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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K/A
(AMENDMENT NO. 1)
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15 (d) OF THE
SECURITIES EXCHANGE ACT OF 1934
Date of report (Date of earliest event reported): February 9, 1998
TRIARC COMPANIES, INC.
(Exact Name of Registrant as Specified in Charter)
DELAWARE 1-2207 38-0471180
(State or other (Commission (IRS Employer
jurisdiction of File Number) Identification No.)
incorporation)
280 Park Avenue
New York, New York 10017
(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (212) 451-3000
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(Former Name or Former Address, if
Changed Since Last Report)
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<PAGE>
The statements in this Current Report on Form 8-K/A that are not
historical facts, including, most importantly, those statements preceded by,
followed by, or that include the words "may," "believes," "expects,"
"anticipates," or the negation thereof, or similar expressions, constitute
"forward-looking statements" that involve risks, uncertainties and other factors
which may cause actual results, performance or achievements to be materially
different from any outcomes expressed or implied by such forward-looking
statements. For those statements, Triarc claims the protection of the safe
harbor for forward-looking statements contained in the Private Securities
Litigation Reform Art of 1995. Such factors include, but are not limited to, the
following: success of operating initiatives; development and operating costs;
advertising and promotional efforts; brand awareness; the existence or absence
of adverse publicity; acceptance of new product offerings; changing trends in
consumer tastes; the success of multi-branding; availability, location and terms
of sites for restaurant development; changes in business strategy or development
plans; quality of management; availability, terms and deployment of capital;
business abilities and judgment of personnel; availability of qualified
personnel; labor and employee benefit costs; availability and cost of raw
materials and supplies; changes in, or failure to comply with, government
regulations; regional weather conditions; changes in wholesale propane prices;
the costs and other effects of legal and administrative proceedings; pricing
pressures resulting from competitive discounting; general economic, business and
political conditions in the countries and territories where Triarc operates; the
impact of such conditions on consumer spending; and other risks and
uncertainties detailed in Triarc's other current and periodic filings with the
Securities and Exchange Commission. Triarc will not undertake and specifically
declines any obligation to publicly release the result of any revisions which
may be made to any forward-looking statements to reflect events or circumstances
after the date of such statements or to reflect the occurrence of anticipated or
unanticipated events.
ITEM 5. OTHER EVENTS.
On February 9, 1998, Triarc completed the sale of $360 million principal
amount at maturity of its Zero Coupon Convertible Subordinated Debentures due
2018 (the "Debentures") in a private placement. Such amount included the
exercise in full by the purchaser of its option to purchase an additional $90
million principal amount at maturity of Debentures. In addition, in connection
with the consummation of the sale of the Debentures, Triarc purchased from the
purchaser of the Debentures (the "Stock Purchase") one million shares of its
Class A Common Stock for an aggregate purchase price of approximately $25.6
million.
The Debentures are convertible into Triarc's Class A Common Stock at a
conversion rate of 9.465 shares per $1,000 principal amount at maturity, which
represents an initial conversion price of approximately $29.40 per share of
Class A Common Stock. The conversion price will increase over the life of the
Debentures at 6.5% per annum computed on a semi-annual bond equivalent basis.
The conversion of all of the Debentures into Class A Common Stock would result
in the issuance of approximately 3.4 million shares of Class A Common Stock.
Neither the Debentures, nor the Class A Common Stock issuable upon
conversion, were registered initially under the Securities Act of 1933, as
amended, and may not be offered or sold within the United States unless so
registered or in a transaction not subject to the registration requirements of
the Securities Act. This Current Report on Form 8-K shall not constitute an
offer to sell or a solicitation of an offer to buy the Debentures or the Class A
Common Stock.
<PAGE>
A copy of the Indenture and Registration Rights Agreement relating to
the Debentures, and the press release with respect to the closing of the
transactions are being filed herewith.
ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS.
(c) Exhibits
4.1 Indenture dated as of February 9, 1998 between Triarc
Companies, Inc. and The Bank of New York, as Trustee.
4.2 Registration Rights Agreement dated as of February 4, 1998
by and among Triarc and Morgan Stanley & Co. Incorporated.
99.1 Press Release dated February 9, 1998
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
TRIARC COMPANIES, INC.
Date: March 6, 1998 By: Brian L. Schorr
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Brian L. Schorr
Executive Vice President
and General Counsel
<PAGE>
EXHIBIT
Exhibit
No. Description Page No.
4.1 Indenture dated as of February 9, 1998 between Triarc
Companies, Inc. and The Bank of New York, as Trustee.
4.2 Registration Rights Agreement dated as of February 4,
1998 by and among Triarc and Morgan Stanley & Co.
Incorporated.
99.1 Press release dated February 9, 1998
<PAGE>
Exhibit 4.1
Zero Coupon Convertible
Subordinated Debentures Due 2018
TRIARC COMPANIES, INC.,
Issuer
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INDENTURE
Dated as of February 9, 1998
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THE BANK OF NEW YORK,
as Trustee
<PAGE>
1
INDENTURE dated as of February 9, 1998, among TRIARC COMPANIES,
INC., a Delaware corporation (the "Company"), and The Bank of New York, as
Trustee (the "Trustee").
Each party agrees as follows for the benefit of the other parties
and for the equal and ratable benefit of the Holders of the Company's Zero
Coupon Convertible Subordinated Debentures Due 2018 (the "Securities"):
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
SECTION 1.01. DEFINITIONS.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control," when used with respect to any specified Person means the power to
direct or cause the direction of the management and policies of such Person,
directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise; and the terms "controlling" and "controlled" have
meanings correlative to the foregoing.
"Applicable Price" means (i) in the event of a Fundamental Change
in which the holders of the Class A Common Stock receive only cash, the amount
of cash received by the holder of one share of Class A Common Stock and (ii) in
the event of any other Fundamental Change, the average of the last reported sale
price for the Class A Common Stock (determined as set forth in the definition of
Current Market Price) during the ten Trading Days prior to the record date for
the determination of the holders of Class A Common Stock entitled to receive
cash, securities, property or other assets in connection with such Fundamental
Change, or, if there is no such record date, the date upon which the holders of
Class A Common Stock shall have the right to receive such cash, securities,
property or other assets in connection with the Fundamental Change.
<PAGE>
2
"Board of Directors" means either the board of directors of the
Obligor or any duly authorized committee of such board.
"Business Day" means each day of the year on which banking
institutions are not required or authorized to close in The City of New York or
in the jurisdiction in which the principal corporate trust office of the Trustee
is located.
"Class A Common Stock" means the Class A Common Stock, par value
$.10 per share, of the Company.
"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. Subject to the
provisions of Section 11.14, however, shares issuable on conversion of the
Securities shall include only shares of Class A Common Stock of the Company as
it exists on the date of this Indenture 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 substan tially in the proportion which the total
number of shares of such class resulting from all such reclassifications bears
to the total number of shares of all such classes resulting from all such
reclassifications.
"Company" means the party named as the "Company" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Company Request" or "Company Order" means a written request or
order signed in the name of the Company by its Chairman and Chief Executive
Officer, its President and Chief Operating Officer, any Executive Vice
President, any Senior Vice President or any Vice President, and by its
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3
Treasurer, an Assistant Treasurer, its Secretary or an Assistant Secretary, and
delivered to the Trustee.
"Current Market Price" per share of the Class A Common Stock on
any date of determination means the average of the last reported sale prices of
the Class A Common Stock for the five consecutive Trading Days ending on and
including such date of determination. The last reported sale price for any
Trading Day shall be (i) if the Class A Common Stock is then listed on the NYSE
or listed or admitted for trading on any national securities exchange, the last
sale price, or the closing bid price if no sale occurred, of the Class A Common
Stock on such Trading Day on the principal securities exchange on which the
Class A Common Stock is listed, (ii) if the Class A Common Stock is not listed
or admitted for trading as described in clause (i), the last reported sale price
of the Class A Common Stock on such Trading Day on the Nasdaq National Market,
or any similar system of automated dissemination of quotations of securities
prices then in common use, if so quoted, or (iii) if not listed or quoted as
described in clause (i) or (ii), the mean between the high bid and low asked
quotations on such Trading Day for the Class A Common Stock as reported by the
National Quotation Bureau Incorporated if at least two securities dealers have
inserted both bid and asked quotations for the Class A Common Stock on at least
five of the ten preceding Trading Days. If none of the conditions set forth
above is met, the last reported sale price of the Class A Common Stock on any
Trading Day or the average of such last reported sale prices for any period
shall be the fair market value of the Class A Common Stock as determined by a
member firm of the NYSE selected by the Company.
"Default" means any event which is, or after notice or passage of
time or both would be, an Event of Default.
"Depositary" means, with respect to the Securities issuable or
issued in whole or in part in global form, the person specified in Section 2.06
as the Depositary with respect to the Securities, until a successor shall have
been appointed and become such pursuant to the applicable provi sions of this
Indenture, and thereafter, "Depositary" shall mean or include such successor.
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4
"Exchange Act" means the Securities Exchange Act of 1934, as
amended, and the rules and regulations of the SEC promulgated thereunder.
"Fundamental Change" means the occurrence of any transaction or
event in connection with which all or sub stantially all the Class A Common
Stock shall be exchanged for, converted into, acquired for or constitute solely
the right to receive (whether by means of an exchange offer, liquidation, tender
offer, consolidation, merger, combina tion, reclassification, recapitalization
or otherwise) consideration which is not all or substantially all common stock
listed (or, upon consummation of or immediately following such transaction or
event, will be listed) on a United States national securities exchange or
approved for quotation on the Nasdaq National Market or any similar United
States system of automated dissemination of quota tions of securities prices.
"Holder" or "Securityholder" means a Person in whose name a
Security is registered on the Registrar's books.
"Indebtedness" means, with respect to any Person, and
without duplication:
(i) all indebtedness, obligations and other liabilities
(contingent or otherwise) of such Person for borrowed money (including
obligations of the Company in respect of overdrafts, foreign exchange
contracts, currency exchange agreements, interest rate protection
agreements and any loans or advances from banks, whether or not
evidenced by notes or similar instruments) or evidenced by bonds,
debentures, notes or similar instruments (whether or not the recourse of
the lender is to the whole of the assets of such Person or only to a
portion thereof) (other than any account payable or other accrued
current liability or obliga tion incurred in the ordinary course of
business);
(ii) all reimbursement obligations and other liabilities
(contingent or otherwise) of such Person with respect to letters of
credit, bank guarantees or bankers' acceptances;
<PAGE>
5
(iii) all obligations and liabilities (contingent or otherwise)
in respect of leases of such Person required, in conformity with
generally accepted accounting principles, to be accounted for as capital
ized lease obligations on the balance sheet of such Person and all
obligations and other liabilities (contingent or otherwise) under any
lease or related document (including a purchase agreement) in connection
with the lease of real property which provides that such Person is
contractually obligated to purchase or cause a third party to purchase
the leased property and thereby guarantee a minimum residual value of
the leased property to the lessor and the obligations of such Person
under such lease or related document to purchase or to cause a third
party to purchase such leased property;
(iv) all obligations of such Person (contingent or otherwise)
with respect to an interest rate or other swap, cap or collar agreement
or other similar instru ment or agreement or foreign currency hedge,
exchange, purchase or similar instrument or agreement;
(v) all direct or indirect guarantees or similar agreements by
such Person in respect of, and obliga tions or liabilities (contingent
or otherwise) of such Person to purchase or otherwise acquire or
otherwise assure a creditor against loss in respect of, indebted ness,
obligations or liabilities of another Person of the kind described in
clauses (i) through (iv);
(vi) any indebtedness or other obligations described in clauses
(i) through (iv) secured by any mortgage, pledge, lien or other
encumbrance existing on property which is owned or held by such Person,
regard less of whether the indebtedness or other obligation secured
thereby shall have been assumed by such Person; and
(vii) any and all deferrals, renewals, extensions and refundings
of, or amendments, modifications or supplements to, any indebtedness,
obligation or liability of the kind described in clauses (i) through
(vi).
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6
"Indenture" means this Indenture, as amended or supplemented from
time to time in accordance with the terms hereof.
"Issue Date" of any Security means the date on which the Security
was originally issued or deemed issued as set forth on the face of the Security.
"Issue Price" of any Security means, in connection with the
original issuance of such Security, the initial issue price at which the
Security is issued as set forth on the face of the Security.
"Nasdaq National Market" means the electronic inter-dealer
quotation system operated by NASDAQ Stock Market, Inc., a subsidiary of the
National Association of Securities Dealers, Inc.
"Non-U.S. Person" means a Person other than a U.S. person (as
such term is defined in Regulation S).
"NYSE" means The New York Stock Exchange, Inc.
"Officer" means the Chairman and Chief Executive Officer, the
President and Chief Operating Officer, any Executive Vice President, any Senior
Vice President, any Vice President, the Treasurer or the Secretary or any
Assistant Treasurer or Assistant Secretary of the Company.
"Officers' Certificate" means a written certificate containing
the information specified in Sections 12.04 and 12.05, signed in the name of the
Company by its Chairman and Chief Executive Officer, its President and Chief
Operating Officer, any Executive Vice President, any Senior Vice President or
any Vice President, and by its Treasurer, an Assistant Treasurer, its Secretary
or an Assistant Secretary, and delivered to the Trustee.
"Opinion of Counsel" means a written opinion containing the
information specified in Sections 12.04 and 12.05, from legal counsel who is
acceptable to the Trustee. The counsel may be an employee of, or counsel to, the
Company or the Trustee.
"Original Issue Discount" of any Security means the difference
between the Issue Price and the Principal
<PAGE>
7
Amount of the Security as set forth on the face of the Security. For purposes of
this Indenture and the Securities, accrual of Original Issue Discount shall be
calculated on the basis of a 360-day year of twelve 30-day months, compounded
semi-annually.
"Partnership Note" means the promissory note dated July 2, 1996
made by the Company in favor of National Propane, L.P.
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization, or government or any agency or political
subdivision thereof.
"PORTAL Market" means the Private Offerings, Resales and Trading
through Automated Linkages Market operated by the National Association of
Securities Dealers, Inc. or any successor thereto.
"Principal" or "Principal Amount" of a Security means the
principal amount as set forth on the face of the Security.
"QIB" means a "qualified institutional buyer" as defined in
Rule 144A.
"Redemption Date" shall mean a date specified for redemption of
the Securities (other than redemption upon a Fundamental Change at the option of
the Securityholder) in accordance with the terms of the Securities and Section
3.01 of this Indenture.
"Redemption Price" shall have the meaning set forth in paragraph
5 of the Securities.
"Reference Market Price" shall initially mean $17.0417 and in the
event of any adjustment to the Conversion Rate pursuant to Article 11 hereof,
the Reference Market Price shall be adjusted to equal the initial Reference
Market Price multiplied by a fraction the numerator of which is the Conversion
Rate specified in the relevant form of Security attached hereto as Exhibit A
(without regard to any adjustment thereto) and the
<PAGE>
8
denominator of which is the Conversion Rate following such adjustment.
"Regulation S" means Regulation S under the Securities Act, or
any successor provision.
"Rule 144A" means Rule 144A as promulgated under the Securities
Act, or any successor rule.
"Rule 144(k)" means Rule 144(k) as promulgated under the
Securities Act, or any successor rule.
"SEC" means the Securities and Exchange Commission.
"Securities" or "Debentures" means any of the Company's Zero
Coupon Convertible Subordinated Debentures Due 2017, as amended or supplemented
from time to time, issued under this Indenture.
"Securities Act" means the Securities Act of 1933, as amended,
and the rules and regulations of the SEC promulgated thereunder.
"Securityholder" or "Holder" means a person in whose name a
Security is registered on the Registrar's books.
"Specified Senior Indebtedness" means, the principal of, premium,
if any, interest (including all interest accruing subsequent to the commencement
of any bankruptcy or similar proceeding, whether or not a claim for
post-petition interest is allowable as a claim in any such proceeding) and rent
payable on or in connection with, and all fees, costs, expenses and other
amounts accrued or due on or in connection with, all present and future
Indebtedness of the Company; provided, however, that Specified Senior
Indebtedness does not include (i) Indebtedness evidenced by the Securities, (ii)
Indebtedness of the Company to any Subsidiary, a majority of the Voting Stock of
which is owned, directly or indirectly, by the Company, (iii) any Indebtedness
of the Company that is not secured, (iv) any particular Indebtedness of the
Company in which the instrument creating or evidencing the same or the
assumption or guarantee thereof expressly provides that such Indebtedness shall
not
<PAGE>
9
be senior in right of payment to the Securities, or expressly provides that such
Indebtedness is pari passu with, or is junior to, the Securities and (v) the
Partnership Note.
"Stated Maturity", when used with respect to any Security, means
the date specified in such Security as the fixed date on which an amount equal
to the Principal of such security is due and payable.
"Subsidiary" with respect to the Company means a corporation of
which a majority of the capital stock (which for purposes of this definition
means any and all shares, interests, rights to purchase, warrants, options,
participa tions or other equivalents of or interests in (however designated)
stock issued by such corporation) having voting power under ordinary
circumstances to elect a majority of the board of directors of such corporation
is owned directly or indirectly by (i) the Company, (ii) the Company and one or
more of its Subsidiaries or (iii) one or more such Subsidiaries.
"TIA" means the Trust Indenture Act of 1939 as in effect on the
date of this Indenture, except as provided in Section 9.03.
"Trading Day" means a day during which trading in securities
generally occurs on the NYSE or, if the applicable security is not listed on the
NYSE, on the prin cipal other national or regional securities exchange on which
the applicable security is then listed or, if the applicable security is not
listed on a national or regional securities exchange, on the Nasdaq National
Market or, if the applicable security is not quoted on the Nasdaq National
Market, on the principal other market on which the applica ble security is then
traded.
"Transfer Restriction Termination Date" means the first date on
which the Securities and any Class A Common Stock issued or issuable upon the
conversion thereof (other than (i) Securities acquired by the Company or any
Affiliate thereof since the Issue Date of the Convertible Securities and (ii)
Class A Common Stock issued upon the conversion of any Security described in
clause (i) above) may be sold pursuant to Rule 144(k).
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10
"Trust Officer" means, when used with respect to the Trustee, (a)
any officer within the corporate trust department of the Trustee, including any
vice president, assistant vice president, assistant secretary, assistant
treasurer, trust officer or any other officer of the Trustee who customarily
performs functions similar to those performed by the Persons who at the time
shall be such officers, respectively, or to whom any corporate trust matter is
referred because of such person's knowledge of an familiarity with the
particular subject and (b) who shall have direct responsibility for the
administration of this Indenture.
"Trustee" means the party named as the "Trustee" in the first
paragraph of this Indenture until a successor replaces it pursuant to the
applicable provisions of this Indenture and, thereafter, shall mean such
successor. The foregoing sentence shall likewise apply to any subsequent such
successor or successors.
"Voting Stock" shall mean stock of any class or classes, however
designated, having ordinary voting power for the election of a majority of the
board of directors of a corporation, other than stock having such power only by
reason of the happening of a contingency.
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11
SECTION 1.02. OTHER DEFINITIONS.
DEFINED IN
TERM SECTION
---- ---------
"Bankruptcy Law" 6.01
"Cash" 3.08(b)
"Company Notice" 3.08(e)
"Company Notice Date" 3.08(c)
"Conversion Agent" 2.03
"Conversion Date" 11.02
"Conversion Rate" 11.01
"Distributed Securities" 11.08(a)
"Expiration Time 11.08(c)
"Event of Default" 6.01
"Fundamental Change Redemption Date" 3.09(b)
"Fundamental Change Redemption Notice" 3.09(a)
"Fundamental Change Redemption Price" 3.09(a)
"Global Security" 2.06(b)
"Legal Holiday" 12.08
"Market Price" 3.08(d)
"Notice of Default" 6.01
"Paying Agent" 2.03
"Placement Agreement" 2.02
"Purchase Date" 3.08(a)
"Purchase Notice" 3.08(a)
"Purchase Price" 3.08(a)
"Purchased Shares" 11.08(c)
"Registrar" 2.03
"Sale Price" 3.08(d)
"Specified Senior Indebtedness Default" 11.02
SECTION 1.03. INCORPORATION BY REFERENCE OF TRUST INDENTURE ACT.
Whenever this Indenture refers to a provision of the TIA, the provision is
incorporated by reference in and made a part of this Indenture. The following
TIA terms used in this Indenture have the following meanings:
"Commission" means the SEC.
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12
"Indenture Securities" means the Securities.
"Indenture Security Holder" means a Securityholder.
"Indenture to be Qualified" means this Indenture.
"Indenture Trustee" or "Institutional Trustee" means the
Trustee.
"Obligor" in connection with the Securities means the Company.
All other TIA terms used in this Indenture that are defined by
the TIA, defined by TIA reference to another statute or defined by SEC rule have
the meanings assigned to them by such definitions.
SECTION 1.04. RULES OF CONSTRUCTION. Unless the context
otherwise requires:
(1) a term has the meaning assigned to it;
(2) an accounting term not otherwise defined has the meaning
assigned to it in accordance with generally accepted accounting principles as in
effect from time to time;
(3) "or" is not exclusive;
(4) "including" means including, without limitation; and
(5) words in the singular include the plural, and words in the
plural include the singular.
ARTICLE 2
THE SECURITIES
SECTION 2.01. FORM AND DATING. The Securities and the Trustee's
certificate of authentication shall be substantially in the form of Exhibit A
which is hereby incorporated in and expressly made a part of this Indenture.
The
<PAGE>
13
Securities may have notations, legends or endorsements required by law, stock
exchange rule or usage (provided that any such notation, legend or endorsement
required by usage is in a form acceptable to the Company). The Company shall
provide any such notations, legends or endorsements to the Trustee in writing.
Each Security shall be dated the date of its authentication.
SECTION 2.02. EXECUTION AND AUTHENTICATION. The Securities shall
be executed on behalf of the Company by its Chairman and Chief Executive
Officer, its President and Chief Operating Officer, any of its Executive Vice
Presidents, Senior Vice Presidents or Vice Presidents or its Secretary. The
signature of any of these officers on the Securities may be manual or facsimile.
Securities bearing the manual or facsimile signatures of
individuals who were at the time of the execution of such Securities the proper
Officers of the Company shall bind the Company, notwithstanding that such
individuals or any of them have ceased to hold such offices prior to the
authentication and delivery of such Securities or did not hold such offices at
the date of authentication of such Securities.
No Security shall be entitled to any benefit under this Indenture
or be valid or obligatory for any purpose unless there appears on such Security
a certificate of authentication substantially in the form provided for herein
duly executed by the Trustee by manual signature of an authorized officer, and
such certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
The Trustee shall authenticate and make available for delivery
Securities for original issue in an aggregate Principal Amount of up to
$360,000,000 upon a Company Order without any further action by the Company. The
aggregate Principal Amount of Securities outstanding at any time may not exceed
the amount set forth in the foregoing sentence except as provided in Section
2.07.
The Securities shall be issued in denominations of $1,000 of
Principal Amount and integral multiples thereof.
<PAGE>
14
SECTION 2.03. REGISTRAR, PAYING AGENT AND CONVERSION AGENT. The
Company shall maintain an office or agency where Securities may be presented for
registration of transfer or for exchange ("Registrar"), an office or agency
where Securities may be presented for purchase or payment ("Paying Agent") and
an office or agency where Securities may be presented for conversion into Class
A Common Stock ("Conversion Agent"). The Registrar shall keep a register of the
Securities and of their transfer and exchange. The Company may have one or more
co-registrars, one or more additional paying agents and one or more additional
conversion agents. The term Paying Agent includes any additional paying agent.
The term Conversion Agent includes any additional conversion agent.
The Company shall enter into an appropriate agency agreement with
any Registrar, Paying Agent, Conversion Agent or co-registrar (if not the
Trustee). The agreement shall implement the provisions of this Indenture that
relate to such agent and the relevant Security. The Company shall notify the
Trustee of the name and address of any such agent. If the Company fails to
maintain a Registrar, Paying Agent or Conversion Agent, the Trustee shall act as
such and shall be entitled to appropriate compensation therefor pursuant to
Section 7.07. The Company or any Subsidiary or an Affiliate of either of them
may act as Paying Agent, Registrar, Conversion Agent or co-registrar.
The Company initially appoints the Trustee as Registrar,
Conversion Agent and Paying Agent in connection with the Securities.
The Company may, subject to Section 4.05, appoint and change any
Registrar, Conversion Agent or Paying Agent without notice, other than notice to
the Trustee.
SECTION 2.04. PAYING AGENT TO HOLD MONEY AND SECURITIES IN TRUST.
Except as otherwise provided herein, prior to or on each due date of payments in
respect of any Security, the Company shall deposit with the Paying Agent a sum
of money or securities sufficient to make such payments when so becoming due.
The Company shall require each Paying Agent (other than the Trustee) to agree in
writing that the Paying Agent shall hold in trust for the benefit of
Securityholders or the Trustee all money and securities held by the Paying Agent
for the making of payments in respect of
<PAGE>
15
the Securities and shall notify the Trustee of any default by the Company in
making any such payment. At any time during the continuance of any such default,
the Paying Agent shall, upon the written request of the Trustee, forthwith pay
to the Trustee all money and securities so held in trust. If the Company, a
Subsidiary or an Affiliate of either of them acts as Paying Agent, it shall
segregate the money and securities held by it as Paying Agent and hold it as a
separate trust fund. The Company at any time may require a Paying Agent to pay
all money and securities held by it to the Trustee and to account for any funds
and securities disbursed by it. Upon doing so, the Paying Agent shall have no
further liability for the money or securities.
SECTION 2.05. SECURITYHOLDER LISTS. The Trustee shall preserve in
as current a form as is reasonably practicable the most recent list available to
it of the names and addresses of Securityholders. If the Trustee is not the
Registrar, the Company shall cause to be furnished to the Trustee at least
semiannually on each January 1 and July 1 a listing of Securityholders dated
within 15 days of the date on which the list is furnished and at such other
times as the Trustee may request in writing a list in such form and as of such
date as the Trustee may reasonably require of the names and addresses of
Securityholders.
SECTION 2.06. EXCHANGE AND REGISTRATION OF TRANSFER OF
SECURITIES; RESTRICTIONS ON TRANSFERS; DEPOSITARY. (a) Upon surrender for
registration of trans fer of any Security at any office or agency of the Company
designated as Registrar or co-registrar pursuant to Section 2.03 and
satisfaction of the requirements for such transfer set forth in this Section
2.06, the Company shall execute, and the Trustee shall authenticate and make
avail able for delivery, in the name of the designated transferee or
transferees, one or more new Securities of any authorized denominations and of a
like aggregate Principal Amount and bearing such restrictive legends as may be
required by this Indenture.
Securities may be exchanged for a like aggregate Principal Amount
of Securities of other authorized denomina tions. Securities to be exchanged
shall be surrendered at any office or agency to be maintained by the Company
designated as Registrar or co-registrar pursuant to Section 2.03 and the Company
shall execute and register and
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16
the Trustee shall authenticate and make available for delivery in exchange
therefor the Security or Securities which the Securityholder making the exchange
shall be entitled to receive, bearing registration numbers not contemporaneously
outstanding.
All Securities presented for registration of transfer or for
exchange into like Securities, purchase, redemption, conversion into Class A
Common Stock or payment shall be duly endorsed by, or be accompanied by a
written instrument or instruments of transfer in form satisfactory to the
Company and the Trustee, duly executed by the Holder or his attorney duly
authorized in writing.
No service charge shall be charged to the Securityholder for any
exchange for like Securities or registration of transfer of Securities, but the
Company may require payment of a sum sufficient to cover any tax, assessments or
other governmental charges that may be imposed in connection therewith.
None of the Company, the Trustee, the Registrar or any
co-registrar shall be required to exchange for like Securities or register a
transfer of (a) any Securities for a period of 15 days next preceding any
selection of Securities to be redeemed or (b) any Securities or portions thereof
selected or called for redemption or (c) any Securities or portion thereof
surrendered for conversion into Class A Common Stock or (d) any Securities or
portion thereof surrendered for redemption pursuant to Sections 3.08 or 3.09.
All Securities issued upon any transfer or exchange for like
Securities shall be valid obligations of the Company, evidencing the same debt,
and entitled to the same benefits under this Indenture as the Securities
surrendered upon such exchange or transfer.
(b) So long as the Securities are eligible for book-entry
settlement with the Depositary (as defined below), or unless otherwise required
by law, all Securities that are so eligible may be represented by one or more
Securities in global form (each, a "Global Security") registered in the name of
the Depositary or the nominee of the Depositary, except as otherwise specified
below. The transfer and exchange of beneficial interests in any such
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17
Security in global form shall be effected through the Depositary in accordance
with this Indenture and the procedures of the Depositary therefor. The Trustee
shall make appropriate endorsements to reflect increases or decreases in the
Principal Amounts of such Global Securities to reflect any such transfers.
Except as provided below, beneficial owners of a Security in
global form shall not be entitled to have certificates registered in their
names, will not receive or be entitled to receive physical delivery of
certificates in definitive form and will not be considered Holders of such
Securities in global form.
(c) So long as the Securities are eligible for book-entry
settlement, or unless otherwise required by law, upon any transfer of a
definitive Security to a QIB in accordance with Rule 144A or to a Non-U.S.
