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Exh 4.1
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CORNING INCORPORATED
AS ISSUER
TO
THE CHASE MANHATTAN BANK
AS TRUSTEE
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FIRST SUPPLEMENTAL INDENTURE
Dated as of November 8, 2000
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Zero Coupon Convertible Debentures
due November 8, 2015
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TABLE OF CONTENTS
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ARTICLE ONE THE 2015 DEBENTURES
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SECTION 101. Designation of 2015 Debentures; Establishment of Form.......................................2
SECTION 102. Amount......................................................................................2
SECTION 103. Accrual of Original Issue Discount; Interest................................................3
SECTION 104. Redemption..................................................................................3
SECTION 105. Discharge of Liability on 2015 Debentures...................................................3
SECTION 106. Conversion..................................................................................3
SECTION 107. Maturity....................................................................................3
SECTION 108. Repurchase..................................................................................4
SECTION 109. Amount Due upon Event of Default............................................................4
SECTION 110. Other Terms of 2015 Debentures..............................................................4
ARTICLE TWO AMENDMENTS TO THE INDENTURE
SECTION 201. Definitions and Other Provisions of General Application.....................................5
SECTION 202. Registration, Registration of Transfer and Exchange.........................................8
SECTION 203. Mutilated, Destroyed, Lost and Stolen Securities............................................8
SECTION 204. Payment of Interest; Interest Rights Preserved..............................................8
SECTION 205. Cancellation................................................................................9
SECTION 206. Events of Default; Unconditional Right of Holders to Receive Principal,
Premium and Interest........................................................................9
SECTION 207. The Trustee.................................................................................9
SECTION 208. Covenants...................................................................................9
SECTION 209. Redemption.................................................................................10
SECTION 210. Conversion.................................................................................11
SECTION 211. Repurchase at Option of Holder; Repurchase upon Change in Control; Tax
Events.....................................................................................21
ARTICLE THREE MISCELLANEOUS PROVISIONS
SECTION 301. Integral Part..............................................................................35
SECTION 302. General Definitions........................................................................35
SECTION 303. Adoption, Ratification and Confirmation....................................................35
SECTION 304. Counterparts...............................................................................36
SECTION 305. Governing Law..............................................................................36
ANNEX A - FORM OF 2015 DEBENTURE
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CORNING INCORPORATED
FIRST SUPPLEMENTAL INDENTURE
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of November 8,
2000, between Corning Incorporated, a New York corporation (the "Company") and
The Chase Manhattan Bank (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has executed and delivered to the Trustee
an Indenture, of even date herewith (the "Indenture").
WHEREAS, the Indenture provides for the Company's issuance
from time to time of senior unsecured debt securities;
WHEREAS, no Securities have heretofore been issued under the
indenture and no securityholders currently exist thereunder;
WHEREAS, Article Nine of the Indenture provides that the
Company, when authorized by or pursuant to a Board Resolution, and the Trustee
may without the consent of any Securityholders enter into one or more indentures
supplemental to the Indenture to establish the form and terms of Securities of
any series, including redemption, conversion and repurchase terms and
procedures;
WHEREAS, the Company desires to issue a series of zero coupon
senior convertible debentures due November 8, 2015 under the Indenture, and has
duly authorized the creation and issuance of such debentures and the execution
and delivery of this Supplemental Indenture to modify the Indenture and provide
certain additional provisions as hereinafter described;
WHEREAS, the Company and the Trustee deem it advisable to
enter into this Supplemental Indenture for the purpose of establishing the terms
of such convertible subordinated debt securities and providing for the rights,
obligations and duties of the Trustee with respect to such debt securities;
WHEREAS, concurrent with the execution hereof, the Company has
caused its counsel to deliver to the Trustee an Opinion of Counsel or a reliance
letter upon an Opinion of Counsel to the effect that the execution of this
Supplemental Indenture is authorized or permitted by the Indenture;
WHEREAS, all conditions and requirements of the Indenture
necessary to make this Supplemental Indenture a valid, binding and legal
instrument in accordance with its terms have been performed and fulfilled by the
parties hereto.
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NOW THEREFORE:
In consideration of the premises provided for herein, the
Company and the Trustee mutually covenant and agree for the equal and
proportionate benefit of all Holders of the Securities as follows:
ARTICLE ONE
THE 2015 DEBENTURES
SECTION 101. DESIGNATION OF 2015 DEBENTURES; ESTABLISHMENT OF FORM.
There shall be a series of Securities designated "Zero Coupon
Convertible Debentures Due November 8, 2015" of the Company (the "2015
Debentures"), and the form thereof shall be substantially as set forth in Annex
A hereto, which is incorporated into and shall be deemed a part of this First
Supplemental Indenture, in each case with such appropriate insertions,
omissions, substitutions and other variations as are required or permitted by
the Indenture, and which 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 of the Company executing
such 2015 Debentures, as evidenced by their execution of the 2015 Debentures.
The 2015 Debentures will initially be issued in permanent
global form, substantially in the form set forth in Annex A hereto (the "Global
Securities"), as a Book-Entry Security. Each Global Security shall represent
such of the Outstanding 2015 Debentures as shall be specified therein and shall
provide that it shall represent the aggregate amount of Outstanding 2015
Debentures from time to time endorsed thereon and that the aggregate amount of
Outstanding 2015 Debentures represented thereby may from time to time be reduced
to reflect exchanges conversions, repurchases and redemptions. Any endorsement
of a Global Security to reflect the amount, or any increase or decrease in the
amount, of Outstanding 2015 Debentures represented thereby shall be made by the
Trustee in accordance with written instructions or such other written form of
instructions as is customary for the Depositary, from the Depositary or its
nominee on behalf of any Person having the beneficial interest in the Global
Security.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as its
Paying Agent and its Conversion Agent, pursuant to Section 1002 of the
Indenture, with respect to the 2015 Debentures.
SECTION 102. AMOUNT.
(a) The Trustee shall authenticate and deliver the 2015
Debentures for original issue in an aggregate Principal Amount at maturity of
up to $2,712,546,000 upon Company Order for the authentication and delivery of
2015 Debentures, without any further action by the Company. The
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aggregate Principal Amount of 2015 Debentures that may be authenticated and
delivered under the Indenture may not exceed the amount set forth in the
foregoing sentence, except for 2015 Debentures authenticated and delivered upon
registration of transfer of, or in exchange for, or in lieu of, other 2015
Debentures pursuant to Section 304, 305, 306, 906, 1107, 1403 or 1511 of the
Indenture.
(b) The Company may not issue new 2015 Debentures to replace
2015 Debentures that it has paid or delivered to the Trustee for cancellation or
that any Holder has converted pursuant to Article Fourteen of the Indenture.
SECTION 103. ACCRUAL OF ORIGINAL ISSUE DISCOUNT; INTEREST.
The 2015 Debentures shall be Original Issue Discount
Securities. Original Issue Discount shall accrue with respect to the 2015
Debentures at the rate set forth under the caption "Interest" in the 2015
Debentures, commencing on the Issue Date of the 2015 Debentures. Except as
provided under the caption "Tax Event" in the 2015 Debentures and in Article
Sixteen of the Indenture, there shall be no periodic payments of interest on the
2015 Debentures.
SECTION 104. REDEMPTION.
(a) There shall be no sinking fund for the retirement of the
2015 Debentures.
(b) The Company, at its option, may redeem the 2015 Debentures
in accordance with the provisions of and at the Redemption Prices set forth
under the captions "Optional Redemption" and "Notice of Redemption" in the 2015
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Eleven of the Indenture.
SECTION 105. DISCHARGE OF LIABILITY ON 2015 DEBENTURES.
Article Thirteen of the Indenture shall be applicable to the
2015 Debentures.
SECTION 106. CONVERSION.
The 2015 Debentures shall be convertible in accordance with
the provisions and at the conversion price set forth under the caption
"Conversion" in the 2015 Debentures and in accordance with the provisions of the
Indenture, including, without limitation, Article Fourteen thereof.
SECTION 107. MATURITY.
The date on which the principal of the 2015 Debentures is
payable pursuant to the Indenture, except as otherwise provided in the 2015
Debentures, shall be November 8, 2015. The Stated Maturity of the 2015
Debentures is November 8, 2015.
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SECTION 108. REPURCHASE.
(a) The 2015 Debentures shall be repurchased by the Company in
accordance with the provisions and at the Repurchase Prices set forth under the
caption "Repurchase by the Company at the Option of the Holder" in the 2015
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Fifteen thereof.
(b) The Company, at the option of the Holders thereof, shall
repurchase the 2015 Debentures in accordance with the provisions of and at the
Change in Control Purchase Prices set forth under the caption "Purchase of
Securities at the Option of the Holder Upon a Change in Control" in the 2015
Debentures and in accordance with the provisions of the Indenture, including,
without limitation, Article Fifteen thereof.
SECTION 109. AMOUNT DUE UPON EVENT OF DEFAULT.
If an Event of Default with respect to any 2015 Debentures
that are at the time Outstanding occurs and is continuing, then in accordance
with Section 502 of the Indenture, the Trustee or the Holders of not less than
25% in principal amount of the Outstanding 2015 Debentures may declare all
unpaid Issue Price plus accrued Original Issue Discount through the acceleration
date, if any (or, if the 2015 Debentures have been converted to interest-bearing
2015 Debentures pursuant to Section 1601 of the Indenture, the Restated
Principal Amount plus accrued and unpaid interest, if any, from the date of
conversion to the acceleration date), of all of the 2015 Debentures 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 specified
amount shall become immediately due and payable. If an Event of Default
described in clause (5) or (6) of Section 501 of the Indenture shall occur, such
specified amount of all Outstanding 2015 Debentures ipso facto shall become and
be immediately due and payable without any declaration or other act on the part
of the Trustee or any Holder.
SECTION 110. OTHER TERMS OF 2015 DEBENTURES.
Without limiting the foregoing provisions of this Article One,
the terms of the 2015 Debentures shall be as set forth in the form of 2015
Debentures set forth in Annex A hereto and as provided in the Indenture. In the
event of a conflict or inconsistency between the Indenture and this First
Supplement, this First Supplement will control.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
The amendments contained herein shall apply to 2015 Debentures
only and not to any other series of Security issued under the Indenture and any
covenants provided herein are expressly being included solely for the benefit of
the 2015 Debentures. These amendments shall be effective for so long as any 2015
Debentures remain Outstanding.
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SECTION 201. DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION.
(a) Section 101 of the Indenture is amended by inserting,
amending or restating, as the case may be, in their appropriate alphabetical
position, the following definitions:
"Capital Stock" or "capital stock" of any Person means any and
all shares, interests, partnership interests, participations, rights or
other equivalents (however designated) of such Person's equity interest
(however designated) issued by that Person.
"Change in Control" has the meaning specified in Section
1501(b) of the Indenture.
"Change in Control Purchase Date" has the meaning specified in
Section 1501(b) of the Indenture.
"Change in Control Purchase Notice" has the meaning specified
in Section 1501(b) of the Indenture.
"Change in Control Purchase Price" has the meaning specified
in Section 1501(b) of the Indenture.
"Common Stock" means any stock of any class of the Company
which has no preference in respect of dividends or of amounts payable
in the event of any voluntary or involuntary liquidation, dissolution
or winding up of the Company and which is not subject to redemption by
the Company. However, subject to the provisions of Section 1412, shares
issuable on conversion of Securities shall include only shares of the
class designated as Common Stock of the Company at the date hereof or
shares of any class or classes resulting from any reclassification or
reclassifications thereof and which have no preference in respect of
dividends or of amounts payable in the event of any voluntary or
involuntary liquidation, dissolution or winding up of the Company and
which are not subject to redemption by the Company; provided that if at
any time there shall be more than one such resulting class, the shares
of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting
from all such reclassifications bears to the total number of shares of
all such classes resulting from all such reclassifications.
"Company Notice Date" has the meaning specified in Section
1503 of the Indenture.
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"Conversion Agent" means the Person authorized by the Company
to effect the conversion of the 2015 Debentures and shall initially be
the agent specified in Section 101 of this Supplemental Indenture.
"Notional Conversion Price" means the price of a share of
Common Stock calculated by FIRST, adding (i) the Issue Price to (ii)
Original Issue Discount accrued to the measurement date and SECOND,
dividing that sum by the quotient obtained by dividing (x) $1,000 by
(y) the then-applicable conversion price under this Indenture.
