trustee or to the Holders is intended to be
exclusive of any other right or remedy, and every right and remedy shall,
to the extent permitted by law, be cumulative and in addition to every
other right and remedy given hereunder or now or hereafter existing at law
or in equity or otherwise. The assertion or employment of any right or
remedy hereunder, or otherwise, shall not prevent the concurrent assertion
or employment of any other appropriate right or remedy.
Section 511. 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 an acquiescence therein. Every right and remedy
given by this Article or by law to the Trustee or to the Holders may be
exercised from time to time, and as often as may be deemed expedient, by
the Trustee or by the Holders, as the case may be.
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Section 512. Control by Holders.
The Holders of a majority in aggregate principal amount of
the Outstanding Securities shall have the right to direct in writing 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,
(2) the Trustee may take any other action deemed proper
by the Trustee which is not inconsistent with such direction, and
(3) subject to the provisions of Section 601, the Trustee
shall have the right to decline to follow any such direction if the
Trustee in good faith shall determine that the action so directed
would involve the Trustee in personal liability or would be unduly
prejudicial to Holders not joining in such direction.
This Section 512 shall be in lieu of Section 316(a)(1)(A) of
the Trust Indenture Act and said Section 316(a)(1)(A) is hereby expressly
excluded from this Indenture, as permitted by the Trust Indenture Act.
Section 513. Waiver of Past Defaults.
The Holders of not less than a majority in aggregate
principal amount of the Outstanding Securities 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 (or premium, if
any) or interest on any Security, or
(2) in respect of a covenant or provision hereof which
under Article Nine cannot be modified or amended without the
consent of the Holder 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.
This Section 513 shall be in lieu of Section 316(a)(1)(B) of the Trust
Indenture Act and said Section 316(a)(1)(B) is hereby expressly excluded
from this Indenture, as permitted by the Trust Indenture Act.
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Section 514. Undertaking for Costs.
All parties to this Indenture agree, and each Holder of any
Security by his acceptance thereof shall be deemed to have agreed, that
any court may in its discretion require, in any suit for the enforcement of
any right or remedy under this Indenture, or in any suit against the Trustee
for any action taken, suffered or omitted by it as Trustee, the filing by any
party litigant in such suit of an undertaking to pay the costs of such suit,
and that such court may in its discretion assess reasonable costs, including
reasonable attorneys' fees, against any party litigant in such suit, having
due regard to the merits and good faith of the claims or defenses made by
such party litigant; but the provisions of this Section shall not apply to any
suit instituted by the Company, to any suit instituted by the Trustee, to any
suit instituted by any Holder, or group of Holders, holding more than 10%
in aggregate principal amount of the Outstanding Securities, or to any suit
instituted by any Holder for the enforcement of the payment of the
principal of (or premium, if any) or interest on any Security on or after the
respective Stated Maturities expressed in such Security (or, in the case of
redemption, on or after the Redemption Date) or for the enforcement of the
right to convert any Security in accordance with Article Thirteen. This
Section 514 shall be in lieu of Section 315(e) of the Trust Indenture Act
and said Section 315(e) is hereby expressly excluded from this Indenture,
as permitted by the Trust Indenture Act.
Section 515. 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 SIX
THE TRUSTEE
Section 601. Certain Duties and Responsibilities.
The duties and responsibilities of the Trustee shall be as
provided by the Trust Indenture Act. Notwithstanding the foregoing, no
provision of this Indenture shall require the Trustee to expend or risk its
own funds or otherwise incur any financial liability in the performance of
any of its duties hereunder, or in the exercise of any of its rights or
powers, if it shall have reasonable grounds for believing that repayment of
such funds or adequate indemnity against such risk or liability is not
reasonably assured to it. Whether or not
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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 602. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act;
provided, however, that in the case of any default of the character specified
in Section 501(4), no such notice to Holders shall be given until at least
30 days after the occurrence thereof. 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.
Section 603. Certain Rights of Trustee.
Subject to the provisions of Section 601:
(a) the Trustee may rely and shall be protected in acting
or refraining from acting upon any resolution, certificate, statement,
instrument, opinion, report, notice, request, direction, consent,
order, bond, debenture, note, other evidence of indebtedness or
other paper or document believed by it to be genuine and to have
been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned
herein shall be sufficiently evidenced by a Company Request or
Company Order and any resolution of the Board of Directors may
be sufficiently evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or
established prior to taking, suffering or omitting any action
hereunder, the Trustee (unless other evidence be herein specifically
prescribed) may, in the absence of bad faith on its part, rely upon
an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
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, order or direction of any of the Holders pursuant to this
Indenture, unless such Holders shall have offered to the Trustee
security or indemnity satisfactory to the Trustee against the costs,
expenses and liabilities which might be incurred by it in
compliance with such request or direction;
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(f) the Trustee shall not be bound to make any
investigation into the facts or matters stated in any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document, but the Trustee, in its
discretion, may make such further inquiry or investigation into such
facts or matters as it may see fit, and, if the Trustee shall determine
to make such further inquiry or investigation, it shall be entitled to
examine the books, records and premises of the Company
personally or by agent or attorney; and
(g) the Trustee may execute any of the trusts or powers
hereunder or perform any duties hereunder either directly or by or
through agents or attorneys, and the Trustee shall not be
responsible for any misconduct or negligence on the part of any
agent or attorney appointed with due care by it hereunder.
Section 604. 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 any supplemental 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 605. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent,
any Security Registrar or any other agent of the Company, in its individual
or any other capacity, may become the owner or pledgee of Securities and,
subject to Sections 608 and 613, may otherwise deal with the Company
with the same rights it would have if it were not Trustee, Authenticating
Agent, Paying Agent, Security Registrar or such other agent.
Section 606. 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.
Section 607. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder (which
compensation shall not be limited by any
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provision of law in regard
to the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its request for all reasonable expenses,
disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel), except any such expense, disbursement or
advance as may be attributable to its negligence or bad faith; and
(3) to indemnify the Trustee, its agents, employees,
officers, directors and shareholders for, and to hold each of them
harmless against, any loss, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the
costs and expenses of defending itself against any claim or liability
in connection with the exercise or performance of any of its powers
or duties hereunder.
As security for the performance of the obligations of the
Company under this Section the Trustee shall have a lien prior to the
Securities upon all property and funds held or collected by the Trustee as
such, except funds held in trust for the payment of principal of, premium,
if any, or interest on particular Securities.
When the Trustee incurs expenses or renders services after
an Event of Default specified in Section 501(6) or (7) occurs, the expenses
(including the reasonable charges and expenses of its agents, attorneys and
counsel) and the compensation for services shall be preferred over the
status of the Holders in any reorganization or similar proceeding and are
intended to constitute expenses of administration under any reorganization,
bankruptcy or similar law.
Section 608. 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.
Section 609. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as
such, has an office or agency in New York, New York, and has a
combined capital and surplus of at least $50,000,000 (or is a member or
subsidiary of a bank holding system with aggregate combined capital and
surplus of at least $50,000,000). If such corporation or other Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the
purposes of this Section, the combined capital and surplus of such
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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. No obligor upon any Securities issued
under this Indenture or Person directly or indirectly controlling, controlled
by or under common control with such obligor shall serve as Trustee under
this Indenture.
Section 610. 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
under Section 611.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a
successor Trustee 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 Act of
the Holders of a majority in aggregate principal amount of the Outstanding
Securities specifying such removal, delivered to the Trustee and to the
Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section
608 after written request therefor by the Company or by
any Holder who has been a bona fide Holder of a Security
for at least six months, or
(2) the Trustee shall cease to be eligible under
Section 609 and shall fail to resign after written request
therefor by the Company or by any such bona fide Holder
described in (d)(1) above, or
(3) the Trustee shall become incapable of acting
or shall be adjudged a bankrupt or insolvent or a receiver
of the Trustee or of its property shall be appointed or any
public officer shall take charge or control of the Trustee or
of its property or affairs for the purpose of rehabilitation,
conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may
remove the Trustee, or (ii) subject to Section 514, any Holder 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. 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 aggregate 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, 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 and accepted appointment in the manner hereinafter provided, any
Holder 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 by mailing written notice of such event by first-class mail, postage
prepaid, to all Holders as their names and addresses appear in the Security
Register. Each notice shall include the name of the successor Trustee and
the address of its Corporate Trust Office.