Person in accordance with Regulation S, unless otherwise requested by the
transferor, and upon receipt of the definitive Security or Securities being so
transferred, together with a certification from the transferor that the transfer
is being made in compliance with Rule 144A or Regulation S, as the case may be
(or other evidence satisfactory to the Trustee), the Trustee shall make an
endorsement on the Global Security to reflect an increase in the aggregate
Principal Amount of the Securities represented by such Global Security and the
Trustee shall cancel such definitive Security or Securities in accordance with
the standing instructions and procedures of the Depositary, the aggregate
Principal Amount of Securities represented by such Global Security to be
increased accordingly; provided that no definitive Security, or portion thereof,
in respect of which the Company or an Affiliate of the Company held any
beneficial interest shall be included in such Global Security until such
definitive Security is freely tradeable in accordance with Rule 144(k); provided
further that the Trustee shall authenticate and make available for delivery
Securities in definitive form upon any transfer of a beneficial interest in the
Security in global form to the Company or any Affiliate of the Company.
Any Global Security may be endorsed with or have incorporated in
the text thereof such legends or recitals or changes not inconsistent with the
provisions of this Indenture as may be required by the Depositary, by the NYSE
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18
or by the National Association of Securities Dealers, Inc. in order for the
Securities to be tradeable on the PORTAL Market or as may be required for the
Securities to be tradeable on any other market developed for trading of
securities pursuant to Rule 144A or required to comply with any applicable law
or any regulation thereunder or with the rules and regulations of any securities
exchange upon which the Securities may be listed or traded or to conform with
any usage with respect thereto, or to indicate any special limitations or
restrictions to which any particular Securities are subject.
(d) Each Security that bears or is required to bear the legend
set forth in this Section 2.06(d) (a "Restricted Security") shall be subject to
the restrictions on transfer provided in the legend set forth in this Section
2.06(d), unless such restrictions on transfer shall be waived by the written
consent of the Company, and the Holder of each Restricted Security, by such
Securityholder's acceptance thereof, agrees to be bound by such restrictions on
transfer. As used in this Section 2.06(d) and in Section 2.06(e), the term
"transfer" encompasses any sale, pledge, transfer or other disposition of any
Restricted Security.
Prior to the Transfer Restriction Termination Date, any
certificate evidencing a Security (and all securities issued in exchange or
substitution therefor, other than Class A Common Stock, if any, issued upon
conversion thereof that shall bear the legend set forth in Section 2.06(e), if
applicable) shall bear a legend in substantially the following form, unless
otherwise agreed by the Company (with written notice thereof to the Trustee):
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT (A) IT IS A "QUALIFIED INSTITUTIONAL BUYER"
(AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT) OR (B) IT IS NOT A
U.S. PERSON AND IS ACQUIRING THE SECURITY EVIDENCED HEREBY IN AN
OFFSHORE TRANSACTION, (2) AGREES THAT IT WILL NOT, PRIOR TO EXPIRATION
OF THE HOLDING PERIOD
<PAGE>
19
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), RESELL OR
OTHERWISE TRANSFER THE SECURITY EVIDENCED HEREBY OR THE CLASS A COMMON
STOCK ISSUABLE UPON CONVERSION OF SUCH SECURITY EXCEPT (A) TO TRIARC
COMPANIES, INC. OR ANY SUBSIDIARY THEREOF, (B) TO A QUALIFIED
INSTITUTIONAL BUYER IN COMPLIANCE WITH RULE 144A UNDER THE SECURITIES
ACT, (C) PURSUANT TO THE EXEMPTION FROM REGISTRATION PROVIDED BY RULE
144 UNDER THE SECURITIES ACT (IF AVAILABLE) OR (D) PURSUANT TO A
REGISTRATION STATEMENT WHICH HAS BEEN DECLARED EFFECTIVE UNDER THE
SECURITIES ACT (AND WHICH CONTINUES TO BE EFFECTIVE AT THE TIME OF SUCH
TRANSFER), (3) PRIOR TO SUCH TRANSFER (OTHER THAN A TRANSFER PURSUANT TO
CLAUSE 2(D) ABOVE), IT WILL FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE
(OR A SUCCESSOR TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL
OPINIONS OR OTHER INFORMATION AS THE TRUSTEE MAY REASONABLY REQUIRE TO
CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM,
OR IN A TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT, AND (4) AGREES THAT IT WILL DELIVER TO EACH PERSON TO
WHOM THE SECURITY EVIDENCED HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY
TO THE EFFECT OF THIS LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE
SECURITY EVIDENCED HEREBY, PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD
APPLICABLE TO SALES OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION), THE HOLDER MUST
CHECK THE APPRO PRIATE BOX SET FORTH ON THE REVERSE HEREOF RELATING TO
THE MANNER OF SUCH TRANSFER AND SUBMIT THIS CERTIFICATE TO THE BANK OF
NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE
PROPOSED TRANSFEREE IS A PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER
MUST, PRIOR TO SUCH TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS
TRUSTEE, SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS THE
COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING
MADE PURSUANT TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO,
THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT. THIS LEGEND WILL BE
REMOVED UPON THE EARLIER OF THE TRANSFER OF THE SECURITY EVIDENCED
HEREBY PURSUANT TO CLAUSE 2(D) ABOVE OR UPON ANY TRANS FER OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION).
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20
Following the Transfer Restriction Termination Date, any Security
or security issued in exchange or sub stitution therefor (other than (i)
Securities acquired by the Company or any Affiliate thereof since the Issue Date
of the Securities and (ii) Class A Common Stock issued upon the conversion of
any Security described in clause (i) above) may upon surrender of such Security
for exchange to the security Registrar in accordance with the provisions of this
Section 2.06, be exchanged for a new Security or Securities, of like tenor and
aggregate Principal Amount, which shall not bear the restrictive legend required
by this Section 2.06(d).
Notwithstanding any other provisions of this Indenture (other
than the provisions set forth in this Section 2.06(d)), a Security in global
form may not be transferred as a whole except by the Depositary to a nominee of
the Depositary or by a nominee of the Depositary to the Depositary or another
nominee to a successor Depositary or a nominee of such successor Depositary.
The Depositary shall be a clearing agency regis tered under the
Exchange Act. The Company initially appoints The Depository Trust Company to act
as Depositary with respect to the Securities in global form. Initially, the
Global Security shall be issued to the Depositary, registered in the name of
Cede & Co., as the nominee of the Depositary, and deposited with the Trustee as
custodian for Cede & Co.
If at any time the Depositary for the Security in global form
notifies the Company that it is unwilling or unable to continue as Depositary
for such Security, the Company may appoint a successor Depositary with respect
to such Security. If a successor Depositary for the Security is not appointed by
the Company within 90 days after the Company receives such notice, the Company
will execute, and the Trustee, upon receipt of an Officers' Certificate for
authentication and delivery of Securities, will authenticate and make available
for delivery, Securities in definitive form, in an aggregate Principal Amount
equal to the Principal Amount of the Security in global form, in exchange for
such Security in the global form.
Definitive Securities issued in exchange for all or a part of a
Security in global form pursuant to this
<PAGE>
21
Section 2.06(d) shall be registered in such names and in such authorized
denominations as the Depositary, pursuant to instructions from its direct or
indirect participants or otherwise, shall instruct the Trustee. Upon execution
and authentication, the Trustee shall make available for delivery such
definitive Securities to the person in whose names such definitive Securities
are so registered.
At such time as all interests in a Security in global form have
been redeemed, converted, exchanged, repurchased or canceled, such Security in
global form shall be, upon receipt thereof, canceled by the Trustee in
accordance with standing procedures and instructions of the Depositary. At any
time prior to such cancellation, if any interest in a global Security is
exchanged for definitive Securities, redeemed, converted, exchanged, repurchased
by the Company pursuant to Article 3 or canceled, or trans ferred for part of a
Security in global form, the Principal Amount of such Security in global form
shall, in accordance with the standing procedures and instructions of the
Depositary be reduced or increased, as the case may be, and an endorsement shall
be made on such Security in global form by, or at the direction of, the Trustee
to reflect such reduction or increase.
(e) Prior to the Transfer Restriction Termination Date, any stock
certificate representing Class A Common Stock issued upon conversion of a
Security shall bear a legend in substantially the following form, unless
otherwise agreed by the Company (with written notice thereof to the Trustee):
THE CLASS A COMMON STOCK EVIDENCED HEREBY HAS NOT BEEN REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. THE HOLDER HEREOF AGREES THAT UNTIL
THE EXPIRATION OF THE HOLDING PERIOD UNDER RULE 144(K) UNDER THE
SECURITIES ACT (OR ANY SUCCESSOR PROVISION) APPLICABLE TO SALES OF THE
SECURITY UPON THE CONVERSION OF WHICH THE CLASS A COMMON STOCK EVIDENCED
HEREBY WAS ISSUED, (1) IT WILL NOT RESELL OR OTHERWISE TRANSFER THE
CLASS A COMMON STOCK EVIDENCED HEREBY EXCEPT (A) TO TRIARC COMPANIES,
INC. OR ANY SUBSIDIARY THEREOF, (B) TO A "QUALIFIED
<PAGE>
22
INSTITUTIONAL BUYER" (AS DEFINED IN RULE 144A UNDER THE SECURITIES ACT)
IN COMPLIANCE WITH RULE 144A, (C) PUR SUANT TO THE EXEMPTION FROM
REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANS FER), (2) PRIOR TO SUCH TRANSFER, IT
WILL FURNISH TO HARRIS TRUST COMPANY OF NEW YORK, AS TRANSFER AGENT,
SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFOR MATION AS IT MAY
REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS BEING MADE PURSUANT
TO AN EXEMPTION FROM, OR IN A TRANSACTION NOT SUBJECT TO, THE REGIS
TRATION REQUIREMENTS OF THE SECURITIES ACT AND (3) IT WILL DELIVER TO
EACH PERSON TO WHOM THE CLASS A COMMON STOCK EVIDENCED HEREBY IS
TRANSFERRED (OTHER THAN A TRANSFER PURSUANT TO CLAUSE (1)(D) ABOVE) A
NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS LEGEND. THIS LEGEND WILL BE
REMOVED UPON EARLIER OF THE TRANSFER OF THE CLASS A COMMON STOCK
EVIDENCED HEREBY PURSUANT TO CLAUSE 1(D) ABOVE OR UPON ANY TRANSFER OF
THE CLASS A COMMON STOCK EVIDENCED HEREBY AFTER THE EXPIRATION OF THE
HOLDING PERIOD UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR ANY
SUCCESSOR PROVISION) APPLICABLE TO SALES OF THE SECURITY UPON WHICH THE
CLASS A COMMON STOCK EVIDENCED HEREBY WAS ISSUED.
(f) Any Security or Class A Common Stock issued upon the
conversion of a Security that, prior to the Transfer Restriction Termination
Date, is purchased or owned by the Company or any Affiliate thereof may not be
resold by the Company or such Affiliate unless registered under the Securities
Act or resold pursuant to an exemption from the registration requirements of the
Securities Act or resold pursuant to an exemption from the registration
requirements of the Securities Act in a transaction which results in such
Securities or Class A Common Stock, as the case may be, no longer being
"restricted securities" (as defined under Rule 144).
SECTION 2.07. REPLACEMENT SECURITIES. If (a) any mutilated
Security is surrendered to the Trustee, or (b) the Company and the Trustee
receive evidence to their satisfac tion of the destruction, loss or theft of any
Security, and there is delivered to the Company and the Trustee such security or
indemnity as may be required by them to save
<PAGE>
23
each of them harmless, then, in the absence of notice to the Company or the
Trustee that such Security has been acquired by a bona fide purchaser, the
Company shall execute and upon its written request the Trustee shall
authenticate and make available for delivery, in exchange for any such mutilated
Security or in lieu of any such destroyed, lost or stolen Security, a new
Security of like tenor and Principal Amount, bearing a number not
contemporaneously outstanding.
In case any such mutilated, destroyed, lost or stolen Security
has become or is about to become due and payable, or is about to be purchased or
redeemed by the Company pursuant to Article 3 hereof, the Company in its
discretion may, instead of issuing a new Security, pay, purchase or redeem such
Security, as the case may be.
Upon the issuance of any new Securities under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
Every new Security issued pursuant to this section in lieu of any
mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obliga tion of the Company, whether or not the destroyed,
lost or stolen Security shall be at any time enforceable by anyone, and shall be
entitled to all benefits of this Indenture equally and proportionately with any
and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall preclude
(to the extent lawful) all other rights and remedies with respect to the
replacement or payment of mutilated, destroyed, lost or stolen Securities.
SECTION 2.08. OUTSTANDING SECURITIES; DETERMINA TIONS OF HOLDERS'
ACTION. Securities outstanding at any time are all the Securities authenticated
by the Trustee except for those canceled by it, those delivered to it for
cancelation and those described in this Section 2.08 as not outstanding. A
Security does not cease to be outstanding because the Company or an Affiliate
thereof holds the Security; provided, however, that in determining whether the
Holders of the requisite Principal Amount of Securities have
<PAGE>
24
given or concurred in any request, demand, authorization, direction, notice,
consent or waiver hereunder, Securities owned by the Company or any Affiliate of
the Company shall be disregarded and deemed not to be outstanding, except that,
in determining whether the Trustee shall be protected in relying upon any such
request, demand, authorization, direction, notice, consent or waiver, only
Securities which the Trustee knows to be so owned shall be so disregarded.
Subject to the foregoing, only Securities outstanding at the time of such
determination shall be considered in any such determination (including, without
limitation, determinations pursuant to Articles 6 and 9).
If a Security is replaced pursuant to Section 2.07, it ceases to
be outstanding unless the Trustee receives proof satisfactory to it that the
replaced Security is held by a bona fide purchaser.
If the Paying Agent holds, in accordance with this Indenture, on
a Redemption Date, or on the Business Day following a Purchase Date or a
Fundamental Change Redemption Date, or on Stated Maturity, money or securities,
if per mitted hereunder, sufficient to pay Securities payable on that date, then
on and after that date such Securities shall cease to be outstanding and
Original Issue Discount and interest, if any, on such Securities shall cease to
accrue and all other rights of the Holders thereof shall terminate (other than
the right to receive payment for such Securities upon delivery thereof in
accordance with this Indenture); provided, that if such Securities are to be
redeemed, notice of such redemption has been duly given pursuant to this
Indenture or provision therefor satisfactory to the Trustee has been made.
If a Security is converted in accordance with Article 11, then
from and after such conversion such Security shall cease to be outstanding and
Original Issue Discount and interest, if any, shall cease to accrue on such
Security.
SECTION 2.09. TEMPORARY SECURITIES. Pending the preparation of
definitive Securities, the Company may execute, and upon Company Order the
Trustee shall authenti cate and make available for delivery, temporary
Securities which are printed, lithographed, typewritten, mimeographed or
otherwise produced, in any authorized denomination, sub stantially of the tenor
of the definitive Securities in lieu of which they are issued and with such
appropriate inser tions, omissions, substitutions and other variations as the
officers executing such Securities may determine, as con clusively evidenced by
their execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at the office or agency of the Company designated for such purpose
pursuant to Section 2.03, without charge to the Holder. Upon surrender for
cancelation of any one or more temporary Securities the Company shall execute
and the Trustee shall authenticate and make available for delivery in exchange
therefor a like Principal Amount of definitive Securities of authorized
denominations. Until so exchanged the temporary Securities shall in all respects
be entitled to the same benefits under this Indenture as definitive Securities.
SECTION 2.10. CANCELATION. All Securities surrendered for
payment, purchase by the Company pursuant to Article 3, conversion, redemption
or, registration of trans fer or exchange for the Securities shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly canceled by it. The Company may at any time deliver to the
Trustee for cancelation any Securities previously authenticated and delivered
hereunder which the Company may have acquired in any manner whatso ever, and all
Securities so delivered shall be promptly canceled by the Trustee. The Company
may not issue new Securities to replace Securities it has paid or delivered to
the Trustee for cancelation or that any Holder has converted pursuant to Article
11. No Securities shall be authenticated in lieu of or in exchange for any
Securities canceled as provided in this Section, except as expressly permitted
by this Indenture. All canceled Securities held by the Trustee shall be
delivered to the Company in accordance with the Trustee's policy for disposal of
canceled securities or as otherwise directed by a Company Order; provided,
however, that in no event shall the Trustee be required to destroy such canceled
Securities.
<PAGE>
25
SECTION 2.11. PERSONS DEEMED OWNERS. Prior to due presentment of
a Security for registration of transfer, the Company, the Trustee and any agent
of the Company or the Trustee may treat the Person in whose name such Security
is registered as the owner of such Security for the purpose of receiving payment
of Principal Amount, Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase Price, Fundamental Change Redemption Price and interest, if any,
in respect thereof, for the purpose of conversion and for all other purposes
whatsoever, whether or not such Security be overdue, and none of the Company,
the Trustee or any agent of the Company or the Trustee shall be affected by
notice to the contrary.
SECTION 2.12. CUSIP NUMBERS. The Company in issuing the
Securities may use "CUSIP" numbers (if then generally in use), and, if so, the
Trustee shall use "CUSIP" numbers in notices of redemption as a convenience to
Holders; provided, however, that any such notice may state that no
representation is made as to the correctness of such numbers either as printed
on the Securities or as contained in any notice of a redemption and that
reliance may be placed only on the other identification numbers printed on the
Securities, and any such redemption shall not be affected by any defect in or
omission of such numbers. the Company will promptly notify the Trustee of any
change in the "CUSIP" numbers.
ARTICLE 3
REDEMPTION AND PURCHASES
SECTION 3.01. RIGHT TO REDEEM; NOTICES TO TRUSTEE. The Company,
at its option, may redeem the Securities in accordance with the provisions of
paragraphs 5 and 7 of the Securities. If the Company elects to redeem Securities
pursuant to paragraph 5 of the Securities, it shall notify the Trustee in
writing of the Redemption Date, the Principal Amount of Securities to be
redeemed and the Redemption Price.
The Company shall give the notice to the Trustee provided for in
this Section 3.01 (i) in the case of any redemption of fewer than all of the
Securities, at least
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26
45 days before the Redemption Date and (ii) in the case of a redemption of all
of the Securities, no later than the Company is required to give notice to the
Holders pursuant to Section 3.03, in each case unless a shorter notice shall be
satisfactory to the Trustee.
SECTION 3.02. SELECTION OF SECURITIES TO BE REDEEMED. If less
than all the Securities held in defini tive form are to be redeemed, the Trustee
shall select the definitive Securities to be redeemed pro rata or by lot or by a
method the Trustee considers fair and appropriate (as long as such method is not
prohibited by the rules of any stock exchange on which the Securities are then
listed). The Trustee shall make the selection at least 35 days, but not more
than 60 days, before the Redemption Date from outstanding definitive Securities
not previously called for redemption. The Trustee may select for redemption
portions of the Principal of Securities that have denominations larger than
$1,000. Securities and portions of them the Trustee selects shall be in
Principal Amounts of $1,000 or an integral multiple of $1,000. Provisions of
this Indenture that apply to definitive Securities called for redemption also
apply to portions of definitive Securities called for redemption. The Trustee
shall notify the Company promptly of the definitive Securities or portions of
definitive Securities to be redeemed.
Any interest in a Security held in global form by and registered
in the name of the Depositary or its nominee to be redeemed in whole or in part
will be redeemed pro rata in accordance with the standing instructions and
procedures of the Depositary.
If any Security selected for partial redemption is converted in
part before termination of the conversion with respect to the portion of the
Security so selected, the converted portion of such Security shall be deemed (so
far as may be) to be the portion selected for redemption. Securities which have
been converted during a selection of Securities to be redeemed may be treated by
the Trustee as outstanding for the purpose of such selection.
SECTION 3.03. NOTICE OF REDEMPTION. At least 30 days but not
more than 60 days before a Redemption Date, the Company shall mail a notice of
redemption by first-class
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27
mail, postage prepaid, to each Holder of Securities to be redeemed.
The notice shall identify the Securities to be redeemed
(including "CUSIP" numbers) and shall state:
(1) the Redemption Date;
(2) the Redemption Price;
(3) the Conversion Rate;
(4) the name and address of the Paying Agent and Conversion
Agent;
(5) that Securities called for redemption may be converted at any
time before the close of business on the last Trading Day prior to the
Redemption Date;
(6) that Holders who want to convert Securities must satisfy
the requirements set forth in paragraph 9 of the Securities;
(7) that Securities called for redemption must be
surrendered to the Paying Agent to collect the Redemption
Price;
(8) if fewer than all the outstanding Securities are to be
redeemed, the Principal Amount of the particular Securities to be redeemed; and
(9) that Original Issue Discount on Securities called for
redemption will cease to accrue on and after the Redemption Date.
At the Company's request, the Trustee shall give the notice of
redemption in the Company's name and at the Company's expense; provided,
however, in all cases, the text of the notice of redemption shall be prepared by
the Company.
SECTION 3.04. EFFECT OF NOTICE OF REDEMPTION. Once notice of
redemption is given, Securities called for redemption become due and payable on
the Redemption Date and at the Redemption Price stated in the notice except for
Securities which are converted at any time before the close
<PAGE>
28
of business on the last Trading Day prior to the Redemption Date in accordance
with the terms of this Indenture.
Upon the later of the Redemption Date or the date such Securities
are surrendered to the Paying Agent, such Securities shall be paid at the
Redemption Price stated in the notice.
SECTION 3.05. DEPOSIT OF REDEMPTION PRICE. Prior to or on the
Redemption Date, the Company shall deposit with the Paying Agent (or, if the
Company or a Subsidiary or an Affiliate of either of them is the Paying Agent,
shall segregate and hold in trust) money sufficient to pay the Redemption Price
of all Securities to be redeemed on that date other than Securities or portions
of Securities called for redemption which prior thereto have been delivered by
the Company to the Trustee for cancelation or have been converted into Class A
Common Stock. The Paying Agent shall as promptly as practicable return to the
Company any money, with interest, if any, thereon (subject to the provisions of
Section 7.01(f)), not required for that purpose because of conversion of
Securities. If such money is then held by the Company in trust and is not
required for such purpose it shall be discharged from such trust.
SECTION 3.06. SECURITIES REDEEMED IN PART. Upon surrender of a
Security that is redeemed in part, the Company shall execute and the Trustee
shall authenticate and make available for delivery to the Holder a new Security
in an authorized denomination equal in Principal Amount to the unredeemed
portion of the Security surrendered.
SECTION 3.07. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION. In
connection with any redemption of Securities, the Company may arrange for the
purchase and conversion into Class A Common Stock of any Securities called for
redemption by an agreement with one or more investment bankers or other
purchasers to purchase all or a portion of such Securities by paying to the
Paying Agent in trust for the Securityholders, on or before the close of
business on the Redemption Date, an amount that, together with any amounts
deposited with the Paying Agent by the Company for the redemption of the
Securities, is not less than the Redemption Price, together with interest, if
any, accrued to the Redemption Date, of such Securities. Not withstanding
anything to the contrary contained in this
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29
Article 3, the obligation of the Company to pay the Redemption Price of such
Securities, including all accrued Original Issue Discount with respect to such
Securities, shall be deemed to be satisfied and discharged to the extent such
amount is so paid by such purchasers. If such an agreement is entered into, any
Securities not duly surren dered for conversion by the Holders thereof may, at
the option of the Company, be deemed, to the fullest extent permitted by law,
acquired by such purchasers from such Holders and (notwithstanding anything to
the contrary con tained in Article 11) surrendered by such purchasers for
conversion, all immediately prior to the close of business on the Redemption
Date, subject to payment of the above amount as aforesaid. The Paying Agent
shall hold and pay to the Holders whose Securities are selected for redemption
any such amount paid to it in the same manner as it would moneys deposited with
it by the Company for the redemption of Securities. Without the Paying Agent's
prior written con sent, no arrangement between the Company and such purchasers
for the purchase and conversion of any Securities 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 Securities between the Company and such purchasers, including
the costs and expenses incurred by the Paying Agent in the defense of any claim
or liability arising out of or in connection with the exercise or performance of
any of its powers, duties, responsibilities or obligations under this Indenture.
SECTION 3.08. PURCHASE OF SECURITIES AT OPTION OF THE HOLDER. (a)
General. Securities shall be purchased by the Company pursuant to paragraph 6 of
the Securities as of February 9, 2003, February 9, 2008 and February 9, 2013,
(each, a "Purchase Date"), at the purchase price specified therein (each, a
"Purchase 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 "Purchase Notice") at
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30
any time from the opening of business on the date that is 20 Business
Days prior to a Purchase Date until the close of business on such
Purchase Date (or, if such Purchase Date is not a Business Day, the
first Business Day prior to such Purchase Date), stating:
(A) the certificate number of the Security
which the Holder will deliver to be purchased;
(B) the portion of the Principal Amount of the Security
which the Holder will deliver to be purchased, which portion must
be $1,000 in Principal Amount or an integral multiple thereof;
(C) that such Security shall be purchased as of the
Purchase Date pursuant to the terms and conditions specified in
paragraph 6 of the Securities and in this Indenture; and
(D) that if the Company elects, pursuant to a Company
Notice, to pay the Purchase Price to be paid as of such Purchase
Date, in whole or in part, in Class A Common Stock but such
portion of the Purchase Price shall ultimately be payable to such
Holder in Cash because any of the conditions to the payment of
the Purchase Price in Class A Common Stock is not satisfied prior
to or on the Purchase Date, as set forth in Section 3.08(d),
whether such Holder elects (x) to withdraw such Purchase Notice
as to some or all of the Securities to which such Purchase Notice
relates (stating the Principal Amount and certificate numbers of
the Securities as to which such with drawal shall relate), or (y)
to receive Cash in respect of the entire Purchase Price for all
Securities (or portions thereof) to which such Purchase Notice
relates; and
(2) delivery (or book-entry transfer) of such Security to the
Paying Agent prior to, on or after the Purchase Date (together with all
necessary endorse ments) at the offices of the Paying Agent, such
delivery being a condition to receipt by the Holder of the Purchase
Price therefor; provided, however, that such Purchase Price shall be so
paid pursuant to this Section 3.08 only if the Security so delivered to
the
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31
Paying Agent shall conform in all respects to the description thereof in
the related Purchase Notice.
If a Holder, in such Holder's Purchase Notice and in any written
notice of withdrawal delivered by such Holder pursuant to the terms of Section
3.10, fails to indicate such Holder's choice with respect to the election set
forth in clause (D) of Section 3.08(a)(1), such Holder shall be deemed to have
elected to receive Cash in respect of the entire Purchase Price for all
Securities subject to such Purchase Notice in the circumstances set forth in
such clause (D).
The Company shall purchase from the Holder thereof, pursuant to
this Section 3.08, a portion of a Security 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 Security also apply to the
purchase of such portion of such Security.
Any purchase by the Company contemplated pursuant to the
provisions of this Section 3.08 shall be consummated by the delivery of the
consideration to be received by the Holder promptly following the later of the
Purchase Date and the time of delivery of the Security.
Notwithstanding anything herein to the contrary, any Holder
delivering to the Paying Agent the Purchase Notice contemplated by this Section
3.08(a) shall have the right at any time prior to the close of business on the
Purchase Date to withdraw such Purchase Notice by delivery of a written notice
of withdrawal to the Paying Agent in accordance with Section 3.10.
The Paying Agent shall promptly notify the Company of the receipt
by it of any Purchase Notice or written notice of withdrawal thereof.
(b) Company's Right to Elect Manner of Payment of Purchase Price.
The Company may elect with respect to any Purchase Date to pay the Purchase
Price in respect of the Securities to be purchased pursuant to Section 3.08(a)
as of such Purchase Date, in U.S. legal tender ("Cash") or Class A Common Stock,
or in any combination of Cash and Class A Common Stock, subject to the
conditions set forth in Sections 3.08(c) and (d). The Company shall designate,
in
<PAGE>
32
the Company Notice delivered pursuant to Section 3.08(e), whether the Company
will purchase the Securities for Cash or Class A Common Stock, or, if a
combination thereof, the percentages of the Purchase Price of such Securities in
respect of which it will pay in Cash or Class A Common Stock; provided that the
Company will pay Cash for frac tional interests in Class A Common Stock. For
purposes of determining the existence of potential fractional interests, all
Securities 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 Securities are purchased pursuant to this Section
3.08 shall receive the same percentage of Cash or Class A Common Stock in
payment of the Purchase Price for such Securities, except (i) as provided in
Section 3.08(d) with regard to the payment of Cash in lieu of fractional
interests in Class A Common Stock and (ii) in the event that the Company is
unable to purchase the Securities of a Holder or Holders for Class A Common
Stock because any necessary qualifications or registrations of the Class A
Common Stock under applicable federal or state securities laws cannot be
obtained, the Company may purchase the Securities of such Holder or Holders for
Cash. The Company may not change its election with respect to the consideration
(or components or percent ages of components thereof) to be paid once the
Company has given its Company Notice to Securityholders except pursuant to this
Section 3.08(b) or Section 3.08(d).
At least two Business Days before the Company Notice Date (as
defined in Section 3.08(c)), 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 3.08(e),
(iii) if the Company elects to pay the Purchase Price, or a
specified percentage thereof, in Class A Common Stock, that the
conditions to such manner of payment set forth in Section 3.08(d) have
been or will be complied with, and
(iv) whether the Company desires the Trustee to give the Company
Notice required by Section 3.08(e).