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor statute.
"Expiration Time" has the meaning specified in Section 1405.
"Global Securities" has the meaning specified in Section 101
hereof.
"Holder Repurchase Notice" has the meaning specified in
Section 1501(a) of the Indenture.
"Interest", when used with respect to an Original Issue
Discount Security which by its terms bears interest only at Maturity or
after a Tax Event, means interest payable at Maturity or after a Tax
Event.
"Issue Date" of any 2015 Debenture means the date on which the
2015 Debenture was originally issued or deemed issued as set forth on
the face of the 2015 Debenture.
"Issue Price" of any 2015 Debenture means, in connection with
the original issuance of such 2015 Debenture, the initial issue price
at which the 2015 Debenture is sold to the public. The Issue Price per
$1,000 Principal Amount is set forth on the face of the 2015 Debenture.
"Market Price" has the meaning specified in Section 1504 of
the Indenture.
"Optional Repurchase Price" has the meaning specified in
Section 1501(a) of the Indenture.
"Original Issue Discount" of any 2015 Debenture means the
difference between the Principal Amount of the 2015 Debenture and its
Issue Price.
"Principal Amount" of a 2015 Debenture means the Principal
Amount as set forth on the face of the 2015 Debenture.
"Purchased Shares" has the meaning specified in 1405 of the
Indenture.
"Repurchase Date" has the meaning specified in Section 1501 of
the Indenture.
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"Repurchase Notice" means either the Change in Control
Purchase Notice or the Holder Repurchase Notice, as the case may be.
"Repurchase Price" means either the Change in Control Purchase
Price or the Optional Repurchase Price, as the case may be.
"Responsible Officer", when used with respect to the Trustee,
means any officer assigned to administer corporate trust matters and
also means, with respect to a particular corporate trust matter, any
other officer to whom such matter is referred because of his or her
knowledge of and familiarity with the particular subject.
"Restated Principal Amount" has the meaning specified in
Section 1601 of the Indenture.
"Sale Price" has the meaning specified in Section 1504 of the
Indenture.
"Securities" has the meaning stated in the first recital of
this Indenture and more particularly means any Securities authenticated
and delivered under this Indenture, including 2015 Debentures.
"Securities Act" means the Securities Act of 1933, as amended,
or any successor statute.
"Tax Event" means that the Company shall have received an
opinion from independent tax counsel experienced in such matters to the
effect that, as a result of (a) any amendment to, or change (including
any announced prospective change) in, the laws (or any regulations
thereunder) of the United States or any political subdivision or taxing
authority thereof or therein or (b) any amendment, change,
interpretation or application of the laws or regulations by any
legislative body, court, governmental agency or regulatory authority,
there is more than an insubstantial risk that interest (including
Original Issue Discount) payable on the 2015 Debentures either
(i) would not be deductible on a current accrual basis or (ii)
would not be deductible under any other method, in either case, in
whole or in part, by the Company (by reason of deferral, disallowance
or otherwise) for United States federal income tax purposes.
"Trading Day" means a day during which trading in securities
generally occurs on the New York Stock Exchange or, if the Common Stock
is not listed on the New York Stock Exchange, on the principal other
national or regional securities exchange on which the Common Stock is
then listed or, if the Common Stock is not listed on a national or
regional securities exchange, on the Nasdaq National Market System or,
if the Common Stock is not quoted on the Nasdaq National Market System,
on the principal other market on which the Common Stock is then traded.
"2015 Debentures" means the Zero Coupon Convertible Debentures
due November 8, 2015 of the Company authorized by resolution of the
Board of Directors.
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"Voting Stock" means any class or classes of Capital Stock
pursuant to which the holders thereof under ordinary circumstances have
the power to vote in the election of the board of directors, managers
or trustees of any Person (or other Persons performing similar
functions), irrespective of whether or not, at the time, Capital Stock
of any other class or classes shall have, or might have, voting power
by reason of the happening of any contingency.
SECTION 202. REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
Section 305 of the Indenture shall be amended by adding the
following paragraph immediately following the seventh paragraph thereof with the
following paragraph:
The Company shall not be required (i) to issue, register the
transfer of or exchange the Securities of any series during a period
beginning at the opening of business 15 days before the day of the
mailing of a notice of redemption of Securities of that series selected
for redemption and ending at the close of business on the day of such
mailing, (ii) to register the transfer of or exchange any 2015
Debenture so selected for redemption in whole or in part, except the
unredeemed portion of any Security being redeemed in part, or (iii) to
exchange or register a transfer of any 2015 Debenture or portions
thereof in respect of which a Change in Control Purchase Notice or
Holder Repurchase Notice has been delivered and not withdrawn by the
Holder thereof (except, in the case of the purchase of a 2015 Debenture
in part, the portion not to be purchased).
SECTION 203. MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
The Indenture shall be amended by replacing the third
paragraph of Section 306 with the following paragraph:
In case any such mutilated, destroyed, lost or stolen Security
has or is about to become due and payable, or is about to be redeemed
or purchased by the Company upon a Change in Control or purchased by
the Company on a Repurchase Date, in each case pursuant to Article
Fifteen, the Company in its discretion may, instead of issuing a new
Security, pay such Security.
SECTION 204. PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
Section 307 of the Indenture is amended by adding the
following paragraph immediately following Clause (2) thereof:
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 Predecessor Securities) is
registered at the close of business on such Regular Record Date. Except
as otherwise expressly provided in the immediately
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preceding sentence, 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 205. CANCELLATION.
The first sentence of Section 309 of the Indenture shall be
amended by inserting the word "conversion" in the first sentence thereof,
following the word "redemption".
SECTION 206. EVENTS OF DEFAULT; UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST.
(a) Clause (1) of Section 501 of the Indenture is amended to
read in its entirety as follows:
(1) default in the payment of any interest upon any Security,
including default in the payment of any interest after the conversion
of the 2015 Debentures to interest-bearing 2015 Debentures pursuant to
Section 1601 upon any 2015 Debentures when such interest becomes due
and payable and continuance of such default for a period of 30 days;
(b) Clause (2) of Section 501 of the Indenture is amended to
read in its entirety as follows:
(2) default in the payment of the Principal Amount at Maturity
(or, if the 2015 Debentures have been converted to interest-bearing
2015 Debentures pursuant to Section 1601, the Restated Principal
Amount), the Redemption Price, the Optional Repurchase Price or the
Change in Control Purchase Price when the same becomes due and payable
upon redemption, upon declaration of acceleration, when due for
repurchase by the Company or otherwise;
(c) Section 508 of the Indenture shall be amended by
replacing that section with the following:
Section 508. UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Notwithstanding any other provision in this Indenture, the
Holder of any Security shall have the right, which is absolute and
unconditional, to receive payment of the principal of (and premium, if
any) and (subject to Section 307) interest on, if any, with respect to
such Security on the Maturity or Maturities expressed in such Security
(or in the case of redemption, to receive the Redemption Price on the
Redemption Date, in the case of a repurchase, to receive the Optional
Repurchase Price on the Repurchase Date, or in the case of a Change in
Control, to receive the Change in Control Purchase Price on the Change
in Control Purchase Date) and to institute suit for the enforcement of
any such payment on or after such respective dates, and such rights
shall not be impaired without the consent of such Holder.
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SECTION 207. THE TRUSTEE.
Article Six of the Indenture shall be amended by inserting at
the end of Section 607 thereof the following paragraph:
The provisions of this Section 607 shall survive the
resignation or removal of the Trustee and the termination of this
Indenture.
SECTION 208. COVENANTS.
Sections 1008 and 1009 of the Indenture shall not apply to the
2015 Debentures.
SECTION 209. REDEMPTION.
Article Eleven of the Indenture shall be amended by
(a) Inserting at the end of Clause (7) of Section 1104
"and", and inserting a new Clause (8), "(8) that there exists a conversion
privilege, if applicable.", and
(b) inserting the following section in its entirety:
Section 1108. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
In connection with 2015 Debentures, the Company may arrange
for the purchase and conversion of any 2015 Debentures called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase such 2015 Debentures by paying to a Paying Agent
(other than the Company or any of its Affiliates) for the benefit of
the Holders, on or before 11:00 A.M. New York City time on the
Redemption Date, an amount that, together with any amounts deposited
with such Paying Agent by the Company for the redemption of such 2015
Debentures, is not less than the Redemption Price of such 2015
Debentures. Notwithstanding anything to the contrary contained in this
Article Eleven, the obligation of the Company to pay the Redemption
Price of such 2015 Debentures, including interest, if any, shall be
deemed to be satisfied and discharged to the extent such amount is so
paid by such purchasers; provided, however, that nothing in this
Section 1108 shall relieve the Company of its obligation to pay the
Redemption Price on 2015 Debentures called for redemption. If such an
agreement is entered into, any 2015 Debentures called for redemption
and not surrendered for conversion by the Holders thereof prior to the
relevant Redemption Date may, at the option of the Company upon written
notice to the Trustee, be deemed, to the fullest extent permitted by
law, acquired by such purchasers from such Holders and (notwithstanding
anything to the contrary contained in Article Fourteen) surrendered by
such purchasers for conversion, all as of 11:00 A.M. New York City time
on the Redemption Date, subject to payment of the above amount as
aforesaid. The Paying Agent shall hold and pay to the Holders whose
2015 Debentures are selected for redemption any such amount paid to it
for purchase in the same manner as it would money deposited with it by
the Company for the redemption of 2015 Debentures. Without the Paying
Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and
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conversion of any 2015 Debentures shall increase or otherwise affect
any of the powers, duties, responsibilities or obligations of the
Paying Agent as set forth in this Indenture, and the Company agrees to
indemnify the Paying Agent from, and hold it harmless against, any
loss, liability or expense arising out of or in connection with any
such arrangement for the purchase and conversion of any 2015 Debentures
between the Company and such purchasers, including without limitation
the costs and expenses incurred by the Paying Agent in the defense of
any claim or liability reasonably incurred without negligence or bad
faith on its part arising out of or in connection with the exercise or
performance of any of its powers, duties, responsibilities or
obligations under this Indenture, in accordance with the indemnity
provisions applicable to the Trustee set forth herein.
SECTION 210. CONVERSION.
The Indenture is amended by adding the following Article
Fourteen:
ARTICLE FOURTEEN
CONVERSION OF SECURITIES
Section 1401. APPLICABILITY OF ARTICLE.
Pursuant to Section 301, provision is hereby made for the
conversion of the 2015 Debentures pursuant to this Article Fourteen.
Section 1402. CONVERSION PRIVILEGE AND CONVERSION PRICE.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any
portion of the principal amount at which is $1,000 or an integral
multiple of $1,000 at Stated Maturity thereof may be converted based on
the Principal Amount at Stated Maturity thereof, or of such portion
thereof, into fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100 of a share) of Common Stock of the
Company, at the conversion price, determined as hereinafter provided,
in effect at the time of conversion. The ratio derived by dividing
$1,000 by the then-applicable conversion price is referred to herein as
the "conversion rate." Such conversion right shall commence on the date
of issuance of the Securities and expire at the close of business on
the date provided for in the Securities with respect to such
Securities. In case a Security or portion thereof is called for
redemption, such conversion right in respect of the Security or portion
so called shall expire at the close of business on the Business Day
prior to the Redemption Date, unless the Company defaults in making the
payment due upon redemption.
The price at which shares of Common Stock shall be delivered
upon conversion is herein referred to as the "conversion price". The
initial conversion price shall be fixed in the Security. The conversion
price shall be adjusted in certain instances as provided in Section
1405.