Section 611. 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
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 qualified and
eligible under this Article.
Section 612. Merger, Conversion, Consolidation or Succession to
Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which the
Trustee shall be a party, or any corporation succeeding to all or
substantially all the corporate trust business of the Trustee, shall be the
successor of the
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Trustee hereunder, provided such corporation shall be
otherwise qualified and eligible under this Article, without the execution
or filing of any paper or any further act on the part of any of the parties
hereto. In case any 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 613. Preferential Collection of Claims Against Company.
If and when the Trustee shall be or become a creditor of the
Company (or any other obligor upon the Securities), the Trustee shall be
subject to the provisions of the Trust Indenture Act regarding the collection
of claims against the Company (or any such other obligor).
Section 614. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption or pursuant to
Section 306, and 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. Wherever reference is made in
this Indenture to the authentication and delivery of Securities by the
Trustee or the Trustee's certificate of authentication, such reference shall
be deemed to include authentication and delivery on behalf of the Trustee
by an Authenticating Agent and a certificate of authentication executed on
behalf of the Trustee by an Authenticating Agent. Each Authenticating
Agent shall be acceptable to the Company and shall at all times be a
corporation organized and doing business under the laws of the United
States of America, any state thereof or the District of Columbia, authorized
under such laws to act as Authenticating Agent, having a combined capital
and surplus of not less than $50,000,000 (or being a member or subsidiary
of a bank holding system with aggregate combined capital and surplus of
at least $50,000,000) and subject to supervision or examination by federal
or state authority. If such Authenticating Agent publishes reports of
condition at least annually, pursuant to law or to the requirements of said
supervising or examining authority, then for the purposes of this Section,
the combined capital and surplus of such Authenticating Agent shall be
deemed to be its combined capital and surplus as set forth in its most
recent report of condition so published. If at any time an Authenticating
Agent shall cease to be eligible in accordance with the provisions of this
Section, such Authenticating Agent shall resign immediately in the manner
and with the effect specified in this Section.
Any corporation into which an Authenticating Agent may
be merged or converted or with which it may be consolidated, or any
corporation resulting from any merger, conversion or consolidation to
which such Authenticating Agent shall be a party,
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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,
without the execution or filing of any paper or any further act on the part
of the Trustee or the Authenticating Agent.
An Authenticating Agent may resign at any time by giving
30 days' 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 30 days' written notice thereof to such Authenticating Agent and
to the Company. Upon receiving such a notice of resignation or upon such
a termination, or in case at any time such Authenticating Agent shall cease
to be eligible in accordance with the provisions of this Section, the Trustee
may appoint a successor Authenticating Agent which shall be acceptable
to the Company and shall mail written notice of such appointment by first-
class mail, postage prepaid, to all Holders as their names and addresses
appear in the Security Register. Any successor Authenticating Agent upon
acceptance of its appointment hereunder shall become vested with all the
rights, powers and duties of its predecessor hereunder, with like effect as
if originally named as an Authenticating Agent. No successor
Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Trustee agrees to pay to each Authenticating Agent
from time to time reasonable compensation for its services under this
Section, and the Trustee shall be entitled to be reimbursed for such
payments, subject to the provisions of Section 607.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's
certificate of authentication, an alternate certificate of authentication in the
following form:
This is one of the Securities described in the within-
mentioned Indenture.
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
As Trustee
By ___________________________
As Authenticating Agent
By ___________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS
BY TRUSTEE AND COMPANY
Section 701. Company to Furnish Trustee Names and Addresses of
Holders.
The Company will furnish or cause to be furnished to the
Trustee:
(a) semiannually, not more than 15 days after each
Regular Record Date, a list, in such form as the Trustee may
reasonably require, of the names and addresses of the Holders as
of such Regular Record Date, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any
such request, a list of similar form and content as of a date not
more than 15 days prior to the time such list is furnished;
excluding from any such list names and addresses received by the Trustee
in its capacity as Security Registrar.
Section 702. 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 701 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 as
provided in Section 701 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.
(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.
Section 703. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be
required pursuant to the Trust Indenture Act at the times and in the manner
provided pursuant thereto. Reports so required to be transmitted at stated
intervals of not more than 12 months shall be transmitted no later than
May 15 of each year, commencing with the May 15 first following
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the issuance of the Securities.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange
upon which the Securities are listed, with the Commission and with the
Company. The Company will notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
Section 704. Reports by Company.
The Company shall file with the Trustee and the
Commission, and transmit to Holders, such information, documents and
other reports, and such summaries thereof, as may be required pursuant to
the Trust Indenture Act at the times and in the manner provided pursuant
to such Act; provided that any such information, documents or reports
required to be filed with the Commission pursuant to Section 13 or 15(d)
of the Exchange Act shall be filed with the Trustee within 15 days after
the same is so required to be filed with the Commission. In the event the
Company is not subject to the requirements of Section 13 or 15(d) of the
Exchange Act, the Company shall file with the Trustee (a) within 60 days
after the end of each of the Company's first three fiscal quarters in each
fiscal year, a report containing unaudited financial statements with respect
to such fiscal quarter and (b) within 105 days after the end of the
Company's fiscal year, a report containing audited financial statements with
respect to such fiscal year.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE,
TRANSFER OR LEASE
Section 801. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or convey, transfer, lease or otherwise dispose of its
properties and assets substantially as an entirety to any Person, and the
Company shall not permit any Person to consolidate with or merge into the
Company or convey, transfer, lease or otherwise dispose of its properties
and assets substantially as an entirety to the Company, unless:
(1) in case the Company shall consolidate with or merge
into another Person or convey, transfer, lease or otherwise dispose
of its properties and assets substantially as an entirety to any
Person, the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance
or transfer or otherwise, or which leases, the properties and assets
of the Company substantially as an entirety shall be a Corporation
or other legal entity, 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
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supplemental hereto, executed and delivered to the Trustee, in form
satisfactory to the Trustee, the due and punctual payment of the
principal of (and premium, if any) and interest on all the Securities
and the performance 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 Section 1306;
(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
happened and be continuing; and
(3) the Company has delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that
such consolidation, merger, conveyance, transfer, lease or other
disposition and, if a supplemental indenture is required in
connection with such transaction, such supplemental indenture
complies with this Article and that all conditions precedent herein
provided for relating to such transaction have been complied with.
Section 802. Successor Legal Entity Substituted.
Upon any consolidation of the Company with, or merger of
the Company into, any other Person or any conveyance, transfer, lease or
other disposition of the properties and assets of the Company substantially
as an entirety in accordance with Section 801, the successor Person formed
by such consolidation or into which the Company is merged or to which
such conveyance, transfer, lease or other disposition 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, except in
the case of a lease, the predecessor Person shall be relieved of all
obligations and covenants under this Indenture and the Securities and may
liquidate and dissolve.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
Section 901. Supplemental Indentures Without Consent of Holders.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from
time to time, may enter into one or more indentures supplemental hereto,
in form satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the
covenants of the Company herein and in the
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Securities; or
(2) to add to the covenants of the Company for the
benefit of the Holders or to surrender any right or power herein
conferred upon the Company; or
(3) to make provision with respect to the conversion
rights of Holders pursuant to the requirements of Section 1306; or
(4) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other
provision herein or to make any other provisions with respect to
matters or questions arising under this Indenture, provided such
action pursuant to this clause (4) shall not adversely affect the
interests of the Holders in any material respect.
Section 902. Supplemental Indentures With Consent of Holders.