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33
(c) Purchase with Cash. At the option of the Company, the
Purchase Price of Securities in respect of which a Purchase Notice has been
given pursuant to Section 3.08(a), or a specified percentage thereof, may be
paid by the Company with Cash equal to the aggregate Purchase Price, or such
specified percentage hereof, as the case may be, of such Securities. If the
Company elects to purchase Securities with Cash, a Company Notice as provided in
Section 3.08(e) shall be sent to Holders (and to bene ficial owners as required
by applicable law) not less than 20 Business Days prior to the Purchase Date
(the "Company Notice Date").
(d) Payment by Issuance of Class A Common Stock. At the option of
the Company, the Purchase Price of Securities in respect of which a Purchase
Notice pursuant to Section 3.08(a) has been given, or a specified percentage
thereof, may be paid by the Company by the issuance of a number of shares of
Class A Common Stock equal to the quotient obtained by dividing (i) the amount
of Cash to which the Securityholders would have been entitled had the Company
elected to pay all or such specified percentage, as the case may be, of the
Purchase Price of such Securities in Cash by (ii) the Market Price of a share of
Class A Common Stock, subject to the next succeeding paragraph.
The Company will not issue a fractional share of Class A Common
Stock in payment of the Purchase 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 shall be determined by multiplying the Market Price by such
fraction and rounding the product to the nearest whole cent. It is understood
that if a Holder elects to have more than one Security purchased, the number of
shares of Class A Common Stock shall be based on the aggregate amount of
Securities to be purchased.
If the Company elects to purchase the Securities by the issuance
of shares of Class A Common Stock, a Company Notice as provided in Section
3.08(e) 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
Securities pursuant to Section 3.08 through the
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34
issuance of shares of Class A Common Stock shall be conditioned upon:
(i) the Company having given timely Company Notice of election to
purchase all or a specified per centage of the Securities with Class A
Common Stock as provided herein;
(ii) the registration of the shares of Class A Common Stock to be
issued in respect of the payment of the specified percentage of the
Purchase Price under the Securities Act; unless the shares of Class A
Common Stock so issued can be freely resold by the Securityholder
(unless such Securityholder is the Company or an Affiliate of the
Company) receiving such shares without registration under the Securities
Act;
(iii) any necessary qualification or registration under
applicable state securities laws or the avail ability 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 Class A Common Stock are in conformity with this Indenture and (B)
the shares of Class A Common Stock to be issued by the Company in
payment of the specified percentage of the Purchase Price in respect of
Securities have been duly authorized and, when issued and delivered
pursuant to the terms of this Indenture in payment of the specified
percentage of the Purchase Price in respect of Securities, will be
validly issued, fully paid and non assessable, and, in the case of such
Officers' Certificate, stating that conditions (i), (ii) and (iii) above
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 Class A
Common Stock to be issued for each $1,000 Principal Amount of Securities and the
Sale Price of a share of Class A Common Stock on each Trading Day during the
period during which the Market Price is calculated and ending on the Purchase
Date. The Company may elect to pay the Purchase Price (or any portion thereof)
in Class A
<PAGE>
35
Common Stock only if the information necessary to calculate the Market Price is
reported in a daily newspaper of national circulation. Upon determination of the
actual number of shares of Class A Common Stock to be issued in accordance with
the foregoing provisions, the Company will publish such determination in a daily
newspaper of national circulation. If such conditions are not satisfied with
respect to a Holder or Holders prior to or on the Purchase Date and the Company
elected to purchase the Securities to be purchased as of such Purchase Date
pursuant to this Section 3.08 through the issuance of shares of Class A Common
Stock, the Company shall pay the entire Purchase Price in respect of such
Securities of such Holder or Holders in Cash.
The "Market Price" means the average of the Sale Prices of the
Class A Common Stock for the five Trading Day period ending on the third
Business Day prior to the applicable Purchase Date (if the third Business Day
prior to the applicable Purchase Date is a Trading Day or, if not, then on the
immediately preceding Trading Day), appropri ately adjusted to take into account
the occurrence during the period commencing on the first of such Trading Days
during such five Trading Day period and ending on such Purchase Date of any
event described in Section 11.06, 11.07 or 11.08; subject, however, to the
conditions set forth in Sections 11.09 and 11.10. The "Sale Price" of the Class
A 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 Class A Common Stock is traded
or, if the Class A Common Stock is not listed on a United States national or
regional stock exchange, as reported by the Nasdaq National Market.
(e) Notice of Election. The Company's notices of election to
purchase with Cash or Class A Common Stock, or any combination thereof, shall
be sent to the Holders (and to beneficial owners as required by applicable law)
in the manner provided in Section 12.02 and not later than the Company Notice
Date pursuant to Section 3.08(c) or (d), as applicable (each, a "Company
Notice"). Such Company Notices
<PAGE>
36
shall state the manner of payment elected and shall contain the following
information:
In the event the Company has elected to pay a Purchase Price (or
a specified percentage thereof) with Class A Common Stock, the Company Notice
shall:
(1) state that each Holder will receive Class A Common Stock with
a Market Price determined as of a specified date prior to the Purchase
Date equal to such specified percentage of the Purchase Price of the
Securities held by such Holder (except any Cash amount to be paid in
lieu of fractional share); and
(2) set forth the method of calculating the Market Price and
state that because the Market Price of Class A Common Stock will be
determined prior to the Purchase Date, the Holders will bear the market
risk with respect to the value of the Class A Common Stock to be
received from the date such Market Price is determined to the Purchase
Date.
In any case, each Company Notice shall include a form of Purchase
Notice to be completed by a Securityholder and shall state:
(i) the Purchase Price and Conversion Rate;
(ii) the name and address of the Paying Agent and the
Conversion Agent;
(iii) that Securities as to which a Purchase Notice has been
given may be converted only if the applicable Purchase Notice has been
withdrawn in accordance with the terms of this Indenture;
(iv) that Securities must be surrendered to the Paying Agent to
collect payment;
(v) that the Purchase Price for any Security as to which a
Purchase Notice has been given and not with drawn will be paid promptly
following the later of the Purchase Date and the time of surrender of
such Security as described in (iv);
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37
(vi) the procedures the Holder must follow to exercise rights
under Section 3.08 and a brief description of those rights;
(vii) briefly, the conversion rights of the Securities; and
(viii) the procedures for withdrawing a Purchase Notice
(including, without limitation, for a conditional withdrawal pursuant to
the terms of Section 3.08(a)(1)(D) or Section 3.10).
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.
(f) Covenants of the Company. All shares of Class A Common Stock
delivered upon conversion or purchase of the Securities shall be newly issued
shares or treasury shares, shall be duly and validly issued and fully paid and
nonassessable and shall be free from preemptive rights and free of any lien or
adverse claim other than any lien or claim created by the Holder.
The Company shall endeavor promptly to comply with all Federal
and state securities laws regulating the offer and delivery of shares of Class A
Common Stock upon conver sion or purchase of Securities, if any, and shall use
its best efforts to list or cause to have quoted all such shares of Class A
Common Stock on each United States national securities exchange or
over-the-counter or other domestic market on which the Class A Common Stock is
then listed or quoted.
(g) Procedure upon Purchase. On the Business Day following the
Purchase Date, the Company shall deposit with the Paying Agent Cash (in respect
of a Cash purchase under Section 3.08(c) or for fractional interests, as
applicable), or shares of Class A Common Stock, or a combination thereof, as
applicable, sufficient to pay the aggregate Purchase Price of the Securities to
be purchased pursuant to this Section 3.08. As soon as practicable after the
Purchase Date, the Company shall deliver to each Holder entitled to receive
Class A Common Stock, through the Paying Agent, a
<PAGE>
38
certificate for the number of full shares of Class A Common Stock, as
applicable, issuable in payment of such Purchase Price and Cash in lieu of any
fractional interests. The person in whose name the certificate for Class A
Common Stock is registered shall be treated as a Holder of record following the
Purchase Date. Subject to Section 3.08(d), no payment or adjustment will be made
for dividends on the Class A Common Stock the record date for which occurred on
or prior to the Purchase Date.
(h) Taxes. If a Holder of a Security is paid in Class A Common
Stock, the Company shall pay any documentary, stamp or similar issue or transfer
tax due on such issue of shares of Class A Common Stock. However, the Holder
shall pay any such tax which is due because the Holder requests the shares of
Class A 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 Class A
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 which will be due because
the shares of Class A Common Stock are to be issued in a name other than the
Holder's name. Nothing herein shall preclude any income tax withholding required
by law or regulations.
SECTION 3.09. REDEMPTION AT OPTION OF THE HOLDER UPON A
FUNDAMENTAL CHANGE. (a) If a Fundamental Change shall occur at any time prior to
February 9, 2018, each Holder of Securities shall have the right, at such
Holder's option, to require the Company to redeem such Holder's Securities on
the date (or if such date is not a Business Day, the next succeeding Business
Day) (the "Fundamental Change Redemption Date") that is 45 days after the date
of the Company's notice of such Fundamental Change. The Securities will be
redeemable in part in integral multiples of $1,000 of Principal Amount. The
Company shall redeem such Securities at a price equal to the Issue Price plus
accrued Original Issue Discount from and including the Issue Date and to, but
excluding, the Fundamental Change Redemption Date; provided that, with respect
to a Fundamental Change, if the Applicable Price is less than the Reference
Market Price, the Company shall redeem such Securities at a price equal to the
foregoing Redemption Price multiplied by the fraction obtained by dividing the
Applicable Price by the Reference Market Price (such price,
<PAGE>
39
as may be so adjusted, the "Fundamental Change Redemption Price").
(b) The Company or, at its request (which must be received by the
Trustee at least three Business Days prior to the date the Trustee is requested
to give such notice as described below), the Trustee in the name of and at the
expense of, the Company, shall mail to all Holders of record of the Securities a
notice (a "Fundamental Change Redemption Notice") of the occurrence of a
Fundamental Change and of the redemption right arising as a result thereof on or
before the tenth day after the occurrence of such Fundamental Change. The
Company shall promptly furnish the Trustee a copy of such notice.
(c) For a Security to be so redeemed at the option of the Holder,
the Paying Agent must receive such Security with the form entitled "Option to
Elect Redemption Upon a Fundamental Change" on the reverse thereof duly
completed, together with such Security duly endorsed for transfer, on or before
the 30th day after the date of such notice (or if such 30th day is not a
Business Day, the immediately preceding Business Day). All questions as to the
validity, eligibility (including time of receipt) and acceptance of any Security
for redemption shall be determined by the Company, whose determination shall be
final and binding.
SECTION 3.10. EFFECT OF PURCHASE NOTICE OR FUNDAMENTAL CHANGE
REDEMPTION NOTICE. Upon receipt by the Company of the Purchase Notice or
Fundamental Change Redemption Notice specified in Section 3.08(a) or Section
3.09(b), as applicable, the Holder of the Security in respect of which such
Purchase Notice or Fundamental Change Redemption Notice, as the case may be, was
given shall (unless such Purchase Notice or Fundamental Change Redemption Notice
is withdrawn as specified in the following two paragraphs) thereafter be
entitled to receive solely the Purchase Price or Fundamental Change Redemption
Price, as the case may be, with respect to such Security. Such Purchase Price or
Fundamental Change Redemption Price shall be paid to such Holder promptly
following the later of (x) the Purchase Date or the Fundamental Change
Redemption Date, as the case may be, with respect to such Security (provided the
conditions in Section 3.08(a) or Section 3.09(a), as applicable, have been
satisfied) and
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40
(y) the time of delivery of such Security to the Paying Agent by the Holder
thereof in the manner required by Section 3.08(a) or Section 3.09(c), as
applicable. Securities in respect of which a Purchase Notice or Fundamental
Change Redemption Notice, as the case may be, has been given by the Holder
thereof may not be converted for shares of Class A Common Stock on or after the
date of the delivery of such Purchase Notice or Fundamental Change Redemption
Notice, as the case may be, unless such Purchase Notice or Fundamental Change
Redemption Notice, as the case may be, has first been validly withdrawn as
specified in the following two paragraphs.
A Purchase Notice or Fundamental Change Redemption Notice, as the
case may be, may be withdrawn by means of a written notice of withdrawal
delivered to the office of the Paying Agent at any time prior to the close of
business on the Purchase Date (or, if such Purchase Date is not a Business Day,
the first Business Day prior to such Purchase Date) or the Fundamental Change
Redemption Date, as the case may be, to which it relates specifying:
(1) the certificate number of the Security in respect of which
such notice of withdrawal is being submitted,
(2) the Principal Amount of the Security with respect to which
such notice of withdrawal is being submitted, and
(3) the Principal Amount, if any, of such Security which remains
subject to the original Purchase Notice or Fundamental Change Redemption
Notice, as the case may be, and which has been or will be delivered for
purchase by the Company.
A written notice of withdrawal of a Purchase Notice may be in the
form of (i) a conditional withdrawal contained in a Purchase Notice pursuant to
the terms of Section 3.08(a)(1)(D) or (ii) a conditional withdrawal containing
the information set forth in Section 3.08(a)(1)(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.
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41
There shall be no purchase of any Securities pursuant to Section
3.08 (other than through the issuance of Class A Common Stock in payment of the
Purchase Price, including Cash in lieu of any fractional shares) or redemption
pursuant to Section 3.09 if there has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of such Securities, of the required
Purchase Notice or Fundamental Change Redemption Notice, as the case may be),
and is continuing an Event of Default (other than a default in the payment of
the Purchase Price or Fundamental Change Redemption Price, as the case may be,
with respect to such Securities).
SECTION 3.11. DEPOSIT OF PURCHASE PRICE OR FUNDAMENTAL CHANGE
REDEMPTION PRICE. On or before the Business Day following a Purchase Date or a
Fundamental Change Redemption Date, as the case may be, the Company shall
deposit with the Trustee or with the Paying Agent (or, if the Company or a
Subsidiary or an Affiliate of either of them is acting as the Paying Agent,
shall segregate and hold in trust as provided in Section 2.04) an amount of
money and/or securities, if permitted hereunder, sufficient to pay the aggregate
Purchase Price or Fundamental Change Redemption Price, as the case may be, of
all the Securities or portions thereof which are to be purchased as of such
Purchase Date or Fundamental Change Redemption Date, as the case may be.
SECTION 3.12. SECURITIES PURCHASED IN PART. Any Security that is
to be purchased, or redeemed upon a Fundamental Change, only in part shall be
surrendered at the office of the Paying Agent (with due endorsement by, or a
written instrument of transfer in form satisfactory to the Company and the
Trustee duly executed by, the Holder thereof or such Holder's attorney duly
authorized in writing) and the Company shall execute and the Trustee shall
authenticate and make available for delivery to the Holder of such Security,
without service charge, a new Security or Securities, 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 Security so
surrendered which is not purchased or redeemed.
SECTION 3.13. COVENANT TO COMPLY WITH SECURITIES LAWS UPON
PURCHASE OF SECURITIES. In connection with any offer to purchase or redemption
of Securities under
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42
Section 3.08 or 3.09 hereof, the Company shall (i) comply with Rule 13e-4 (which
term, as used herein, includes any successor provision thereto) under the
Exchange Act, if applicable, (ii) file the related Schedule 13E-4 (or any
successor schedule, form or report) under the Exchange Act, if applicable, and
(iii) otherwise comply with all Federal and state securities laws so as to
permit the rights and obligations under Sections 3.08 and 3.09 to be exercised
in the time and in the manner specified in Sections 3.08 and 3.09.
SECTION 3.14. REPAYMENT TO THE COMPANY. The Trustee and the
Paying Agent shall return to the Company any Cash or shares of Class A Common
Stock that remain unclaimed as provided in paragraph 13 of the Securities,
together with interest or dividends, if any, thereon, held by them for the
payment of a Purchase Price or Fundamental Change Redemption Price, as the case
may be; provided, however, that to the extent that the aggregate amount of Cash
or shares of Class A Common Stock deposited by the Company pursuant to Section
3.11 exceeds the aggregate Purchase Price or Fundamental Change Redemption
Price, as the case may be, of the Securities or portions thereof which the
Company is obligated to purchase as of the Purchase Date or Fundamental Change
Redemption Date, as the case may be, then promptly after the Business Day
following the Purchase Date or Fundamental Change Redemption Date, as the case
may be, the Trustee and the Paying Agent shall return any such excess to the
Company together with interest or dividends, if any, thereon.
ARTICLE 4
COVENANTS
SECTION 4.01. PAYMENT OF SECURITIES. The Company shall promptly
make all payments in respect of the Securities on the dates and in the manner
provided in the Securities or pursuant to this Indenture. Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Fundamental Change Redemption Price and interest, if any, shall be considered
paid on the applicable date due or, in the case of a Purchase Price or
Fundamental Change Redemption Price, on the Business Day
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43
following the applicable Purchase Date or Fundamental Change Redemption Date, as
the case may be, if on such date the Trustee or the Paying Agent holds, in
accordance with this Indenture, money or securities, if permitted hereunder,
sufficient to pay all such amounts then due.
The Company shall pay interest on overdue amounts at the rate set
forth in paragraph 1 of the Securities and it shall pay interest on overdue
interest at the same rate compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest on
overdue interest shall accrue from the date such amounts became overdue and
shall be in lieu of, and not in addition to, the continued accrual of Original
Issue Discount.
SECTION 4.02. FINANCIAL INFORMATION; SEC REPORTS. The Company
will deliver to the Trustee (a) as soon as available and in any event within 90
days after the end of each fiscal year of the Company (i) a consolidated balance
sheet of the Company and its Subsidiaries as of the end of such fiscal year and
the related consolidated statements of operations, additional capital and cash
flows (or related consolidated statements with substantially similar infor
mation) for such fiscal year, all reported on by an inde pendent public
accountant of nationally recognized standing and (ii) a report containing a
management's discussion and analysis of the financial condition and results of
opera tions and a description of the business and properties of the Company and
(b) as soon as available and in any event within 45 days after the end of each
of the first three quarters of each fiscal year of the Company (i) an unaudited
consolidated financial report for such quarter and (ii) a report containing a
management's discussion and analysis of the financial condition and results of
operations of the Company; provided that the foregoing shall not be required for
any fiscal year or quarter, as the case may be, with respect to which the
Company files or expects to file with the Trustee an annual report or quarterly
report, as the case may be, pursuant to the third paragraph of this Section
4.02.
Prior to the Transfer Restriction Termination Date, if the
Company is neither subject to Section 13 or 15(d) of the Exchange Act, the
Company shall at the request of any Holder provide to such Holder and any
prospective
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44
purchaser designated by such Holder such information, if any, required by Rule
144A(d)(4) under the Securities Act.
The Company shall file with the Trustee, within 15 days after it
files such annual and quarterly reports, information, documents and other
reports with the SEC, copies of its annual report and of the information, docu
ments and other reports (or copies of such portions of any of the foregoing as
the SEC may by rules and regulations prescribe) which the Company is required to
file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act.
Delivery of such reports, information and docu ments to the
Trustee is for informational purposes only and the Trustee's receipt of such
shall not constitute construc tive notice of any information contained therein
or deter minable from information contained therein, including the Company's
compliance with any of its covenants hereunder (as to which the Trustee is
entitled to rely exclusively on Officers' Certificates).
SECTION 4.03. COMPLIANCE CERTIFICATE. The Company shall deliver
to the Trustee within 120 days after the end of each fiscal year of the Company
(beginning with the fiscal year ending on January 3, 1999) an Officers'
Certificate stating whether or not the signers know of any Default that occurred
during such period. If they do, such Officers' Certificate shall describe the
Default and its status.
SECTION 4.04. FURTHER INSTRUMENTS AND ACTS. Upon request of the
Trustee, the Company will execute and deliver such further instruments and do
such further acts as may be reasonably necessary or proper to carry out more
effectively the purposes of this Indenture.
SECTION 4.05. MAINTENANCE OF OFFICE OR AGENCY. The Company will
maintain in the Borough of Manhattan, The City of New York, an office or agency
where Securities may be presented or surrendered for payment, where Securities
may be surrendered for registration of transfer, exchange, purchase, redemption
or conversion and where notices and demands to or upon the Company in respect of
the Securities and this Indenture may be served. The office of The Bank of New
York, 101 Barclay Street, New York, New York 10286, shall be such office or
agency for all of the aforesaid
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45
purposes unless the Company shall maintain some other office or agency for such
purposes and shall give prompt written notice to the Trustee of the location,
and any change in the location, of such other office or agency. If at any time
the Company shall fail to maintain any such required office or agency or shall
fail to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the address of the
Trustee set forth in Section 12.02.
The Company may also from time to time designate one or more
other offices or agencies where the Securities may be presented or surrendered
for any or all such purposes and may from time to time rescind such
designations; provided, however, that no such designation or rescission shall in
any manner relieve the Company of its obligation to maintain an office or agency
in the Borough of Manhattan, The City of New York, for such purposes.
SECTION 4.06. CORPORATE EXISTENCE. Subject to Article 5, the
Company will do or cause to be done all things necessary to preserve and keep
in full force and effect its corporate existence.
SECTION 4.07. STATEMENT BY OFFICERS AS TO DEFAULT. The Company
shall deliver to the Trustee, as soon as possible and in any event within five
Business Days after the date on which any executive officer of the Company
obtains actual knowledge of the occurrence of any Default, an Officers'
Certificate setting forth the details of such Default and, within 20 Business
Days after such date, shall deliver to the Trustee an Officers' Certificate
setting forth the details regarding the action which the Company proposes to
take within a practicable period of time with respect thereto.
SECTION 4.08. NOTICE OF ORIGINAL ISSUE DISCOUNT. The Company
shall file with the Trustee prior to the end of 1998 (i) a written notice
specifying the amount of Original Issue Discount which will accrue on a
semiannual basis on the Securities and (ii) such other specific information
relating to such Original Issue Discount as may then be required under the
Internal Revenue Code of 1986, as amended from time to time.
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46
ARTICLE 5
SUCCESSOR CORPORATION
SECTION 5.01. WHEN THE COMPANY MAY MERGE OR TRANSFER ASSETS. The
Company shall not consolidate with or merge with or into any other Person (other
than in a merger or consolidation in which the Company is the surviving Person)
or convey, transfer or lease its properties and assets substantially as an
entirety to any Person, unless:
(i) the Person (if other than the Company) formed by such
consolidation or into which the Company is merged or the Person which
acquires by conveyance, transfer or lease the properties and assets of
the Company substantially as an entirety (A)(I) shall be a corporation,
limited liability company, partnership or trust organized and validly
existing under the laws of the United States or any State thereof or the
District of Columbia or (II) if the successor Person is not organized
under the laws of the United States or any State thereof or the District
of Columbia, it shall agree to indemnify and hold harmless the Holder of
each Security against (x) any tax, assessment or govern mental charge
imposed on such Holder or beneficiary by a jurisdiction other than the
United States or any political subdivision or taxing authority thereof
or therein with respect to, and withheld on the payment of principal of,
or interest on such Security and which would not have been so imposed
and withheld had such consolidation, merger, conveyance, transfer or
lease not been made and (y) any tax, assessment or govern mental charge
imposed on or relating to, and any costs or expenses involved in, such
consolidation, merger, conveyance, transfer or lease and (B) shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the prin cipal of and interest on the Securities
according to their tenor and the due and punctual performance of all of
the covenants and obligations of the Company under the Securities and
the Indenture, and shall have provided for conversion rights in
accordance with the Indenture;
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47
(ii) immediately after giving effect to such transaction, no
Default shall have occurred and be continuing; and
(iii) the Company shall have delivered to the Trustee an
Officers' Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer or lease and, if a
supplemental indenture is required in connection with such trans action,
such supplemental indenture, comply with this Article and that all
conditions precedent herein provided for relating to such transaction
have been satisfied.
The successor Person formed by such consolidation or into which
the Company is merged or the successor Person to which such conveyance, transfer
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of the Company under this Indenture with the same effect
as if such successor had been named as the Company herein; and thereafter,
except in the case of (i) a lease of its properties and assets substantially as
an entirety and (ii) obligations the Company may have under a supplemental
indenture pursuant to Section 11.14, the Company shall be discharged from all
obligations and covenants under this Indenture and the Securities.
ARTICLE 6
DEFAULTS AND REMEDIES
SECTION 6.01. EVENTS OF DEFAULT. An "Event of Default" occurs
if:
(1) the Company defaults in the payment of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price or Fundamental Change Redemption Price on any Security when the
same becomes due and payable at its Stated Maturity, upon redemption,
upon declaration, when due for purchase by the Company or otherwise,
whether or not such payment shall be prohibited by Article 10;
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48
(2) the Company fails to comply with any of its agreements or
covenants in the Securities or this Indenture (other than those referred
to in clause (1) above) and such failure continues for 60 days after
receipt by the Company of a Notice of Default;
(3) a decree or order by a court having juris diction in the
premises shall have been entered adjudging the Company a bankrupt or
insolvent, or approving as properly filed a petition seeking
reorganization of the Company under any Bankruptcy Law, and such decree
or order shall have continued undis charged and unstayed for a period of
60 consecutive days; or a decree or order of a court having juris
diction in the premises of the appointment of a receiver or liquidator
or trustee or assignee in bank ruptcy or insolvency of the Company or of
its property, or for the winding-up or liquidation of its affairs, shall
have been entered, and such decree or order shall have remained in force
undischarged and unstayed of a period of 60 consecutive days; or
(4) the Company shall institute proceedings to be adjudicated a
voluntary bankrupt, or shall consent to the filing of a bankruptcy
proceeding against it, or shall file a petition or answer or consent
seeking reorganization under any Bankruptcy Law, or shall consent to the
filing of any such petition, or shall consent to the appointment of a
receiver or liquidator or trustee or assignee in bankruptcy or
insolvency of it or of its property or shall make an assignment for the
benefit of creditors, or shall admit in writing its inability to pay its
debts generally as they become due.
"Bankruptcy Law" means Title 11, United States Code, or any
similar Federal or state law for the relief of debtors.
A Default under clause (2) above is not an Event of Default until
the Trustee notifies the Company, or the Holders of at least 25% in aggregate
Principal Amount of the Securities at the time outstanding notify the Company
and the Trustee, of the Default and the Company does not cure such Default (and
such Default is not waived) within the time specified in clause (2) above after
actual receipt of
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49
such notice (a "Notice of Default"). Any such notice must specify the Default,
demand that it be remedied and state that such notice is a Notice of Default.
SECTION 6.02. ACCELERATION. If an Event of Default (other than an
Event of Default specified in Section 6.01(3) or (4)) occurs and is continuing,
the Trustee by written notice to the Company, or the Holders of at least 25% in
aggregate Principal Amount of the Securities at the time outstanding by written
notice to the Company and the Trustee, may declare the Issue Price and accrued
Original Issue Discount to the date of declaration on all the Securities to be
immediately due and payable. Upon such a declaration, such Issue Price and
accrued Original Issue Discount shall be due and payable immediately. If an
Event of Default specified in Section 6.01(3) or (4) occurs and is continuing,
the Issue Price and accrued Original Issue Discount on all the Securities shall
become and be immediately due and payable without any declaration or other act
on the part of the Trustee or any Securityholders. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding, by notice
to the Company and the Trustee (and without notice to any other Securityholder)
may rescind an acceleration and its consequences if the rescission would not
conflict with any judgment or decree and if all existing Events of Default have
been cured or waived except nonpayment of the Issue Price and accrued Original
Issue Discount that have become due solely as a result of acceleration and if
all amounts due to the Trustee under Section 7.07 have been paid. No such
rescission shall affect any subsequent Default or impair any right consequent
thereto.
SECTION 6.03. OTHER REMEDIES. If an Event of Default occurs and
is continuing, the Trustee may pursue any available remedy to collect the
payment of the Issue Price and accrued Original Issue Discount on the
Securities, or to enforce the performance of any provision of the Securities or
this Indenture.
The Trustee may maintain a proceeding even if the Trustee does
not possess any of the Securities or does not produce any of the Securities in
the proceeding. A delay or omission by the Trustee or any Securityholder in
exercising any right or remedy accruing upon an Event of Default shall not
impair the right or remedy or constitute a waiver of, or
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50
acquiescence in, the Event of Default. No remedy is exclusive of any other
remedy. All available remedies are cumulative.
SECTION 6.04. WAIVER OF PAST DEFAULTS. The Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding, by
written notice to the Company and the Trustee (and without notice to any other
Securityholder), may waive an existing Default and its consequences except (1)
an Event of Default described in Section 6.01(l), (2) a Default in respect of a
provision that under Section 9.02 cannot be amended without the consent of each
Securityholder affected or (3) a Default that constitutes a failure to convert
any Security in accordance with the terms of Article 11. When a Default is
waived, it is deemed cured, but no such waiver shall extend to any subsequent or
other Default or impair any consequent right.
SECTION 6.05. CONTROL BY MAJORITY. The Holders of a majority in
aggregate Principal Amount of the Securities at the time outstanding may direct
the time, method and place of conducting any proceeding for any remedy available
to the Trustee or of exercising any trust or power conferred on the Trustee.
However, the Trustee may refuse to follow any direction that conflicts with law
or this Indenture or that the Trustee determines in good faith is unduly
prejudicial to the rights of other Securityholders or would involve the Trustee
in personal liability unless the Trustee is offered indemnity satisfactory to
it.