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Section 1403. EXERCISE OF CONVERSION PRIVILEGE.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly
endorsed or assigned to the Company or in blank, at any office or
agency of the Company maintained for that purpose pursuant to Section
1002, accompanied by written notice to the Company at such office or
agency that the Holder elects to convert such Security or, if less than
the entire principal amount thereof is to be converted, the portion
thereof to be converted. On conversion of a 2015 Debenture, that
portion of accrued Original Issue Discount (and interest, if the
Company has exercised its option provided for in Section 1601)
attributable to the period from the Issue Date (or, in the case of
interest, if the Company has exercised the option provided for in
Section 1601, the later of (x) the date of such exercise and (y) the
date on which interest was last paid) of the 2015 Debenture through the
conversion date with respect to the converted 2015 Debenture shall not
be cancelled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through delivery of the Common
Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the 2015 Debenture being converted pursuant to
the provisions hereof; and the fair market value of such Common Stock
(together with any such cash payment in lieu of fractional shares)
shall be treated as issued, to the extent thereof, first in exchange
for Original Issue Discount (and interest, if the Company has exercised
its option provided for in Section 1601) accrued through the Conversion
Date, and the balance, if any, of such fair market value of such Common
Stock (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the 2015 Debenture being converted
pursuant to the provisions hereof. In the event that the Company has
exercised its option under Section 1601, then any securities
surrendered for conversion during the period from the close of business
on any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date shall (except in
the case of Securities or portions thereof which have been called for
redemption on a Redemption Date within such period) be accompanied by
payment in immediately available 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. Except as provided in the preceding two sentences and
subject to the third paragraph of Section 307, no other payment or
other adjustment shall be made upon any conversion on account of any
Original Issue Discount (and interest, if the Company has exercised
its option provided for in Section 1601) accrued on the 2015
Debentures surrendered for conversion or on account of any dividends
on the Common Stock issued upon conversion.
Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such
Securities for conversion in accordance with the foregoing provisions,
and at such time the rights of the Holders of such Securities as
Holders shall cease, and the Person or Persons entitled to receive the
Common Stock issuable upon conversion shall be treated for all purposes
as the record holder or holders of such Common Stock at such time. As
promptly as practicable on or after the conversion date, the Company
shall issue and shall deliver at such office or agency a certificate or
certificates for the number of full shares of Common Stock issuable
upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 1404.
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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
aggregate principal amount equal to the unconverted portion of the
principal amount of such Security.
Section 1404. FRACTIONS OF SHARES.
No 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 which shall be 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 market price
per share of Common Stock (as determined by the Board of Directors or
in any manner prescribed by the Board of Directors) at the close of
business on the trading day immediately prior to the day of conversion.
Section 1405. ADJUSTMENT OF CONVERSION PRICE.
(1) In case at any time after the date of the issuance of the
applicable Securities, the Company shall pay or make a dividend or
other distribution on any class of capital stock of the Company in
Common Stock, the conversion price in effect at the opening of business
on the day following the date fixed for the determination of
stockholders entitled to receive such dividend or other distribution
shall be reduced by multiplying such conversion price by a fraction of
which the numerator shall be the number of shares of Common Stock
outstanding at the close of business on the date fixed for such
determination and the denominator shall be the sum of such number of
shares and the total number of shares constituting such dividend or
other distribution, such reduction to become effective immediately
after the opening of business on the day following the date fixed for
such determination. For the purposes of this paragraph (1), the number
of shares of Common Stock at any time outstanding shall not include
shares held in the treasury of the Company but shall include shares
issuable in respect of scrip certificates issued in lieu of fractions
of shares of Common Stock. The Company will not pay any dividend or
make any distribution on shares of Common Stock held in the treasury of
the Company.
(2) In case at any time after the date of the issuance of the
applicable Securities, the Company shall issue rights or warrants to
all holders of its Common Stock (not being available on an equivalent
basis to Holders of the Securities upon conversion) entitling them to
subscribe for or purchase shares of Common Stock at a price per share
less than the current market price per share (determined as provided in
paragraph (8) of this Section) of the Common Stock on the date fixed
for the determination of stockholders entitled to receive such rights,
options or warrants (other than pursuant to a dividend reinvestment
plan), the conversion price in effect at the opening of business on the
day following the date fixed for such determination shall be reduced by
multiplying such conversion price by a fraction of which the numerator
shall be the number of shares of Common Stock outstanding at the close
of business on the date fixed for such
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determination plus the number of shares of Common Stock which the
aggregate of the offering price of the total number of shares of Common
Stock so offered for subscription or purchase would purchase at such
current market price and the denominator shall be the number of shares
of Common Stock outstanding at the close of business on the date fixed
for such determination plus the number of shares of Common Stock so
offered for subscription or purchase, such reduction to become
effective immediately after the opening of business on the day
following the date fixed for such determination. For the purposes of
this paragraph (2), the number of shares of Common Stock at any time
outstanding shall not include shares held in the treasury of the
Company but shall include shares issuable in respect of scrip
certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case at any time after the date of the issuance of the
applicable Securities, outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the
conversion price in effect at the opening of business on the day
following the day upon which such subdivision becomes effective shall
be proportionately reduced, and, conversely, in case outstanding shares
of Common Stock shall each be combined into a smaller number of shares
of Common Stock, the conversion price in effect at the opening of
business on the day following the day upon which such combination
becomes effective shall be proportionately increased, such reduction or
increase, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such
subdivision or combination becomes effective.
(4) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock evidences of its
indebtedness or assets (including securities, but excluding any rights
or warrants referred to in paragraph (2) of this Section, any dividend
or distribution paid in cash out of the retained earnings of the
Company and any dividend or distribution referred to in paragraph (1)
of this Section), the conversion price shall be adjusted 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 numerator shall be the current
market price per share (determined as provided in paragraph (8) of this
Section) of the Common Stock on the date fixed for such determination
less the then fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a
Board Resolution filed with the Trustee) of the portion of the assets
or evidences of indebtedness so distributed applicable to one share of
Common Stock and the denominator shall be such current market price per
share of the 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.
(5) In case at any time after the date of the issuance of the
applicable Securities, the Company shall, by dividend or otherwise,
distribute to all holders of its Common Stock cash (excluding any cash
that is distributed upon a merger or consolidation to which Section
1412 applies or as part of a distribution referred to in paragraph (4)
of this Section) in an aggregate amount that, combined together with:
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(A) the aggregate amount of any other such all-cash
distributions made to all holders of its Common Stock within
the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to
this paragraph (5) has been made, and
(B) the aggregate of any cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution) of any other consideration payable in respect of
any tender offer by the Company or any of its subsidiaries for
all or any portion of the Common Stock concluded within the 12
months preceding the date of payment of such distribution and
in respect of which no adjustment pursuant to paragraph (6) of
this Section has been made, the amount of such cash
distribution together with the amounts described in clauses
(A) and (B) above being referred to herein as the "Aggregate
Cash Distribution Amount") exceeds 10% of the product of (I)
the current market price per share of the Common Stock on the
date for the determination of holders of shares of Common
Stock entitled to receive such distribution, times (II) the
number of shares of Common Stock outstanding on such date (the
amount by which the Aggregate Cash Distribution Amount exceeds
10% of the product of the amounts described in clauses (I) and
(II) above being referred to herein as the "Excess Amount"),
then, and in each such case, immediately after the close of
business on such date for determination, the conversion price
shall be decreased in accordance with the following formula:
M - (EA/O)
AC = CP x----------
M
Where:
AC = the adjusted conversion price.
CP = the conversion price in effect immediately prior to
the close of business on the date fixed for
determination of the stockholders entitled to receive
the distribution.
M = the current market price per share (determined as
provided in paragraph (8) of this Section) of the
Common Stock on the date fixed for determination of
the stockholders entitled to receive the
distribution.
EA = the Excess Amount.
O = the number of shares of Common Stock outstanding on
the date fixed for determination of the stockholders
entitled to receive the distribution.
(6) In case at any time after the date of the issuance of the
applicable Securities, a tender offer made by the Company or any Subsidiary for
all or any portion of the Common Stock
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shall expire and such tender offer (as amended upon the expiration thereof)
shall require the payment to stockholders (based on the acceptance (up to any
maximum specified in the terms of the tender offer) of Purchased Shares (as
defined below)) of an aggregate consideration having a fair market value (as
determined by the Board of Directors, whose determination shall be conclusive
and described in a Board Resolution) that combined together with:
(A) the aggregate of the cash plus the fair market
value (as determined by the Board of Directors, whose
determination shall be conclusive and described in a Board
Resolution), as of the expiration of such tender offer, of
consideration payable in respect of any other tender offer, by
the Company or any Subsidiary for all or any portion of the
Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this paragraph (6) has been made, and
(B) the aggregate amount of any all-cash
distributions referred to in paragraph (5) of this Section
1405 made to all holders of the Company's Common Stock within
12 months preceding the expiration of such tender offer and in
respect of which no adjustment pursuant to paragraph (5) of
this Section has been made, exceeds 10% of the product of (I)
the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this Section) as
of the last time (the "Expiration Time") tenders could have
been made pursuant to such tender offer (as it may be
amended), times (II) the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the
Expiration Time, the conversion price shall be adjusted in
accordance with the following formula:
(M x O) - C
AC = CP x -----------------
M x (O - TS)
Where:
AC = the adjusted conversion price.
CP = the conversion price immediately prior to close of
business on the date of the Expiration Time.
M = the current market price per share of the Common Stock
(determined as provided in paragraph (8) of this
Section) on the date of the Expiration Time.
O = the number of shares of Common Stock outstanding
(including any tendered shares) on the Expiration Time.
C = the amount of cash plus the fair market value (as
determined by the Board of Directors, whose
determination shall be conclusive and described in a
Board Resolution)
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of the aggregate consideration payable
to stockholders based on the acceptance (up to any
maximum specified in the terms of the tender offer) of
Purchased Shares (as defined below).
TS = the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed
so accepted up to any such maximum, being referred to as
the "Purchased Shares").
(7) The reclassification of Common Stock into securities other
than Common Stock (other than any reclassification upon a
consolidation or merger to which Section 1412 applies) shall be
deemed to involve (a) a distribution of such securities to all holders
of Common Stock (and the effective date of such reclassification shall
be deemed to be "the date fixed for the determination of stockholders
entitled to receive such distribution" and "the date fixed for such
determination" within the meaning of paragraph (4) of this Section),
and (b) a subdivision or combination, as the case may be, of the
number of shares of Common Stock outstanding immediately prior to
such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such
subdivision becomes effective" or "the day upon which such
combination becomes effective", as the case may be, and "the day
upon which such subdivision or combination becomes effective" within
the meaning of paragraph (3) of this Section).
(8) For the purpose of any computation under paragraphs (2),
(4), (5) and (6) 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 five consecutive Trading Days selected by the
Company commencing not more than 20 Trading Days before, and ending not
later than the earlier of the day in question and the day before the
"ex" date with respect to the issuance or distribution requiring such
computation. 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 New York Stock Exchange or, if the
Common Stock is not listed or admitted to trading on such Exchange, on
the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or admitted to trading
on any national securities exchange, on the Nasdaq National Market or,
if the Common Stock is not listed or admitted to trading on any
national securities exchange or quoted on the Nasdaq National Market,
the average of the closing bid and asked prices in the over-the-counter
market as furnished by any New York Stock Exchange member firm selected
from time to time by the Company for that purpose. For purposes of this
paragraph, the term "'ex' date", when used with respect to any issuance
or distribution, means the first date on which the Common Stock trades
regular way on such exchange or in such market without the right to
receive such issuance or distribution.
(9) No adjustment in the conversion price shall be required
unless such adjustment (plus any adjustments not previously made by
reason of this paragraph (9)) would require an increase or decrease of
at least 1% in such price; provided, however, that any adjustments
which by reason of this paragraph (9) are not required to be made shall
be carried forward and taken
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into account in any subsequent adjustment. All calculations under this
paragraph (9) shall be made to the nearest cent.
(10) The Company may make such reductions in the conversion
price, in addition to those required by this Section, as it considers
to be advisable in order to avoid or diminish any income tax to any
holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax
purposes or for any other reasons. The Company from time to time may
reduce the conversion price by any amount for any period of time if the
period is at least twenty (20) business days, the reduction is
irrevocable during the period, and the Board of Directors of the
Company shall have made a determination that such reduction would be in
the best interest of the Company, which determination shall be
conclusive. Whenever the conversion price is reduced pursuant to the
preceding sentence, the Company shall mail to holders of record of the
Securities a notice of the reduction at least fifteen (15) days prior
to the date the reduced conversion price takes effect, and such notice
shall state the reduced conversion price and the period it will be in
effect. The Company shall have the power to resolve any ambiguity or
correct any error in this paragraph (10) and its actions in so doing
shall be final and conclusive.