With the consent of the Holders of not less than a majority
in aggregate principal amount of the Outstanding Securities, by Act of said
Holders delivered to the Company and the Trustee, the Company, when
authorized by a Board Resolution, and the Trustee may 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 under this Indenture; provided, however, that no such
supplemental indenture shall, without the consent 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 thereon or any premium
payable upon the redemption thereof, or change the place of
payment where, or the coin or currency in which, any Security or
any premium 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, on
or after the Redemption Date), or adversely affect the right to
convert any Security as provided in Article Thirteen (except as
permitted by Section 901(3)), or
(2) reduce the percentage in 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 (of compliance with certain
provisions of this Indenture or certain defaults hereunder and their
consequences) provided for in this Indenture, or
(3) modify any of the provisions of this Section,
Section 513 or Section 1006, except to increase any such
percentage or to provide that certain other provisions of this
Indenture cannot be modified or waived without the consent of the
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Holder of each Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders under this
Section to approve the particular form of any proposed supplemental
Indenture, but it shall be sufficient if such Act shall approve the substance
thereof.
The Company may, but shall not be obligated to, fix a
record date for the purpose of determining the Holders entitled to consent
to any indenture supplemental hereto. If a record date is fixed, then those
persons who were Holders at such record date (or their duly designated
proxies), and only those persons, shall be entitled to consent to such
supplemental Indenture or to revoke any consent previously given, whether
or not such persons continue to be Holders after such record date. No
such consent shall be valid or effective for more than 90 days after such
record date.
Section 903. Execution of Supplemental Indentures.
In executing, or accepting any 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 601) shall be fully protected in relying
upon, an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such
supplemental indenture which affects the Trustee's own rights, duties or
immunities under this Indenture or otherwise.
Section 904. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
Section 905. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act as
then in effect.
Section 906. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if
required by the Trustee, bear a notation in form approved by the Trustee
as to any matter provided for in such supplemental indenture. If the
Company shall so determine, new Securities so modified as to conform, in
the opinion of the Trustee and the Company, to any such supplemental
indenture may be prepared and executed by the Company and authenticated
and delivered by the Trustee
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in exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
Section 1001. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
Section 1002. Maintenance of Office or Agency.
The Company will maintain in New York, 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 initially
designates the office of the Trustee at Shawmut Bank, c/o First Chicago,
14 Wall Street, 8th Floor -- Window No. 2, New York, New York 10005,
as its office or agency for these purposes. The Company will give prompt
written notice to the Trustee of the location, and any change in the
location, of such office or agency. If at any time the Company shall fail
to maintain any such required office or agency or shall fail to furnish the
Trustee with the address thereof, such presentations, surrenders, notices and
demands may be made or served at the Corporate Trust Office of the
Trustee, and the Company hereby appoints the Trustee as its agent to
receive all such presentations, surrenders, notices and demands.
The Company may also from time to time designate one or
more other offices or agencies (in or outside New York, New York) where
the Securities may be presented or surrendered for any or all such purposes
and may from time to time rescind such designations; provided, however,
that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in New York,
New York for such purposes. The Company will give prompt written
notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
Section 1003. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying
Agent, it will, on or before each due date of the principal of (and
premium, if any) 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 (and premium, if any) or interest so becoming due until such
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sums shall be paid to such Persons or otherwise disposed of as herein
provided and will promptly notify the Trustee of its action or failure so to
act.
Whenever the Company shall have one or more Paying
Agents, it will, prior to each due date of the principal of (and premium, if
any) or interest on any Securities, deposit in immediately available funds
with a Paying Agent a sum sufficient to pay the principal (and 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 or interest, and
(unless such Paying Agent is the Trustee) the Company will promptly
notify the Trustee of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee 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) comply with the provisions of the Trust Indenture
Act applicable to it as a Paying Agent; and
(2) at any time during the continuance of any 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
(and premium, if any) or interest on any Security and remaining unclaimed
for two years (or such shorter period as required by applicable
abandonment law with respect to the Holder entitled to payment thereof)
after such principal (and premium, if any) or interest has become due and
payable shall be paid to the Company on Company Request, or (if then
held by the Company) shall be discharged from such trust; and the Holder
of such Security shall thereafter, as an unsecured general creditor, look
only to the Company for payment thereof, unless an applicable
abandonment statute designates another Person, and all liability of the
Trustee or such Paying Agent with respect to such trust money, and all
liability of the Company as trustee thereof, shall thereupon cease; provided,
however, that the Trustee or such Paying Agent, before being required to
make any such repayment, may at the expense of the Company cause to
be published once, in a newspaper published in the English language,
customarily published on each Business Day and of general circulation in
New York, New York, notice
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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 1004. Existence.
Subject to Article Eight, the Company will do or cause to
be done all things necessary to preserve and keep in full force and effect
its existence, rights (charter and statutory) and franchises; provided,
however, that the Company shall not be required to preserve any such right
or franchise if a transaction that would result in the termination of the
Company's existence or any such right or franchise is permissible under
Article Eight or if the Board of Directors shall determine that the
preservation thereof is no longer desirable in the conduct of the business
of the Company and that the loss thereof is not disadvantageous in any
material respect to the Holders.
Section 1005. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company, in each case ending after
the date hereof, an Officers' Certificate, stating that a review of the
activities of the Company during the preceding fiscal year has been made
under the supervision of the signing officers with a view to determining
whether the Company has kept, observed, performed and fulfilled its
obligations under this Indenture, and further stating, as to each such officer
signing such certificate, that to the best of his knowledge the Company is
not in default in the performance or observance of any of the terms,
provisions and conditions hereof or, if a default or Event of Default shall
have occurred, describing all such defaults or Events of Default of which
he may have knowledge and that to the best of his knowledge no event has
occurred and remains in existence by reason of which payments on account
of the principal of or interest, if any, on the Securities are prohibited or if
such event has occurred, a description of the event.
Section 1006. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or condition set forth in Section 1004, if before the time
for such compliance the Holders of at least a majority in aggregate
principal amount of the Outstanding Securities shall, by Act of such
Holders, either waive 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.
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ARTICLE ELEVEN
REDEMPTION OF SECURITIES
Section 1101. Right of Redemption.
The Securities may be redeemed at the election of the
Company, as a whole or from time to time in part, at any time on or after
March 15, 1998, at the Redemption Prices specified in the form of Security
hereinbefore set forth, together with accrued interest to the Redemption
Date.
Section 1102. Applicability of Article.
Redemption of Securities at the election of the Company or
otherwise, as permitted or required by any provision of this Indenture, shall
be made in accordance with such provision and this Article.
Section 1103. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities
pursuant to Section 1101 shall be evidenced by a Board Resolution. In
case of any redemption at the election of the Company of less than all the
Securities, the Company shall, at least 45 days prior to the Redemption
Date fixed by the Company (unless a shorter notice shall be satisfactory
to the Trustee), notify the Trustee of such Redemption Date and of the
principal amount of Securities to be redeemed and whether the Trustee is
to give the notice of redemption.
Section 1104. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed pursuant
to Section 1101, the particular Securities to be redeemed shall be selected
not more than 45 days prior to the Redemption Date by the Trustee, from
the Outstanding Securities not previously called for redemption, by such
method (including pro rata or by lot) as the Trustee shall deem fair and
appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $1,000.
If any Security selected for partial redemption is converted
in part before termination of the conversion right with respect to the
portion of the Security so selected, the converted portion of such Security
shall be deemed (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 shall be treated by the Trustee as Outstanding
for the purpose of such selection.
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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 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 1105. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his
address appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption,
the principal amounts) of the particular Securities to be redeemed;
(4) that on the Redemption Date the Redemption Price
will become due and payable upon each such Security to be
redeemed and that interest thereon will cease to accrue on and after
said date;
(5) the conversion price, the date on which the right to
convert the principal of the Securities to be redeemed will terminate
and the place or places where such Securities may be surrendered
for conversion; and
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at Company
Request, by the Trustee in the name and at the expense of the Company.
Section 1106. Deposit of Redemption Price.