SECTION 6.06. LIMITATION ON SUITS. A Securityholder may not
pursue any remedy with respect to this Indenture or the Securities unless:
(1) the Holder gives to the Company and the Trustee written
notice stating that an Event of Default is continuing;
(2) the Holders of at least 25% in aggregate Principal Amount of
the Securities at the time outstanding make a written request to the
Trustee to pursue the remedy;
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51
(3) such Holder or Holders offer to the Trustee reasonable
security or indemnity against any loss, liability or expense
satisfactory to the Trustee;
(4) the Trustee does not comply with the request within 60 days
after receipt of the notice, the request and the offer of security or
indemnity; and
(5) the Holders of a majority in aggregate Principal Amount of
the Securities at the time out standing do not give the Trustee a
direction incon sistent with the request during such 60-day period.
A Securityholder may not use this Indenture to prejudice the
rights of any other Securityholder or to obtain a preference or priority over
any other Securityholder.
SECTION 6.07. RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision of this Indenture, but subject to Article
10, the right of any Holder to receive payment of the Principal Amount, Issue
Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Fundamental Change Redemption Price or interest, if any, in respect of the
Securities held by such Holder, on or after the respective due dates expressed
in the Securities or any Redemption Date and to convert the Securities in
accordance with Article 11, or to bring suit for the enforcement of any such
payment on or after such respective dates or the right to convert, shall not be
impaired or affected adversely without the consent of each such Holder.
SECTION 6.08. COLLECTION SUIT BY TRUSTEE. If an Event of Default
described in Section 6.01(1) occurs and is continuing, the Trustee may recover
judgment in its own name and as trustee of an express trust against the Company
for the whole amount owing with respect to the Securities and the amounts
provided for in Section 7.07.
SECTION 6.09. TRUSTEE MAY FILE PROOFS OF CLAIM. In case of the
pendency of any receivership, insolvency, liquidation, bankruptcy,
reorganization, arrangement, adjustment, composition or other judicial
proceeding relative to the Company or any other obligor upon the Securities or
the property of the Company or of such other
<PAGE>
52
obligor or their creditors, the Trustee (irrespective of whether the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price, Fundamental Change Redemption Price or interest, if any, in respect of
the Securities shall then be due and payable as therein expressed or by
declaration or otherwise and irrespective of whether the Trustee shall have made
any demand on the Company for the payment of any such amount) shall be entitled
and empowered, by intervention in such proceeding or otherwise,
(a) to file and prove a claim for the whole amount of the
Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price, Fundamental Change Redemption Price or
interest, if any, and to file such other papers or documents as may be
necessary or advisable in order to have the claims of the Trustee
(including any claim for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel) and
of the Holders allowed in such judicial proceeding, and
(b) to collect and receive any moneys or other property payable
or deliverable on any such claims and to distribute the same;
and any custodian, receiver, assignee, trustee, liquidator, sequestrator or
similar official in any such judicial pro ceeding is hereby authorized by each
Holder to make such payments to the Trustee and, in the event that the Trustee
shall consent to the making of such payments directly to the Holders, to pay the
Trustee any amount due it for the reasonable compensation, expenses,
disbursements and advances of the Trustee, its agents and counsel, and any other
amounts due the Trustee under Section 7.07.
Nothing herein contained shall be deemed to authorize the Trustee
to authorize or consent to or accept or adopt on behalf of any Holder any plan
of reorganization, arrangement, adjustment or composition affecting the
Securities or the rights of any Holder thereof, or to authorize the Trustee to
vote in respect of the claims of any Holder in any such proceeding.
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53
SECTION 6.10. PRIORITIES. If the Trustee collects any money
pursuant to this Article 6, it shall pay out the money in the following order:
First: to the Trustee for amounts due under Section 7.07;
Second: to holders of Specified Senior Indebtedness to the
extent required by Article 10;
Third: to Securityholders for amounts due and unpaid on the
Securities for the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Fundamental Change
Redemption Price or interest, if any, as the case may be, ratably,
without preference or priority of any kind, according to such amounts
due and payable on the Securities; and
Fourth: the balance, if any, to the Company.
The Trustee may fix a record date and payment date for any
payment to Securityholders pursuant to this Section 6.10. At least 15 days
before such record date, the Company shall mail to each Securityholder and the
Trustee a notice that states the record date, the payment date and amount to be
paid.
SECTION 6.11. UNDERTAKING FOR COSTS. In any suit for the
enforcement of any right or remedy under this Indenture or in any suit against
the Trustee for any action taken or omitted by it as Trustee, a court in its
discretion may require the filing by any party litigant (other than the Trustee)
in the suit of an undertaking to pay the costs of the suit, and the court in its
discretion may assess reason able costs, including reasonable attorneys' fees,
against any party litigant in the suit, having due regard to the merits and good
faith of the claims or defenses made by the party litigant. This Section 6.11
does not apply to a suit by the Trustee, a suit by a Holder pursuant to Section
6.07 or a suit by Holders of more than 10% in aggregate Principal Amount of the
Securities at the time outstanding.
SECTION 6.12. WAIVER OF STAY, EXTENSION OR USURY LAWS. The
Company covenants (to the extent that it may law fully do so) that it will not
at any time insist upon, or
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54
plead, or in any manner whatsoever claim or take the benefit or advantage of,
any stay or extension law or any usury or other law wherever enacted, now or at
any time hereafter in force, which would prohibit or forgive the Company from
paying all or any portion of the Principal Amount, Issue Price, accrued Original
Issue Discount, Redemption Price, Purchase Price or Fundamental Change
Redemption Price in respect of Securities, or any interest on any such amounts,
as contemplated herein, or which may affect the covenants or the performance of
this Indenture; and each obligor (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such laws and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE 7
TRUSTEE
SECTION 7.01. DUTIES OF TRUSTEE. (a) If an Event of Default has
occurred and is continuing, the Trustee shall exercise the rights and powers
vested in it by this Indenture and use the same degree of care and skill in its
exercise as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(b) Except during the continuance of an Event of
Default:
(1) the Trustee need perform only those duties that are
specifically set forth in this Indenture and no others; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the correctness
of the opinions expressed therein, upon certificates or opinions
furnished to the Trustee and conforming to the require ments of this
Indenture. However, the Trustee shall examine the certificates and
opinions to determine whether or not they conform to the requirements of
this Indenture (but need not confirm or investigate the
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55
accuracy of mathematical calculations or other facts stated therein).
(c) The Trustee may not be relieved from liabil ity for its own
negligent action, its own negligent failure to act or its own willful
misconduct, except that:
(1) this paragraph (c) does not limit the effect of paragraph
(b) of this Section 7.01;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Trust Officer unless it is proved that the
Trustee was negligent in ascertaining the pertinent facts; and
(3) the Trustee shall not be liable with respect to any action it
takes or omits to take in good faith in accordance with a direction
received by it pursuant to Section 6.05.
(d) Every provision of this Indenture that in any way relates to
the Trustee is subject to paragraphs (a), (b), (c) and (e) of this Section 7.01.
(e) The Trustee may refuse to perform any duty or exercise any
right or power or expend or risk its own funds or otherwise incur any financial
liability unless it receives indemnity satisfactory to it against any loss,
liability or expense.
(f) Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law.
SECTION 7.02. RIGHTS OF TRUSTEE. (a) The Trustee may rely on any
document reasonably believed by it to be genuine and to have been signed or
presented by the proper person. The Trustee need not investigate any fact or
matter stated in the document, but the Trustee, exercising reasonable business
judgment, may make such further inquiry or investigation into such facts or
matters as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the books,
records and premises of the Company, personally or by agent or attorney, upon
prior written
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56
notice to the Company and during normal business hours, at the sole reasonable
cost of the Company.
(b) Before the Trustee acts or refrains from acting, it may
require a Company Order, an Officers' Certificate or an Opinion of Counsel. The
Trustee shall not be liable for any action it takes or omits to take in good
faith in reliance on such Company Order, Officers' Certificate or Opinion of
Counsel.
The Trustee may consult with counsel it reasonably selects. The
Trustee shall not be liable for any action taken, suffered or omitted by it
hereunder in good faith and in reliance on the advice of such counsel.
(c) The Trustee may act through agents and shall not be
responsible for the misconduct or negligence of any agent appointed with due
care.
(d) Subject to the provisions of Section 7.01(c), the Trustee
shall not be liable for any action it takes or omits to take in good faith which
it believes to be author ized or within its rights or powers.
(e) The Trustee shall be under no obligation to exercise any of
the rights or powers vested in it by this Indenture at the request or direction
of any of the Holders pursuant to this Indenture, unless such Holders shall have
offered to the Trustee reasonable security or indemnity against the costs,
expenses and liabilities which might be incurred by it in compliance with such
request or direction.
SECTION 7.03. INDIVIDUAL RIGHTS OF TRUSTEE. The Trustee in its
individual or any other capacity may become the owner or pledgee of Securities
and may otherwise deal with the Company or its Affiliates with the same rights
it would have if it were not Trustee. Any Paying Agent, Registrar, Conversion
Agent or co-registrar may do the same with the like rights. However, the Trustee
must comply with Section 7.10.
SECTION 7.04. TRUSTEE'S DISCLAIMER. The Trustee makes no
representation as to the validity or adequacy of this Indenture or the
Securities, it shall not be account able for the Company's use of the proceeds
from the Securities, it shall not be responsible for any statement in
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57
the offering memorandum for the Securities or in the Indenture or the Securities
(other than its certificate of authentication), the acts of a prior Trustee
hereunder, or the determination as to which beneficial owners are entitled to
receive any notices hereunder.
SECTION 7.05. NOTICE OF DEFAULTS. (a) If a Default occurs and is
continuing and if it is known to the Trustee, the Trustee shall give to each
Securityholder notice of the Default within 90 days after it occurs. Except in
the case of a Default described in Section 6.01(1), the Trustee may withhold the
notice if and so long as a committee of its Trust Officers in good faith
determines that withholding the notice is in the interests of Securityholders.
The Trustee shall not give notice of a Default pursuant to Section 6.01(2) until
at least 60 days have passed since its occurrence.
(b) The Trustee shall not be required to take notice or be deemed
to have notice or knowledge of any event or of any Default (except default in
the payment of monies to the Trustee which are required to be paid to the
Trustee on or before a specified date or within a specified time after receipt
by the Trustee of a notice or a certificate which was in fact received), unless
the Trustee shall receive from a Holder a notice stating that the same has
occurred and is continuing, and specifying the same, and in the absence of such
notice the Trustee may conclusively assume that the same does not exist, except
as aforesaid.
SECTION 7.06. [RESERVED]
SECTION 7.07. COMPENSATION AND INDEMNITY. The Company agrees:
(a) to pay to the Trustee from time to time such compensation as
the Company and the Trustee shall from time to time agree in writing for
all services rendered by it hereunder (which compensation shall not be
limited by any provision of law in regard to the compensation of a
trustee of an express trust);
(b) to reimburse the Trustee upon its request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee in
accordance with any provision of this Indenture (including the
reasonable
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58
compensation and the expenses, advances and disburse ments of its agents
and counsel), except any such expense, disbursement or advance as may be
attributable to its negligence or bad faith; and
(c) to indemnify the Trustee for, and to hold it harmless
against, any loss, damage, claims, liability or expense incurred without
negligence or bad faith on its part, arising out of or in connection
with the acceptance or administration of this trust, including the
reasonable costs and expenses of defending itself against any claim or
liability in connection with the exercise or performance of any of its
powers or duties hereunder.
To secure the Company's payment obligations in this Section 7.07,
the Trustee shall have a lien prior to the Securities on all money or property
held or collected by the Trustee, except that held in trust to pay the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price, Purchase
Price, Fundamental Change Redemption Price or interest, if any, as the case may
be, on particular Securities.
The Company's payment obligations pursuant to this Section 7.07
shall survive the discharge of this Indenture. When the Trustee incurs expenses
after the occurrence of a Default specified in Section 6.01(3) or (4), the
expenses are intended to constitute expenses of administration under any
Bankruptcy Law.
SECTION 7.08. REPLACEMENT OF TRUSTEE. The Trustee may resign by
so notifying the Company; provided, however, no such resignation shall be
effective until a successor Trustee has accepted its appointment pursuant to
this Section 7.08. The Holders of a majority in aggregate Principal Amount of
the Securities at the time outstanding may remove the Trustee by so notifying
the Trustee and the Company. The Company shall remove the Trustee if:
(1) the Trustee fails to comply with, or ceases
to be eligible under, Section 7.10;
(2) the Trustee is adjudged bankrupt or
insolvent;
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59
(3) a receiver or public officer takes charge of
the Trustee or its property; or
(4) the Trustee otherwise becomes incapable of
acting.
If the Trustee resigns or is removed or if a vacancy exists in
the office of Trustee for any reason, the Company shall promptly appoint, by
resolution of its Board of Directors, a successor Trustee.
A successor Trustee shall deliver a written acceptance of its
appointment to the retiring Trustee and to the Company. Thereupon the
resignation or removal of the retiring Trustee shall become effective, and the
successor Trustee shall have all the rights, powers and duties of the Trustee
under this Indenture. The successor Trustee shall mail a notice of its
succession to Securityholders. The retiring Trustee shall promptly transfer all
property held by it as Trustee to the successor Trustee, subject to the lien
provided for in Section 7.07.
If a successor Trustee does not take office within 30 days after
the retiring Trustee resigns or is removed, the retiring Trustee, the Company or
the Holders of a majority in aggregate Principal Amount of the Securities at the
time outstanding may petition any court of competent jurisdiction for the
appointment of a successor Trustee.
If the Trustee fails to comply with Section 7.10, any
Securityholder may petition any court of competent jurisdiction for the removal
of the Trustee and the appoint ment of a successor Trustee.
SECTION 7.09. SUCCESSOR TRUSTEE BY MERGER. If the Trustee
consolidates with, merges or converts into, or transfers all or substantially
all its corporate trustee business or assets to, another corporation, the
resulting, surviving or transferee corporation without any further act shall be
the successor Trustee.
SECTION 7.10. ELIGIBILITY; DISQUALIFICATION. The Trustee shall
have a combined capital and surplus of at least $50,000,000 as set forth in its
most recent published annual report of conditions. If at any time the Trustee
shall cease to be eligible in accordance with the provisions
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60
of this Section, it shall resign immediately in the manner and with the effect
hereinafter specified in this Article.
SECTION 7.11. REPORTS BY TRUSTEE. (a) The Trustee shall transmit
to Holders such reports concerning the Trustee and its sections under this
Indenture as may be required pursuant to the TIA at the times and in the manner
provided pursuant thereto. If required by Section 313(a) of the TIA, the Trustee
shall, within 60 days after each anni versary of the date of this Indenture
deliver to Holders a brief report, dated as of such anniversary, which complies
with the provisions of such Section 313(a).
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange, if
any, upon which the Securities are listed, with the Commission and with the
Company. The Company will promptly notify the Trustee when the Securities are
listed on any stock exchange and of any delisting thereof.
ARTICLE 8
DISCHARGE OF INDENTURE
SECTION 8.01. DISCHARGE OF LIABILITY ON SECURITIES. When (i) the
Company delivers to the Trustee all outstanding Securities (other than
Securities replaced pursuant to Section 2.07) for cancelation or (ii) all out
standing Securities have become due and payable and the Company deposits with
the Trustee cash and/or securities, as permitted by the terms hereof, sufficient
to pay at Stated Maturity the Principal Amount of all outstanding Securities
(other than Securities replaced pursuant to Section 2.07), and if in either case
the Company pays all other sums pay able hereunder by the Company, then this
Indenture shall, subject to Section 7.07, cease to be of further effect. The
Trustee shall join in the execution of a document prepared by the Company
acknowledging satisfaction and discharge of this Indenture on demand of the
Company accompanied by an Officers' Certificate and Opinion of Counsel and at
the cost and expense of the Company.
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SECTION 8.02. REPAYMENT TO THE COMPANY. The Trustee and the
Paying Agent shall return to the Company upon written request any money or
securities held by them for the payment of any amount with respect to the
Securities that remain unclaimed for two years, provided, however, that the
Trustee or such Paying Agent, before being required to make any such return,
shall at the expense of the Company cause to be published once in a newspaper of
general circu lation in The City of New York or mail to each such Holder notice
that such money or securities remains unclaimed and that, after a date specified
therein, which shall not be less than 30 days from the date of such publication
or mailing, any unclaimed money or securities then remaining will be returned to
the Company. After return to the Company, Holders entitled to the money or
securities must look to the Company for payment as general creditors unless an
applicable abandoned property law designates another person.
ARTICLE 9
AMENDMENTS
SECTION 9.01. WITHOUT CONSENT OF HOLDERS. The Company and the
Trustee may amend this Indenture or the Securities without the consent of any
Securityholder:
(1) to cure any ambiguity, defect or inconsistency;
(2) to comply with Article 5 or Section 11.14;
(3) to provide for uncertificated Securities in addition to
certificated Securities so long as such uncertificated Securities are in
registered form for purposes of the Internal Revenue Code of 1986, as
amended;
(4) to make any change that does not adversely affect the right
of any Securityholder; or
(5) to make any change to comply with the TIA, or any amendment
thereto, or to comply with any require ment of the SEC in connection
with the qualification, if any, of the Indenture under the TIA.
SECTION 9.02. WITH CONSENT OF HOLDERS. The Company and the
Trustee, with the written consent of the Holders of at least a majority in
aggregate Principal Amount of the Securities at the time outstanding, may amend
this Indenture or the Securities.
However, without the consent of each Securityholder affected, an
amendment or supplement to this Indenture or the Securities may not:
(1) make any change to the Principal Amount of Securities whose
Holders must consent to an amendment;
(2) make any change to the manner or rate of accrual in
connection with Original Issue Discount or interest, if any, reduce the
rate of interest referred to in paragraph 1 of the Securities or extend
the time for payment of Original Issue Discount or interest, if any, on
any Security;
(3) reduce the Principal Amount or the Issue
Price of or extend the Stated Maturity of any Security;
(4) reduce the Redemption Price, Purchase Price
or Fundamental Change Redemption Price of any Security;
(5) make any Security payable in money or
securities other than that stated in the Security;
(6) make any change in Article 10 that adversely
affects the rights of any Securityholder;
(7) make any change in Section 6.04, Section 6.07 or this Section
9.02, except to increase any such percentage;
(8) make any change that adversely affects the
right to convert any Security; or
(9) make any change that adversely affects the right to require
the Company to purchase the Securities, or the right to require the
Company to
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redeem the Securities upon a Fundamental Change, in accordance with the
terms thereof and this Indenture.
It shall not be necessary for the consent of the Holders under
this Section 9.02 to approve the particular form of any proposed amendment, but
it shall be sufficient if such consent approves the substance thereof.
An amendment under this Section 9.02 or Section 9.01 may not make
any change that adversely affects the rights under Article 10 of any holder of
Specified Senior Indebtedness then outstanding unless the requisite holders of
such Specified Senior Indebtedness consent to such change pursuant to the terms
of such Specified Senior Indebtedness.
After an amendment under this Section 9.02 becomes effective, the
Company shall mail to each Holder a notice briefly describing the amendment.
SECTION 9.03. COMPLIANCE WITH TRUST INDENTURE ACT. Every
supplemental indenture executed pursuant to this Article shall comply with the
TIA as then in effect, if then required to so comply.
SECTION 9.04. REVOCATION AND EFFECT OF CONSENTS, WAIVERS AND
ACTIONS. Until an amendment, waiver or other action becomes effective, a consent
to it or any other action by a Holder of a Security hereunder is a continuing
consent by the Holder and every subsequent Holder of that Security or portion of
the Security that evidences the same obligation as the consenting Holder's
Security, even if notation of the consent, waiver or action is not made on the
Security. However, any such Holder or subsequent Holder may revoke the consent,
waiver or action as to such Holder's Security or portion of the Security if the
Trustee receives the notice or revocation before the date the amendment, waiver
or action becomes effective. After an amendment, waiver or action becomes
effective, it shall bind every Securityholder.
SECTION 9.05. NOTATION ON OR EXCHANGE OF SECURITIES. Securities
authenticated and delivered after the execution of any supplemental indenture
pursuant to this Article may bear a notation as to any matter provided for in
such supplemental indenture. If the Company shall so deter mine, new Securities
so modified as to conform, in the opinion of the Trustee and the Board of
Directors, to any such supplemental indenture may be prepared and executed by
the Company and authenticated and made available for delivery by the Trustee in
exchange for outstanding Securities.
SECTION 9.06. TRUSTEE TO SIGN SUPPLEMENTAL INDENTURES. The
Trustee shall sign any supplemental inden ture authorized pursuant to this
Article 9 if the amendment does not adversely affect the rights, duties,
liabilities or immunities of the Trustee. If it does, the Trustee may, but need
not, sign such supplemental indenture. In signing such amendment the Trustee
shall be entitled to receive, and (subject to the provisions of Section 7.01)
shall be fully protected in relying upon, an Officers' Certificate and an
Opinion of Counsel stating that such amendment is authorized or permitted by
this Indenture.
SECTION 9.07. EFFECT OF SUPPLEMENTAL INDENTURES. Upon the
execution of any supplemental indenture under this Article, this Indenture shall
be modified in accordance therewith, and such supplemental indenture shall form
a part of this Indenture for all purposes; and every Holder of Securities
theretofore or thereafter authenticated and delivered hereunder shall be bound
thereby.
ARTICLE 10
SUBORDINATION
SECTION 10.01. AGREEMENT OF SUBORDINATION. The Company covenants
and agrees, and each Holder of Securities issued hereunder by his acceptance
thereof likewise cove nants and agrees, that all Securities shall be issued
subject to the provisions of this Article 10; and each Person holding any such
Security, whether upon original issue or upon transfer or assignment thereof,
accepts and agrees to be bound by such provisions.
The payment of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Fundamental Change
Redemption Price and interest, if any, in respect of all Securities issued
hereunder shall, to
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the extent and in the manner hereinafter set forth, be sub ordinated and subject
in right of payment to the prior payment in full of all Specified Senior
Indebtedness of the Company, whether outstanding at the date of this Indenture
or thereafter incurred.
No provision of this Article 10 shall prevent the occurrence of
any Default or Event of Default hereunder.
SECTION 10.02. PAYMENTS TO SECURITYHOLDERS. In the event and
during the continuation of any default in the payment of principal, premium,
interest or any other amount due on any Specified Senior Indebtedness continuing
beyond the period of grace, if any, specified in the instrument, lease or other
agreement evidencing such Specified Senior Indebtedness or any other event of
default as defined in such Specified Senior Indebtedness or in the instrument,
lease or other agreement under which such Senior Indebtedness is outstanding
which event of default permits the holders of such Specified Senior Indebtedness
to accelerate the maturity thereof (in each case, a "Specified Senior
Indebtedness Default") then, unless and until all Specified Senior Indebtedness
shall have been paid in full or provision therefor shall have been made in a
manner satisfactory to the holders of such Specified Senior Indebtedness, the
Company will not, directly or indirectly, make or agree to make, and none of the
Holders or any assignee or successor Holder of any Securities will demand,
accept or receive, (i) any payment in respect of the Securities (except for
payments made pursuant to Article 8 hereof from monies deposited with the
Trustee pursuant thereto prior to the occurrence of such default or (ii) any
other payment for the purpose of any redemption, purchase or other acquisition,
direct or indirect, of any Securities. Notwithstanding the foregoing, payments
on the Securities may be resumed at such time as such Specified Senior
Indebtedness Default shall have been cured or waived or shall have ceased to
exist.
Upon any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
creditors upon any dissolution or winding-up or liquidation or reorganization of
the Company, whether voluntary or involuntary or in bankruptcy, insolvency,
receivership or other proceedings, all amounts due or to become due upon all
Specified Senior
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Indebtedness of the Company shall first be paid in full, or payment thereof
provided for in money in accordance with its terms, before any payment is made
on account of the Principal Amount, Issue Price, accrued Original Issue
Discount, Redemption Price, Purchase Price, Fundamental Change Redemption Price
or interest, if any, in respect of the Securities (except payments made pursuant
to Article 8 hereof from monies deposited with the Trustee pursuant thereto
prior to the occurrence of such dissolution, winding-up, liquidation or
reorganization); and upon any such dissolution or winding-up or liquidation or
reorganization, any payment by the Company, or distribution of assets of the
Company of any kind or character, whether in cash, property or securities, to
which the Holders of the Securities or the Trustee would be entitled, except for
the provisions of this Article 10, shall (except as aforesaid) be paid by the
Company or by any receiver, trustee in bank ruptcy, liquidating trustee, agent
or other Person making such payment or distribution, or by the Holders of the
Securities or by the Trustee under this Indenture if received by them or it,
directly to the holders of Specified Senior Indebtedness of the Company (pro
rata to such holders on the basis of the respective amounts of Specified Senior
Indebtedness held by such holders, as calculated by the Company) or their
representative or representatives, or to the trustee or trustees under any
indenture pursuant to which any instruments evidencing any such Specified Senior
Indebtedness may have been issued, as their respective interests may appear, to
the extent necessary to pay all such Specified Senior Indebtedness in full, in
money or money's worth, after giving effect to any concurrent payment or
distribution to or for the holders of such Specified Senior Indebtedness, before
any payment or distribution is made to the Holders of the Securities or to the
Trustee.
In the event that any Securities are declared due and payable
before their Stated Maturity pursuant to Section 6.02, then and in such event
the Company shall promptly notify holders of its Specified Senior Indebtedness
of such acceleration. The Company may not pay the Securities until 120 days have
passed after such accelera tion occurs and may thereafter pay the Securities if
this Article 10 permits the payment at that time.
In the event that, notwithstanding the foregoing,
any payment or distribution of assets of the Company of any
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65
kind or character, whether in cash, property or securities, prohibited by the
foregoing, shall be received by the Trustee or the Holders of the Securities
before all Specified Senior Indebtedness of the Company is paid in full, or
provision is made for such payment in money in accordance with its terms, or
otherwise in a manner satis factory to the holders of such Specified Senior
Indebtedness, such payment or distribution shall be held in trust for the
benefit of and shall be paid over or delivered to the holders of Specified
Senior Indebtedness of the Company or their representative or representatives,
or to the trustee or trustees under any indenture pursuant to which any
instruments evidencing any such Specified Senior Indebtedness may have been
issued, as their respective interests may appear, as calculated by the Company,
for application to the payment of all such Specified Senior Indebtedness
remaining unpaid to the extent necessary to pay all such Specified Senior
Indebtedness in full in money in accordance with its terms, after giving effect
to any concurrent payment or distribution to or for the holders of such
Specified Senior Indebtedness.
For purposes of this Article 10, the words, "cash, property or
securities" shall not be deemed to include shares of stock of the Company as
reorganized or readjusted, or securities of the Company or any other corporation
provided for by a plan of reorganization or readjustment, the payment of which
is subordinated at least to the extent provided in this Article 10 with respect
to the Securities to the payment of all Specified Senior Indebtedness of the
Company which may at the time be outstanding; provided that (i) such Specified
Senior Indebtedness is assumed by the new corporation, if any, resulting from
any such reorganization or readjustment, and (ii) the rights of the holders of
such Specified Senior Indebtedness (other than leases) and of leases which are
assumed are not, without the consent of such holders, altered by such
reorganization or readjust ment. The consolidation of the Company with, or the
merger of the Company into, another corporation or the liquidation or
dissolution of the Company following the conveyance or transfer of its property
as an entirety, or substantially as an entirety, to another corporation upon the
terms and conditions provided for in Article 5 hereof shall not be deemed a
dissolution, winding-up, liquidation or reorganiza tion for the purposes of this
Section 10.02 if such other corporation shall, as a part of such consolidation,
merger,
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66
conveyance or transfer, comply with the conditions stated in Article 5 hereof.
Nothing in this Section 10.02 shall apply to claims of, or payments to, the
Trustee under or pursuant to Section 7.07.
SECTION 10.03. SUBROGATION OF SECURITIES. Subject to the payment
in full of all Specified Senior Indebtedness of the Company, unless provision is
made for such payment in money in accordance with the terms of such Specified
Senior Indebtedness, or otherwise in a manner satisfactory to the holders of
such Specified Senior Indebtedness, the Holders of the Securities shall be
subrogated to the rights of the holders of such Specified Senior Indebtedness to
receive payments or distributions of cash, property or securities of the Company
applicable to such Specified Senior Indebtedness until the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Fundamental Change Redemption Price and interest, if any, in respect of the
Securities shall be paid in full; and, for the purposes of such subrogation, no
payments or distributions to the holders of such Specified Senior Indebtedness
of any cash, property or securities to which the Holders of the Securities or
the Trustee would be entitled except for the provisions of this Article 10, and
no payment over pursuant to the provisions of this Article 10, to or for the
benefit of the holders of such Specified Senior Indebtedness by Holders of the
Securities or the Trustee, shall, as between the Company, its creditors other
than holders of its Specified Senior Indebtedness and the Holders of the
Securities, be deemed to be a payment by the Company to or on account of its
Specified Senior Indebtedness. It is understood that the provisions of this
Article 10 are intended solely for the purpose of defining the relative rights
of the Holders of the Securities on the one hand, and the holders of Specified
Senior Indebtedness, on the other hand.