Section 1406. NOTICE OF ADJUSTMENTS OF CONVERSION PRICE.
Whenever the conversion price is adjusted as herein provided:
(a) the Company shall compute the adjusted conversion
price in accordance with Section 1405 and shall prepare an
Officers' Certificate, one of the signatories of which shall
be the Treasurer of the Company, setting forth the adjusted
conversion price and the adjusted conversion rate and showing
in reasonable detail the facts upon which such adjustment is
based, and such certificate shall forthwith be filed at each
office or agency maintained for the purpose of conversion of
Securities pursuant to Section 1002; and
(b) 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.
Section 1407. NOTICE OF CERTAIN CORPORATE ACTION.
In case at any time after the date hereof:
(a) the Company shall declare a dividend (or any
other distribution) on its Common Stock payable otherwise than
in cash out of its retained earnings; 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 capital stock of any class or of
any other rights; or
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(c) the Company shall effect any reclassification of
the Common Stock of the Company (other than a subdivision or
combination of its outstanding shares of Common Stock), or of
any consolidation or merger to which the Company is a party
and for which approval of any stockholders of the Company is
required, or of the sale or transfer of all or substantially
all of the assets of the Company; or
(d) the occurrence of the voluntary or involuntary
dissolution, liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant to
Section 1002, and shall cause to be mailed to all Holders at their last
addresses as they shall appear in the Security Register, at least 20
days (or 10 days in any case specified in clause (a) or (b) above)
prior to the applicable record or effective date hereinafter specified,
a notice stating (x) the date on which a record is to be taken for the
purpose of such dividend, distribution, rights 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, share exchange, sale,
transfer, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of
Common Stock of record shall be entitled to exchange their shares of
Common Stock for securities, cash or other property deliverable upon
such reclassification, consolidation, merger, share exchange, sale,
transfer, dissolution, liquidation or winding up. Neither the failure
to give such notice nor any defect therein shall affect the legality or
validity of the proceedings described in clauses (a) through (d) of
this Section 1407. If at the time the Trustee shall not be the
Conversion Agent, a copy of such notice shall also forthwith be filed
by the Company with the Trustee.
Section 1408. COMPANY TO RESERVE COMMON STOCK.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common
Stock, for the purpose of effecting the conversion of Securities, the
full number of shares of Common Stock then issuable upon the conversion
of all outstanding Securities.
Section 1409. TAXES ON CONVERSIONS.
The Company will pay any documentary, stamp or similar issue
or transfer tax due on such issue or delivery of shares of Common Stock
on conversion of Securities pursuant hereto.
The Company shall not, however, be required to pay any tax
which may be payable in respect of any transfer involved in the issue
and delivery of shares of Common Stock in a name other than that of the
Holder of the Security or Securities to be converted, and no such issue
or delivery shall be made unless and until the Person requesting such
issue has paid to the Company the amount of any such tax, or has
established to the satisfaction of the Company that such tax has been
paid.
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Section 1410. COVENANT AS TO COMMON STOCK.
The Company covenants that all shares of Common Stock which
may be issued upon conversion of Securities will upon issue be fully
paid and nonassessable and, except as provided in Section 1409, the
Company will pay all taxes, liens and charges with respect to the issue
thereof.
Section 1411. CANCELLATION OF CONVERTED SECURITIES.
All Securities delivered for conversion shall be delivered to
the Trustee to be cancelled by or at the direction of the Trustee,
which shall dispose of the same as provided in Section 309.
Section 1412. PROVISIONS IN CASE OF CONSOLIDATION, MERGER OR SALE OF
ASSETS.
In case of any consolidation of the Company with, or merger of
the Company into, any other Person, any merger of another Person into
the Company (other than a merger which does not result in any
reclassification, conversion, exchange or cancellation of outstanding
shares of Common Stock of the Company) or any sale or transfer of all
or substantially all of the assets of the Company, the Person formed by
such consolidation or resulting from such merger or which acquires such
assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
outstanding shall have the right thereafter, during the period such
Security shall be convertible as specified in Section 1402, to convert
such Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger, sale or
transfer by a holder of the number of shares of Common Stock of the
Company into which such Security might have been converted immediately
prior to such consolidation, merger, sale or transfer, assuming such
holder of Common Stock of the Company (i) is not a Person with which
the Company consolidated or into which the Company merged or which
merged into the Company or to which such sale or transfer was made, 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 consolidation, merger, sale or transfer (provided
that if the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, sale or transfer is not the
same for each share of Common Stock of the Company held immediately
prior to such consolidation, merger, sale or transfer by other than a
Constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("non-electing
share"), then for the purpose of this Section the kind and amount of
securities, cash and other property receivable upon such consolidation,
merger, sale or transfer 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), and assuming, if such consolidation, merger, sale
or transfer is prior to the date upon which the Securities first become
convertible, that the Securities were convertible at the time of such
consolidation, merger, sale or transfer at the initial conversion price
specified in Section 1402 as adjusted from the date of the issuance of
the applicable Securities to such time pursuant to Section 1405. 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
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provisions of this Section shall similarly apply to successive
consolidations, mergers, sales or transfers.
SECTION 1413. RESPONSIBILITY OF TRUSTEE FOR CONVERSION PROVISIONS.
Neither the Trustee nor any Conversion Agent shall at any
time be under any duty or responsibility to any holder to determine whether
any facts exist which may require any adjustment of the conversion price, or
with respect to the nature or extent of any such adjustment when made, or
with respect to the method employed, 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
property or cash which may at any time be issued or delivered upon the
conversion of any 2015 Debenture; and neither the Trustee nor any Conversion
Agent makes any representation with respect thereto. Neither the Trustee nor
any Conversion Agent shall be responsible for any failure of the Company to
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 2015 Debenture for the purpose of conversion, or, subject to
Section 601 of the Indenture, to comply with any of the covenants of the
Company contained in this Article Fourteen.
SECTION 211. REPURCHASE AT OPTION OF HOLDER; REPURCHASE UPON CHANGE IN
CONTROL; TAX EVENTS.
The Indenture is amended by inserting the following new Articles 15 and
16:
ARTICLE FIFTEEN
REPURCHASE OF SECURITIES AT OPTION OF HOLDER AND
AT OPTION OF HOLDER UPON A CHANGE OF CONTROL
Section 1501. GENERAL.
The Company may be required to repurchase 2015 Debentures in
accordance with their terms and in accordance with this Article.
(a) REPURCHASE AT OPTION OF HOLDER
The 2015 Debentures shall be purchased by the Company under
the paragraph "Repurchase by the Company at the Option of the Holder"
of the 2015 Debentures on November 8, 2005 and November 8, 2010
(each, a "Repurchase Date"), at the repurchase price specified therein
(each, a "Optional Repurchase Price"), at the option of the Holder
thereof, upon:
(1) delivery to the Paying Agent, by the Holder of a
written notice of purchase (a "Holder Repurchase Notice") at
any time from the opening of business on the date that is 20
Business Days prior to a Repurchase Date until the close of
business on the last Business Day prior to such Repurchase
Date stating:
(A) the certificate number of the 2015
Debenture which the Holder will deliver to be
repurchased,
(B) the portion of the Principal Amount of
the 2015 Debenture which the Holder will deliver to
be repurchased, which portion must be $1,000 or an
integral multiple thereof,
(C) that such 2015 Debenture shall be
purchased as of the Repurchase Date pursuant to the
terms and conditions specified under the paragraph
"Repurchase by the Company at the Option of the
Holder" of the 2015 Debentures and in this Indenture,
(D) in the event that the Company elects,
pursuant to Section 1502 hereof, to pay the Optional
Repurchase Price to be paid as of such Repurchase
Date, in whole or in part, in Common Stock but such
portion of the Optional
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Repurchase Price shall ultimately be payable to such
Holder entirely in cash because any of the conditions
to payment of the Optional Repurchase Price in Common
Stock is not satisfied prior to the close of business
on such Repurchase Date, as set forth in Section 1504
hereof, whether such Holder elects (i) to withdraw
such Holder Repurchase Notice as to some or all of
the 2015 Debentures to which such Holder Repurchase
Notice relates (stating the Principal Amount and
certificate numbers of the 2015 Debentures as to
which such withdrawal shall relate), or (ii) to
receive cash in respect of the entire Optional
Repurchase Price for all 2015 Debentures (or portions
thereof) to which such Optional Repurchase Price
relates, and
(2) delivery of such 2015 Debenture to the Paying
Agent prior to, on or after the Repurchase Date (together with
all necessary endorsements) at the offices of the Paying
Agent, such delivery being a condition to receipt by the
Holder of the Optional Repurchase Price therefor; provided,
however, that such Optional Repurchase Price shall be so paid
pursuant to this Article Fifteen only if the 2015 Debenture so
delivered to the Paying Agent shall conform in all respects to
the description thereof in the related Repurchase Notice.
If a Holder, in such Holder Repurchase Notice or in any
written notice of withdrawal delivered by such Holder pursuant to the
terms of Section 1509 hereof, fails to indicate such Holder's choice
with respect to the election set forth in clause (D) of Section
1501(a)(1), such Holder shall be deemed to have elected to receive cash
in respect of the Optional Repurchase Price for all 2015 Debentures
subject to the Holder Repurchase Notice in the circumstances set forth
in such clause (D).
The Company shall purchase from the Holder thereof, pursuant
to this Article Fifteen, a portion of a 2015 Debenture only if the
Principal Amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the purchase of all
of a 2015 Debenture also apply to the purchase of such portion of such
2015 Debenture.
Any purchase by the Company contemplated pursuant to the
provisions of this Article Fifteen shall be consummated by the delivery
of the consideration to be received by the Holder promptly following
the later of the Repurchase Date and the time of delivery of the
Security to the Paying Agent.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Holder Repurchase Notice
contemplated by this Section 1501 shall have the right to withdraw such
Holder Repurchase Notice at any time prior to the close of business on
the Business Day prior to the Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section
1509.
The Paying Agent shall promptly notify the Company of the
receipt by it of any Holder Repurchase Notice or written notice of
withdrawal thereof.
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Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Repurchase Notice may be delivered or
withdrawn and such 2015 Debentures may be surrendered or delivered for
purchase in accordance with the applicable procedures of the Depositary
as in effect from time to time.
(b) PURCHASE OF SECURITIES UPON CHANGE IN CONTROL
(1) If at any time that 2015 Debentures remain Outstanding
there shall occur a Change in Control, 2015 Debentures shall be
purchased by the Company at the option of the Holders thereof as of the
date that is 35 Business Days after the occurrence of the Change in
Control (the "Change in Control Purchase Date") at a purchase price
equal to the Issue Price plus accrued Original Issue Discount through
the Change in Control Purchase Date (or, if the option under Section
1601 has been exercised, the Restated Principal Amount plus accrued and
unpaid interest from the Option Exercise Date to the Change in Control
Purchase Date) (the "Change in Control Purchase Price"), subject to
satisfaction by or on behalf of any Holder of the requirements set
forth in subsection (3) of this Section 1501(b).
A "Change in Control" shall be deemed to have occurred at the
time, after the original issuance of the Securities, of:
(A) the acquisition by any person or group of
beneficial ownership, directly or indirectly, through a
purchase, merger or other acquisition transaction or series of
transactions, of shares of capital stock of the Company
entitling such person to exercise 50% or more of the total
voting power of all shares of capital stock of the Company
entitled to vote generally in the elections of directors (any
shares of voting stock of which such person or group is the
beneficial owner that are not then outstanding being deemed
outstanding for purposes of calculating such percentage),
other than any such acquisition by the Company, any Subsidiary
of the Company or any employee benefit plan of the Company
existing on the date of this Indenture; or
(B) any consolidation or merger of the Company with
or into any other person, or any merger of another person with
or into the Company, or any conveyance, transfer, sale, lease
or similar disposition of all or substantially all of the
Company's assets to another person (other than any such
transaction (x) that does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of
Common Stock, (y) pursuant to which holders of Common Stock
immediately prior to such transaction have the entitlement to
exercise, directly or indirectly, 50% or more of the total
voting power of all shares of capital stock entitled to vote
generally in the election of directors of the continuing or
surviving person immediately after such transaction or (z)
that is effected solely to change the jurisdiction of
incorporation of the Company and results in a
reclassification, conversion or exchange of outstanding shares
of Common Stock into solely shares of common stock);
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PROVIDED, HOWEVER, that a Change in Control shall not be
deemed to have occurred if:
(X) the Sale Price on any five Trading Days within
the period of 10 consecutive Trading Days ending immediately
after the later of the date of the Change in Control or the
date of the public announcement of the Change in Control (in
the case of a Change in Control under clause (A) above) or the
period of 10 consecutive Trading Days ending immediately prior
to the date of the Change in Control (in the case of a Change
in Control under clause (B) above) shall equal or exceed 105%
of the Notional Conversion Price of the Securities in effect
on each such Trading Day; or
(Y) all of the consideration, excluding cash payments
for fractional shares and cash payments made pursuant to
dissenters' appraisal rights, in a merger or consolidation
otherwise constituting a Change in Control consists of shares
of Common Stock traded on a national securities exchange or
quoted on the Nasdaq National Market, or will be so traded or
quoted immediately following such merger or consolidation, and
as a result of such merger or consolidation the Securities
become convertible solely into such common stock.