Prior to any Redemption Date, the Company shall deposit
with the Trustee or with a Paying Agent (or, if the Company is acting as
its own Paying Agent, segregate and
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hold in trust as provided in
Section 1003) an amount of money in immediately available funds
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 any Paying Agent or so
segregated and held in trust for the redemption of such Security shall
(subject to the right of the Holder of such Security or any Predecessor
Security to receive interest as provided in the last paragraph of
Section 307) be paid to the Company upon Company Request or, if then
held by the Company, shall be discharged from such trust.
Section 1107. 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 therein 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, such Security shall be paid by the Company
at 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 307.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne
by the Security.
Section 1108. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that
purpose pursuant to Section 1002 (with, if the Company or Trustee so
requires, due endorsement by, or a written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the Holder
thereof or his attorney duly authorized in writing), and the Company shall
execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities, of any
authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the unredeemed portion of
the principal of the Security so surrendered.
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ARTICLE TWELVE
RIGHT TO REQUIRE REPURCHASE
Section 1201. Right to Require Repurchase.
In the event that there shall occur a Change in Control (as
defined in Section 1206) which constitutes a Repurchase Event (as defined
in Section 1206), then each Holder shall have the right, at such Holder's
option to require the Company to purchase, and upon the exercise of such
right, the Company shall, subject to the provisions of Article Fourteen,
purchase all or any part of such Holder's Securities on a date (the
"Repurchase Date") selected by the Company that is not more than 75 days
after the date the Company gives notice of the Repurchase Event as
contemplated in Section 1202(a) at a price (the "Repurchase Price") equal
to 100% of the principal amount thereof, together with accrued and unpaid
interest to the Repurchase Date.
Section 1202. Notice; Method of Exercising Repurchase Right.
(a) On or before the 15th day after the Repurchase
Event, the Company, or at Company Request, the Trustee (in the name and
at the expense of the Company), shall give notice of the occurrence of the
Repurchase Event and of the repurchase right set forth herein arising as a
result thereof by first-class mail, postage prepaid, to each Holder of the
Securities at such Holder's address appearing in the Security Register. 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 event constituting the Repurchase Event
and the date thereof,
(2) the Repurchase Date,
(3) the date by which the repurchase right must
be exercised,
(4) the Repurchase Price, and
(5) the instructions a Holder must follow to
exercise a repurchase right.
No failure of the Company to give the foregoing notice shall
limit any Holder's right to exercise a repurchase right. The Trustee shall
have no affirmative obligation to determine if there shall have occurred a
Repurchase Event.
(b) To exercise a repurchase right, a Holder shall
deliver to the Company
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(or an agent designated by the Company for such
purpose in the notice referred to in (a) above) and to the Trustee on or
before the close of business on the Business Day immediately preceding
the Repurchase Date (i) written notice of the Holder's exercise of such
right, which notice shall set forth the name of the Holder, the principal
amount of the Security or Securities (or portion of a Security) to be
repurchased, and a statement that an election to exercise the repurchased
right is being made thereby, and (ii) the Security or Securities with respect
to which the repurchase right is being exercised, duly endorsed for transfer
to the Company. Such written notice shall be irrevocable. If the
Repurchase Date falls between any Regular Record Date and the next
succeeding Interest Payment Date, Securities to be repurchased must be
accompanied by payment from the Holder of an amount equal to the
interest thereon which the registered Holder thereof is to receive on such
Interest Payment Date.
(c) In the event a repurchase right shall be exercised
in accordance with the terms hereof, then subject to Article Fourteen, the
Company shall on or promptly following the Repurchase Date pay or cause
to be paid in cash to the Holder thereof the Repurchase Price of the
Security or Securities as to which the repurchase right had been exercised.
In the event that a repurchase right is exercised with respect to less than
the entire principal amount of a surrendered Security, the Company shall
execute and deliver to the Trustee and the Trustee shall authenticate for
issuance in the name of the Holder a new Security or Securities in the
aggregate principal amount of the unrepurchased portion of such
surrendered security.
Section 1203. Deposit of Repurchase Price.
On or prior to the Repurchase Date and subject to Article
Fourteen, the Company shall deposit with the Trustee or with a Paying
Agent (or, if the Company is acting as its own Paying Agent, segregate
and hold in trust as provided in Section 1003) an amount of money, in
immediately available funds, sufficient to pay the Repurchase Price of the
Securities which are to be repaid on or promptly following the Repurchase
Date.
Section 1204. Securities Not Repurchased on Repurchase Date.
If any Security surrendered for repurchase shall not be paid
by the 10th day following the Repurchase Date, the principal shall, until
paid, bear interest to the extent permitted by applicable law from the
eleventh day following the Repurchase Date at a rate per annum borne by
such Security.
Section 1205. Securities Repurchased in Part.
Any Security which is to be repurchased only in part shall
be surrendered at any office or agency of the Company designated for that
purpose pursuant to Section 1002 (with, if the Company or the Trustee so
requires, due endorsement by, or written instrument of transfer in form
satisfactory to the Company and the Trustee duly executed by, the
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Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and deliver to the Holder of
such Security without service charge, a new Security or Securities of any
authorized denomination as requested by such Holder, in aggregate
principal amount equal to and in exchange for the repurchased portion of
the principal of the Security so surrendered.
Section 1206. "Change in Control" and "Repurchase Event" Defined.
(a) For purposes of this Article, "Change in Control"
means any of the following events that occurs after the Issue Date of the
Securities and so long as any Securities are Outstanding:
(1) the Company's assets are sold or otherwise
disposed of substantially as an entirety to any Person or
related group of Persons in any one transaction or a series
of related transactions;
(2) there shall be consummated any consolidation
or merger of the Company (A) in which the Company is
not the continuing or surviving corporation (other than a
consolidation or merger with a wholly-owned Subsidiary of
the Company in which all shares of Common Stock
outstanding immediately prior to the effectiveness thereof
are changed into or exchanged for the same number of
shares of common stock of such Subsidiary) or (B) pursuant
to which the Common Stock is converted into cash,
securities or other property, in each case other than a
consolidation or merger of the Company in which the
holders of the Common Stock immediately prior to the
consolidation or merger have, directly or indirectly, at least
a majority of the common stock of the continuing or
surviving Corporation immediately after such consolidation
or merger; or
(3) any Person, or any Persons acting together
which would constitute a "group" for purposes of Section
13(d) of the Exchange Act (a "Group") (other than the
Company, any Subsidiary, any employee stock purchase
plan, stock option plan or other stock incentive plan or
program, retirement plan or automatic dividend reinvestment
plan or any substantially similar plan of the Company or
any Subsidiary or any Person holding securities of the
Company for or pursuant to the terms of any such employee
benefit plan, which may file or become obligated to file a
report under or in response to Schedule 13D or Schedule
14D-1 (or any successor schedule, form or report) under the
Exchange Act), together with any Affiliates thereof, shall
acquire beneficial ownership (as defined in Rule 13d-3 of
the Exchange Act) of at least 50% of the total voting power
of all classes of capital stock of the Company entitled to
vote generally in the election of directors of the Company.
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(b) A Change in Control as described in Section
1206(a) shall constitute a "Repurchase Event" giving rise to a repurchase
right on the part of each Holder of a Security unless:
(1) the Current Market Price of the Common
Stock on the date the Change in Control shall have occurred
is at least equal to 105% of the conversion price in effect
immediately preceding the time of such Change in Control,
or
(2) all of the consideration (excluding cash
payments for fractional shares) in the transaction giving rise
to such Change in Control to the holders of Common Stock
consists of shares of common stock that are, or immediately
upon issuance will be, listed on a national securities
exchange or quoted in the NASDAQ National Market
System, and as a result of such transaction the Securities
become convertible solely into such shares of common
stock, or
(3) the consideration in the transaction giving
rise to such Change in Control to the holders of Common
Stock consists of cash, securities that are, or immediately
upon issuance will be, listed on a national securities
exchange or quoted in the NASDAQ National Market
System, or a combination of cash and such securities and
the aggregate fair market value of such consideration
(which, in the case of each such security, shall be equal to
the average of the daily Closing Prices of each such
security during the 10 consecutive Trading Days
commencing with the sixth Trading Day following
consummation of such transaction) to be received by a
holder of Common Stock with respect to one share of
Common Stock is at least 105% of the conversion price in
effect on the date immediately preceding the closing date of
such transaction.