Nothing contained in this Article 10 or elsewhere in this
Indenture or in the Securities is intended to or shall impair, as between the
Company, its creditors other than the holders of its Specified Senior
Indebtedness and the Holders of the Securities, the obligation of the Company,
which is absolute and unconditional, to pay to the Holders of the Securities the
Principal Amount, Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase
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Price, Fundamental Change Redemption Price and interest, if any, in respect of
the Securities as and when the same shall become due and payable in accordance
with their terms, or is intended to or shall affect the relative rights of the
Holders of the Securities and creditors of the Company other than the holders of
its Specified Senior Indebtedness, nor shall anything herein or therein prevent
the Trustee or the Holder of any Security from exercising all remedies other
wise permitted by applicable law upon default under this Indenture, subject to
the rights, if any, under this Article 10 of the holders of Specified Senior
Indebtedness in respect of cash, property or securities of the Company received
upon the exercise of any such remedy.
Upon any payment or distribution of assets of the Company
referred to in this Article 10, the Trustee, subject to the provisions of
Section 7.01, and the Holders of the Securities shall be entitled to rely upon
any order or decree made by any court of competent jurisdiction in which such
dissolution, winding-up, liquidation or reorganization proceedings are pending,
or a certificate of the receiver, trustee in bankruptcy, liquidating trustee,
agent or other Person making such payment or distribution, delivered to the
Trustee, to the Holders of the Securities, for the purpose of ascertaining the
Persons entitled to participate in such distribution, the holders of the
Specified Senior Indebtedness and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article 10.
Notwithstanding anything in this Indenture to the contrary,
neither the issuance and delivery of junior securities upon conversion of the
Securities in accordance with Article 11 nor the payment of cash in lieu of
fractional shares of Class A Common Stock in accordance with Article 11 shall be
deemed to constitute a payment or dis tribution on account of the Principal
Amount, Issue Price, accrued Original Issue Discount, Redemption Price or
Fundamental Change Purchase Price or interest, if any, in respect of the
Securities. For the purposes of this para graph, the term "junior securities"
means (a) shares of any stock of any class of the Company, (b) securities of the
Company which are subordinated in right of payment to all Specified Senior
Indebtedness of the Company which may be outstanding at the time of issuance or
delivery of such
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securities to substantially the same extent as, or to a greater extent than, the
Securities are so subordinated as provided in this Article 10, and (c) any
securities into which the Securities become convertible or exchangeable pursuant
to Section 11.14 which are securities of a Person required to enter into a
supplemental indenture pursuant to such section (or Section 5.01) and are either
(x) shares of any stock of any class of such Person, or (y) securities of such
Person which are subordinated in right of payment to all Specified Senior
Indebtedness of such Person which may be outstanding at the time of issuance or
delivery of such securities to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article 10.
Nothing contained in this Article 10 or elsewhere in this Indenture or in the
Securities is intended to or shall impair, as among the Company, its creditors
other than the holders of Specified Senior Indebtedness and the holders of the
Securities, the right, which is absolute and unconditional, of the holder of any
Security to convert such Security in accordance with Article 11.
SECTION 10.04. AUTHORIZATION BY SECURITYHOLDERS. Each Holder of a
Security by its acceptance thereof author izes and directs the Trustee on its
behalf to take such action as may be necessary or appropriate to effectuate the
subordination provided in this Article 10 and appoints the Trustee his
attorney-in-fact for any and all such purposes.
SECTION 10.05. NOTICE TO TRUSTEE. The Company shall give prompt
written notice to a Trust Officer of any fact known to the Company which would
prohibit the making of any payment of monies to or by the Trustee in respect of
the Securities pursuant to the provisions of this Article 10. Notwithstanding
the provisions of this Article 10 or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment of monies to or by the Trustee in
respect of the Securities pursuant to the provisions of this Article 10, unless
and until a Trust Officer shall have received written notice thereof at the
corporate trust office of the Trustee from the Company or a holder or holders of
Specified Senior Indebtedness or from any trustee therefor; and before the
receipt of any such written notice, the Trustee, subject to the provisions of
Section 7.01, shall be entitled in all respects to assume
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that no such facts exist; provided that if on a date not fewer than two business
days prior to the date upon which by the terms hereof any such monies may become
payable for any purpose (including, without limitation, the payment of the
Principal Amount, Issue Price, accrued Original Issue Discount, Redemption
Price, Purchase Price, Fundamental Change Redemption Price or interest, if any,
in respect of any Security) the Trustee shall not have received, with respect to
such monies, the notice provided for in this Section 10.05, then, anything
herein contained to the contrary notwithstanding, the Trustee shall have full
power and authority to receive such monies and to apply the same to the purpose
for which they were received, and shall not be affected by any notice to the
contrary which may be received by it on or after such prior date.
Notwithstanding anything to the contrary herein set forth,
nothing shall prevent any payment by the Company or the Trustee to the
Securityholders of monies (A) in connection with a redemption of Securities if
(i) notice of such redemption has been given pursuant to Article 3 or Section
8.01 hereof prior to the receipt by the Trustee of written notice as aforesaid,
and (ii) such notice of redemption is given not earlier than 60 days before the
redemption date; and (B) in connection with a repayment of a Security pursuant
to Section 3.09 if, prior to the receipt by the Trustee of written notice as
aforesaid, the Company has given notice of a Fundamental Change.
The Trustee, subject to the provisions of Section 7.01, shall be
entitled to rely on the delivery to it of a written notice by a Person
representing himself to be a holder of Specified Senior Indebtedness of the
Company (or a trustee on behalf of such holder) to establish that such notice
has been given by a holder of such Specified Senior Indebtedness or a trustee on
behalf of any such holder or holders. In the event that the Trustee determines
in good faith that further evidence is required with respect to the right of any
Person as a holder of Specified Senior Indebtedness of the Company to
participate in any payment or distribution pursuant to this Article 10, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of such Specified Senior
Indebtedness held by such Person, the extent to which such Person is entitled to
participate in such payment or distribution and any other facts pertinent
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to the rights of such Person under this Article 10, and if such evidence is not
furnished the Trustee may defer any payment to such Person pending judicial
determination as to the right of such Person to receive such payment.
SECTION 10.06. TRUSTEE'S RELATION TO SPECIFIED SENIOR
INDEBTEDNESS. The Trustee in its individual capacity shall be entitled to all
the rights set forth in this Article 10 in respect of any Specified Senior
Indebtedness of the Company at any time held by it, to the same extent as any
other holder of such Specified Senior Indebtedness, and nothing or elsewhere in
this Indenture shall deprive the Trustee of any of its rights as such holder.
With respect to the holders of Specified Senior Indebtedness of
the Company, the Trustee undertakes to perform or to observe only such of its
covenants and obli gations as are specifically set forth in this Article 10, and
no implied covenants or obligations with respect to the holders of such
Specified Senior Indebtedness shall be read into this Indenture against the
Trustee. The Trustee shall not be deemed to owe any fiduciary duty to the
holders of Specified Senior Indebtedness of the Company and, subject to the
provisions of Section 7.01, the Trustee shall not be liable to any Holder of
such Specified Senior Indebtedness if it shall pay over or deliver to Holders of
Securities, the Company or any other Person money or assets to which any holder
of Specified Senior Indebtedness of the Company shall be entitled by virtue of
this Article 10 or otherwise.
SECTION 10.07. NO IMPAIRMENT OF SUBORDINATION. No right of any
present or future holder of any Specified Senior Indebtedness of the Company to
enforce subordination as herein provided shall at any time in any way be preju
diced or impaired by (i) any amendment of or addition or supplement to any such
Specified Senior Indebtedness or any instrument or agreement relating thereto
(unless otherwise expressly provided therein), or (ii) any act or failure to act
on the part of the Company or by any act or failure to act, in good faith, by
any such holder, or by any non compliance by the Company with the terms,
provisions and covenants of the instrument, regardless of any knowledge thereof
which any such holder may have or otherwise be charged with.
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SECTION 10.08. RELIANCE BY HOLDERS OF SPECIFIED SENIOR
INDEBTEDNESS ON SUBORDINATION PROVISIONS. Each Holder of Securities, by his
acceptance thereof, acknowl edges and agrees that the foregoing subordination
provisions are, and are intended to be, an inducement and a considera tion to
each holder of any Specified Senior Indebtedness of the Company, whether such
Specified Senior Indebtedness was created or acquired before or after the
issuance of the Securities, to acquire and continue to hold, or to continue to
hold, such Specified Senior Indebtedness and such holder of Specified Senior
Indebtedness shall be deemed con clusively to have relied on such subordination
provisions in acquiring and continuing to hold, or in continuing to hold, such
Specified Senior Indebtedness.
SECTION 10.09. REINSTATEMENT OF SUBORDINATION. If, at any time,
all or part of any payment of any Specified Senior Indebtedness theretofore made
by the Company or any other Person is rescinded or must otherwise be returned by
the holders of such Specified Senior Indebtedness for any reason whatsoever
(including, without limitation, the insolvency, bankruptcy or reorganization of
the Company or such other Person), these subordination provisions shall continue
to be effective or be reinstated, as the case may be, all as though such payment
had not been made.
SECTION 10.10. PERMITTED PAYMENTS. Nothing contained in this
Article or elsewhere in this Indenture, or in the Securities, shall prevent (a)
the Company at any time, except under the conditions described in Section 10.02,
from making payments at any time of the Principal Amount, Issue Price, accrued
Original Issue Discount, Redemption Price, Purchase Price, Fundamental Change
Redemption Price or interest, if any, in respect of the Securities, or from
depositing with the Trustee or any Paying Agent money for such payments, or (b)
the application by the Trustee or Paying Agent of any moneys deposited with it
under this Indenture to the payment of or on account of the Principal Amount,
Issue Price, accrued Original Issue Discount, Redemption Price, Purchase Price,
Fundamental Change Redemption Price or interest, if any, in respect of the
Securities to the Holders of the Securities entitled thereto, if such payment
would not have been prohibited by the provisions of Section 10.02.
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SECTION 10.11. ARTICLE APPLICABLE TO PAYING AGENTS. If at any
time any Paying Agent other than the Trustee shall have been appointed by the
Company and be then acting hereunder, the term "Trustee" as used in this Article
shall (unless the context otherwise requires) be construed as extending to and
including such Paying Agent within its meaning as fully for all intents and
purposes as if such Paying Agent were named in this Article in addition to or in
place of the Trustee; provided, however, that the first paragraph of Section
10.05 shall not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
ARTICLE 11
CONVERSION
SECTION 11.01. CONVERSION PRIVILEGE. A Holder of a Security may
convert such Security into Class A Common Stock at any time during the period
stated in paragraph 9 of the Securities. The number of shares of Class A Common
Stock issuable upon conversion of a Security per $1,000 of Principal Amount
thereof (the "Conversion Rate") shall be that set forth in paragraph 9 in the
Securities, subject to adjustment as herein set forth.
A Holder may convert a portion of the Principal Amount of a
Security if the portion is $1,000 or an integral multiple of $1,000. Provisions
of this Indenture that apply to conversion of all of a Security also apply to
conversion of a portion of a Security.
SECTION 11.02. CONVERSION PROCEDURE. To convert a Security a
Holder must satisfy the requirements in para graph 9 of the Securities. The date
on which the Holder of Securities satisfies all those requirements is the conver
sion date (the "Conversion Date"). As soon as practicable after the Conversion
Date the Company shall deliver to the Holder, through the Conversion Agent, a
certificate for the number of full shares of Class A Common Stock issuable upon
the conversion and Cash in lieu of any fractional share determined pursuant to
Section 11.03. The person in whose name the certificate is registered shall be
treated as a stockholder of record on and after the Conversion Date, as
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the case may be; provided, however, that no surrender of a Security on any date
when the stock transfer books of the Company shall be closed shall be effective
to constitute the Person or Persons entitled to receive the shares of Class A
Common Stock upon such conversion as the record holder or holders of such shares
of Class A Common Stock on such date, but such surrender shall be effective to
constitute the Person or Persons entitled to receive such shares of Class A
Common Stock as the record holder or holders thereof for all purposes at the
close of business on the next succeeding day on which such stock transfer books
are open; such conversion shall be at the Conversion Rate in effect on the date
that such Security shall have been surrendered for conversion, as if the stock
transfer books of the Company had not been closed. Upon conversion of a
Security, such Person shall no longer be a Holder of such Security.
No payment or adjustment will be made for divi dends on or other
distribution with respect to any Class A Common Stock except as provided in this
Article 11. On conversion of a Security, that portion of accrued Original Issue
Discount attributable to the period from the Issue Date of the Security to the
Conversion Date with respect to the converted Security shall not be canceled,
extinguished or forfeited, but rather shall be deemed to be paid in full to the
Holder thereof through delivery of the Class A Common Stock (together with the
Cash payment, if any, in lieu of fractional shares) in exchange for the Security
being con verted pursuant to the provisions hereof.
If the Holder converts more than one Security at the same time,
the number of shares of Class A Common Stock issuable upon the conversion shall
be based on the total Principal Amount of the Securities converted.
Upon surrender of a Security that is converted in part, the
Company shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder, a new Security in an authorized denomination equal in
Principal Amount to the unconverted portion of the Security surrendered.
If the last day on which a Security may be converted is a Legal
Holiday in a place where a Conversion Agent is located, the Security may be
surrendered to that
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Conversion Agent on the next succeeding day that it is not a Legal Holiday.
SECTION 11.03. FRACTIONAL SHARES. The Company will not issue a
fractional share of Class A Common Stock upon conversion of a Security. Instead,
the Company will deliver Cash for the current market value of the fractional
share. The current market value of a fractional share shall be determined to the
nearest 1/10,000th of a share by multi plying the last reported sale price
(determined as set forth in the definition of Current Market Price), on the last
Trading Day prior to the Conversion Date, of a full share by the fractional
amount and rounding the product to the near est whole cent.
SECTION 11.04. TAXES ON CONVERSION. If a Holder converts a
Security, the Company shall pay any documentary, stamp or similar issue or
transfer tax due on the issue of shares of Class A Common Stock upon the
conversion. How ever, the Holder shall pay any such tax which is due because the
Holder requests the shares to be issued in a name other than the Holder's name.
The Conversion Agent may refuse to deliver the certificates representing the
Class A Common Stock being issued in a name other than the Holder's name until
the Conversion Agent receives a sum sufficient to pay any tax which will be due
because the shares are to be issued in a name other than the Holder's name.
Nothing herein shall preclude any tax withholding required by law or
regulations.
SECTION 11.05. COMPANY TO PROVIDE STOCK. The Company shall, prior
to issuance of any Securities here under, and from time to time as may be
necessary, reserve out of its authorized but unissued Class A Common Stock a
sufficient number of shares of Class A Common Stock to permit the conversion of
the Securities.
All shares of Class A Common Stock delivered upon conversion of
the Securities shall be newly issued shares or treasury shares, shall be duly
and validly issued and fully paid and nonassessable and shall be free from
preemptive rights and free of any lien or adverse claim other than any lien or
claim created by the Holder.
The Company will endeavor promptly to comply with all Federal and
state securities laws regulating the offer
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75
and delivery of shares of Class A Common Stock upon conver sion of Securities,
if any, and will use its best efforts to list or cause to have quoted such
shares of Class A Common Stock on each national securities exchange or in the
over-the-counter or other domestic market on which the Class A Common Stock is
then listed or quoted.
SECTION 11.06. ADJUSTMENT FOR CHANGE IN CAPITAL STOCK. In case
the Company shall (i) pay a dividend, or make a distribution, in shares of its
Class A Common Stock, on its Class A Common Stock, (ii) subdivide its
outstanding Class A Common Stock into a greater number of shares, or (iii)
combine its outstanding Class A Common Stock into a smaller number of shares,
the Conversion Rate in effect immediately prior thereto shall be adjusted so
that the holder of any Security thereafter surrendered for conversion shall be
entitled to receive the number of shares of Class A Common Stock of the Company
which he would have owned or have been entitled to receive after the happening
of any of the events described above had such Security been converted
immediately prior to the happening of such event. If any dividend or
distribution of the type described in clause (i) above is not so paid or made,
the Conversion Rate shall again be adjusted to the Conversion Rate which would
then be in effect if such dividend or distribution had not been declared. An
adjustment made pursuant to this Section 11.06 shall become effective
immediately after the record date in the case of a dividend and shall become
effective immedi ately after the effective date in the case of subdivision or
combination.
SECTION 11.07. ADJUSTMENT FOR RIGHTS ISSUE. In case the Company
shall issue rights or warrants to all holders of its Class A Common Stock
entitling them (for a period expiring within 45 days after the record date
mentioned below) to subscribe for or purchase Class A Common Stock at a price
per share less than the Current Market Price per share of Class A Common Stock
at the record date for the determination of stockholders entitled to receive
such rights or warrants, the Conversion Rate in effect immediately prior thereto
shall be adjusted so that the same shall equal the Conversion Rate determined by
multiplying the Conversion Rate in effect immediately prior to the date of
issuance of such rights or warrants by a fraction of which the numerator shall
be the number of shares of Class A Common Stock outstanding on the date of
issuance of such
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76
rights or warrants plus the number of additional shares of Class A Common Stock
offered for subscription or purchase, and of which the denominator shall be the
number of shares of Class A Common Stock outstanding on the date of issuance of
such rights or warrants plus the number of shares which the aggregate offering
price of the total number of shares so offered would purchase at such Current
Market Price. Such adjustment shall be made successively whenever any such
rights or warrants are issued, and shall become effective immediately after the
opening of business on the day following the record date for the determination
of the stockholders entitled to receive such rights or warrants. To the extent
that shares of Class A Common Stock are not delivered after the expiration of
such rights or warrants, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect had the adjustments made upon the
issuance of such rights or warrants been made on the basis of delivery of only
the number of shares of Class A Common Stock actually delivered. If such rights
or warrants are not so issued, the Conversion Rate shall again be adjusted to be
the Conversion Rate which would then be in effect if such record date for the
determination of stock holders entitled to receive such rights or warrants had
not been fixed. In determining whether any rights or warrants entitle the
holders to subscribe for or purchase shares of Class A Common Stock at less than
such Current Market Price, and in determining the aggregate offering price of
such shares of Class A Common Stock, there shall be taken into account any
consideration received by the Company for such rights or warrants, the value of
such consideration, if other than Cash, to be determined by the Board of
Directors of the Company.
SECTION 11.08. ADJUSTMENT FOR OTHER DISTRIBU TIONS. (a) In case
the Company shall distribute to all holders of its Class A Common Stock
(excluding any distribu tion in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary) any shares of any
class of capital stock of the Company (other than Class A Common Stock) or
evidences of its indebtedness or assets (other than Cash) or rights or warrants
to subscribe for or purchase any of its securities (excluding those referred to
in Section 11.07 hereof) (any of the foregoing hereinafter in this Section
11.08(a) called the "Distributed Securities"), then, in each case, the
Conversion Rate shall be adjusted so that the same shall
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equal the Conversion Rate determined by multiplying the Conversion Rate in
effect immediately prior to the date of such distribution by a fraction of which
the numerator shall be the Current Market Price per share of the Class A Common
Stock on the record date mentioned below, and the denom inator shall be the
Current Market Price per share of the Class A Common Stock on such record date
less the fair market value on such record date (as determined by the Board of
Directors of the Company, whose determination shall be conclusive, and described
in a certificate filed with the Trustee) of the Distributed Securities so
distributed applicable to one share of Class A Common Stock. Such adjustment
shall become effective immediately after the record date for the determination
of shareholders entitled to receive such distribution. Notwithstanding the fore
going, in the event the then fair market value (as so determined) of the portion
of the Distributed Securities so distributed applicable to one share of Class A
Common Stock is equal to or greater than the Current Market Price of the Class A
Common Stock on the relevant record date, in lieu of the foregoing adjustment,
adequate provision shall be made so that each Securityholder shall have the
right to receive upon conversion the amount of Distributed Securities such
Holder would have received had such Holder converted each Security on such
record date. In the event that such distribution is not so paid or made, the
Conversion Rate shall again be adjusted to the Conversion Rate which would then
be in effect if such distribution had not been declared. If the Board of
Directors of the Company deter mines the fair market value of any distribution
for purposes of this Section 11.08(a) by reference to the actual or when issued
trading market for any securities, it must in doing so consider the prices in
such market over the same period used in computing the Current Market Price of
the Class A Common Stock.
Notwithstanding the foregoing provisions of this Section
11.08(a), no adjustment shall be made thereunder for any distribution of
Distributed Securities if the Company makes proper provision so that each Holder
of a Security who converts such Security (or any portion thereof) after the
record date for such distribution shall be entitled to receive upon such
conversion, in addition to the shares of Class A Common Stock issuable upon such
conversion, the amount and kind of Distributed Securities that such Holder would
have been entitled to receive if such Holder had,
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78
immediately prior to such record date, converted such Security for Class A
Common Stock, provided that, with respect to any Distributed Securities that are
convertible, exchangeable or exercisable, the foregoing provision shall only
apply to the extent (and so long as) the Distributed Securities receivable upon
conversion for such Security would be convertible, exchangeable or exercisable,
as applicable, without any loss of rights or privileges for a period of at least
60 days following conversion of such Security.
(b) In case the Company shall, by dividend or otherwise,
distribute to all holders of its Class A Common Stock Cash (excluding (x) any
quarterly cash dividend on the Class A Common Stock to the extent the aggregate
cash dividend per share of Class A Common Stock in any fiscal quarter does not
exceed the greater of (A) the amount per share of Class A Common Stock of the
next preceding quarterly cash dividend on the Class A Common Stock to the extent
such preceding quarterly dividend did not require any adjustment of the
conversion price pursuant to this Section 11.08(b) (as adjusted to reflect
subdivisions or combinations of the Class A Common Stock) and (B) 3.75% of the
average of the last reported sales prices of the Class A Common Stock
(determined as provided in the definition of Current Market Price) during the
ten Trading Days next preceding the date of declaration of such dividend and (y)
any dividend or distribution in connection with the liquidation, dissolution or
winding up of the Company, whether voluntary or involuntary), then, in such
case, unless the Company elects to reserve such Cash for dis tribution to the
Holders of the Securities upon the con version of the Securities so that any
such Holder of Securities will receive upon such conversion, in addition to the
shares of Class A Common Stock to which such Holder is entitled, the amount of
cash which such holder would have received if such Holder had, immediately prior
to the record date for such distribution of Cash, converted its Securities for
Class A Common Stock, the Conversion Rate shall be increased so that the same
shall equal the Conversion Rate determined by multiplying the Conversion Rate in
effect immediately prior to the record date by a fraction of which the numerator
shall be such Current Market Price of the Class A Common Stock and the
denominator shall be the Current Market Price of the Class A Common Stock on the
record date less the amount of cash so distributed (and not
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79
excluded as provided above) applicable to one share of Class A Common Stock,
such increase to be effective immedi ately prior to the opening of business on
the day following the record date; provided, however, that in the event the
portion of the cash so distributed applicable to one share of Class A Common
Stock is equal to or greater than the Current Market Price of the Class A Common
Stock on the record date, in lieu of the foregoing adjustment, adequate
provision shall be made so that each Securityholder shall have the right to
receive upon conversion the amount of cash such holder would have received had
such holder converted each Security on the record date. If such dividend or
distribution is not so paid or made, the Conversion Rate shall again be adjusted
to be the Conversion Rate which would then be in effect if such dividend or
distribution had not been declared. If any adjustment is required to be made as
set forth in this Section 11.08(b) as a result of a distribution that is a
quarterly dividend, such adjustment shall be based upon the amount by which such
distribution exceeds the amount of the quarterly cash dividend permitted to be
excluded pursuant hereto. If an adjustment is required to be made as set forth
in this Section 11.08(b) above as a result of a distribution that is not a
quarterly dividend, such adjustment shall be based upon the full amount of the
distribution.
(c) In case a tender or exchange offer made by the Company or any
Subsidiary of the Company for all or any portion of the Class A Common Stock
shall expire and such tender or exchange offer shall involve the payment by the
Company or such Subsidiary of consideration per share of Class A Common Stock
having a fair market value (as deter mined by the Board of Directors of the
Company or, to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive, and described in a
resolution of such Board of Directors or such duly authorized committee thereof,
as the case may be, at the last time (the "Expiration Time") tenders or
exchanges may be made pursuant to such tender or exchange offer (as it shall
have been amended)) that exceeds the Current Market Price of the Class A Common
Stock on the Trading Day next succeeding the Expiration Time, the Conversion
Rate shall be increased so that the same shall equal the Conversion Rate
determined by multiplying the Conversion Rate in effect immediately prior to the
Expiration Time by a fraction of which the numerator shall
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be the sum of (x) the fair market value (determined as aforesaid) of the
aggregate consideration payable to stock holders based on the acceptance (up to
any maximum specified in the terms of the tender or exchange offer) of all
shares validly tendered or exchanged and not withdrawn as of the Expiration Time
(the shares deemed so accepted up to any such maximum, being referred to as the
"Purchased Shares") and (y) the product of the number of shares of Class A
Common Stock outstanding (less any Purchased Shares) at the Expiration Time and
the Current Market Price of the Class A Common Stock on the Trading Day next
succeeding the Expiration Time, and the denominator shall be the number of
shares of Class A Common Stock outstanding (including any tendered or exchanged
shares) at the Expiration Time multi plied by the Current Market Price of the
Class A Common Stock on the Trading Day next succeeding the Expiration Time,
such increase to become effective immediately prior to the opening of business
on the day following the Expiration Time. In the event that the Company or such
Subsidiary is obligated to purchase shares pursuant to any such tender or
exchange offer, but the Company or such Subsidiary is permanently prevented by
applicable law from effecting any such purchases or all such purchases are
rescinded, the Conversion Rate shall again be adjusted to be the Conversion
Rate, which would then be effect if such tender or exchange offer had not been
made.
(d) In case a tender or exchange offer made by a Person other
than the Company or any Subsidiary of the Company for an amount that increases
the offeror's ownership of Class A Common Stock to more than 30% of the Class A
Common Stock outstanding shall expire and such tender or exchange offer shall
involve the payment by such Person of consideration per share of Class A Common
Stock having a fair market value (as determined by the Board of Directors of the
Company or to the extent permitted by applicable law, a duly authorized
committee thereof, whose determination shall be conclusive, and described in a
resolution of such Board of Directors or such duly authorized committee thereof,
as the case may be) at the Expiration Time that exceeds the Current Market Price
of the Class A Common Stock on the Trading Day next succeeding the Expiration
Time, and in which, as of the Expiration Time the Board of Directors of the
Company is not recommending rejection of the offer, the Conversion Rate shall be
increased so that the same shall equal the Conversion Rate determined by
multiplying
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the Conversion Rate in effect immediately prior to the Expiration Time by a
fraction of which the numerator shall be the sum of (x) the fair market value
(determined as aforesaid) of the aggregate consideration payable to stock
holders based on the acceptance (up to any maximum specified in the terms of the
tender or exchange offer) of all Purchased Shares and (y) the product of the
number of shares of Class A Common Stock outstanding (less any Purchased Shares)
at the Expiration Time and the Current Market Price of the Class A Common Stock
on the Trading Day next succeeding the Expiration Time, and the denominator
shall be the number of shares of Class A Common Stock outstanding (including any
tendered or exchanged shares) at the Expiration Time multiplied by the Current
Market Price of the Class A Common Stock on the Trading Day next succeeding the
Expiration Time, such increase to become effective immediately prior to the
opening of business on the day following the Expiration Time. In the event that
such Person is obligated to purchase shares pursuant to any such tender or
exchange offer, but such Person is permanently prevented by applicable law from
effecting any such pur chases or all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be the Conversion Rate which would
then be in effect if such tender or exchange offer had not been made.
Notwithstanding the foregoing, the adjust ment described in this Section
11.08(d) shall not be made if, as of the Expiration Time, the offering documents
with respect to such offer disclose a plan or intention to cause the Company to
engage in any transaction described in Article 5.
SECTION 11.09. WHEN ADJUSTMENT MAY BE DEFERRED. No adjustment in
the Conversion Rate need be made unless the adjustment would require an increase
or decrease of at least 1% in the Conversion Rate. Any adjustments that are not
made shall be carried forward and taken into account in any subsequent
adjustment.
All calculations under this Article 11 shall be made to the
nearest cent or to the nearest 1/l0,000th of a share, as the case may be.
SECTION 11.10. WHEN NO ADJUSTMENT REQUIRED. No adjustment need be
made for rights to purchase Class A Common Stock pursuant to a Company plan for
reinvestment of dividends or interest.
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No adjustment need be made for a change in the par value or no
par value of the Class A Common Stock.
To the extent the Securities become convertible or exchangeable
into Cash, assets, property or securities (other than capital stock of the
Company), no adjustment need be made thereafter as to the Cash, assets, property
or such securities. Interest will not accrue on the Cash.
SECTION 11.11. NOTICE OF ADJUSTMENT. Whenever the Conversion Rate
is adjusted, the Company shall promptly mail to Securityholders a notice of the
adjustment. The Company shall file with the Trustee and the Conversion Agent
such notice. The notice shall, absent manifest error, be conclusive evidence
that the adjustment is correct. Neither the Trustee nor any Conversion Agent
shall be under any duty or responsibility with respect to any such notice except
to exhibit the same to any Holder desiring inspection thereof.