For the purpose of the definition of "Change in Control", (i)
"person" and "group" have the meanings given such terms under Sections
13(d) and 14(d) of the Exchange Act or any successor provision to
either of the foregoing, and the term "group" includes any group acting
for the purpose of acquiring, holding or disposing of securities within
the meaning of Rule 3d-5(b)(1) under the Exchange Act (or any
successor provision thereto), (ii) a "beneficial owner" shall be
determined in accordance with Rule 13d-3 under the Exchange Act,
except that the number of shares of Voting Stock of the Company
shall be deemed to include, in addition to all outstanding shares of
Voting Stock of the Company and Unissued Shares deemed to be held
by the "person" or "group" (as such terms are defined above) or other
person with respect to which the Change in Control determination is
being made, all Unissued Shares deemed to be held by all other
persons, and (iii) the terms "beneficially owned" and "beneficially
own" shall have meanings correlative to that of "beneficial owner".
The term "Unissued Shares" means shares of Voting Stock not
outstanding that are subject to options, warrants, rights to
purchase or conversion privileges exercisable within 60 days of the
date of determination of a Change in Control.
(2) Within 15 Business Days after the occurrence of a
Change in Control, the Company shall mail a written notice of the
Change in Control to the Trustee and to each Holder. The notice shall
include the form of a Change in Control Purchase Notice to be completed
by the Holder, which shall include the information required pursuant to
Section 1501(b)(3), and shall state:
(A) the date of such Change in Control and, briefly,
the events causing such Change in Control;
(B) the date by which the Change in Control Purchase
Notice pursuant to this Section 1501 must be given;
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(C) the Change in Control Purchase Date;
(D) the Change in Control Purchase Price;
(E) briefly, the conversion rights of the 2015
Debentures;
(F) the name and address of each Paying Agent and
Conversion Agent;
(G) the conversion price and any adjustments thereto;
(H) that 2015 Debentures as to which a Change in
Control Purchase Notice has been given may be converted into
Common Stock pursuant to Article Fourteen only to the extent
that the Change in Control Purchase Notice has been withdrawn
in accordance with the terms of this Indenture;
(I) the procedures that the Holder must follow to
exercise rights under this Section 1501;
(J) the procedures for withdrawing a Change in
Control Purchase Notice, including a form of notice of
withdrawal; and
(K) that the Holder must satisfy the requirements set
forth in the 2015 Debentures in order to convert the
Securities.
If any of the 2015 Debentures is in the form of a Global
Security, then the Company shall modify such notice to the extent
necessary to accord with the procedures of the Depositary applicable to
the repurchase of Global Securities.
(3) A Holder may exercise its rights specified in
subsection (1) of this Section 1501(b) upon delivery of a written
notice of the exercise of such rights (a "Change in Control Purchase
Notice") to any Paying Agent at any time prior to the close of business
on the Business Day next preceding the Change in Control Purchase Date
stating:
(A) the certificate number of the 2015 Debenture
which the Holder will deliver to be repurchased,
(B) the portion of the Principal Amount of the 2015
Debenture which the Holder will deliver to be repurchased,
which portion must be $1,000 or an integral multiple thereof,
(C) that such 2015 Debenture shall be purchased as of
the Change in Control Date pursuant to the terms and
conditions specified under the paragraph "Purchase of
Securities at the Option of the Holder Upon a Change in
Control" of the 2015 Debentures and in this Indenture,
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(D) in the event that the Company elects, pursuant to
Section 1502 hereof, to pay the Change in Control Purchase
Price to be paid as of such Change in Control Purchase Date,
in whole or in part, in Common Stock but such portion of the
Change in Control Purchase Price shall ultimately be payable
to such Holder entirely in cash because any of the conditions
to payment of the Change in Control Purchase Price in Common
Stock is not satisfied prior to the close of business on such
Change in Control Purchase Date, as set forth in Section 1504
hereof, whether such Holder elects (i) to withdraw such Change
in Control Purchase Notice as to some or all of the 2015
Debentures to which such Change in Control Purchase Notice
relates (stating the Principal Amount and certificate numbers
of the 2015 Debentures as to which such withdrawal shall
relate), or (ii) to receive cash in respect of the entire
Change in Control Purchase Price for all 2015 Debentures (or
portions thereof) to which such Change in Control Purchase
Price relates, and
(4) The delivery of such 2015 Debenture to any Paying
Agent (together with all necessary endorsements) at the office of such
Paying Agent shall be a condition to the receipt by the Holder of the
Change in Control Purchase Price therefor.
If a Holder, in such Holder Repurchase Notice or in any
written notice of withdrawal delivered by such Holder pursuant to the
terms of Section 1509 hereof, fails to indicate such Holder's choice
with respect to the election set forth in clause (D) of Section
1501(b)(3), such Holder shall be deemed to have elected to receive cash
in respect of the Optional Repurchase Price for all 2015 Debentures
subject to the Holder Repurchase Notice in the circumstances set forth
in such clause (D).
The Company shall purchase from the Holder thereof, pursuant
to this Section 1501, a portion of a 2015 Debenture only if the
Principal Amount of such portion is $1,000 or an integral multiple of
$1,000. Provisions of this Indenture that apply to the purchase of all
of a 2015 Debenture pursuant to Sections 1502 through 1510 also apply
to the purchase of such portion of such 2015 Debenture.
Notwithstanding anything herein to the contrary, any Holder
delivering to a Paying Agent the Change in Control Purchase Notice
contemplated by this subsection (3) shall have the right to withdraw
such Change in Control Purchase Notice in whole or in a portion thereof
that is a Principal Amount of $1,000 or in an integral multiple thereof
at any time prior to the close of business on the Business Day next
preceding the Change in Control Purchase Date by delivery of a written
notice of withdrawal to the Paying Agent in accordance with Section
1509.
A Paying Agent shall promptly notify the Company of the
receipt by it of any Change in Control Purchase Notice or written
withdrawal thereof.
Anything herein to the contrary notwithstanding, in the case
of Global Securities, any Change in Control Purchase Notice may be
delivered or withdrawn and such 2015 Debentures may be surrendered or
delivered for purchase in accordance with the applicable procedures of
the Depositary as in effect from time to time.
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Section 1502. THE COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF
REPURCHASE PRICE.
The Repurchase Price of 2015 Debentures in respect of which a
Repurchase Notice pursuant to Section 1501 has been given, or a
specified percentage thereof, will be paid by the Company, at the
election of the Company, with cash or Common Stock or in any
combination of cash and Common Stock, subject to the conditions set
forth in Section 1503, 1504 and 1505 hereof. The Company shall
designate, in the Company Notice delivered pursuant to Section 1505
hereof, whether the Company will purchase the 2015 Debentures for cash
or Common Stock, or, if a combination thereof, the percentages of 2015
Debentures in respect of which it will pay in cash and Common Stock;
provided that the Company will pay cash for fractional interests in
Common Stock. For purposes of determining the existence of potential
fractional interests, all 2015 Debentures subject to purchase by the
Company held by a Holder shall be considered together (no matter how
many separate certificates are to be presented). Each Holder whose 2015
Debentures are purchased pursuant to this Article Fifteen shall receive
the same percentage of cash or Common Stock in payment of the
Repurchase Price for such 2015 Debentures, except (i) as provided in
Section 1504 with regard to the payment of cash in lieu of fractional
Common Stock and (ii) in the event that the Company is unable to
purchase the 2015 Debentures of a Holder or Holders for Common Stock
because any necessary qualifications or registrations of the Common
Stock under applicable state securities laws cannot be obtained, the
Company may purchase the 2015 Debentures of such Holder or Holders for
cash. The Company may not change its election with respect to the
consideration (or components or percentages of components thereof) to
be paid once the Company has given its Company Notice to Holders except
pursuant to this Section 1502 or pursuant to Section 1504 in the event
of a failure to satisfy, prior to the close of business on the
Repurchase Date, any condition to the payment of the Repurchase Price,
in whole or in part, in Common Stock.
At least three Business Days before the Company Notice Date,
the Company shall deliver an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 1505,
(iii) if the Company elects to pay the Repurchase
Price, or a specified percentage thereof, in Common Stock,
that the conditions to such manner of payment set forth in
Section 1504 have been or will be complied with, and
(iv) whether the Company desires the Trustee to give
the Company Notice required by Section 1505.
Section 1503. PURCHASE WITH CASH.
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2015 Debentures in respect of which a Repurchase
Notice pursuant to Section 1501 has been given, or a specified
percentage thereof, may be paid by the Company with cash equal to the
aggregate
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Repurchase Price of such 2015 Debentures. If the Company elects to
purchase 2015 Debentures with cash, the Company Notice, as provided in
Section 1505, shall be sent to Holders (and to beneficial owners as
required by applicable law) not less than 20 Business Days prior to
such Repurchase Date (the "Company Notice Date").
Section 1504. PAYMENT BY ISSUANCE OF COMMON STOCK.
On each Repurchase Date, at the option of the Company, the
Repurchase Price of 2015 Debentures in respect of which a Repurchase
Notice pursuant to Section 1501 has been given, or a specified
percentage thereof, may be paid by the Company by the issuance of a
number of shares of Common Stock equal to the quotient obtained by
dividing (i) the amount of cash to which the Holders would have been
entitled had the Company elected to pay all or such specified
percentage, as the case may be, of the Repurchase Price of such 2015
Debentures in cash by (ii) either (A) the Market Price of a share of
Common Stock in the event of an Optional Repurchase or (B) 95% of the
Market Price of a share of Common Stock in the event of a Change of
Control Purchase, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Common Stock
in payment of the Repurchase Price. Instead the Company will pay cash
for the current market value of the fractional share. The current
market value of a fraction of a share of Common Stock shall be
determined by multiplying the Market Price by such fraction and
rounding the product to the nearest whole cent with one half cent being
rounded upwards. It is understood that if a Holder elects to have more
than one 2015 Debenture repurchased, the number of shares of Common
Stock shall be based on the aggregate amount of 2015 Debentures to be
repurchased. If the Company elects to purchase the 2015 Debentures by
the issuance of Common Stock, the Company Notice, as provided in
Section 1505, shall be sent to the Holders (and to beneficial owners as
required by applicable law) not later than the Company Notice Date.
The Company's right to exercise its election to purchase the
2015 Debentures pursuant to this Article Fifteen through the issuance
of Common Stock shall be conditioned upon:
(i) the Company not having given its Company Notice
of an election to pay entirely in cash and its giving of
timely Company Notice of election to purchase all or a
specified percentage of the 2015 Debentures with Common Stock
as provided herein;
(ii) the registration of the Common Stock to be
issued in respect of the payment of the Repurchase Price under
the Securities Act or the Exchange Act, in each case, if
required for the initial issuance thereof;
(iii) any necessary qualification or registration
under applicable state securities laws or the availability of
an exemption from such qualification and registration; and
(iv) the receipt by the Trustee of an Officers'
Certificate and an Opinion of Counsel each stating that (A)
the terms of the issuance of the Common Stock are in
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conformity with this Indenture and (B) the Common Stock to be
issued by the Company in payment of the Repurchase Price in
respect of 2015 Debentures has been duly authorized and, when
issued and delivered pursuant to the terms of this Indenture
in payment of the Repurchase Price in respect of the 2015
Debentures, will be validly issued, fully paid and
non-assessable and, to the best of such counsel's knowledge,
free from preemptive rights, and, in the case of such
Officer's Certificate, stating that conditions (i), (ii) and
(iii) above and the condition set forth in the second sentence
of the following paragraph have been satisfied and, in the
case of such Opinion of Counsel, stating that conditions (ii)
and (iii) above have been satisfied.