For purposes of this definition, "Current Market Price" on
any date means the average daily Closing Prices for the 5 consecutive
Trading Days selected by the Company commencing not more than 10
Trading Days before, and ending not later than, the date in question.
ARTICLE THIRTEEN
CONVERSION OF SECURITIES
Section 1301. Right of Conversion.
The Holder of any Security or Securities shall have the right
at any time prior to maturity, at his option, to convert, subject to the terms
and provisions of this Article
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Thirteen, the principal of any such Security
or Securities (or any portion of the principal thereof which is $1,000 or an
integral multiple of $1,000) into fully paid and nonassessable shares of
Common Stock of the Company at the conversion price of $22.188 of
principal amount of Securities per share of Common Stock or, in case an
adjustment therein has taken place pursuant to the provisions of Section
1304, then at the price as so adjusted (except that with respect to any
Security or Securities, or any such portion, which shall be called for
redemption, such right shall terminate, except as provided in the last
paragraph of Section 1302, at the close of business on the Business Day
immediately preceding the Redemption Date for such Security or Securities
or portion unless the Company shall default in payment due upon
redemption thereof). Such right shall be exercised by the surrender of the
Security or Securities, the principal of which is so to be converted, to the
Company at any time during usual business hours at any office or agency
to be maintained by it in accordance with the provisions of Section 1002,
accompanied by written notice that the Holder elects to convert such
Security or Securities or any portion thereof and specifying the name or
names (with address) in which a certificate or certificates for Common
Stock are to be issued and (if so required by the Company or the Trustee)
by a written instrument or instruments of transfer in form satisfactory to
the Company and the Trustee, duly executed by the Holder or his attorney,
duly authorized in writing and transfer tax stamps or funds therefor, if
required pursuant to Section 1310. For convenience, the conversion of all
or a portion, as the case may be, of the principal of any Security into the
Common Stock of the Company is hereinafter sometimes referred to as the
conversion of such Security. All Securities surrendered for conversion
shall, if surrendered to the Company or any conversion agent, be delivered
to the Trustee for cancellation and cancelled by it or, if surrendered to the
Trustee, shall be cancelled by it; and, subject to the next succeeding
sentence, no Securities shall be issued in lieu thereof. 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.
Section 1302. Issuance of Common Stock; Time of Conversion.
As promptly as practicable after the surrender, as herein
provided, of any Security or Securities for conversion, the Company shall
deliver or cause to be delivered at any office or agency to be maintained
by it in accordance with the provisions of Section 1002 to or upon the
written order of the Holder of the Security or Securities so surrendered a
certificate or certificates representing the number of fully paid and
nonassessable shares of Common Stock of the Company into which such
Security or Securities (or portion thereof) may be converted in accordance
with the provisions of this Article Thirteen. Subject to the following
provisions of this paragraph and of Section 1304, such conversion shall be
deemed to have been made immediately prior to the close of business on
the date that such Security or Securities shall have been surrendered in
satisfactory form for conversion, so that the rights of the Holder as a
Holder shall cease with respect to such Security or Securities (or the
portion thereof being converted) at such time, and the Person or Persons
entitled to
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receive the shares of Common Stock deliverable upon
conversion of such Security or Securities shall be treated for all purposes
as having become the record holder or holders of such shares of Common
Stock at such time, and such conversion shall be at the conversion price
in effect at such time; provided, however, that no such surrender on any
date when the stock transfer books of the Company shall be closed shall
be effective to constitute the Person or Persons entitled to receive the
shares of Common Stock deliverable upon such conversion as the record
holder or holders of such shares of Common Stock on such date, but such
surrender shall be effective to constitute the Person or Persons entitled to
receive such shares of Common Stock as the record holder or holders
thereof for all purposes immediately prior to the close of business on the
next succeeding day on which such stock transfer books are open, and such
conversion shall be deemed to have been made at, and shall be made at the
conversion rate in effect at, such time on such next succeeding day.
If the last day for the exercise of the conversion right shall
not be a Business Day, then such conversion right may be exercised on the
next succeeding Business Day.
Section 1303. No Adjustments in Respect of Interest or Dividends.
Securities surrendered for conversion during the period from
the close of business on any Regular Record Date to the opening of
business on the next succeeding Interest Payment Date shall (except in the
case of Securities or portions thereof which have been called for
redemption) 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 such Interest Payment Date on the principal amount of
Securities being surrendered for conversion. Upon a call for redemption
by the Company, accrued and unpaid interest to the Redemption Date shall
be payable with respect to Securities converted after the redemption notice
has been mailed and prior to the Redemption Date. Except as provided in
this Section 1303 and subject to the last paragraph of Section 307, no
payment or adjustment shall be made upon any conversion on account of
any interest accrued on the Securities surrendered for conversion or on
account of any dividends on the shares of Common Stock issued upon
conversion.
Section 1304. Adjustment of Conversion Price.
The conversion price, and consequently the number of
shares of Common Stock into which a Security is convertible, shall be
subject to adjustment from time to time as follows:
(a) In case the Company shall (i) pay a dividend on
Common Stock or make a distribution on its Common Stock that
is paid or made (1) in shares of any class of capital stock of the
Company or (2) in rights to purchase any stock or other securities
if such rights are not separable from the Common Stock except
upon the occurrence of a contingency, (ii) subdivide its outstanding
shares of Common Stock
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into a greater number of shares or
(iii) combine its outstanding shares of Common Stock into a
smaller number of shares, then in each such case the conversion
price in effect immediately prior thereto shall be adjusted
retroactively as provided below so that the Holder of any Security
thereafter surrendered for conversion shall be entitled to receive the
number of shares of Common Stock and other shares and rights to
purchase stock or other securities (or, in the event of the
redemption of any such shares or rights, any cash, property or
securities paid in respect of such redemption) which such Holder
would have owned or have been entitled to receive after the
happening of any of the events described above had such Security
been converted immediately prior to the happening of such event.
An adjustment made pursuant to this Subsection (a) shall become
effective immediately after the record date in the case of a dividend
or distribution and shall become effective immediately after the
effective date in the case of a subdivision or combination.
(b) In case the Company shall issue rights or warrants
to all holders of its Common Stock entitling them (for a period
expiring within 45 days after the date fixed for determination
mentioned below) 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 (d) of this Section) of
the Common Stock on the date fixed for the determination of
stockholders entitled to receive such rights or warrants, then the
conversion price in effect at the opening of business on the day
following the date fixed for such determination shall be decreased
by multiplying such conversion price by a fraction of which 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, and 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, such reduction to become effective immediately after the
opening of business on the day following the date fixed for such
determination; provided, however, in the event that all the shares
of Common Stock offered for subscription or purchase are not
delivered upon the exercise of such rights or warrants, upon the
expiration of such rights or warrants the conversion price shall be
readjusted to the conversion price which would have been in effect
had the numerator and the denominator of the foregoing fraction
and the resulting adjustment been made based upon the number of
shares of Common Stock actually delivered upon the exercise of
such rights or warrants rather than upon the number of shares of
Common Stock offered for subscription or purchase. For the
purposes of this paragraph (b), the number of shares of Common
Stock at any time outstanding shall not include shares held in the
treasury of the Company.
(c) In case the Company shall, by dividend or
otherwise, distribute to substantially all holders of its Common
Stock evidences of its indebtedness, cash
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(excluding quarterly cash
dividends paid or to be paid on a regular basis), other assets or
rights or warrants to subscribe for or purchase any securities
(excluding those referred to in paragraphs (a) and (b) above), then
in each such case, the conversion price shall be adjusted
retroactively so that the same shall equal the price determined by
multiplying the conversion price in effect immediately prior to the
close of business on the date fixed for the determination of
stockholders entitled to receive such distribution by a fraction of
which the denominator shall be the current market price per share
(determined as provided in paragraph (d) of this Section) of the
Common Stock on the date fixed for such determination and the
numerator shall be such current market price per share of the
Common Stock less the amount of cash and 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,
rights, warrants or evidences of indebtedness so distributed
applicable to one share of Common Stock, such adjustment to
become effective immediately prior to the opening of business on
the day following the date fixed for the determination of
stockholders entitled to receive such distribution.