SECTION 11.12. VOLUNTARY INCREASE. The Company may make such
increases in the Conversion Rate, in addition to those required by Sections
11.06, 11.07 and 11.08, as the Board of Directors of the Company considers to be
advisable to avoid or diminish any income tax to holders of Class A Common Stock
or rights to purchase Class A Common Stock resulting from any dividend or
distribution of stock (or rights to acquire stock) or from any event treated as
such for income tax purposes. To the extent permitted by applicable law, the
Company from time to time may increase the Conversion Rate by any amount for any
period of time if the period is at least 20 days, the increase is irrevocable
during such period and the Board of Directors of the Company shall have made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. Whenever the Conversion Rate is so
increased, the Company shall mail to Securityholders and file with the Trustee
and the Conversion Agent a notice of the increase. The Company shall mail the
notice at least 15 days before the date the increased Conversion Rate takes
effect. The notice shall state the increased Conversion Rate and the period it
will be in effect.
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SECTION 11.13. NOTICE OF CERTAIN TRANSACTIONS.
If:
(1) the Company makes any distribution or dividend that would
require an adjustment in the Conversion Rate pursuant to Section 11.06,
11.07 or 11.08; or
(2) the Company takes any action that would
require a supplemental indenture pursuant to
Section 11.14; or
(3) there is a liquidation or dissolution of the
Company;
then the Company shall mail or shall deliver to the Trustee and direct the
Trustee to mail to Securityholders and file with the Trustee and the Conversion
Agent a notice stating the proposed record date for a dividend or distribution
or the proposed effective date of a subdivision, combination, reclassification,
consolidation, merger, sale, transfer, dissolution, liquidation or winding-up.
The Company shall file and mail the notice at least 15 days before such date.
Failure to file or mail the notice or any defect in it shall not affect the
validity of the transaction.
SECTION 11.14. EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE. If any of the following events occur, namely (i) any reclassification
of outstanding shares of Class A Common Stock (other than a change in par value,
or from par value to no par value, or from no par value to par value, or as a
result of a subdivision or combination), (ii) any consolidation, merger or
combination of the Company with another corporation as a result of which holders
of Class A Common Stock shall be entitled to receive stock, securities or other
property or assets (including Cash) with respect to or in exchange for such
Class A Common Stock, or (iii) any sale or conveyance of the properties and
assets of the Company as, or substantially as, an entirety to any other
corporation as a result of which holders of Class A Common Stock shall be
entitled to receive stock, securities or other property or assets (including
Cash) with respect to or in exchange for such Class A Common Stock, then the
Company or the successor or purchasing corporation, as the case may be, shall
execute with the Trustee a supplemental indenture providing that each Security
shall be
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convertible into the kind and amount of shares of stock and other securities or
property or assets (including cash) receivable upon such reclassification,
change, consolida tion, merger, combination, sale or conveyance by a holder of a
number of shares of Class A Common Stock issuable upon conversion of such
Securities immediately prior to such reclassification, change, consolidation,
merger, combina tion, sale or conveyance. Such supplemental indenture shall
provide for adjustments which shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article.
The Company shall cause notice of the execution of such
supplemental indenture to be mailed to each Holder of Securities at his address
appearing on the Security register provided for in Section 2.03 of this
Indenture.
The above provisions of this Section shall similarly apply to
successive reclassifications, consolida tions, mergers, combinations and sales.
If this Section applies, none of Sections 11.06, 11.07 or 11.08
applies.
SECTION 11.15. COMPANY DETERMINATION FINAL. Any determination
that the Company, or the Board of Directors of the Company or a duly authorized
committee thereof must make pursuant to Section 11.03, 11.06, 11.07, 11.08,
11.09, 11.10, 11.14 or 11.17 is conclusive.
SECTION 11.16. TRUSTEE'S ADJUSTMENT DISCLAIMER. The Trustee has
no duty to determine when an adjustment under this Article 11 should be made,
how it should be made or what it should be. The Trustee has no duty to determine
whether a supplemental indenture under Section 11.14 need be entered into or
whether any provisions of any supplemental indenture are correct. The Trustee
shall not be accountable for and makes no representation as to the validity or
value of any securities or assets issued upon conversion of Securities. The
Trustee shall not be responsible for the Company's failure to comply with this
Article 11. Each Conversion Agent shall have the same protection under this
Section 11.16 as the Trustee.
SECTION 11.17. SIMULTANEOUS ADJUSTMENTS. In the
event that this Article 11 requires adjustments to the
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Conversion Rate under more than one of Sections 11.06, 11.07, 11.08(a) or
11.08(b), and the record dates for the distributions giving rise to such
adjustments shall occur on the same date, then such adjustments shall be made by
applying, first, the provisions of Section 11.08(a), second, the provisions of
Section 11.08(b), third, the provisions of Section 11.06 and, fourth, the
provisions of Section 11.07.
SECTION 11.18. SUCCESSIVE ADJUSTMENTS. After an adjustment to the
Conversion Rate under this Article 11, any subsequent event requiring an
adjustment under this Article 11 shall cause an adjustment to the Conversion
Rate as so adjusted.
SECTION 11.19. GENERAL CONSIDERATIONS. Whenever successive
adjustments to the Conversion Rate are called for pursuant to this Article 11,
such adjustments shall be made to the Current Market Price as may be necessary
or appropriate to effectuate the intent of this Article and to avoid unjust or
inequitable results as determined in good faith by the Board of Directors of the
Company.
ARTICLE 12
MISCELLANEOUS
SECTION 12.01. TRUST INDENTURE ACT CONTROLS. If any provision of
this Indenture limits, qualifies or conflicts with another provision which is
required to be included in this Indenture by the TIA, the required pro vision
shall control.
SECTION 12.02. NOTICES. Any request, demand, authorization,
notice, waiver, consent or communication shall be in writing and delivered in
person or mailed by first class mail, postage prepaid, addressed as follows or
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86
transmitted by facsimile transmission (confirmed by over night courier) to the
following facsimile numbers:
if to the Company:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attention: General Counsel
Telephone Number: (212) 451-3045
Facsimile Number: (212) 451-3216
if to the Trustee:
The Bank of New York
101 Barclay Street
21st Floor West
New York, NY 10286
Attention: Corporate Trust Administration
Reference:
(Triarc Companies, Inc. Zero Coupon
Convertible Subordinated Debentures
Due 2017)
Telephone Number: (212) 815-5092
Facsimile Number: (212) 815-5915
The Company or the Trustee by notice to the other may designate
additional or different addresses for subse quent notices or communications.
Any notice or communication given to a Securityholder shall be
mailed to the Securityholder by first class mail, postage prepaid, at the
Securityholder's address as it appears on the registration books of the
Registrar and shall be sufficiently given if so mailed within the time
prescribed.
Failure to mail a notice or communication to a Securityholder or
any defect in it shall not affect its sufficiency with respect to other
Securityholders. If a notice or communication is mailed in the manner provided
above, it is duly given, whether or not received by the addressee.
If the Company mails a notice or communication to
the Securityholders, it shall mail a copy to the Trustee and
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each Registrar, Paying Agent, Conversion Agent or co-registrar.
SECTION 12.03. COMMUNICATION BY HOLDERS WITH OTHER HOLDERS.
Securityholders may communicate pursuant to TIA Section 312(b) with other
Securityholders with respect to their rights under this Indenture or the
Securities. The Company, the Trustee, the Registrar, the Paying Agent, the
Conversion Agent and anyone else shall have the protection of TIA Section
312(c).
SECTION 12.04. CERTIFICATE AND OPINION AS TO CONDITIONS
PRECEDENT. Upon any request or application by the Company to the Trustee to take
any action under this Indenture, the Company shall furnish to the Trustee:
(1) an Officers' Certificate stating that, in the opinion of the
signers, all conditions precedent, if any, provided for in this
Indenture relating to the proposed action have been complied with; and
(2) an Opinion of Counsel stating that, in the opinion of such
counsel, all such conditions precedent have been complied with.
SECTION 12.05. STATEMENTS REQUIRED IN CERTIFICATE OR OPINION.
Each Officers' Certificate or Opinion of Counsel with respect to compliance with
a covenant or condition provided for in this Indenture shall include:
(1) a statement that each Person making such Officers'
Certificate or Opinion of Counsel has read such covenant or condition;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such Officers' Certificate or Opinion of Counsel are based;
(3) a statement that, in the opinion of each such Person, he has
made such examination or investigation as is necessary to enable such
Person to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
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(4) a statement that, in the opinion of such Person, such
covenant or condition has been complied with.
In rendering any such Opinion of Counsel, the Person furnishing
the same shall be entitled to rely as to factual matters on statements made in
any Officers' Certificate furnished hereunder.
SECTION 12.06. SEPARABILITY CLAUSE. In case any provision in this
Indenture or in the Securities shall be invalid, illegal or unenforceable, the
validity, legality and enforceability of the remaining provisions shall not in
any way be affected or impaired thereby.
SECTION 12.07. RULES BY TRUSTEE, PAYING AGENT, CONVERSION AGENT
AND REGISTRAR. The Trustee may make reasonable rules for action by or a meeting
of Securityholders. The Registrar, Conversion Agent and the Paying Agent may
make reasonable rules for their functions.
SECTION 12.08. LEGAL HOLIDAYS. A "Legal Holiday" is any day other
than a Business Day. If any specified date (including a date for giving notice)
is a Legal Holiday, the action shall be taken on the next succeeding day that is
not a Legal Holiday, and, to the extent applicable, no Original Issue Discount
or interest, if any, shall accrue for the intervening period.
SECTION 12.09. GOVERNING LAW. THE LAWS OF THE STATE OF NEW
YORK WITHOUT REGARD TO ITS PRINCIPLES OF CONFLICTS OF LAW SHALL GOVERN THIS
INDENTURE AND THE SECURITIES.
SECTION 12.10. NO RECOURSE AGAINST OTHERS. A director, officer,
employee or stockholder, as such, of the Company shall not have any liability
for any obligations of the Company under the Securities or this Indenture or for
any claim based on, in respect of or by reason of such obligations or their
creation. By accepting a Security, each Securityholder shall waive and release
all such liability. The waiver and release shall be part of the consideration
for the issue of the Securities.
SECTION 12.11. SUCCESSORS. All agreements of the
Company in this Indenture and the Securities shall bind its
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successor. All agreements of the Trustee in this Indenture
shall bind its successor.
SECTION 12.12. MULTIPLE ORIGINALS. The parties
may sign any number of copies of this Indenture. Each
signed copy shall be an original, but all of them together
represent the same agreement. One signed copy is enough to
prove this Indenture.
IN WITNESS WHEREOF, the undersigned, being duly authorized, have
executed this Indenture on behalf of the respective parties hereto as of the
date first written above.
TRIARC COMPANIES, INC.,
By John L. Barnes, Jr.
Name: John L. Barnes, Jr.
Title: Senior Vice President and
Chief Financial Officer
THE BANK OF NEW YORK,
as Trustee,
By Marie E. Trimboli
Name: Marie E. Trimboli
Title: Assistant Treasurer
<PAGE>
EXHIBIT A
[FORM OF FACE OF SECURITY
FOR UNITED STATES FEDERAL INCOME TAX PURPOSES, THIS SECURITY BEARS ORIGINAL
ISSUE DISCOUNT. THE ISSUE PRICE WITH RESPECT TO EACH $1,000 OF PRINCIPAL AMOUNT
OF THIS SECURITY IS $278.23, THE AMOUNT OF ORIGINAL ISSUE DISCOUNT WITH RESPECT
TO EACH $1,000 OF PRINCIPAL AMOUNT OF THIS SECURITY IS $721.77. THE ISSUE DATE
IS FEBRUARY 9, 1998, AND THE YIELD TO MATURITY BASED ON SEMIANNUAL COMPOUNDING
IS 6.5%.]
[FORM OF LEGEND FOR GLOBAL SECURITY:
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE
DEPOSITORY TRUST COMPANY, A NEW YORK CORPORATION ("DTC"), TO THE COMPANY OR ITS
AGENT FOR REGISTRATION OF TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE
ISSUED IS REGISTERED IN THE NAME OF CEDE & CO. OR IN SUCH OTHER NAME AS IS
REQUESTED BY AN AUTHORIZED REPRESENTATIVE OF DTC (AND ANY PAYMENT IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED OWNER
HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
TRIARC COMPANIES, INC.
ZERO COUPON CONVERTIBLE SUBORDINATED
DEBENTURE DUE 2018
No. $
THE SECURITY EVIDENCED HEREBY HAS NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE U.S. SECURITIES ACT OF 1933, AS AMENDED (THE "SECURITIES
ACT"), AND, ACCORDINGLY, MAY NOT BE OFFERED OR SOLD WITHIN THE UNITED
STATES OR TO, OR FOR THE ACCOUNT OR BENEFIT OF, U.S. PERSONS EXCEPT AS
SET FORTH IN THE FOLLOWING SENTENCE. BY ITS ACQUISITION HEREOF, THE
HOLDER (1) REPRESENTS THAT IT IS A "QUALIFIED INSTITUTIONAL BUYER" (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT), (2) AGREES THAT IT WILL
NOT, PRIOR TO EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF
THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT
(OR ANY SUCCESSOR PROVISION), RESELL OR OTHERWISE TRANSFER THE
<PAGE>
2
SECURITY EVIDENCED HEREBY OR THE CLASS A COMMON STOCK ISSUABLE UPON
CONVERSION OF SUCH SECURITY EXCEPT (A) TO TRIARC COMPANIES, INC. OR ANY
SUBSIDIARY THEREOF, (B) TO A QUALIFIED INSTITUTIONAL BUYER IN COMPLIANCE
WITH RULE 144A UNDER THE SECURITIES ACT, (C) PURSUANT TO THE EXEMPTION
FROM REGISTRATION PROVIDED BY RULE 144 UNDER THE SECURITIES ACT (IF
AVAILABLE) OR (D) PURSUANT TO A REGISTRATION STATEMENT WHICH HAS BEEN
DECLARED EFFECTIVE UNDER THE SECURITIES ACT (AND WHICH CONTINUES TO BE
EFFECTIVE AT THE TIME OF SUCH TRANSFER), (3) PRIOR TO SUCH TRANSFER
(OTHER THAN A TRANSFER PURSUANT TO CLAUSE 2(D) ABOVE), IT WILL FURNISH
TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR TRUSTEE, AS
APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER INFORMATION AS
THE TRUSTEE MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH TRANSFER IS
BEING MADE PURSUANT TO AN EXEMPTION FROM OR IN A TRANSACTION NOT SUBJECT
TO, THE REGISTRATION REQUIREMENTS OF THE SECURITIES ACT, AND (4) AGREES
THAT IT WILL DELIVER TO EACH PERSON TO WHOM THE SECURITY EVIDENCED
HEREBY IS TRANSFERRED A NOTICE SUBSTANTIALLY TO THE EFFECT OF THIS
LEGEND. IN CONNECTION WITH ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY
PRIOR TO THE EXPIRATION OF THE HOLDING PERIOD APPLICABLE TO SALES OF THE
SECURITY EVIDENCED HEREBY UNDER RULE 144(K) UNDER THE SECURITIES ACT (OR
ANY SUCCESSOR PROVISION), THE HOLDER MUST CHECK THE APPROPRIATE BOX SET
FORTH ON THE REVERSE HEREOF RELATING TO THE MANNER OF SUCH TRANSFER AND
SUBMIT THIS CERTIFICATE TO THE BANK OF NEW YORK, AS TRUSTEE (OR A
SUCCESSOR TRUSTEE, AS APPLICABLE). IF THE PROPOSED TRANSFEREE IS A
PURCHASER WHO IS NOT A U.S. PERSON, THE HOLDER MUST, PRIOR TO SUCH
TRANSFER, FURNISH TO THE BANK OF NEW YORK, AS TRUSTEE (OR A SUCCESSOR
TRUSTEE, AS APPLICABLE), SUCH CERTIFICATIONS, LEGAL OPINIONS OR OTHER
INFORMATION AS THE COMPANY MAY REASONABLY REQUIRE TO CONFIRM THAT SUCH
TRANSFER IS BEING MADE PURSUANT TO AN EXEMPTION FROM, OR IN A
TRANSACTION NOT SUBJECT TO, THE REGISTRATION REQUIREMENTS OF THE
SECURITIES ACT. THIS LEGEND WILL BE REMOVED UPON THE EARLIER OF THE
TRANSFER OF THE SECURITY EVIDENCED HEREBY PURSUANT TO CLAUSE 2(D) ABOVE
OR UPON ANY TRANSFER OF THE SECURITY EVIDENCED HEREBY UNDER RULE 144(K)
UNDER THE SECURITIES ACT (OR ANY SUCCESSOR PROVISION).
<PAGE>
3
Issue Date: February 9, 1998 Original Issue Discount: $721.77
Issue Price: $278.23 (for each $1,000 Principal
(for each $1,000 Principal Amount)
Amount)
CUSIP No. 895927 AA 9
Triarc Companies, Inc., a Delaware Corporation, promises to pay to or
registered assigns, on February 9, 2018 [the Principal Amount of
Dollars ($ )].(1)
This Security shall not bear interest except 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.
All capitalized terms used herein without definition shall have the
respective meanings ascribed to them in the Indenture referred to on the other
side of this Security.
Additional provisions of this Security are set forth on the other side
of this Security.
IN WITNESS WHEREOF, Triarc Companies, Inc. has caused this
instrument to be duly executed.
TRIARC COMPANIES, INC.
By________________________
By________________________
- --------
(1) The global Security will read instead: "the Principal
Amount then shown on Schedule A hereto."
<PAGE>
4
TRUSTEE'S CERTIFICATE OF
AUTHENTICATION
THEBANK OF NEW YORK, as Trustee, certifies that this is one of the Securities
referred to in the within-mentioned Indenture.
Dated:
By_________________________
Authorized Signatory
<PAGE>
5
[FORM OF REVERSE SIDE OF SECURITY]
TRIARC COMPANIES, INC.
ZERO COUPON CONVERTIBLE SUBORDINATED
DEBENTURE DUE 2018
1. INTEREST
This Security shall not bear interest, except that if the
Principal Amount hereof or any portion of such Principal Amount is not paid when
due (whether upon acceleration pursuant to Section 6.02 of the Indenture, upon
the date set for payment of the Redemption Price pursuant to paragraph 5 hereof,
upon the date set for payment of a Purchase Price or Fundamental Change
Redemption Price pursuant to paragraph 6 hereof or upon the Stated Maturity of
this Security), then in each such case the overdue amount shall bear interest at
the rate of 6.5% per annum, compounded semiannually (to the extent that the
payment of such interest shall be legally enforceable), which interest shall
accrue from the date such overdue amount was due to the date payment of such
amount, including interest thereon (if enforceable), has been made or duly
provided for. All such interest shall be payable on demand. 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 6.5% per annum, on a semiannual bond
equivalent basis using a 360-day year composed of twelve 30-day months,
commencing on the Issue Date of this Security.
2. METHOD OF PAYMENT
Subject to the terms and conditions of the Indenture, the Company
will make payments in respect of the Securities to the Persons who are
registered Holders of Securities at the close of business on the Business Day
preceding the Redemption Date or Stated Maturity, as the case may be, or at the
close of business on a Purchase Date or Fundamental Change Redemption Date, as
the case may be. Holders must surrender Securities to a Paying Agent to collect
such payments in respect of the Securities. The Company will pay cash amounts in
immediately available funds in money of the United States that at the time
<PAGE>
6
of payment is legal tender for payment of public and private debts. However, the
Company may make such Cash payments by check payable in such money.
3. PAYING AGENT, CONVERSION AGENT AND REGISTRAR
Initially, The Bank of New York, a New York banking corporation
(the "Trustee"), will act as Paying Agent, Conversion Agent and Registrar. The
Company may appoint and change any Paying Agent, Conversion Agent, Registrar or
co-registrar without notice, other than notice to the Trustee. The Company or
any of its Subsidiaries or any of their Affiliates may act as Paying Agent,
Conversion Agent, Registrar or co-registrar.
4. INDENTURE
The Company issued the Securities under an Indenture dated as of
February 9, 1998 (the "Indenture"), between the Company and the Trustee.
Capitalized terms used herein and not defined herein have the meanings ascribed
thereto in the Indenture. The Securities are subject to all such terms, and
Securityholders are referred to the Indenture for a statement of those terms.
The Securities are general unsecured obligations of the Company
limited to $360,000,000 aggregate Principal Amount (subject to Section 2.07 of
the Indenture). The Indenture does not limit other Indebtedness of the Company,
secured or unsecured, including Specified Senior Indebtedness of the Company.
5. REDEMPTION AT THE OPTION OF THE COMPANY
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 Prices set forth below, provided that
the Securities are not redeemable prior to February 9, 2003.
The table below shows Redemption Prices of a Security per $1,000
Principal Amount on the dates shown below and at Stated Maturity, which prices
reflect accrued Original Issue Discount calculated to each such date. The
Redemption Price of a Security redeemed between such dates would include an
additional amount reflecting the additional Original Issue
<PAGE>
7
Discount accrued from and including the next preceding date in the table to, but
excluding, the actual Redemption Date.
(2) (3)
(1) Accrued
Original
Issue Redemption
Security Discount Price
Redemption Date Issue Price at 6.5% (1) + (2)
- --------------- ----------- ------- ---------
February 9, 2003 $278.23 $104.87 $383.10
February 9, 2004 278.23 130.17 408.40
February 9, 2005 278.23 157.15 435.38
February 9, 2006 278.23 185.91 464.14
February 9, 2007 278.23 216.57 494.80
February 9, 2008 278.23 249.25 527.48
February 9, 2009 278.23 284.10 562.33
February 9, 2010 278.23 321.24 599.47
February 9, 2011 278.23 360.84 639.07
February 9, 2012 278.23 403.06 681.29
February 9, 2013 278.23 448.06 726.29
February 9, 2014 278.23 496.04 774.27
February 9, 2015 278.23 547.18 825.41
February 9, 2016 278.23 601.70 879.93
February 9, 2017 278.23 659.83 938.06
At maturity 278.23 721.77 1,000.00
6. PURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER;
REDEMPTION AT THE OPTION OF THE HOLDER UPON A FUNDAMENTAL
CHANGE
(a) Subject to the terms and conditions of the
Indenture, the Company shall become obligated to purchase, at
<PAGE>
8
the option of the Holder, the Securities held by such Holder on the following
Purchase Dates and at the following Purchase Prices per $1,000 Principal Amount,
upon delivery of a Purchase Notice containing the information set forth in the
Indenture, from the opening of business on the date that is 20 Business Days
prior to such Purchase Date until the close of business on such Purchase Date
(or, if such Purchase Date is not a Business Day, the first Business Day prior
to such Purchase Date) and upon delivery of the Securities to the Paying Agent
by the Holder as set forth in the Indenture. Subject to the terms and conditions
set forth in the Indenture, such Purchase Prices may be paid, at the option of
the Company, in Cash or by the issuance and delivery of shares of Class A Common
Stock of the Company, or in any combination thereof.
PURCHASE DATE PURCHASE PRICE
February 9, 2003 $383.10
February 9, 2008 $527.48
February 9, 2013 $726.29
Securities in denominations larger than $1,000 of Principal Amount may be
purchased in part, but only in integral multiples of $1,000 of Principal Amount
(b) At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to redeem the
Securities held by such Holder 45 days after the date of the Company's notice of
such Fundamental Change (as defined in the Indenture) occurring on or prior to
February 9, 2018, for a Fundamental Change Redemption Price equal to the Issue
Price plus accrued Original Issue Discount from and including the Issue Date and
to, but excluding, the Fundamental Change Redemption Date, which Fundamental
Change Redemption Price shall be paid in Cash. Securities in denominations
larger than $1,000 of Principal Amount may be redeemed in part in connection
with a Fundamental Change, but only in integral multiples of $1,000 of Principal
Amount.
(c) Holders have the right to withdraw any Purchase Notice or
Fundamental Change Redemption Notice, as the case may be, by delivering to the
Paying Agent a written notice of with drawal in accordance with the provisions
of the Indenture.
<PAGE>
9
(d) If Cash (and/or securities if permitted under the Indenture)
sufficient to pay a Purchase Price or Fundamental Change Redemption Price, as
the case may be, of all Securities or portions thereof to be purchased as of the
Purchase Date or the Fundamental Change Redemption Date, as the case may be, is
deposited with the Paying Agent on or before the Business Day following the
Purchase Date or the Fundamental Change Redemption Date, as the case may be,
Original Issue Discount ceases to accrue on such Securities (or portions
thereof) on and after such date, and the Holder thereof shall have no other
rights as such (other than the right to receive the Purchase Price or
Fundamental Change Redemption Price, as the case may be, upon surrender of such
Security).
7. NOTICE OF REDEMPTION AT THE OPTION OF THE COMPANY
Notice of redemption at the option of the Company will be mailed
at least 30 days but not more than 60 days before the Redemption Date to each
Holder of Securities to be redeemed at the Holder's registered address. If money
sufficient to pay the Redemption Price of all Securities (or portions thereof)
to be redeemed on the Redemption Date is deposited with the Paying Agent prior
to or on the Redemption Date, on and after such date Original Issue Discount
ceases to accrue on such Securities or portions thereof. Securities in
denominations larger than $1,000 of Principal Amount may be redeemed in part but
only in integral multiples of $1,000 of Principal Amount.
8. SUBORDINATION
The Securities are subordinated to all existing and future
Specified Senior Indebtedness of the Company. To the extent provided in the
Indenture, Specified Senior Indebtedness of the Company must be paid before the
Securities may be paid. The Indenture does not limit the present or future
amount of Specified Senior Indebtedness the Company may have. The Company
agrees, and each Securityholder by accepting a Security agrees, to the
subordination and authorizes the Trustee to give it effect and appoints the
Trustee as attorney-in-fact for such purpose.
9. CONVERSION
Subject to the next two succeeding sentences, a Holder of a
Security may convert it into Class A Common Stock of the Company at any time
after 90 days following the latest Issue
<PAGE>
10
Date of the Securities and before the close of business on February 9, 2018. If
this Security is called for redemption, the Holder may convert it at any time
before the close of the last Trading Day prior to the Redemption Date. A
Security in respect of which a Holder has delivered a notice of exercise of the
option to require the Company to purchase such Security or to redeem such
Security in the event of a Fundamental Change may be converted only if the
notice of exercise is withdrawn in accordance with the terms of the Indenture.
The initial Conversion Rate is 9.465 shares of Class A Common
Stock per $1,000 Principal Amount, subject to adjustment in certain events
described in the Indenture. The Company will deliver Cash or a check in lieu of
any fractional share of Class A Common Stock.
To convert this Security a Holder must (1) complete and manually
sign the conversion notice on the back of this Security (or complete and
manually sign a facsimile of such notice) and deliver such notice to a
Conversion Agent, (2) surrender this Security to a Conversion Agent, (3) furnish
appropriate endorsements and transfer documents if required by the Conversion
Agent, the Company or the Trustee and (4) pay any transfer or similar tax, if
required.
A Holder may convert a portion of this 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 Class A Common Stock except as
provided in the Indenture. On conversion of this Security, that portion of
accrued Original Issue Discount attributable to the period from the Issue Date
to the Conversion Date with respect to the converted portion of this Security
shall not be canceled, extinguished or forfeited, but rather shall be deemed to
be paid in full to the Holder thereof through the delivery of the Class A Common
Stock (together with any cash payment in lieu of fractional shares) in exchange
for the portion of this Security being converted pursuant to the terms hereof.
The Conversion Rate will be adjusted under formulae as set forth
in the Indenture in certain events, including: (i) the issuance of Class A
Common Stock of the Company as a dividend or distribution on the Class A Common
Stock; (ii) subdivisions and combinations of the Class A Common Stock; (iii) the
issuance to all holders of Class A Common Stock of certain rights or warrants
entitling them to subscribe for or
<PAGE>
11
purchase Class A Common Stock at less than the Current Market Price (as defined
in the Indenture); (iv) the distribution to all holders of Class A Common Stock
of capital stock (other than Class A Common Stock) or evidences of indebtedness
of the Company or of assets (other than cash distributions) or rights or
warrants to subscribe for or purchase any of its securities (excluding rights or
warrants to purchase Class A Common Stock referred to in clause (iii) above);
(v) distributions consisting of Cash, excluding any quarterly Cash dividend on
the Class A Common Stock to the extent that the aggregate Cash dividend per
share of Class A Common Stock in any quarter does not exceed the greater of (x)
the amount per share of Class A Common Stock of the next preceding quarterly
dividend on the Class A Common Stock to the extent that such preceding quarterly
dividend did not require an adjustment of the Conversion Rate pursuant to this
clause (v) (as adjusted to reflect subdivisions or combinations of the Class A
Common Stock), and (y) 3.75 percent of the average of the last reported sales
price of the Class A Common Stock during the ten Trading Days immediately prior
to the date of declaration of such dividend, and excluding any dividend or
distribution in connection with the liquidation, dissolution or winding up of
the Company; (vi) payment in respect of a tender or exchange offer by the
Company or any Subsidiary of the Company for the Class A Common Stock to the
extent that the cash and value of any other consideration included in such
payment per share of Class A Common Stock exceeds the Current Market Price per
share of Class A Common Stock on the Trading Day next succeeding the last date
on which tenders or exchanges may be made pursuant to such tender or exchange;
and (vii) payment in respect of a tender offer or exchange offer by a Person
other than the Company or any Subsidiary of the Company in which, as of the
closing date of the offer, the Board of Directors is not recommending rejection
of the offer. If any adjustment is required to be made as set forth in clause
(v) above as a result of a distribution that is a quarterly dividend, such
adjustment would be based upon the amount by which such distribution exceeds the
amount of the quarterly Cash dividend permitted to be excluded pursuant to such
clause (v). If an adjustment is required to be made as set forth in clause (v)
above as a result of a distribution that is not a quarterly dividend, such
adjustment would be based upon the full amount of the distribution. The
adjustment referred to in clause (vii) above will only be made if the tender
offer or exchange offer is for an amount which increases that Person's ownership
of Class A Common Stock to more than 30% of the total
<PAGE>
12
Class A Common Stock outstanding and if the Cash and the value of any other
consideration included in such payment per share of Class A Common Stock exceeds
the Current Market Price per share of Class A Common Stock on the Business Day
next succeeding the last date on which tenders or exchanges may be made pursuant
to such tender or exchange offer. The adjustment referred to in clause (vii)
will not be made, however, if, as of the closing of the offer, the offering
documents with respect to such offer disclose a plan or an intention to cause
the Company to engage in a consolidation or merger of the Company or the sale of
all or substantially all of the Company's assets. The Company from time to time
may voluntarily increase the Conversion Rate.