Such Officers' Certificate shall also set forth the number of
shares of Common Stock to be issued for each $1,000 Principal Amount of
2015 Debentures and the Sale Price of a share of Common Stock on each
trading day during the period commencing on the first trading day of
the period during which the Market Price is calculated and ending three
Business Days prior to the applicable Repurchase Date. The Company may
pay the Repurchase Price (or any portion thereof) in Common Stock only
if the information necessary to calculate the Market Price is published
in The Wall Street Journal or another daily newspaper of national
circulation. If the foregoing conditions are not satisfied with respect
to a Holder or Holders prior to the close of business on the Repurchase
Date and the Company has elected to repurchase the 2015 Debentures
pursuant to this Article Fifteen in whole or in part through the
issuance of Common Stock, the Company shall pay, without further
notice, the entire Repurchase Price of the 2015 Debentures of such
Holder or Holders in cash. The "Market Price" means the average of the
Sale Prices of the Common Stock for the five trading day period ending
on (if the third Business Day prior to the applicable Repurchase Date
is a trading day, or if not, then on the last trading day prior to) the
third Business Day prior to the applicable Repurchase Date
appropriately adjusted to take into account the occurrence of any event
described in Section 1405, during the period commencing on the first of
such trading days during such five trading day period and ending on
such Repurchase Date.
The "Sale Price" of the Common Stock on any date means the
closing per share sale price (or, if no closing sale price is reported,
the average of the bid and ask prices or, if more than one in either
case, the average of the average bid and average ask prices) on such
date as reported in the composite transactions for the principal United
States securities exchange on which the Common Stock is traded or, if
the Common Stock is not listed on a United States national or regional
securities exchange, as reported by the Nasdaq National Market System
or its successors.
Section 1505. NOTICE OF ELECTION.
The Company's notice of election to repurchase with cash or
Common Stock or any combination thereof shall be sent to the Holders in
the manner provided in Section 104 at the time specified in Section
1503 or 1504, as applicable (the "Company Notice"). Such Company Notice
shall state the manner of payment elected and shall contain the
following information:
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In the event the Company has elected to pay the Repurchase
Price (or a specified percentage thereof) with Common Stock, the
Company Notice shall:
(1) state that each Holder will receive Common Stock
with a value, based on the calculation in the first paragraph
of Section 1504, equal to such specified percentage of the
Repurchase Price of the 2015 Debentures held by such Holder
(except any cash amount to be paid in lieu of fractional
shares);
(2) set forth the method of calculating the Market Price
of the Common Stock; and
(3) state that because the Market Price of Common Stock
will be determined prior to the Repurchase Date, Holders will
bear the market risk with respect to the value of the Common
Stock to be received from the date such Market Price is
determined to the Repurchase Date.
In any case, each Company Notice shall include a form of
Repurchase Notice to be completed by a Holder and shall state:
(A) the Repurchase Price and the conversion price;
(B) the name and address of the Paying Agent and the
Conversion Agent;
(C) that the 2015 Debentures as to which a
Repurchase Notice has been given may be converted pursuant to
Article Fourteen hereof only if the applicable Repurchase
Notice has been withdrawn in accordance with the terms of this
Indenture;
(D) that 2015 Debentures must be surrendered to the
Paying Agent to collect payment;
(E) that the Repurchase Price for any 2015
Debenture as to which a Holder Repurchase Notice has been
given and not withdrawn will be paid promptly following the
later of the Repurchase Date and the time of surrender of such
2015 Debenture as described in (D);
(F) the procedures the Holder must follow to
exercise repurchase rights under this Article Fifteen and a
brief description of those rights;
(G) briefly, the conversion rights of the 2015
Debentures; and
(H) the procedures for withdrawing a
Repurchase Notice (including, without limitation, for a
conditional withdrawal pursuant to the terms of Section 1501
or 1509).
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At the Company's request, the Trustee shall give such
Company Notice in the Company's name and at the Company's expense;
provided, however, that, in all cases, the text of such Company Notice
shall be prepared by the Company.
Section 1506. COVENANTS OF THE COMPANY.
All Common Stock delivered upon purchase of the 2015
Debentures shall be newly issued shares or treasury shares, shall be
duly authorized, validly issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any lien or adverse claim.
The Company shall use its reasonable efforts to list or cause to have
quoted any Common Stock to be issued to purchase 2015 Debentures on the
principal national securities exchange or over-the-counter or other
domestic market on which the Common Stock is then listed or quoted.
Section 1507. PROCEDURE UPON REPURCHASE.
The Company shall deposit cash (in respect of a cash purchase
under Section 1503 or for fractional shares of Common Stock, as
applicable) or Common Stock, or a combination thereof, as applicable,
at the time and in the manner as provided in Section 1510, sufficient
to pay the aggregate Repurchase Price of all 2015 Debentures to be
purchased on the applicable Repurchase Date pursuant to this Article
Fifteen.
As soon as practicable after the Repurchase Date, the Company
shall deliver to each Holder entitled to receive Common Stock through
the Paying Agent, a certificate for the number of full shares of Common
Stock issuable in payment of the Repurchase Price and cash in lieu of
any fractional shares of Common Stock. The Person in whose name the
certificate for Common Stock is registered shall be treated as a holder
of record of Common Stock on the Business Day following the Repurchase
Date. Subject to Section 1504, no payment or adjustment will be made
for dividends on the Common Stock the record date for which occurred on
or prior to the Repurchase Date.
Section 1508. TAXES.
If a Holder of a 2015 Debenture is paid in Common Stock, the
Company shall pay any documentary, stamp or similar issue or transfer
tax or charge due on such issue of Common Stock. However, the Holder
shall pay any such tax or charge which is due because the Holder
requests the Common Stock to be issued in a name other than the
Holder's name. The Paying Agent may refuse to deliver the certificates
representing the Common Stock being issued in a name other than the
Holder's name until the Paying Agent receives a sum sufficient to pay
any tax or charge which will be due because the shares of Common Stock
are to be issued in a name other than the Holder's name.
Section 1509. EFFECT OF REPURCHASE NOTICE.
Upon receipt by the Paying Agent of the Repurchase Notice, the
Holder of the 2015 Debenture in respect of which such Repurchase
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Notice was given shall (unless such Repurchase Notice is withdrawn as
specified in the following two paragraphs) thereafter be entitled to
receive solely the Repurchase Price with respect to such 2015
Debenture. Such Repurchase Price shall be paid to such Holder, subject
to receipt of funds and/or Common Stock by the Paying Agent, promptly
following the later of (x) the Repurchase Date with respect to such
2015 Debenture (provided the conditions in Section 1501 have been
satisfied) and (y) the time of delivery of such 2015 Debenture to the
Paying Agent by the Holder thereof in the manner required by Section
1501. Any 2015 Debentures in respect of which a Repurchase Notice has
been given may not be converted pursuant to Article Fourteen hereof on
or after the date of the delivery of such Repurchase Notice unless such
Repurchase Notice has first been validly withdrawn as specified in the
following two paragraphs.
A Repurchase Notice may be withdrawn by means of a written
notice of withdrawal delivered to the office of the Paying Agent in
accordance with the Repurchase Notice at any time prior to the close of
business on the last Business Day prior to the applicable Repurchase
Date specifying:
(1) the certificate number of the 2015 Debenture in
respect of which such notice of withdrawal is being submitted;
(2) the Principal Amount of the 2015 Debenture with
respect to which such notice of withdrawal is being submitted;
and
(3) the Principal Amount, if any, of such 2015
Debenture which remains subject to the original Repurchase
Notice and which has been or will be delivered for purchase by
the Company.
A written notice of withdrawal of a Repurchase Notice may be
in the form set forth in the preceding paragraph or may be in the form
of (i) a conditional withdrawal contained in a Repurchase Notice
pursuant to the terms of Section 1501(a)(1)(D) or 1501(b)(3)(D) or (ii)
a conditional withdrawal containing the information set forth in
Section 1501(a)(1)(D) or 1501(b)(3)(D) and the preceding paragraph and
contained in a written notice of withdrawal delivered to the Paying
Agent as set forth in the preceding paragraph.
There shall be no purchase of any 2015 Debentures pursuant to
this Article Fifteen (other than through the issuance of Common Stock
in payment of the Repurchase Price, including cash in lieu of
fractional shares) if there has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of such 2015 Debentures, of the
required Repurchase Notice) and is continuing an Event of Default
(other than a default in the payment of the Repurchase Price with
respect to such 2015 Debentures). The Paying Agent will promptly return
to the respective Holders thereof any (x) 2015 Debentures with respect
to which a Repurchase Notice has been withdrawn in compliance with this
Indenture, or (y) except to the extent such 2015 Debentures are being
paid in shares of Common Stock, any 2015 Debentures held by it during
the continuance of an Event of Default (other than a default in the
payment of the Repurchase Price with respect to such 2015 Debentures),
in which case, upon such return, the Repurchase Notice with respect
thereto shall be deemed to have been withdrawn.
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Section 1510. DEPOSIT OF REPURCHASE PRICE.
Prior to 11:00 a.m. (New York City time) on the Repurchase
Date, the Company shall deposit with the Paying Agent an amount of
money (in immediately available funds) and/or Common Stock, if
permitted hereunder, sufficient to pay the aggregate Repurchase Price
of all of the 2015 Debentures or portions thereof which are to be
purchased as of the Repurchase Date. If a Paying Agent holds, in
accordance with the terms hereof, money, and/or shares of Common Stock
sufficient to pay the Repurchase Price of any 2015 Debenture for which
a Repurchase Notice has been tendered and not withdrawn in accordance
with this Indenture then, on the Repurchase Date, such 2015 Debenture
will cease to be Outstanding and the rights of the Holder in respect
thereof shall terminate (other than the right to receive the Repurchase
Price as aforesaid).
The manner in which the deposit required by this Section 1510
is made by the Company shall be at the option of the Company, provided
that such deposit shall be made in a manner such that a Paying Agent
shall have immediately available funds and/or shares of Common Stock by
11:00 a.m. (New York City time) on the Repurchase Date.
Section 1511. SECURITIES REPURCHASED IN PART.
Any 2015 Debenture which is to be purchased only in part shall
be surrendered at the office of the Paying Agent (with, if the Company
or Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company or Trustee duly executed
by, the Holder thereof or such Holder's attorney duly authorized in
writing) and the Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such 2015 Debenture, without
service charge, a new 2015 Debenture or 2015 Debentures, of any
authorized denomination as requested by such Holder in aggregate
Principal Amount equal to, and in exchange for, the portion of the
Principal Amount of the 2015 Debenture so surrendered which is not
purchased.
Section 1512. COMPLY WITH SECURITIES LAWS UPON PURCHASE OF SECURITIES.
Unless the staff of the SEC shall issue a letter stating that
it will take no action against the Company if it does not comply, in
connection with any offer to purchase or purchase of 2015 Debentures
under this Article Fifteen (if such offer or purchase constitutes an
"issuer tender offer" for purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision thereto) under the Exchange
Act at the time of such offer or purchase), the Company shall (i)
comply with Rule 13e-4 under the Exchange Act, (ii) file the related
Schedule TO (or any successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply with all Federal and state
securities laws so as to permit the rights and obligations under
Article Fifteen to be exercised in the time and in the manner specified
in this Article Fifteen.
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Section 1513. REPAYMENT TO THE COMPANY.
The Paying Agent shall return to the Company any cash or
Common Stock that remain unclaimed for two years, subject to applicable
unclaimed property law, together with interest or dividends, if any,
thereon held by them for the payment of the Repurchase Price; provided,
however, that to the extent that the aggregate amount of cash or Common
Stock deposited by the Company pursuant to Section 1510 exceeds the
aggregate Repurchase Price of the 2015 Debentures or portions thereof
which the Company is obligated to purchase as of the Repurchase Date,
then promptly after the Business Day following the Repurchase Date the
Paying Agent shall return any such excess to the Company together with
interest or dividends, if any, thereon. After that, Holders entitled to
money must look to the Company for payment as general creditors, unless
an applicable abandoned property law designates another Person.