(d) For the purpose of any computation under
paragraphs (b) and (c) of this Section, the current market price per
share of Common Stock on any date shall be deemed to be the
average of the daily closing prices for the 30 consecutive trading
days commencing with the 45th trading day before the day in
question. The closing price for each day shall be the last reported
sales price regular way 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 on the composite tape of the
principal national securities exchange upon which the Common
Stock is listed or on the NASDAQ National Market System (based
on the aggregate dollar value of all securities listed or admitted to
trading) or, if the Common Stock is not listed or admitted to
trading on any national securities exchange or quoted on the
NASDAQ National Market System, 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, or, if such prices are not
available, the fair market value set by, or in a manner established
by, the Board of Directors of the Company in good faith. "Trading
day" shall mean a day on which the national securities exchange or
the NASDAQ National Market System used to determine the
closing price is open for the transaction of business or the reporting
of trades or, if the closing price is not so determined, a day on
which the New York Stock Exchange is open for the transaction of
business.
(e) No adjustment in the conversion price shall be
required unless such adjustment would require an increase or
decrease of at least 1% in such price; provided, however, that the
Company may make any such adjustment at its election; and
provided, further, that any adjustments which by reason of this
paragraph (e) are not required to be made shall be carried forward
and taken into account in any subsequent adjustment. All calculations
under this Article Thirteen shall be made to the nearest cent or
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to the nearest one-hundredth of a share, as the case may be.
(f) Whenever the conversion price is adjusted as
provided in any provision of this Article Thirteen:
(i) the Company shall compute the adjusted
conversion price in accordance with paragraph (d) and shall
prepare a certificate signed by the principal financial officer
of the Company setting forth the adjusted conversion price
and showing in reasonable detail the facts and calculations
upon which such adjustment is based, and such certificate
shall forthwith be filed with the Trustee and at each office
or agency maintained for the purpose of conversion of
Securities; and
(ii) a notice stating that the conversion price has
been adjusted and setting forth the adjusted conversion price
shall forthwith be required, and as soon as practicable after
it is required, such notice shall be mailed by the Company
to all Holders at their last addresses as they shall appear in
the Security Register.
(g) In the event that at any time, as a result of any
adjustment made pursuant to this Article Thirteen, the Holder of
any Security thereafter surrendered for conversion shall become
entitled to receive any shares of the Company other than shares of
Common Stock or to receive any other securities, the number of
such other shares or securities so receivable upon conversion of any
Security shall be subject to adjustment from time to time in a
manner and on terms as nearly equivalent as practicable to the
provisions contained in this Article Thirteen with respect to the
Common Stock.
(h) The Company from time to time may, by Board
Resolution delivered to the Trustee, decrease the conversion price
by any amount for any period of time if the period is at least 20
days and if the decrease is irrevocable during the period.
Whenever the conversion price is so decreased, the Company shall
mail to the Holders a notice of the decrease at least 15 days before
the date the decreased conversion price takes effect, and such
notice shall state the decreased conversion price and the period it
will be in effect.
(i) The Company may make such decreases in the
conversion price, in addition to those required or allowed by this
Article Thirteen, as shall be determined by it, as evidenced by a
Board Resolution delivered to the Trustee, to be advisable in order
to avoid or diminish any income tax to holders 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 income tax purposes.
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(j) In any case in which this Section 1304 provides
that an adjustment shall become effective immediately after a
record date for an event, the Company may defer until the
occurrence of such event (i) issuing to the holder of any Security
converted after such record date and before the occurrence of such
event the additional shares of Common Stock issuable upon such
conversion by reason of the adjustment required by such event over
and above the Common Stock issuable upon such conversion
before giving effect to such adjustment and (ii) paying to such
holder any amount in cash in lieu of any fraction pursuant to
Section 1305.
Section 1305. No Fractional Shares.
No fractional shares or scrip representing fractional shares
of Common Stock shall be issued upon conversion of Securities. If more
than one Security shall be surrendered for conversion at one time by the
same Holder, the number of full shares issuable upon conversion thereof
shall be computed on the basis of the aggregate principal amount of the
Securities (or specified portions thereof) so surrendered. Instead of any
fractional share of Common Stock which would otherwise be issuable upon
conversion of any Security or Securities (or specified portions thereof), the
Company shall pay a cash adjustment in respect of such fraction in an
amount equal to the same fraction of the closing price per share of
Common Stock as quoted on the composite tape of the principal national
securities exchange upon which the Common Stock is listed or the
NASDAQ National Market System 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 on the NASDAQ National Market System or,
if the Common Stock is not listed or admitted to trading on any national
securities exchange or quoted on the NASDAQ National Market System,
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, or, if such
prices are not available, the fair market value set by, or in a manner
established by, the Board of Directors of the Company in good faith, all
of the above to be determined as of the close of business on the day of
conversion.
Section 1306. Reclassification, Consolidation, Merger or Sale of Assets.
In case of any reclassification of the Common Stock, 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), any sale or other disposition of the assets of the Company
substantially as an entirety or any compulsory share exchange pursuant to
which share exchange the Common Stock is converted into other securities,
cash or other property, then the Holder of each Security then outstanding
shall have the right thereafter, during the period such Security shall be
convertible, pursuant to Section 1301, to convert such Security only into
the kind and amount of securities, cash and other property receivable upon
such reclassification, consolidation, merger, sale, other disposition or share
exchange by a holder of the number
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of shares of Common Stock of the
Company into which such Security might have been converted immediately
prior to such reclassification, consolidation, merger, sale, other disposition
or share exchange assuming such holder of Common Stock (i) is not a
Person with which the Company consolidated or into which the Company
merged or which merged into the Company, to which such sale or other
disposition was made or a party to such share exchange, as the case may
be ("constituent Person"), or an Affiliate of a constituent Person and
(ii) failed to exercise his rights of election, if any, as to the kind or
amount of securities, cash and other property receivable upon such
reclassification, consolidation, merger, sale, other disposition or share
exchange (provided that if the kind or amount of securities, cash and other
property receivable upon such reclassification, consolidation, merger, sale,
other disposition or share exchange is not the same for each share of Common
Stock held immediately prior to such reclassification, consolidation, merger,
sale, other disposition or share exchange by others 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
Article the kind and amount of securities, cash and other property
receivable upon such reclassification, consolidation, merger, sale, other
disposition or share exchange by 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). The Company or the Person formed by such
consolidation or resulting from such merger or which acquires such assets
or which acquires the Company's shares, as the case may be, shall execute
and deliver to the Trustee a supplemental indenture to establish such right.
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 shall
similarly apply to successive reclassifications, consolidations, mergers,
sales, other dispositions or share exchanges.
Notice of the execution of such a supplemental indenture
shall be given by the Company to each Holder by mailing such notice to
his last address appearing on the Security Register.
Neither the Trustee 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 securities or cash or property receivable by Holders
of Securities upon the conversion of their Securities after any such
reclassification, change, consolidation, merger, sale or other disposition or
to any such adjustment, but, subject to the provisions of Section 601, may
accept as conclusive evidence of the correctness of any such 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.
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Section 1307. Prior Notice of Certain Events.