In the case of (i) any reclassification of the Class A Common
Stock, or (ii) a consolidation or merger involving the Company or a sale or
conveyance to another corporation of the property and assets of the Company as
an entirety (or substantially as an entirety), in each case as a result of which
holders of Class A Common Stock shall be entitled to receive stock, securities,
other property or assets (including Cash) with respect to or in exchange for
such Class A Common Stock, as set forth in the Indenture, or upon certain
distributions described in the Indenture, the right to convert this Security for
Class A Common Stock may be changed, as set forth in the Indenture, into a right
to convert it for securities, Cash or other assets of the Company or another
Person.
10. CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the last Trading Day prior to 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 Class A Common
Stock of the Company and to make payment for such Securities to the Trustee in
trust for such Holders.
11. REGISTRATION RIGHTS
The Company has agreed, for the benefit of the Holders, to file
with the Securities and Exchange Commission a shelf registration statement
covering resales by Holders of Class A
<PAGE>
13
Common Stock of the Company underlying the Securities (the "Underlying Class A
Common Stock"). The Company will use reasonable efforts to cause the
registration statement to become effective as promptly as practicable and to
keep the registration statement effective until the later of (1) the sale of all
Underlying Class A Common Stock registered there under and (2) the expiration of
the holding period applicable to sales of Underlying Class A Common Stock under
Rule 144(k) under the Securities Act, or any successor provision.
12. DENOMINATIONS; TRANSFER; EXCHANGE
The Securities are in registered form, without coupons, in
denominations of $1,000 of Principal Amount and integral multiples of $1,000. A
Holder may transfer or convert Securities in accordance with the Indenture. The
Registrar may require a Holder, among other things, to furnish appropriate
endorsements and transfer documents and to pay any taxes and fees required by
law or permitted by the Indenture. The Registrar need not transfer or exchange
any Securities selected for redemption (except, in the case of a Security to be
redeemed in part, the portion of the Security not to be redeemed) or any
Securities in respect of which a Purchase Notice or Fundamental Change
Redemption Notice has been given and not withdrawn (except, in the case of a
Security to be purchased in part, the portion of the Security not to be
purchased) or any Securities for a period of 15 days before a selection of
Securities to be redeemed.
13. PERSONS DEEMED OWNERS
The registered Holder of this Security may be treated as the
owner of this Security for all purposes.
14. UNCLAIMED MONEY OR SECURITIES
The Trustee and the Paying Agent shall return to the Company upon
written request any money or securities held by them for the payment of any
amount with respect to the Securities that remains unclaimed for two years,
provided, however, that the Trustee or such Paying Agent, before being required
to make any such return, shall at the expense of the Company cause to be
published once in a newspaper of general circulation in The City of New York or
mail to each such Holder notice that such money or securities remains unclaimed
and that, after a date specified therein, which shall not be less
<PAGE>
14
than 30 days from the date of such publication or mailing, any unclaimed money
or securities then remaining will be returned to the Company. After return to
the Company, Holders entitled to the money or securities must look to the
Company for payment as general creditors unless an applicable abandoned property
law designates another Person.
15. AMENDMENT; WAIVER
Subject to certain exceptions set forth in the Indenture, (i) the
Indenture or the Securities may be amended with the written consent of the
Holders of at least a majority in aggregate Principal Amount of the Securities
at the time outstanding and (ii) certain defaults or noncompliance with certain
provisions may be waived with the written consent of the Holders of a majority
in aggregate Principal Amount of the Securities at the time outstanding. Subject
to certain exceptions set forth in the Indenture, without the consent of any
Securityholder, the Company and the Trustee may amend the Indenture or the
Securities to cure any ambiguity, defect or inconsistency, or to comply with
Article 5 or Section 11.14 of the Indenture, to provide for uncertificated
Securities in addition to or in place of certificated Securities or to make any
change that does not adversely affect the rights of any Securityholder or to
comply with any requirement of the SEC in connection with the qualification of
the Indenture under the TIA.
16. DEFAULTS AND REMEDIES
Under the Indenture, Events of Default include (i) default in
payment of the Principal Amount, Issue Price, accrued Original Issue Discount,
Redemption Price, Purchase Price or Fundamental Change Redemption Price, as the
case may be, in respect of the Securities when the same becomes due and payable;
(ii) failure by the Company to comply with other agreements in the Indenture or
the Securities, subject to notice and lapse of time; and (iii) certain events of
bankruptcy or insolvency. If an Event of Default occurs and is continuing, the
Trustee, or the Holders of at least 25% in aggregate Principal Amount of the
Securities at the time outstanding, may declare all the Securities to be due and
payable immediately. Certain events of bankruptcy or insolvency are Events of
Default which will result in the Securities being declared due and payable
immediately upon the occurrence of such Events of Default.
<PAGE>
15
Securityholders may not enforce the Indenture or the Securities
except as provided in the Indenture. The Trustee may refuse to enforce the
Indenture or the Securities unless it receives reasonable indemnity or security.
Subject to certain limitations, Holders of a majority in aggregate Principal
Amount of the Securities at the time outstanding may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from Securityholders
notice of any continuing Default (except a Default in payment of amounts
specified in clause (i) above) if it determines that withholding notice is in
their interests.
17. TRUSTEE DEALINGS WITH THE COMPANY
The Trustee under the Indenture, in its individual or any other
capacity, may become the owner or pledgee of Securities and may otherwise deal
with and collect obligations owed to it by the Company or its Affiliates and may
otherwise deal with the Company or its Affiliates with the same rights it would
have if it were not Trustee.
18. NO RECOURSE AGAINST OTHERS
A director, officer, employee or stockholder, as such, of the
Company shall not have any liability for any obligations of the Company under
the Securities or the Indenture or for any claim based on, in respect of or by
reason of such obligations or their creation. By accepting a Security, each
Securityholder waives and releases all such liability. The waiver and release
are part of the consideration for the issue of the Securities.
19. AUTHENTICATION
This Security shall not be valid until an authorized officer of
the Trustee manually signs the Trustee's Certificate of Authentication on the
other side of this Security.
20. ABBREVIATIONS
Customary abbreviations may be used in the name of a
Securityholder 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 Gift to
Minors Act).
<PAGE>
16
21. GOVERNING LAW
THE LAWS OF THE STATE OF NEW YORK WITHOUT REGARD TO ITS
PRINCIPLES OF CONFLICTS OF LAW SHALL GOVERN THE INDENTURE AND
THIS SECURITY.
-----------------
The Company will furnish to any Securityholder upon written
request and without charge a copy of the Indenture which has in it the text of
this Security in larger type. Requests may be made to:
Triarc Companies, Inc.
280 Park Avenue
New York, New York 10017
Attn: General Counsel
<PAGE>
17
[FORM OF CONVERSION NOTICE]
CONVERSION NOTICE
To: Triarc Companies, Inc.
The undersigned registered holder of this Security hereby
irrevocably exercises the option to convert this Security, or portion hereof
(which is $1,000 principal amount or an integral multiple thereof) below
designated, for shares of Class A Common Stock of Triarc Companies, Inc. in
accordance with the terms of the Indenture referred to in this Security, and
directs that the shares issuable and deliverable upon such conversion, together
with any check in payment for fractional shares and any Securities representing
any unconverted principal amount hereof, be issued and delivered to the
registered holder hereof unless a different name has been indicated below. If
shares or any portion of this Security not converted are to be issued in the
name of a person other than the undersigned, the undersigned will pay all
transfer taxes payable with respect thereto.
Dated:
______________________________
______________________________
Signature(s)
<PAGE>
18
Fill in for registration of shares if to be delivered, and Securities if to be
issued other than to and in the name of the registered holder:
______________________________
(Name)
______________________________
(Street Address)
______________________________
(City, State and zip code)
Please print name and address
Principal amount to be converted (if less than
all):
$____,000
--------------------------------
Social Security or Other
Taxpayer Identification Number
<PAGE>
19
[FORM OF OPTION TO ELECT REDEMPTION
UPON A FUNDAMENTAL CHANGE]
To: Triarc Companies, Inc.
The undersigned registered holder of this Security hereby
acknowledges receipt of a notice from Triarc Companies, Inc. (the "Company") as
to the occurrence of a Fundamental Change with respect to the Company and
requests and instructs the Company to redeem this Security, or the portion
hereof (which is $1,000 Principal Amount or an integral multiple thereof) below
designated, in accordance with the terms of the Indenture referred to in this
Security.
Dated: _____________________
________________________________
________________________________
Signature(s)
Principal amount to be redeemed (if less
than all):
$____________
________________________________
Social Security or Other
Taxpayer Identification Number
<PAGE>
20
[FORM OF ASSIGNMENT FOR SECURITY]
For value received ______________________ hereby sell(s),
assign(s)
and transfer(s) unto __________________________________
(Please insert social security or other
taxpayer identification number of
assignee.)
the within Security and hereby irrevocably constitutes and appoints
_______________ attorney to transfer the said Security on the books of the
Company, with full power of substitution in the premises.
In connection with any transfer of the within Security occurring prior to the
Transfer Restriction Termination Date, the undersigned confirms that such
Security is being transferred:
|_| To Triarc Companies, Inc. or a subsidiary thereof; or
|_| Pursuant to and in compliance with Rule 144A under the
Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Regulation S under
the Securities Act of 1933, as amended; or
|_| Pursuant to and in compliance with Rule 144 under the
Securities Act of 1933, as amended;
<PAGE>
21
and unless the box below is checked, the undersigned confirms that such Security
is not being transferred to an "affiliate" of the Company as defined in Rule 144
under the Securities Act of 1933, as amended (an "Affiliate"):
|_| The transferee is an Affiliate of the Company.
Dated: _____________________
___________________________
___________________________
Signature(s)
Signature(s) must be guaranteed, by a
commercial bank or trust company or a
member firm of a major stock exchange.
__________________________________
Signature Guarantee
NOTICE: The above signatures of the holder(s) hereof must correspond with the
name as written upon the face of this Security in every particular without
alteration or enlargement or any change whatever.
<PAGE>
22
[FORM OF GUARANTY FOR ENDORSEMENTS ON GLOBAL SECURITY]
TO REFLECT CHANGES IN PRINCIPAL AMOUNT]
Schedule A
Changes to Principal Amount of Global Security
Principal Amount of
Securities by which
this Global
Security
Is To Be Reduced or
Increased, and
Reason for Remaining Principal
Reduction Amount of this Notation
Date or Increase Global Security Made by
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<PAGE>
TABLE OF CONTENTS
Page
ARTICLE 1
DEFINITIONS AND INCORPORATION BY REFERENCE
Section 1.01. Definitions................................................
Section 1.02. Other Definitions..........................................
Section 1.03. Incorporation by Reference of Trust
Indenture Act..............................................
Section 1.04. Rules of Construction......................................
ARTICLE 2
THE SECURITIES
Section 2.01. Form and Dating............................................
Section 2.02. Execution and Authentication...............................
Section 2.03. Registrar, Paying Agent and Conversion
Agent......................................................
Section 2.04. Paying Agent to Hold Money and
Securities in Trust........................................
Section 2.05. Securityholder Lists.......................................
Section 2.06. Exchange and Registration of Transfer of
Securities; Restrictions on Transfers;
Depositary.................................................
Section 2.07. Replacement Securities.....................................
Section 2.08. Outstanding Securities; Determinations
of Holders' Action.........................................
Section 2.09. Temporary Securities.......................................
Section 2.10. Cancelation................................................
Section 2.11. Persons Deemed Owners......................................
i
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Page
Section 2.12. CUSIP Numbers..............................................
ARTICLE 3
REDEMPTION AND PURCHASES
Section 3.01. Right to Redeem; Notices to Trustee........................
Section 3.02. Selection of Securities to be
Redeemed............................
Section 3.03. Notice of Redemption.......................................
Section 3.04. Effect of Notice of Redemption.............................
Section 3.05. Deposit of Redemption Price................................
Section 3.06. Securities Redeemed in Part................................
Section 3.07. Conversion Arrangement on Call for
Redemption.................................................
Section 3.08. Purchase of Securities at Option of the
Holder.....................................................
Section 3.09. Redemption at Option of the Holder upon
a Fundamental Change.......................................
Section 3.10. Effect of Purchase Notice or Fundamental
Change Redemption Notice...................................
Section 3.11. Deposit of Purchase Price or Fundamental
Change Redemption Price....................................
Section 3.12. Securities Purchased in Part...............................
Section 3.13. Covenant to Comply with Securities Laws
upon Purchase of Securities................................
Section 3.14. Repayment to the Company...................................
ARTICLE 4
COVENANTS
Section 4.01. Payment of Securities......................................
ii
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Page
Section 4.02. Financial Information; SEC Reports.........................
Section 4.03. Compliance Certificate.....................................
Section 4.04. Further Instruments and Acts...............................
Section 4.05. Maintenance of Office or Agency............................
Section 4.06. Corporate Existence........................................
Section 4.07. Statement by Officers as to Default........................
Section 4.08. Notice of Orignal Issue Discount...........................
ARTICLE 5
SUCCESSOR CORPORATION
Section 5.01. When the Company May Merge or Transfer
Assets.....................................................
ARTICLE 6
DEFAULTS AND REMEDIES
Section 6.01. Events of Default..........................................
Section 6.02. Acceleration...............................................
Section 6.03. Other Remedies.............................................
Section 6.04. Waiver of Past Defaults....................................
Section 6.05. Control by Majority........................................
Section 6.06. Limitation on Suits........................................
Section 6.07. Rights of Holders to Receive Payment.......................
Section 6.08. Collection Suit by Trustee.................................
Section 6.09. Trustee May File Proofs of Claim...........................
Section 6.10. Priorities.................................................
iii
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Page
Section 6.11. Undertaking for Costs......................................
Section 6.12. Waiver of Stay, Extension or Usury
Laws................................
ARTICLE 7
TRUSTEE
Section 7.01. Duties of Trustee..........................................
Section 7.02. Rights of Trustee..........................................
Section 7.03. Individual Rights of Trustee...............................
Section 7.04. Trustee's Disclaimer.......................................
Section 7.05. Notice of Defaults.........................................
Section 7.06. [Reserved].................................................
Section 7.07. Compensation and Indemnity.................................
Section 7.08. Replacement of Trustee.....................................
Section 7.09. Successor Trustee by Merger................................
Section 7.10. Eligibility; Disqualification..............................
Section 7.11. Reports by Trustee.........................................
ARTICLE 8
DISCHARGE OF INDENTURE
Section 8.01. Discharge of Liability on Securities.......................
Section 8.02. Repayment to the Company...................................
ARTICLE 9
AMENDMENTS
Section 9.01. Without Consent of Holders.................................
Section 9.02. With Consent of Holders....................................
Section 9.03. Compliance with Trust Indenture Act........................
iv
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Page
Section 9.04. Revocation and Effect of Consents,
Waivers and Actions........................................
Section 9.05. Notation on or Exchange of Securities......................
Section 9.06. Trustee to Sign Supplemental
Indentures..........................
Section 9.07. Effect of Supplemental Indentures..........................
ARTICLE 10
SUBORDINATION
Section 10.01. Agreement of Subordination.................................
Section 10.02. Payments to Securityholders................................
Section 10.03. Subrogation of Securities..................................
Section 10.04. Authorization by Securityholders...........................
Section 10.05. Notice to Trustee..........................................
Section 10.06. Trustee's Relation to Specified Senior
Indebtedness...............................................
Section 10.07. No Impairment of Subordination.............................
Section 10.08. Reliance by Holders of Specified Senior
Indebtedness on Subordination Provisions...................
Section 10.09. Reinstatement of Subordination.............................
Section 10.10. Permitted Payments.........................................
Section 10.11. Article Applicable to Paying Agents........................
ARTICLE 11
CONVERSION
Section 11.01. Conversion Privilege.......................................
Section 11.02. Conversion Procedure.......................................
v
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Page
Section 11.03. Fractional Shares..........................................
Section 11.04. Taxes on Conversion........................................
Section 11.05. Company to Provide Stock...................................
Section 11.06. Adjustment for Change in Capital
Stock...............................
Section 11.07. Adjustments for Rights Issue...............................
Section 11.08. Adjustment for Other Distributions.........................
Section 11.09. When Adjustment May be Deferred............................
Section 11.10. When no Adjustment Required................................
Section 11.11. Notice of Adjustment.......................................
Section 11.12. Voluntary Increase.........................................
Section 11.13. Notice of Certain Transactions.............................
Section 11.14. Effect of Reclassification,
Consolidation, Merger or Sale..............................
Section 11.15. Company Determination Final................................
Section 11.16. Trustee's Adjustment Disclaimer............................
Section 11.17. Simultaneous Adjustments...................................
Section 11.18. Successive Adjustments.....................................
Section 11.19. General Considerations.....................................
ARTICLE 12
MISCELLANEOUS
Section 12.01. Trust Indenture Act Controls...............................
Section 12.02. Notices....................................................
Section 12.03. Communication by Holders with Other
Holders....................................................
Section 12.04. Certificate and Opinion as to Conditions
Precedent..................................................
vi
<PAGE>
Page
Section 12.05. Statements Required in Certificate or
Opinion....................................................
Section 12.06. Separability Clause........................................
Section 12.07. Rules by Trustee, Paying Agent,
Conversion Agent and Registrar.............................
Section 12.08. Legal Holidays.............................................
Section 12.09. Governing Law..............................................
Section 12.10. No Recourse Against Others.................................
Section 12.11. Successors.................................................
Section 12.12. Multiple Originals.........................................
vii
<PAGE>
Exhibit 4.2
REGISTRATION RIGHTS AGREEMENT
THIS REGISTRATION RIGHTS AGREEMENT (the "Agreement") is made and entered
into as of February 4, 1998, by and among Triarc Companies, Inc., a Delaware
corporation (the "Company"), and Morgan Stanley & Co. Incorporated (the "Initial
Purchaser") pursuant to the Placement Agreement, dated as of February 4, 1998
(the "Placement Agreement"), between the Company and the Initial Purchaser. In
order to induce the Initial Purchaser to enter into the Placement Agreement the
Company has agreed to provide the registration rights set forth in this
Agreement. The execution of this Agreement is a condition to the closing under
the Placement Agreement.
The Company agrees with the Initial Purchaser, (i) for its benefit as
the Initial Purchaser and (ii) for the benefit of the holders from time to time
of the Debentures (including the Initial Purchaser) and the holders from time to
time of the Common Stock issued upon conversion of the Debentures (each of the
foregoing a "Holder" and together the "Holders"), as follows:
1. Definitions. Capitalized terms used herein without definition
shall have their respective meanings set forth in the Placement Agreement. As
used in this Agreement, the following terms shall have the following meanings:
Affiliate: "Affiliate" means, with respect to any specified
person, (i) any other person directly or indirectly controlling or controlled
by, or under direct or indirect common control with, such specified person or
(ii) any executive officer or director of such other person. For purposes of
this definition, the term "control" (including the terms "controlling,"
"controlled by" and "under common control with") of a person means the
possession, direct or indirect, of the power (whether or not exercised) to
direct or cause the direction of the management and policies of a person,
whether through the ownership of voting securities, by contract, or otherwise
and the term "executive officer" has the meaning specified in Rule 3b-7 under
the Exchange Act.
Business Day: Each Monday, Tuesday, Wednesday, Thursday and
Friday that is not a day on which banking institutions in The City of New York
are authorized or obligated by law or executive order to close.
Common Stock: The shares of Class A Common Stock, $.10 par value
per share, of the Company and any other shares of common stock as may constitute
"Common Stock" for purposes of the Indenture, in each case, as issuable or
issued upon conversion of the Debentures.
Damages Accrual Period: See Section 2(e) hereof.
Debentures: The Zero Coupon Convertible Subordinated Debentures
Due 2018 of the Company being issued and sold pursuant to the Placement
Agreement and the Indenture.
<PAGE>
Deferral Period: See Section 2(d) hereof.
Effectiveness Period: The period commencing with the date hereof
and ending on the date that all Registrable Securities have ceased to be
Registrable Securities.
Event: See Section 2(e) hereof.
Event Date: See Section 2(e) hereof.
Exchange Act: The Securities Exchange Act of 1934, as amended,
and the rules and regulations of the SEC promulgated thereunder.
Filing Date: See Section 2(a) hereof.
Holder: See the second paragraph of this Agreement.
Indenture: The Indenture, dated as of February 9, 1998 between
the Company and The Bank of New York, as Trustee, pursuant to which the
Debentures are being issued, as amended or supplemented from time to time in
accordance with the terms hereof.
Initial Purchaser: See the first paragraph of this Agreement.
Initial Shelf Registration: See Section 2(a) hereof.
Liquidated Damages: See Section 2(e) hereof.
Losses: See Section 6 hereof.
Managing Underwriters: The investment banking firm or firms that
shall manage or co-manage an Underwritten Offering.
Notice and Questionnaire: A written notice delivered to the
Company and the Trustee containing substantially the information called for by
the Notice and the Questionnaire attached as Appendix F to the Offering
Memorandum of the Company dated as of the date hereof relating to the
Debentures.
Notice Holder: On any date, any Holder that has delivered a
Notice and Questionnaire to the Company on or prior to such date.
Placement Agreement: See the first paragraph of this Agreement.
Prospectus: The prospectus included in any Registration
Statement (including,
2
<PAGE>
without limitation, a prospectus that discloses information previously omitted
from a prospectus filed as part of an effective registration statement in
reliance upon Rule 430A promulgated under the Securities Act), as amended or
supplemented by any amendment or prospectus supplement, including post-effective
amendments, and all material incorporated by reference or deemed to be
incorporated by reference in such Prospectus.
Registrable Securities: (A) The Common Stock of the Company into
which the Debentures are convertible or converted, whether or not such
Debentures have been converted, and at all times subsequent thereto, and any
Common Stock issued with respect thereto upon any stock dividend, split or
similar event until, in the case of any such Common Stock, (i) it is effectively
registered under the Securities Act and disposed of in accordance with the
Registration Statement covering it, (ii) it is saleable by the holder thereof
pursuant to Rule 144(k) (or any successor provision) or (iii) it is sold to the
public pursuant to Rule 144, and, as a result of the event or circumstance
described in any of the foregoing clauses (i) through (iii), the legends with
respect to transfer restrictions required under the Indenture (other than any
such legends required solely as the consequence of the fact that such Common
Stock (or the Debentures, upon the conversion of which such Common Stock was
issued or is issuable) is owned by, or was previously owned by, the Company or
an Affiliate of the Company) are removed or removable in accordance with the
terms of the Indenture; and (B) the Debentures, until, in the case of any such
Debenture, (i) it is converted into shares of Common Stock in accordance with
the terms of the Indenture, (ii) it is effectively registered under the
Securities Act and disposed of in accordance with the Registration Statement
covering it, (iii) it is saleable by the holder thereof pursuant to Rule 144(k)
(or any successor provision) or (iv) it is sold to the public pursuant to Rule
144, and, as a result of the event or circumstance described in any of the
foregoing clauses (ii) through (iv), the legends with respect to transfer
restrictions required under the Indenture (other than any such legends required
solely as the consequence of the fact that such Debenture is owned by, or was
previously owned by, the Company or an Affiliate of the Company) are removed or
removable in accordance with the terms of the Indenture.
Registration Statement: Any registration statement of the Company
which covers any of the Registrable Securities pursuant to the provisions of
this Agreement, including the Prospectus, amendments and supplements to such
registration statement, including post-effective amendments, all exhibits, and
all material incorporated by reference or deemed to be incorporated by reference
in such registration statement.
Requisite Information: See Section 2(d) hereof.
Rule 144: Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereafter adopted
by the SEC.
Rule 144A: Rule 144A under the Securities Act, as such Rule may
be amended from time to time, or any similar rule or regulation hereafter
adopted by the SEC.
3
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SEC: The Securities and Exchange Commission.
Securities Act: The Securities Act of 1933, as amended, and the
rules and regulations promulgated by the SEC thereunder.
Selling Period: See Section 2(d)(i) hereof.
Shelf Registration: See Section 2(a) hereof.
Special Counsel: Cravath, Swaine & Moore or such successor
counsel as shall be specified by the Holders of a majority of the Registrable
Securities, the reasonable fees and expenses of which will be paid by the
Company pursuant to Section 5 hereof.
Subsequent Shelf Registration: See Section 2(b) hereof.
TIA: The Trust Indenture Act of 1939, as amended.
Trustee: The Trustee under the Indenture.
Underwritten Registration or Underwritten Offering: A
registration in which securities of the Company are sold to an underwriter for
reoffering to the public.
2. Shelf Registration.
(a) Shelf Registration. The Company shall prepare and file with
the SEC, as soon as practicable but in any event no later than the date 90 days
following the latest date of original issuance of the Debentures (the "Filing
Date"), a Registration Statement for an offering to be made on a continuous
basis pursuant to Rule 415 of the Securities Act (a "Shelf Registration")
registering the resale from time to time by Holders thereof of all of the
Registrable Securities (the "Initial Shelf Registration"). The Initial Shelf
Registration shall be on Form S-3 or another appropriate form permitting
registration of such Registrable Securities for resale by the Holders in the
manner or manners designated by them. If the Holders of a majority of
Registrable Securities so elect, an offering of Registrable Securities pursuant
to the Shelf Registration Statement may be effected in the form of an
Underwritten Offering; provided that the Company shall not be obligated to
cooperate with the Holders hereunder in connection with more than three such
Underwritten Offerings or in connection with any Underwritten Offering where the
aggregate offering price is less than $10 million principal amount at maturity.
The Company shall use its reasonable efforts to cause the Initial Shelf
Registration to be declared effective under the Securities Act as soon as
practicable and to keep the Initial Shelf Registration continuously effective
under the Securities Act until the earlier of the expiration of the
Effectiveness Period or the date a Subsequent Shelf Registration, as defined
below, covering all of the Registrable Securities has been declared effective
under the Securities Act.
4
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(b) If the Initial Shelf Registration or any Subsequent Shelf
Registration, as defined below, ceases to be effective for any reason as a
result of the issuance of a stop order by the SEC at any time during the
Effectiveness Period, the Company shall use its reasonable efforts to obtain the
prompt withdrawal of any order suspending the effectiveness thereof, and in any
event shall within 30 days of such cessation of effectiveness amend the Shelf
Registration in a manner reasonably expected to obtain the withdrawal of the
order suspending the effectiveness thereof, or file an additional Shelf
Registration covering all of the Registrable Securities (a "Subsequent Shelf
Registration"). If a Subsequent Shelf Registration is filed, the Company shall
use its reasonable efforts to cause the Subsequent Shelf Registration to be
declared effective as soon as practicable after such filing and to keep such
Registration Statement continuously effective until the end of the Effectiveness
Period.
(c) The Company shall supplement and amend the Shelf Registration
if required by the rules, regulations or instructions applicable to the
registration form used by the Company for such Shelf Registration, if required
by the Securities Act, or if reasonably requested by the Initial Purchaser or by
the Trustee on behalf of the Holders of a majority of the Registrable Securities
covered by such Registration Statement or by any Managing Underwriter of such
Registrable Securities in the event of an Underwritten Offering of the
Registrable Securities.