Section 1514. CONVERSION ARRANGEMENT ON REPURCHASE.
Any Securities required to be repurchased under this Article
Fifteen, unless surrendered for conversion before the close of business
on the Business Day prior to the Repurchase Date, may be deemed to be
purchased from the Holders of such Securities for an amount in cash not
less than the Repurchase Price, by one or more investment bankers or
other purchasers who may agree with the Company to purchase such
Securities from the Holders, to convert them into Common Stock of the
Company and to make payment for such Securities to the Trustee in trust
for such Holders. The Paying Agent shall hold and pay to the Holders
whose 2015 Debentures are repurchased any such amount paid to it for
purchase in the same manner as it would money deposited with it by the
Company for the repurchase of 2015 Debentures. Without the Paying
Agent's prior written consent, no arrangement between the Company and
such purchasers for the purchase and conversion of any 2015 Debentures
shall increase or otherwise affect any of the powers, duties,
responsibilities or obligations of the Paying Agent as set forth in
this Indenture, and the Company agrees to indemnify the Paying Agent
from, and hold it harmless against, any loss, liability or expense
arising out of or in connection with any such arrangement for the
purchase and conversion of any 2015 Debentures between the Company and
such purchasers, including the costs and expenses incurred by the
Paying Agent in the defense of any claim or liability reasonably
incurred without negligence or bad faith on its part arising out of or
in connection with the exercise or performance of any of its powers,
duties, responsibilities or obligations under this Indenture, in
accordance with the indemnity provisions applicable to the Trustee set
forth herein.
ARTICLE SIXTEEN
SPECIAL TAX EVENT CONVERSION
Section 1601. OPTIONAL CONVERSION TO INTEREST-BEARING SECURITIES
UPON TAX EVENT.
From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event and (ii) the date the Company exercises such
option, whichever is later (the "Option Exercise Date"), at the option
of the Company with respect to its 2015 Debentures only, interest in
lieu of future
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<PAGE>
Original Issue Discount shall accrue at the rate of 2.00%
per annum on a restated principal amount per $1,000 original Principal
Amount (the "Restated Principal Amount") equal to the Issue Price plus
Original Issue Discount accrued to the Option Exercise Date and shall
be payable semi-annually on each Interest Payment Date to holders of
record at the close of business on each Regular Record Date immediately
preceding such Interest Payment Date. Interest will be computed on the
basis of a 360 day year comprised of twelve 30 day months and will
accrue from the most recent date on which interest has been paid or, if
no interest has been paid, from the Option Exercise Date. Within 15
Business Days of the occurrence of a Tax Event, the Company shall mail
a written notice of such Tax Event by first-class mail to the Trustee
and within 15 days of its exercise of such option the Company shall
mail a written notice of the Option Exercise Date by first-class mail
to the Trustee and Holders of the 2015 Debentures. From and after the
Option Exercise Date, (i) the Company shall be obligated to pay at the
Stated Maturity of the 2015 Debentures, in lieu of the Principal Amount
of a Security, the Restated Principal Amount thereof and (ii) "Issue
Price and accrued Original Issue Discount," "Issue Price plus Original
Issue Discount" or similar words, as used herein, shall mean Restated
Principal Amount plus accrued and unpaid interest with respect to any
2015 Debenture. The 2015 Debentures authenticated and delivered after
the Option Exercise Date may, at the option of the Company, bear a
notation in a form as to the conversion of the 2015 Debentures to
interest-bearing 2015 Debentures.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301. INTEGRAL PART.
This First Supplemental Indenture constitutes an integral part
of the Indenture.
SECTION 302. GENERAL DEFINITIONS.
For all purposes of this First Supplemental Indenture:
(a) capitalized terms used herein without definition shall
have the meanings specified in the Indenture; and
(b) the terms "herein", "hereof", "hereunder" and other words
of similar import refer to this First Supplemental Indenture.
SECTION 303. ADOPTION, RATIFICATION AND CONFIRMATION.
The Indenture, as supplemented and amended by this First
Supplemental Indenture, is in all respects hereby adopted, ratified and
confirmed.
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<PAGE>
SECTION 304. COUNTERPARTS.
This First Supplemental Indenture may be executed in any
number of counterparts, each of which when so executed shall be deemed an
original; and all such counterparts shall together constitute but one and the
same instrument.
SECTION 305. GOVERNING LAW.
THIS FIRST SUPPLEMENTAL INDENTURE SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective corporate seals
to be hereunto fixed and attested as of the day and year first written above.
CORNING INCORPORATED
By:
-----------------------------------------
Name:
Title:
STATE OF NEW YORK
COUNTY OF
--------------------------
On the ____ day of November, 2000, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that he is ____________________ of CORNING INCORPORATED, one of the corporations
described in and which executed the foregoing instrument; that he knows the seal
of said corporation; that the seal affixed to said instrument is such corporate
seal; that it was so affixed by authority of the Board Directors of said
corporation, and that he signed his name thereto by like authority.
--------------------
Notary
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<PAGE>
THE CHASE MANHATTAN BANK
By:
-----------------------------------------
Name:
Title:
STATE OF NEW YORK
COUNTY OF NEW YORK
On the ____ day of November, 2000, before me personally came
______________, to me known, who, being by me duly sworn, did depose and say
that such person is an authorized officer of THE CHASE MANHATTAN BANK, one of
the entities described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument
is such corporate seal; that it was so affixed by authority of the Board
Directors of said corporation, and that such person signed his or her name
thereto by like authority.
--------------------
Notary
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<PAGE>
ANNEX A
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE
HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A
NOMINEE THEREOF. THIS SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A
SECURITY REGISTERED, AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE
REGISTERED, IN THE NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE
THEREOF, EXCEPT IN THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.
GLOBAL SECURITY
FORM OF ZERO COUPON CONVERTIBLE DEBENTURES
DUE NOVEMBER 8, 2015
CORNING INCORPORATED
Issue Date: November 8, 2000 Maturity: November 8, 2015
Principal Amount: $ CUSIP: 219350AJ4
Original Issue Discount: $258.077 Issue Price: $741.923
(per $1,000 Principal Amount) (per $1,000 Principal Amount)
Registered: No. R-
Unless this certificate is presented by an authorized
representative of The Depository Trust Company (55 Water Street, New York, New
York) to the issuer or its agent for registration of transfer, exchange or
payment, and any certificate issued is registered in the name of Cede & Co. or
such other name as requested by an authorized representative of The Depository
Trust Company and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR
OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since
the registered owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for the
individual Securities represented hereby, this Global Security may not be
transferred except as a whole by the Depositary to a nominee of the Depositary
or by a nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
Corning Incorporated, a New York corporation (herein called
the "Company", which term includes any successor corporation under the indenture
hereinafter referred to), for value received, hereby promises to pay to Cede &
Co., or registered assigns, the principal sum of ($_________) on
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<PAGE>
November 8, 2015. The principal of this Security shall not bear interest,
except in the case of default in payment of principal upon acceleration,
redemption or maturity or as specified on the other side of this Security.
Original Issue Discount will accrue as specified on the other side of this
Security. This Security is convertible as specified on the other side of this
Security.
Payment of the principal of and interest, if any, on this
Security will be made at the office or agency of the Company maintained for that
purpose in The City of 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; provided, however, that at the option of the Company, payment of
interest, if any, may be made by check mailed to the address of the Paying
Agent or the Person entitled thereto as such address shall appear in the
Security Register; and provided, further, payment may be made pursuant to the
Applicable Procedures of the Depositary as permitted in the Indenture.
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions shall for all
purposes have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof 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: November 8, 2000
CORNING INCORPORATED
By:
------------------------------
Name:
Title:
---------------------
Corporate Secretary
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<PAGE>
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within- mentioned Indenture.
THE CHASE MANHATTAN BANK,
as Trustee
-------------------------
Authorized Signature
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<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
CORNING INCORPORATED
ZERO COUPON CONVERTIBLE DEBENTURE DUE NOVEMBER 2015
This Security is one of a duly authorized issue of senior
unsecured securities of the Company (herein called the "Securities"), issued and
to be issued in one or more series under an Indenture, dated as of November 8,
2000, as amended by the First Supplemental Indenture thereto, dated as of
November 8, 2000 (as so amended, herein called the "Indenture"), between the
Company and The Chase Manhattan Bank, 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 and the Holders of the Securities and of
the terms upon which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the face hereof,
limited in aggregate principal amount at Stated Maturity to
$2,712,546,000.
INTEREST
This Security shall not bear interest, except as specified in
this paragraph or as described under "Tax Event". If the Principal Amount hereof
or any portion of such Principal Amount is not paid when due (whether upon
acceleration pursuant to Section 502 of the Indenture, upon the date set for
payment of the Redemption Price as described below under "Optional
Redemption", upon the date set for payment of the Change in Control Purchase
Price pursuant to "Purchase of Securities at the Option of the Holder Upon a
Change in Control" described below, upon the date set for payment of the
Optional Repurchase Price under "Repurchase by the Company at the Option of
the Holder" described below or upon the Stated Maturity of this Security) or
if interest due hereon, if any, (or any portion of such interest) is not paid
when due, then in each such case the overdue amount shall, to the extent
permitted by law, bear interest at the rate of 2.00% per annum, compounded
semi-annually, which interest shall accrue from the date such overdue amount
was originally due to the date payment of such amount, including interest
thereon, has been made or duly provided for. All such interest shall be
payable as set forth in the Indenture. The accrual of such interest on
overdue amounts shall be in lieu of, and not in addition to, the continued
accrual of Original Issue Discount. Original Issue Discount (the difference
between the Issue Price and the Principal Amount of the Security), in the
period during which a Security remains outstanding, shall accrue at 2.00% per
annum, on a semiannual bond equivalent basis using a 360-day year composed of
twelve 30-day months, from the Issue Date of this Security.
METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, cash
payments in respect of principal, Original Issue Discount and interest, if
any, on the Securities shall be made by the Company in immediately available
funds or by check to the Payment Agent who collects such payments in respect
of the Securities or pursuant to the Applicable Procedures of the Depositary
as permitted in the Indenture. Payments may be made in stock in certain
circumstances as set forth in the Indenture.
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<PAGE>
OPTIONAL REDEMPTION
No sinking fund is provided for the Securities. The Securities
are redeemable as a whole, or from time to time in part, at any time at the
option of the Company at the Redemption Price set forth below, on or after
November 8, 2005.
The table below shows Redemption Prices of a Security per
$1,000 Principal Amount at Stated Maturity on the dates shown below, which
prices reflect accrued Original Issue Discount calculated through each such
date. The Redemption Price of a Security redeemed between such dates shall
include an additional amount reflecting the additional Original Issue Discount
accrued since the immediately preceding date in the table.
<TABLE>
<CAPTION>
(2)
(1) ACCRUED (3)
DEBENTURE ORIGINAL ISSUE REDEMPTION
REDEMPTION DATE ISSUE PRICE DISCOUNT PRICE (1)+(2)
--------------- ----------- -------- -------------
<S> <C> <C> <C>
November 8, 2005 $741.923 $ 77.622 $ 819.544
November 8, 2006 741.923 94.094 836.017
November 8, 2007 741.923 110.898 852.821
November 8, 2008 741.923 128.040 869.963
November 8, 2009 741.923 145.526 887.449
November 8, 2010 741.923 163.364 905.287
November 8, 2011 741.923 181.560 923.483
November 8, 2012 741.923 200.122 942.045
November 8, 2013 741.923 219.057 960.980
November 8, 2014 741.923 238.373 980.296
November 8, 2015 741.923 258.077 1,000.000
</TABLE>
If converted to an interest-bearing debenture following the
occurrence of a Tax Event, this Security will be redeemable at the Restated
Principal Amount plus accrued and unpaid interest from the date of such
conversion to the Redemption Date; but in no event will this Security be
redeemable before November 8, 2005.
If the Company redeems less than all of the outstanding
Securities, the Trustee will select the Securities to be redeemed (i) by lot;
(ii) pro rata or (iii) by another method the Trustee considers fair and
appropriate. If the Trustee selects a portion of a Holder's Securities for
partial redemption and the
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<PAGE>
Holder converts a portion of the same Securities, the converted portion will be
deemed to be from the portion selected for redemption.