In case:
(a) the Company shall (i) declare any dividend (or any
other distribution) on its Common Stock other than (1) a dividend
payable in shares of Common Stock or (2) a quarterly cash
dividend paid or to be paid on a regular basis or (ii) declare or
authorize a redemption or repurchase of in excess of 10% of the
then outstanding shares of Common Stock; or
(b) the Company shall authorize the granting to the
holders of its Common Stock of rights or warrants to subscribe for
or purchase any shares of stock of any class or of any other rights
or warrants; or
(c) of any reclassification of the Common Stock of the
Company (other than a subdivision or combination of its
outstanding Common Stock, or a change in par value, or from par
value to no par value, or from no par value to par value), or of any
consolidation or merger to which the Company is a party and for
which approval of any stockholders of the Company is required, or
of the sale or other disposition of the assets of the Company
substantially as an entirety or of any compulsory share exchange
whereby the Common Stock is converted into other securities, cash
or other property; or
(d) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed with the Trustee and to be mailed
to each Holder of Securities at his last address appearing on the Security
Register, as promptly as possible but in any event at least 15 days prior to
the applicable date hereinafter specified, a notice stating (x) the date on
which a record is to be taken for the purpose of such dividend, distribution
or granting of rights or warrants or, if a record is not to be taken, the date
as of which the holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined, or (y) the
date on which such reclassification, consolidation, merger, sale, other
disposition, share exchange, dissolution, liquidation or winding up is
expected to become effective, and the date as of which it is expected that
holders of Common Stock of record shall be entitled to exchange their
shares of Common Stock for securities or other property deliverable upon
such reclassification, consolidation, merger, sale, other disposition, share
exchange, dissolution, liquidation or winding up.
Section 1308. Shares to be Reserved; Accounting Treatment of
Consideration.
The Company covenants that it will at all times reserve and
keep available out of its authorized but unissued Common Stock, free from
preemptive rights solely for the
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purpose of issue upon conversion of Securities as herein provided, such number
of shares of Common Stock as shall then be issuable upon the conversion of all
outstanding Securities. The Company covenants that all shares of Common Stock
which shall be so issuable shall, when issued, be duly and validly issued and
fully paid and nonassessable.
The Company covenants that, upon conversion of Securities
as herein provided, there will be credited to the Common Stock capital
account from the consideration for which the shares of Common Stock
issuable upon such conversion are issued an amount per share of Common
Stock so issued as determined by the Board of Directors, which amount
shall not be less than the amount required by law and by the Company's
certificate of incorporation, as amended, as in effect on the date of such
conversion. For the purposes of this covenant the principal amount of the
Securities converted, less any cash paid in respect of fractional share
interests upon such conversion, shall be deemed to be the amount of
consideration for which the shares of Common Stock issuable upon such
conversion are issued.
Section 1309. Registration and Listing of Shares.
The Company covenants that if any shares of Common
Stock required to be reserved for purposes of conversion of Securities
hereunder require registration with or approval of any governmental
authority under any federal or state law before such shares may be issued
upon conversion, the Company will in good faith and as expeditiously as
possible endeavor to cause such shares to be duly registered or approved,
as the case may be. The Company further covenants that so long as the
Common Stock of the Company is listed on any national securities
exchange or on the NASDAQ National Market System, the Company will,
if permitted by the rules thereof, list and keep listed thereon, upon official
notice of issuance, all shares of Common Stock issuable upon conversion
of Securities.
Section 1310. Taxes and Charges.
The issuance of certificates for shares of Common Stock
upon the conversion of Securities shall be made without charge to the
converting Holder of Securities for such certificates or for any tax in
respect of the issuance of such certificates or the securities represented
thereby, and such certificates shall be issued in the respective names of, or
in such names as may be directed by, the Holders of the Securities
converted; provided, however, that the Company shall not be required to
pay any tax which may be payable in respect of any transfer involved in
the issuance and delivery of any such certificate in a name other than that
of the Holder of the Security converted, and the Company shall not be
required to issue or deliver such certificates unless or until the Person or
Persons requesting the issuance thereof shall have paid to the Company the
amount of such tax or shall have established to the satisfaction of the
Company that such tax has been paid.
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Section 1311. Trustee and Conversion Agents Not Liable.
Neither the Trustee nor any conversion agent shall 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 or extent 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. Neither the Trustee nor any conversion agent shall be accountable
with respect to the validity or value (or the kind or amount) of any shares
of Common Stock or of any securities or cash or other property which may
at any time be issued or delivered upon the conversion of any Security, or
makes any representation with respect thereto. Neither the Trustee 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 stock certificates or other securities or property upon the
surrender of any Security for the purpose of conversion, or, subject to
Section 601, with any of the covenants of the Company contained in this
Article Thirteen.
ARTICLE FOURTEEN
SUBORDINATION OF SECURITIES
Section 1401. Securities Subordinate to Senior Indebtedness.
The Company covenants and agrees, and each Holder of a
Security by his acceptance thereof likewise covenants and agrees that, to
the extent and in the manner hereinafter set forth in this Article, the
indebtedness represented by the Securities and the payment of the principal
of (and premium, if any) and interest on each and all of the Securities are
hereby expressly made subordinate and subject in right of payment to the
prior payment in full of all Senior Indebtedness.
Section 1402. Payment Over of Proceeds Upon Dissolution, Etc.
Upon any distribution of assets of the Company 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 and whether or not
involving insolvency or bankruptcy, or (c) any assignment for the benefit
of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Indebtedness
shall be entitled to receive payment in full of all amounts due or to become
due on or in respect of all Senior Indebtedness, or provision shall be made
for such payment in money or money's worth, before the Holders of the
Securities are entitled to receive any payment on account of principal of
(or premium, if any) or interest on the Securities, and
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to that end the holders of Senior Indebtedness 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, including any such
payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated
to the payment of the Securities, which may be payable or deliverable in
respect of the Securities in any such case, proceeding, dissolution,
liquidation or other winding up or event. In furtherance of the foregoing,
but not by way of limitation thereof, in the event of any case or proceeding
described in clause (a) above with the result that the Company is excused
from the obligation to pay all or any part of the interest otherwise payable
in respect of any Senior Indebtedness during the period subsequent to the
commencement of any such case or proceeding, all or such part, as the
case may be, of such interest shall be payable out of, and to that extent
shall diminish and be at the expense of, reorganization dividends or other
distributions in respect of the Notes.
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, property or securities, including any such
payment or distribution which may be payable or deliverable by reason of
the payment of any other indebtedness of the Company being subordinated
to the payment of the Securities, before all Senior Indebtedness is paid in
full or payment thereof provided for, and if such fact shall then 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
Indebtedness remaining unpaid, to the extent necessary to pay all Senior
Indebtedness in full, after giving effect to any concurrent payment or
distribution to or for the holders of Senior Indebtedness.
For purposes of this Article only, the words "cash, property
or securities" shall not be deemed to include shares of stock of the
Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment
the payment of which is subordinated at least to the extent provided in this
Article with respect to the Securities to the payment of all Senior
Indebtedness which may at the time be outstanding; provided, however,
that (i) such Senior Indebtedness is assumed by the new corporation, if
any, resulting from any such reorganization or readjustment, and (ii) the
rights of the holders of the Senior Indebtedness are not, without the
consent of such holders, altered by such reorganization or readjustment.
The consolidation of the Company with, or the merger of the Company
into, another Person or the liquidation or dissolution of the Company
following the conveyance or other disposition of its properties and assets
substantially as an entirety to another Person upon the terms and conditions
set forth in Article Eight shall not be deemed a dissolution, winding up,
liquidation, reorganization, assignment for the benefit of creditors or
marshalling of assets and liabilities of the Company for the purposes of
this Section if the Person formed by such consolidation or into which the
Company is merged or the Person which acquires by conveyance or other
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disposition such properties and assets substantially as an entirety, as the
case may be, shall, as a part of such consolidation, merger, conveyance or
other disposition, comply with the conditions set forth in Article Eight.
Section 1403. Prior Payment to Senior Indebtedness Upon Acceleration of
Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity, then and in such event the holders of Senior
Indebtedness 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 such Senior Indebtedness, or
provision shall be made for such payment in money or money's worth,
before the Holders of the Securities are entitled to receive any payment
(including any payment which may be payable by reason of the payment
of any other indebtedness of the Company being subordinated to the
payment of the Securities) by the Company on account of the principal of
(or premium, if any) or interest on the Securities or on account of the
purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Securities prohibited by the foregoing provisions of this Section, and if
such facts shall then have been made known to the Trustee or, as the case
may be, such Holder, then and in such event such payment shall be paid
over and delivered forthwith to the Company for the benefit of the holders
of Senior Indebtedness.