NOTICE OF OPTIONAL REDEMPTION BY THE COMPANY
Notice of optional redemption by the Company will be mailed by
first-class mail at least 15 days but not more than 60 days before the
Redemption Date to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 Principal Amount may be
redeemed in part, but only in whole multiples of $1,000. On and after the
Redemption Date, subject to the deposit with the Paying Agent of funds
sufficient to pay the Redemption Price, Original Issue Discount (or interest, if
the Security is converted to an interest-bearing debenture) ceases to accrue on
Securities or portions thereof called for redemption.
CONVERSION
A Holder of a Security may convert the Security into Common
Stock at any time until the close of business on the Business Day prior to the
Stated Maturity; provided, however, that if the Security is called for
redemption, the conversion right will terminate at the close of business on the
Business Day immediately preceding the Redemption Date for such Security or such
earlier date as the Holder presents such Security for redemption (unless the
Company shall default in making the redemption payment when due, in which case
the conversion right shall terminate at the close of business on the date such
default is cured and such Security is redeemed). A Security in respect of which
a Holder has delivered a Repurchase Notice exercising the option of such Holder
to require the Company to purchase such Security may be converted only if such
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial conversion price is $89.0625 per share of Common Stock, subject to
adjustment in certain events described in the Indenture. This is equivalent to a
conversion rate of 8.3304 shares of Common Stock per $1,000 Principal Amount
of Securities at Stated Maturity. The Company will deliver cash or a check in
lieu of any fractional Common Stock.
In the event the Company exercises its option pursuant to
Section 1601 of the Indenture to have interest in lieu of Original Issue
Discount accrue on the Security following a Tax Event, the Holder will be
entitled on conversion to receive the same number of Common Stock such Holder
would have received if the Company had not exercised such option. If the Company
exercises such option, Securities surrendered for conversion during the period
from the close of business on any Regular Record Date immediately preceding any
Interest Payment Date to the opening of business of such Interest Payment Date
(except Securities or portions of Securities to be redeemed on a Redemption Date
occurring during the period from the close of business on a Regular Record Date
and ending on the opening of business on the first Business Day after the next
Interest Payment Date, or if this Interest Payment Date is not a Business Day,
the second Business Day after the Interest Payment Date) must be accompanied by
payment from the Holder of an amount equal to the interest thereon that the
registered Holder is to receive from the Company on such Interest Payment Date.
Except where Securities surrendered for conversion must be accompanied by
payment as described above, no interest on converted Securities will be payable
by the Company on any Interest Payment Date subsequent to the date of
conversion.
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<PAGE>
A Holder may convert a portion of a Security if the Principal
Amount of such portion is $1,000 or an integral multiple of $1,000. No payment
or adjustment will be made for dividends on the Common Stock except as provided
in the Indenture. On conversion of a Security, that portion of accrued Original
Issue Discount (and interest if the Security is converted to an interest-bearing
debenture) attributable to the period from the Issue Date (or, in the case of
interest, if the Company has exercised the option referred to in "Tax Event",
from the later of (x) the date of such exercise and (y) the date on which
interest was last paid) through the Conversion Date with respect to the
converted Security shall not be cancelled, extinguished or forfeited, but rather
shall be deemed to be paid in full to the Holder thereof through the delivery of
the Common Stock (together with the cash payment, if any, in lieu of fractional
shares) in exchange for the Security being converted pursuant to the terms
hereof; and the fair market value of such Common Stock (together with any such
cash payment in lieu of fractional shares) shall be treated as issued, to the
extent thereof, first in exchange for Original Issue Discount (and interest, if
the Company has exercised its option provided for in "Tax Event") accrued
through the Conversion Date, and the balance, if any, of such fair market value
of such Common Stock (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the Security being converted pursuant to the
provisions hereof.
No fractional shares will be issued upon conversion; in lieu
thereof, an amount will be paid in cash based upon the closing price of the
Common Stock on the Trading Day immediately prior to the Conversion Date.
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice set forth below and deliver such notice to a
Conversion Agent, (b) surrender the Security to the Conversion Agent, (c)
furnish appropriate endorsements and transfer documents (including any
certification that may be required under applicable law) if required by the
Conversion Agent, and (d) pay any transfer or similar tax, if required.
PURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER UPON A CHANGE IN CONTROL
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to purchase all
or any part specified by the Holder (so long as the Principal Amount of such
part is $1,000 or an integral multiple of $1,000 in excess thereof) of the
Securities held by such Holder on the date that is 35 Business Days after the
occurrence of a Change in Control, at a Change in Control Purchase Price equal
to the Issue Price plus accrued Original Issue Discount through the Change in
Control Purchase Date. The Change in Control Purchase Price may be paid, at the
option of the Company, in cash or by the issuance of Common Stock as provided in
Article Fifteen of the Indenture, or in any combination thereof. The Holder
shall have the right to withdraw any Change in Control Purchase Notice (in whole
or in a portion thereof that is $1,000 Principal Amount or an integral multiple
of $1,000 in excess thereof) at any time prior to the close of business on the
Business Day prior to the Change in Control Purchase Date by delivering a
written notice of withdrawal to the Paying Agent in accordance with the terms of
the Indenture.
If prior to a Change in Control Purchase Date this Security
has been converted to an interest-bearing debenture following the occurrence of
a Tax Event, the Change in Control Purchase
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<PAGE>
Price shall be equal to the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion to the Change in Control Purchase Date.
REPURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the Holder, the
Securities held by such Holder on the following Repurchase Dates and at the
following Repurchase Prices per $1,000 Principal Amount, upon delivery by
the Holder of a Repurchase Notice containing the information set forth in the
Indenture, at any time from the opening of business on the date that is 20
Business Days prior to such Repurchase Date until the close of business on the
last Business Day prior to such Repurchase Date and upon delivery of the
Securities to the Paying Agent by the Holder as set forth in the Indenture.
REPURCHASE DATE REPURCHASE PRICE
--------------- ----------------
November 8, 2005 $819.544
November 8, 2010 905.287
The Repurchase Price (equal to the Issue Price plus accrued
Original Issue Discount through the Repurchase Date) may be paid, at the option
of the Company, in cash or by the issuance of Common Stock as provided in
Article Fifteen of the Indenture, or in any combination thereof.
If prior to a Repurchase Date this Security has been converted
to an interest-bearing debenture following the occurrence of a Tax Event, the
Repurchase Price will be equal to the Restated Principal Amount plus accrued and
unpaid interest from the date of conversion to the Repurchase Date.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Paying Agent a written notice of withdrawal prior to the close
of business on the last Business Day prior to the Repurchase Date in accordance
with the provisions of the Indenture.
If cash or Common Stock sufficient to pay the Repurchase Price
of all Securities or portions thereof to be purchased as of the Repurchase Date
is deposited with the Paying Agent by 11:00 a.m. New York City time on the
Repurchase Date, Original Issue Discount ceases to accrue on such Securities (or
portions thereof) immediately after such Repurchase Date, and the Holder thereof
shall have no other rights as such (other than the right to receive the
Repurchase Price upon surrender of such Security).
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<PAGE>
TAX EVENT
From and after (i) the date (the "Tax Event Date") of the
occurrence of a Tax Event and (ii) the date the Company exercises such option,
whichever is later (the "Option Exercise Date"), at the option of the Company,
interest in lieu of future Original Issue Discount shall accrue at the rate of
2.00% per annum on a Principal Amount per Security (the "Restated Principal
Amount") equal to the Issue Price plus Original Issue Discount accrued through
the Option Exercise Date and shall be payable semiannually on May 15 and
November 15, of each year (each an "Interest Payment Date") to holders of record
at the close of business on May 1 or November 1 (each a "Regular Record Date")
immediately preceding such Interest Payment Date. Interest will be computed on
the basis of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date to which interest has been paid or, if no interest has
been paid, from the Option Exercise Date.
Interest on any Security that 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 is registered at the close of business on the
Regular Record Date for such interest at the office or agency of the Company
maintained for such purpose. Each installment of interest on any Security shall
be paid in same-day funds by transfer to an account maintained by the payee
located inside the United States.
Except as otherwise specified with respect to the Securities,
any Defaulted Interest on any Security shall forthwith cease to be payable to
the registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 307 of the Indenture.
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, or as to which a
Repurchase Notice has been given but not withdrawn, unless surrendered for
conversion before the close of business on the Redemption Date, may be deemed to
be purchased from the Holders of such Securities at an amount not less than the
Redemption Price, by one or more investment bankers or other purchasers who may
agree with the Company to purchase such Securities from the Holders, to convert
them into Common Stock of the Company and to make payment for such Securities to
the Paying Agent in trust for such Holders.
TRANSFER
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 or
transfer at the office or agency in a Place of Payment for Securities of this
series, duly endorsed by, or accompanied by a written instrument of transfer in
form satisfactory to the Company and the Security Registrar duly executed by,
the Holder hereof or his attorney duly authorized in writing, and thereupon one
or more new Securities of this series, of any authorized denominations and for
the same aggregate principal amount, executed by the Company and authenticated
and delivered by the Trustee, will be issued to the designated transferee or
transferees.
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<PAGE>
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral multiple
thereof. As provided in the Indenture and subject to certain limitations set
forth therein and on the face of this Security, Securities of this series are
exchangeable for a like aggregate principal amount of Securities of this series
of a different authorized denomination as requested by the Holder surrendering
the same.
No service charge shall be made 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 or 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.
AMENDMENT, SUPPLEMENT AND WAIVER
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 of
each series to be affected under the Indenture at any time by the Company and
the Trustee with the consent of the Holders of a majority in principal amount of
the Securities at the time Outstanding of each series to be affected. The
Indenture also contains provisions permitting the Holders of specified
percentages in principal amount of the Securities of each series at the time
Outstanding, on behalf of the Holders of all Securities of such series, to waive
compliance by the Company with 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 hereof or in lieu hereof, whether or not notation of such
consent or waiver is made upon this Security.
SUCCESSOR CORPORATION
When a successor corporation assumes all the obligations of
its predecessor under the Securities and the Indenture in accordance with the
terms and conditions of the Indenture, the predecessor corporation will (except
in certain circumstances specified in the Indenture) be released from those
obligations.
DEFAULTS AND REMEDIES
If an Event of Default with respect to Securities of this
series shall occur and be continuing, all unpaid Issue Price plus accrued
Original Issue Discount through the acceleration date (or, if the Security has
been converted to an interest bearing debenture, the Restated Principal Amount
plus accrued and unpaid interest from the date of conversion to the acceleration
date) of the Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
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<PAGE>
NO RECOURSE AGAINST OTHERS
No recourse shall be had for the payment of the principal of
or the interest, if any, on this Security, for any claim based hereon, or
otherwise in respect hereof, or based on or in respect of the Indenture or any
indenture supplemental thereto, against any incorporator, shareholder, officer
or director, as such, past, present or future, of the Company or of any
successor corporation, whether by virtue of any constitution, statute or rule of
law or by the enforcement of any assessment of penalty or otherwise, all such
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
AUTHENTICATION
This Security shall not be valid until the Trustee or an
authenticating agent manually signs the certificate of authentication on the
other side of this Security.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this
Security and the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder
or an assignee, such as:
TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not
as tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts
to Minors Act).
All terms defined in the Indenture and used in this Security
but not specifically defined herein are defined in the Indenture and are used
herein as so defined.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company,
check the box: [ ]
To convert only part of this Security, state the Principal
Amount to be converted (must be $1,000 or a multiple of $1,000):
$______________.
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<PAGE>
If you want the stock certificate made out in another person's
name, fill in the form below:
--------------------------------------------------------------------------------
(Insert other person's soc. sec. or tax I.D. no.)
--------------------------------------------------------------------------------
(Print or type other person's name, address and zip code)
Your Signature: Date:
---------------------- -----------------------------------
(Sign exactly as your name appears on the other side of this Security)
*Signature guaranteed by:
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By:
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*The signature must be guaranteed by an institution which is a
member of one of the following recognized signature guaranty
programs: (i) the Securities Transfer Agent Medallion Program
(STAMP); (ii) the New York Stock Exchange Medallion Program
(MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
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