The provisions of this Section shall not apply to any
payment with respect to which Section 1402 would be applicable.
Section 1404. No Payment When Senior Indebtedness in Default.
(a) In the event and during the continuation of any
default in the payment of principal (or premium, if any) or interest on any
Senior Indebtedness, or in the payment of any commitment or other fees
in respect thereof, or in the event that any event of default with respect to
any Senior Indebtedness shall have occurred and be continuing permitting
the holders of such Senior Indebtedness (or a trustee on behalf of the
holders thereof) to declare such Senior Indebtedness 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 (b) in the event any judicial proceeding shall be pending
with respect to any such default in payment or event of default; then no
payment (including any payment which may be payable by reason of the
payment of any other indebtedness of the Company being subordinated to
the payment of the Securities) shall be made by the Company on account
of principal of (or premium, if any) or interest on the Securities or on
account of the purchase or other acquisition of Securities.
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In the event that, notwithstanding the foregoing, the
Company shall make any payment to the Trustee or the Holder of any
Security prohibited by the foregoing provisions of this Section, and if such
fact shall then have been made known to the Trustee or, as the case may
be, such Holder, then and in such event such payment shall be paid over
and delivered forthwith to the Company for the benefit of the holders of
Senior Indebtedness.
The provisions of this Section shall not apply to any
payment with respect to which Section 1402 would be applicable.
Section 1405. Acknowledgment of Reliance.
Each Holder of Notes by his acceptance thereof
acknowledges and agrees that the subordination provisions included herein
are, and are intended to be, an inducement and a consideration to each
holder of any Senior Indebtedness, whether such Senior Indebtedness was
created or acquired before or after the issuance of Notes, to acquire and/or
continue to hold such Senior Indebtedness, and such holder of Senior
Indebtedness shall be deemed conclusively to have relied on such
subordination provisions in acquiring and/or continuing to hold such Senior
Indebtedness.
Section 1406. Subrogation to Rights of Holders of Senior Indebtedness.
Subject to the payment in full of all Senior Indebtedness, the
Holders of the Securities shall be subrogated to the extent of the payments
or distributions made to the holders of such Senior Indebtedness pursuant
to the provisions of this Article to the rights of the holders of such Senior
Indebtedness to receive payments or distributions of cash, property or
securities applicable to the Senior Indebtedness until the principal of (and
premium, if any) and interest on the Securities shall be paid in full. For
purposes of such subrogation, no payments or distributions to the holders
of the Senior Indebtedness of any cash, property or securities to which the
Holders of 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 Company or to the holders of Senior Indebtedness by
Holders of the Securities or the Trustee shall, as between the Company, its
creditors other than holders of Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment or distribution by the Company to
or on account of the Securities.
Section 1407. 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 Indebtedness, 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,
its creditors and the Holders of the Securities, the obligation of the
Company, which is absolute and unconditional, and which, subject to the
rights under this Article of the holders of Senior Indebtedness, is intended
to rank equally with all other general
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obligations of the Company, to pay
to the Holders of the Securities the principal of (and premium, if any) and
interest 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 Indebtedness, 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
Indebtedness to receive cash, property or securities otherwise payable or
deliverable to the Trustee or such Holder.
Section 1408. 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.
Section 1409. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior
Indebtedness to enforce subordination as herein provided shall at any time
in any way be prejudiced or impaired by any act or failure to act on the
part of the Company or by any act or failure to act in good faith by any
such holder, or by any noncompliance by the Company with the terms,
provisions and covenants of this Indenture, regardless of any knowledge
thereof any such holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Indebtedness may, at any time and from
time to time, without the consent of or notice to the Trustee or 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 Indebtedness, do any one or more of the
following: (i) change the manner, place or terms of payment or extend the
time of payment of, or renew or alter, Senior Indebtedness, or otherwise
amend or supplement in any manner Senior Indebtedness or any instrument
evidencing the same or any agreement under which Senior Indebtedness
is outstanding; (ii) sell, exchange, release or otherwise deal with any
property pledged, mortgaged or otherwise securing Senior Indebtedness;
(iii) release any Person liable in any manner for the collection of Senior
Indebtedness; and (iv) exercise or refrain from exercising any rights against
the Company and any other Person.
Section 1410. 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.
Failure to give such notice shall not affect the subordination of the
Securities to Senior Indebtedness. 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
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Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder of Senior
Indebtedness or from any trustee therefor; and, prior to the receipt of any
such written notice, the Trustee, subject to the provisions of Section 601,
shall be entitled in all respects to assume that no such facts exist; provided,
however, that if the Trustee shall not have received, at least three Business
Days prior to the date upon which by the terms hereof any such money
may become payable for any purpose (including without limitation, the
payment of the principal of, and premium, if any, or interest on any
Security), the notice with respect to such money provided for in this
Section, 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 three Business Days prior to such date.
Subject to the provisions of Section 601, the Trustee shall
be entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Senior Indebtedness (or a trustee on
behalf of such holder) to establish that such notice has been given by a
holder of Senior Indebtedness (or a trustee on behalf of any such holder).
In the event that the Trustee determines in good faith that further evidence
is required with respect to the right of any Person as a holder of Senior
Indebtedness to participate in any payment or distribution pursuant to this
Article, the Trustee may request such Person to furnish evidence to the
reasonable satisfaction of the Trustee as to the amount of Senior
Indebtedness held by such Person, the extent to which such Person is
entitled to participate in such payment or distribution and any other facts
pertinent to the rights of such Person under this Article, and if such
evidence is not furnished, the Trustee may defer any payment to such
Person pending judicial determination as to the right of such Person to
receive such payment.
Section 1411. 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
601, 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 insolvency, bankruptcy, receivership, liquidation, reorganization,
dissolution, winding up or similar case or proceeding is pending, or a
certificate of the trustee in bankruptcy, liquidating trustee, custodian,
receiver, 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 Senior Indebtedness and
other indebtedness of the Company, the amount thereof or payable
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thereon, the amount or amounts paid or distributed thereon and all other
facts pursuant thereto or to this Article.
Section 1412. Trustee Not Fiduciary for Holders of Senior Indebtedness.
The Trustee shall not be deemed to owe any fiduciary duty
to the holders of Senior Indebtedness and shall not be liable to any 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 Indebtedness shall be entitled by
virtue of this Article or otherwise.
Section 1413. Rights of Trustee as Holder of Senior Indebtedness;
Preservation of Trustee's Rights.
The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article with respect to any Senior Indebtedness
which may at any time be held by it, to the same extent as any other
holder of Senior Indebtedness, and nothing in this Indenture shall deprive
the Trustee of any of its rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee or any predecessor Trustee under or pursuant to
Section 607.
Section 1414. 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 1413 shall not apply
to the Company or any Affiliate of the Company if it or such Affiliate acts
as Paying Agent.
Section 1415. Certain Conversions Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance
with Article Thirteen shall not be deemed to constitute a payment or
distribution on account of the principal of or premium 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 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 (b) securities of
the Company which are subordinated in right of payment to all Senior
Indebtedness which may be outstanding at the time of issuance or delivery
of such securities to substantially the
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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 Indebtedness 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 Thirteen.
* * * *
This instrument may be executed in any number of
counterparts, each of which so executed shall be deemed to be an original,
but all such counterparts shall together constitute but one and the same
instrument.
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IN WITNESS WHEREOF, the parties hereto have caused
this Indenture to be duly executed, all as of the day and year first above
written.
POGO PRODUCING COMPANY
By /s/ D. STEPHEN SLACK
_____________________
SHAWMUT BANK CONNECTICUT,
NATIONAL ASSOCIATION,
as Trustee
By /s/ P. DE LA CANAL
____________________
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