(d) Each Holder of Registrable Securities agrees that if such
Holder wishes to sell its Registrable Securities pursuant to a Shelf
Registration and related Prospectus, it will do so only in accordance with this
Section 2(d). Each Holder of Registrable Securities wishing to sell Registrable
Securities pursuant to a Shelf Registration and related Prospectus agrees to
deliver a Notice and Questionnaire to the Company at least five Business Days
prior to any intended distribution of Registrable Securities under the Shelf
Registration Statement. The Company shall be under no obligation to name any
Holder that is not a Notice Holder as a selling securityholder in any
Registration Statement or related Prospectus. As soon as practicable after the
date a Notice and Questionnaire is provided, and in any event within five
Business Days after such date, the Company shall either:
i. (A) If necessary, prepare and file with the
Commission a post effective amendment to the Shelf Registration or a
supplement to the related Prospectus or a supplement or amendment to any
document incorporated therein by reference or file any other required
document so that such Registration Statement will not contain an untrue
statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and so that, as thereafter delivered to purchasers of the Registrable
Securities being sold thereunder, such Prospectus will comply in all material
respects with the rules and requirements under the Securities Act and will not
contain an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances under which they were made, not
misleading; (B) provide each Notice Holder (as defined below) copies of any
documents filed pursuant to Section 2(d)(i)(A); and (C) inform each
Notice Holder orally or in writing that the
5
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Company has complied with its obligations in Section 2(d)(i)(A) (or that, if the
Company has filed a post-effective amendment to the Shelf Registration which has
not yet been declared effective, the Company will notify the Notice Holder to
that effect, will use its reasonable efforts to secure the effectiveness of such
post-effective amendment and will promptly notify the Notice Holder when the
amendment has become effective); and each Holder who has given notice of
intention to distribute such Holder's Registrable Securities in accordance with
Section 2(d) hereof (a "Notice Holder") will sell all or any of such Registrable
Securities pursuant to the Shelf Registration and related Prospectus only during
the 45-day period commencing with the date on which the Company gives notice,
pursuant to Section 2(d)(i)(C), that the Registration Statement and Prospectus
may be used for such purpose (such 45-day period is referred to as a "Selling
Period"). The Notice Holders will not sell any Registrable Securities pursuant
to such Registration Statement or Prospectus after such Selling Period without
giving a new notice of intention to sell pursuant to Section 2(d) hereof and
receiving a further notice from the Company pursuant to Section 2(d)(i)(C)
hereof.
ii. In the event (A) of the happening of any event of the kind
described in Section 3(c)(ii), 3(c)(iii), 3(c)(iv), 3(c)(v) or 3(c)(vi) hereof
or (B) that, in the judgment of the Company, it is advisable to suspend use of
the Prospectus for a discrete period of time due to pending material corporate
developments or similar material events that have not yet been publicly
disclosed and as to which the Company believes that public disclosure would not
be in the best interests of the Company, the Company shall deliver a certificate
in writing, signed by an authorized executive officer of the Company, to each
Notice Holder, the Special Counsel and the Managing Underwriters, if any, that
the use of the Prospectus has been suspended and, upon receipt of such
certificate, each such Notice Holder's Selling Period will not commence or
resume, as the case may be, until such Notice Holder's receipt of copies of the
supplemented or amended Prospectus provided for in Section 2(d)(i)(A) hereof, or
until it is advised in writing by the Company that the Prospectus may be used
and has received copies of any additional or supplemental filings that are
incorporated or deemed incorporated by reference in such Prospectus. The Company
will use its reasonable efforts to ensure that the use of the Prospectus may be
resumed, and the Selling Period will commence or resume, as the case may be, as
soon as practicable and, in the case of a pending development or event referred
to in Section 2(d)(ii)(B) hereof, as soon as the earlier of (x) public
disclosure of such pending material corporate development or similar material
event, (y) in the judgment of the Company, public disclosure of such material
corporate development or similar material event would be in the best interests
of the Company or (z) the original circumstances creating such pending material
corporate development or similar material event cease to exist. Notwithstanding
the foregoing, the Company shall not under any circumstances be entitled to
exercise its right under this Section 2(d)(ii) to defer the commencement of a
Selling Period except as follows: the Company may defer the commencement of a
Selling Period in accordance with this Section 2(d)(ii) for a period not to
exceed 30 days in any three-month period, or not to exceed an aggregate of 90
days in any 12-month period, and the period for which a Selling Period is
suspended shall not exceed 15 days unless the Company shall deliver to such
Notice Holders a second notice to the effect set forth
6
<PAGE>
above, which shall have the effect of extending the period during which such
Selling Period is deferred by up to an additional 15 days, or such shorter
period of time as is specified in such second notice. In no event shall the
Company be permitted to extend the period during which such Selling Period is
deferred (a "Deferral Period") beyond such 30 day period from and after the date
a Notice Holder provides notice to the Company in accordance with this Section
2(d) of its intention to distribute Registrable Securities.
(e) The parties hereto agree that the Holders of Registrable Securities
will suffer damages, and that it would not be feasible to ascertain the extent
of such damages with precision, if (i) the Initial Shelf Registration has not
been filed on or prior to the Filing Date, (ii) prior to the end of the
Effectiveness Period, the SEC shall have issued a stop order suspending the
effectiveness of the Shelf Registration or proceedings have been initiated with
respect to the Shelf Registration under Section 8(d) or 8(e) of the Securities
Act, (iii) the aggregate number of days in any one Deferral Period exceeds the
periods permitted pursuant to Section 2(d)(ii) hereof or (iv) the number of
Deferral Periods exceeds the number permitted pursuant to Section 2(d)(ii)
hereof (each of the events of a type described in any of the foregoing clauses
(i) through (iv) are individually referred to herein as an "Event," and the
Filing Date in the case of clause (i), the date on which the effectiveness of
the Shelf Registration has been suspended or proceedings with respect to the
Shelf Registration under Section 8(d) or 8(e) of the Securities Act have been
commenced in the case of clause (ii), the date on which the duration of a
Deferral Period exceeds the periods permitted by Section 2(d)(ii) hereof in the
case of clause (iii), and the date of the commencement of a Deferral Period that
causes the limit on the number of Deferral Periods under Section 2(d)(ii) hereof
to be exceeded in the case of clause (iv), being referred to herein as an "Event
Date"). Events shall be deemed to continue until the date of the termination of
such Event, which shall be the following dates with respect to the respective
types of Events: the date the Initial Registration Statement is filed in the
case of an Event of the type described in clause (i), the date that all stop
orders suspending effectiveness of the Shelf Registration have been removed and
the proceedings initiated with respect to the Shelf Registration under Section
8(d) or 8(e) of the Securities Act have terminated, as the case may be, in the
case of Events of the types described in clause (ii), termination of the
Deferral Period which caused the aggregate number of days in any one Deferral
Period to exceed the number permitted by Section 2(d)(ii) to be exceeded in the
case of Events of the type described in clause (iii), and termination of the
Deferral Period the commencement of which caused the number of Deferral Periods
permitted by Section 2(d)(ii) to be exceeded in the case of Events of the type
described in clause (iv).
Accordingly, upon the occurrence of any Event and until such time as
there are no Events which have occurred and are continuing (a "Damages Accrual
Period"), commencing on the Event Date on which such Damages Accrual Period
began, the Company agrees to pay, as liquidated damages, and not as a penalty,
an additional amount (the "Liquidated Damages"): (A)(i) to each holder of a
Debenture that is a Notice Holder, accruing at a rate equal to one-half of one
percent per annum (50 basis points) on an amount equal to the sum of (x) the
Issue Price (as defined in the Indenture) of the Debentures held by such Notice
Holders and (y) the accrued
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Original Issue Discount (as defined in the Indenture) on such Debentures to the
Event Date and (ii) to each holder of Common Stock that is a Notice Holder,
accruing at a rate equal to one-half of one percent per annum (50 basis points)
calculated on an amount equal to the product of (x) the then-applicable
Conversion Price (which is equal to (I) the sum of the Issue Price and the
accrued Original Issue Discount on the Debentures at such time, divided by (II)
the Conversion Rate (as defined in the Indenture) then in effect), or, in the
event that each Debenture has been converted to Common Stock, the Conversion
Price applicable to the Debenture last converted, times (y) the number of shares
of Common Stock held by such holder; and (B) if the Damages Accrual Period
continues for a period in excess of 30 days from the Event Date, from and after
the end of such 30 days until such time as there are no Events which have
occurred and are continuing, (i) to each holder of a Debenture (whether or not a
Notice Holder), accruing at a rate equal to one-half of one percent per annum
(50 basis points) on an amount equal to the sum of (x) the Issue Price of the
Debentures held by such holder and (y) the accrued Original Issue Discount on
such Debentures to the Event Date and (ii) to each holder of Common Stock
(whether or not a Notice Holder), accruing at a rate equal to one-half of one
percent per annum (50 basis points) calculated on an amount equal to the product
of (x) the then applicable Conversion Price (as defined in the Indenture), times
(y) the number of shares of Common Stock held by such holder. Notwithstanding
the foregoing, no Liquidated Damages shall accrue under clause (A) of the
preceding sentence during any period for which Liquidated Damages accrue under
clause (B) of the preceding sentence or as to any Registrable Securities from
and after the expiration of the Effectiveness Period. The rate of accrual of the
Liquidated Damages with respect to any period shall not exceed the rate provided
for in this paragraph notwithstanding the occurrence of multiple concurrent
Events.
The Company shall pay the Liquidated Damages due on any Debentures or
Common Stock by depositing with the Trustee under the Indenture, in trust, for
the benefit of the holders of Debentures or Common Stock or Notice Holders, as
the case may be, entitled thereto, at least one Business Day prior to the
applicable payment date, sums sufficient to pay the Liquidated Damages accrued
or accruing from and including the last preceding payment date to, but not
including, such payment date. The Liquidated Damages due shall be payable on
each March 31, June 30, September 30 and December 31 to the Holders of
Registrable Securities entitled thereto holding such Registrable Securities on
the preceding March 15, June 15, September 15 and December 15, respectively, by
wire transfer of immediate available funds to the accounts specified by them or
by mailing checks to the addresses set forth in the Notice and Questionnaire
delivered by such Holder, if no such accounts have been specified on or before
the payment date; provided, however, that any Liquidated Damages accrued with
respect to any Debenture or portion thereof called for redemption on a
redemption date, redeemed or repurchased in connection with a Fundamental Change
(as defined in the Indenture) on a repurchase date, or converted into Common
Stock on a conversion date prior to the applicable payment date, shall, in any
such event, be paid instead to the holder who submitted such Debenture or
portion thereof for redemption, repurchase or conversion on the applicable
redemption date, repurchase date or conversion date, as the case may be, on such
date (or promptly following the conversion date, in
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the case of conversion of a Debenture). The Trustee shall be entitled, on behalf
of the holders of Debentures, holders of Common Stock and Notice Holders, to
seek any available remedy for the enforcement of this Agreement, including the
payment of such Liquidated Damages. Notwithstanding the foregoing, the parties
agree that the sole damages payable for a violation of the terms of this
Agreement with respect to which Liquidated Damages are expressly provided shall
be such Liquidated Damages. Nothing shall preclude a Notice Holder or Holder of
Registrable Securities from pursuing or obtaining specific performance or other
equitable relief with respect to this Agreement, in addition to the payment of
Liquidated Damages.
All of the Company's obligations set forth in this Section 2(e) which
are outstanding with respect to any Registrable Securities at the time such
security ceases to be a Registrable Security shall survive until such time as
all such obligations with respect to such security have been satisfied in full
(notwithstanding termination of the Agreement pursuant to Section 8(o)).
The parties hereto agree that the Liquidated Damages provided for in
this Section 2(e) constitute a reasonable estimate of the damages that may be
incurred by Holders of Registrable Securities (other than the Initial Purchaser)
by reason of the failure of the Shelf Registration to be filed or declared
effective or unavailable (absolutely or as a practical matter) for effecting
resales of Registrable Securities, as the case may be, in accordance with the
provisions hereof.
3. Registration Procedures. In connection with the Company's
registration obligations under Section 2 hereof, the Company shall effect such
registrations to permit the sale of the Registrable Securities in accordance
with the intended method or methods of disposition thereof, and pursuant thereto
the Company shall as expeditiously as possible (and with respect to clause (a),
no later than the date 90 days following the latest date of original issuance of
the Debentures).
(a) Prepare and file with the SEC a Registration Statement or
Registration Statements on any appropriate form under the Securities Act
available for the sale of the Registrable Securities by the Holders thereof in
accordance with the intended method or methods of distribution thereof, and use
its reasonable efforts to cause each such Registration Statement to become
effective and remain effective as provided herein; provided that before filing
any such Registration Statement or Prospectus or any amendments or supplements
thereto (other than documents that would be incorporated or deemed to be
incorporated therein by reference and that the Company is required by applicable
securities laws or stock exchange requirements to file) the Company shall
furnish to the Initial Purchaser, the Special Counsel and the Managing
Underwriters of such offering, if any, copies of all such documents proposed to
be filed, which documents will be subject to the review of the Initial
Purchaser, the Special Counsel and such Managing Underwriters, and the Company
shall not file any such Registration Statement or amendment thereto or any
Prospectus or any supplement thereto (other than such documents which, upon
filing, would be incorporated or deemed to be incorporated by reference therein
and that the Company is required by applicable securities laws or stock exchange
requirements to
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<PAGE>
file) to which the Holders of a majority of the Registrable Securities covered
by such Registration Statement, the Initial Purchaser or the Special Counsel
shall reasonably object in writing within two full Business Days.
(b) Prepare and file with the SEC such amendments and
post-effective amendments to each Registration Statement as may be necessary to
keep such Registration Statement continuously effective for the applicable
period specified in Section 2; cause the related Prospectus to be supplemented
by any required Prospectus supplement, and as so supplemented to be filed
pursuant to Rule 424 (or any similar provisions then in force) under the
Securities Act; and comply with the provisions of the Securities Act with
respect to the disposition of all securities covered by such Registration
Statement and Prospectus during the applicable period in accordance with the
intended methods of disposition by the sellers thereof set forth in such
Registration Statement as so amended or such Prospectus as so supplemented.
(c) Notify the Notice Holders, the Initial Purchaser, the Special
Counsel and the Managing Underwriters, if any, promptly, and (if required by any
such person) confirm such notice in writing, (i) when a Prospectus, any
Prospectus supplement, a Registration Statement or a post-effective amendment to
a Registration Statement has been filed with the SEC, and, with respect to a
Registration Statement or any post-effective amendment, when the same has become
effective, provided, however, that the Company shall notify the Notice Holders
of (a) the filing of the Initial Shelf Registration and (b) the effectiveness of
the Initial Shelf Registration pursuant to Section 3(s), (ii) of any request by
the SEC or any other federal or state governmental authority for amendments or
supplements to a Registration Statement or related Prospectus or for additional
information, (iii) of the suspension of the effectiveness of a Registration
Statement or the initiation or threatening of any proceedings for that purpose,
(iv) of the receipt by the Company of any notification with respect to the
suspension of the qualification or exemption from qualification of any of the
Registrable Securities for sale in any jurisdiction or the initiation or
threatening of any proceeding for such purpose, (v) of the existence of any fact
or happening of any event which makes any statement of a material fact in such
Registration Statement or related Prospectus or any document incorporated or
deemed to be incorporated therein by reference untrue or which would require the
making of any changes in the Registration Statement or prospectus in order that,
in the case of the Registration Statement, it will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, and
that in the case of the Prospectus, it will not contain any untrue statement of
a material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and (vi) of the Company's
determination that a post-effective amendment to a Registration Statement would
be appropriate.
(d) Use its reasonable efforts to obtain the withdrawal of any
order suspending the effectiveness of a Registration Statement, or the lifting
of any suspension of the qualification (or exemption for qualification) of any
of the Registrable Securities for sale in any jurisdiction, at
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the earliest possible moment.
(e) If reasonably requested by the Initial Purchaser or the
Managing Underwriters, if any, or the Holders of a majority of the Registrable
Securities being sold, (i) promptly incorporate in a Prospectus supplement or
post-effective amendment to a Registration Statement such information as the
Initial Purchaser, the Special Counsel, the Managing Underwriters, if any, or
such Holders, in connection with any offering of Registrable Securities, agree
should be included therein as required by applicable law, and (ii) make all
required filings of such Prospectus supplement or such post-effective amendment
as soon as practicable after the Company has received notification of the
matters to be incorporated in such Prospectus supplement or post-effective
amendment; provided, that the Company shall not be required to take any actions
under this Section (3)(e) that are not, in the opinion of counsel for the
Company, in compliance with applicable law.
(f) Furnish to each selling Holder, the Special Counsel and the
Initial Purchaser, and each Managing Underwriter, if any, without charge, at
least one conformed copy of the Registration Statement or Statements and any
amendment thereto, including financial statements but excluding schedules, all
documents incorporated or deemed to be incorporated therein by reference and all
exhibits (unless requested in writing by such selling Holder, Special Counsel,
the Initial Purchaser or the Managing Underwriters).
(g) Deliver to each selling Holder, the Special Counsel and the
Initial Purchaser and each Managing Underwriter, if any, in connection with any
offering of Registrable Securities, without charge, as many copies of the
Prospectus or Prospectuses relating to such Registrable Securities (including
each preliminary prospectus) and any amendment or supplement thereto as such
persons may reasonably request; and the Company hereby consents to the use of
such Prospectus or each amendment or supplement thereto by each of the selling
Holders of Registrable Securities and the underwriters, if any, in connection
with any offering and sale of the Registrable Securities covered by such
Prospectus or any amendment or supplement thereto.
(h) Prior to any public offering of Registrable Securities, to
register or qualify or cooperate with the selling Holders, the Managing
Underwriters, if any, and the Special Counsel in connection with the
registration or qualification (or exemption from such registration or
qualification) of such Registrable Securities for offer and sale under the
securities or Blue Sky laws of such jurisdictions within the United States as
any selling Holder or Managing Underwriter reasonably requests in writing (which
request, in the case of a selling Holder, may be included in the Notice and
Questionnaire); keep each such registration or qualification (or exemption
therefrom) effective during the period such Registration Statement is required
to be kept effective and do any and all other acts or things necessary or
advisable to enable the disposition in such jurisdictions of the Registrable
Securities covered by the applicable Registration Statement; provided, that the
Company will not be required to (i) qualify generally
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to do business in any jurisdiction where it is not then so qualified or (ii)
take any action that would subject it to general service of process in suits or
to taxation in any such jurisdiction where it is not then so subject.
(i) Cause the Registrable Securities covered by the applicable
Registration Statement to be registered with or approved by such other
governmental agencies or authorities within the United States, except as may be
required solely as a consequence of the nature of any selling Holder, in which
case the Company will cooperate in all reasonable respects with the filing of
such Registration Statement and the granting of such approvals, as may be
necessary to enable the selling Holder or Holders thereof or the Managing
Underwriters, if any, to consummate the disposition of such Registrable
Securities.
(j) During any Selling Period (other than during a Deferral
Period) immediately upon the existence of any fact or the occurrence of any
event as a result of which a Registration Statement contains any untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading, or a
Prospectus contains any untrue statement of a material fact or omits to state
any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, promptly prepare and file (subject to the proviso in
Section 3(a)) a post-effective amendment to each Registration Statement or a
supplement to the related Prospectus or any document incorporated therein by
reference or file any other required document (such as a Current Report on Form
8-K) that would be incorporated by reference into the Registration Statement so
that the Registration Statement shall not contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary to make the statements therein not misleading, and so that the
Prospectus will not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary to make the
statements therein, in the light of the circumstances under which they were
made, not misleading, as thereafter delivered to the purchasers of the
Registrable Securities being sold thereunder, and, in the case of a
post-effective amendment to a Registration Statement, use its reasonable efforts
to cause it to become effective as soon as practicable.
(k) Enter into such agreements (including, in the event of an
Underwritten Offering, an underwriting agreement in form, scope and substance as
is customary in connection with Underwritten Offerings of similar securities in
the United States) and take all such other actions in connection therewith
(including, in the event of an Underwritten Offering, those reasonably requested
by the Managing Underwriters, if any, or the Holders of a majority of the
Registrable Securities being sold) in order to expedite or facilitate the
disposition of such Registrable Securities (it being understood that in
connection with an Underwritten Offering the Company shall not be obligated to
undertake a "road show" or similar selling efforts as a result of any such
request) and in such connection, whether or not an underwriting agreement is
entered into, and if the registration is an underwritten registration, (i) make
such representations and
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<PAGE>
warranties, subject to the Company's ability to do so, to the Holders of such
Registrable Securities and the underwriters with respect to the business of the
Company and its subsidiaries, the Registration Statement, Prospectus and
documents incorporated by reference or deemed incorporated by reference, if any,
in each case, in form, substance and scope as are customarily made by issuers to
underwriters in underwritten offerings of similar securities in the United
States and confirm, subject to the Company's ability to do so, the same if and
when requested; (ii) use its reasonable efforts to obtain opinions of counsel to
the Company and updates thereof (which counsel and opinions (in form, scope and
substance) shall be reasonably satisfactory to the Managing Underwriters, if
any, Special Counsel and the Holders of a majority of the Registrable Securities
being sold) addressed to each of the underwriters covering the matters
customarily covered in opinions requested in underwritten offerings of similar
securities in the United States and such other matters as may be reasonably
requested by such Special Counsel and Managing Underwriters; (iii) use its
reasonable efforts to obtain "cold comfort" letters and updates thereof from the
independent accountants of the Company (and, if necessary, any other independent
accountants of any business acquired or to be acquired by the Company for which
financial statements and financial data are, or are required to be, included in
the Registration Statement), addressed to the Board of Directors of the Company
and each of the Managing Underwriters, if any, such letters to be in customary
form and covering matters of the type customarily covered in "cold comfort"
letters in connection with the Underwritten Offerings; and (iv) deliver such
documents and certificates as may be reasonably requested by the Holders of a
majority of the Registrable Securities being sold, the Special Counsel and the
Managing Underwriters, if any, to evidence the continued validity of the
representations and warranties of the Company and its subsidiaries made pursuant
to clause (i) above and to evidence compliance with any customary conditions
contained in the underwriting agreement or other agreement entered into by the
Company. The above shall be done at each closing under such underwriting or
similar agreement as and to the extent required thereunder.
(l) If requested in connection with a disposition of Registrable
Securities pursuant to a Registration Statement, make available for inspection,
during normal business hours and upon reasonable prior notice, by a
representative of the Holders of Registrable Securities being sold, any Managing
Underwriter participating in any disposition of Registrable Securities, if any,
and any attorney or accountant retained by 10% or more of the outstanding
Registrable Securities selling Holders or underwriter, financial and other
records, pertinent corporate documents and properties of the Company and its
subsidiaries, and cause the executive officers, directors and employees of the
Company and its subsidiaries to supply all information reasonably requested by
any such representative, Managing Underwriter, attorney or accountant in
connection with such disposition; subject to reasonable assurances by each such
person that such information will only be used in connection with matters
relating to such Registration Statement; provided, however, that such persons
shall first agree in writing with the Company that any information that is
reasonably and in good faith designated by the Company in writing as
confidential at the time of delivery of such information shall be kept
confidential by such persons, unless (i) disclosure of such information is
required by court or administrative order or
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<PAGE>
is necessary to respond to inquiries of regulatory authorities, (ii) disclosure
of such information is required by law (including any disclosure requirements
pursuant to Federal securities laws in connection with the filing of any
Registration Statement or the use of any Prospectus referred to in this
Agreement), (iii) such information becomes generally available to the public
other than as a result of a disclosure or failure to safeguard by any such
person or (iv) such information becomes available to any such person from a
source other than the Company and such source is not bound by a confidentiality
agreement or other obligation not to disclose such information.
(m) Comply with all applicable rules and regulations of the SEC
and make generally available to its security holders earning statements (which
need not be audited) satisfying the provisions of Section 11(a) of the
Securities Act and Rule 158 thereunder (or any similar rule promulgated under
the Securities Act) no later than 45 days after the end of any 52- or 53-week
period (or 90 days after the end of any 52- or 53-week period if such period is
a fiscal year) (i) commencing at the end of any fiscal quarter in which
Registrable Securities are sold to underwriters in a firm commitment or best
efforts underwritten offering and (ii) if not sold to underwriters in such an
offering, commencing on the first day of the first fiscal quarter of the Company
commencing after the effective date of a Registration Statement, which
statements shall cover said 52- or 53-week periods.
(n) Cooperate with the selling Holders of Registrable Securities
to facilitate the timely preparation and delivery of certificates representing
Registrable Securities to be sold and not bearing any restrictive legends; and
enable such Registrable Securities to be in such denominations and registered in
such names as such Holders may request.
(o) Provide a CUSIP number for all Registrable Securities no
later than the effective date of the Registration Statement and provide the
Trustee under the Indenture and the transfer agent for the Common Stock with
printed certificates for the Registrable Securities which are in a form eligible
for deposit with The Depository Trust Company.
(p) Cause the Common Stock covered by the Registration Statement
to be listed on each securities exchange or quoted on each automated quotation
system on which any of the Company's "Common Stock," as that term is defined in
the Indenture, is then listed or quoted no later than the date the Registration
Statement is declared effective and, in connection therewith, to the extent
applicable, to make such filings under the Exchange Act (e.g., the filing of a
Registration Statement on Form 8-A) and to have such filings declared effective
thereunder.
(q) Cooperate and assist in any filings required to be made
with the New York Stock Exchange, Inc. (the "NYSE").
(r) Prior to any registration of the Debentures pursuant to this
Agreement, or at such earlier time as may be so required, qualify the Indenture
under the Trust Indenture Act of 1939, as amended.
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(s) Upon (i) the filing of the Initial Shelf Registration and
(ii) the effectiveness of the Initial Shelf Registration, announce the same, in
each case by release to Reuters Economic Services and Bloomberg Business News.
4. Holder's Obligations. Each Holder agrees, by acquisition of the
Debentures and Registrable Securities, that no Holder of Registrable Securities
shall be entitled to sell any of such Registrable Securities pursuant to a
Registration Statement or to receive a Prospectus relating thereto, unless such
Holder has furnished the Company with a Notice and Questionnaire as required
pursuant to Section 2(d) hereof (including the information required to be
included in such Notice and Questionnaire) and such other information regarding
such Holder and the distribution of such Registrable Securities as the Company
may from time to time reasonably request. The Company may exclude from such
registration the Registrable Securities of any Holder who does not furnish such
information provided above for so long as such information is not so furnished.
Each Holder of Registrable Securities as to which any Registration Statement is
being effected agrees promptly to furnish to the Company all information
required to be disclosed in order to make the information previously furnished
to the Company by such Holder not misleading. Any sale of any Registrable
Securities by any Holder shall constitute a representation and warranty by such
Holder that the information relating to such Holder and its plan of distribution
is as set forth in the Prospectus delivered by such Holder in connection with
such disposition, that such Prospectus does not as of the time of such sale
contain any untrue statement of a material fact relating to such Holder or its
plan of distribution and that such Prospectus does not as of the time of such
sale omit to state any material fact relating to such Holder or its plan of
distribution necessary to make the statements in such Prospectus, in light of
the circumstances under which they were made, not misleading.
5. Registration Expenses. All fees and expenses incident to the
Company's performance of or compliance with this Agreement shall be borne by the
Company whether or not any of the Registration Statements become effective. Such
fees and expenses shall include, without limitation, (i) all registration and
filing fees (including, without limitation, fees and expenses (x) with respect
to filings required to be made with the SEC or the NYSE and (y) relating to
compliance with Federal securities or Blue Sky laws (including, without
limitation, the reasonable fees and disbursements of Special Counsel in
connection with Blue Sky qualifications of the Registrable Securities under the
laws of such jurisdictions as the Managing Underwriters, if any, or Holders of a
majority of the Registrable Securities being sold (subject to Section 3(h)) may
reasonably designate)), (ii) printing expenses (including, without limitation,
expenses of printing certificates for Registrable Securities in a form eligible
for deposit with The Depository Trust Company and of printing prospectuses if
the printing of prospectuses is requested by the Special Counsel or the Holders
of a majority of the Registrable Securities included in any Registration
Statement), (iii) the reasonable fees and disbursements of the Trustee and its
counsel and of the registrar and transfer agent for the Common Stock, (iv)
messenger, telephone and delivery expense relating to the performance of the
Company's obligations hereunder, (v) reasonable fees and disbursements of
counsel for the Company and the
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Special Counsel in connection with the Shelf Registration (provided that the
Company shall not be liable for the fees and expenses of more than one separate
firm, in addition to counsel for the Company, for all parties participating in
any transaction hereunder), (vi) fees and disbursements of all independent
accountants referred to in Section 3(k)(iii) hereof (including the expenses of
any special audit and "cold comfort" letters required by or incident to such
performance) and (vii) Securities Act liability insurance, to the extent
obtained by the Company in its sole discretion. In addition, the Company shall
pay its internal expenses (including, without limitation, all salaries and
expenses of its officers and employees performing legal or accounting duties),
the expense of any annual audit, the fees and expenses incurred in connection
with the listing of the securities to be registered on any securities exchange
on which similar securities issued by the Company are then listed and the fees
and expenses of any person, including special experts, retained by the Company.
Notwithstanding the provisions of this Section 5, each seller of Registrable
Securities shall pay all underwriting discounts and commissions, all fees and
expenses of its counsel and any stock transfer taxes in connection with any
Underwritten Offering.
6. Indemnification.
(a) Indemnification by the Company. The Company shall indemnify
and hold harmless the Initial Purchaser, each Holder and each person, if any,
who controls the Initial Purchaser or any Holder (within the meaning of either
Section 15 of the Securities Act of Section 20(a) of the Exchange Act) from and
against all losses, liabilities, damages and expenses (including, without
limitation, any legal or other expenses reasonably incurred in connection with
defending or investigating any such action or claim) (collectively, "Losses"),
arising out of or based upon any untrue statement or alleged untrue statement of
a material fact contained in any Registration Statement or Prospectus or in any
amendment or supplement thereto or in any preliminary prospectus, or arising out
of or based upon any omission or alleged omission to state therein a material
fact required to be stated therein or necessary to make the statements therein
not misleading, except as to the Initial Purchaser or any Holder insofar as such
Losses arise out of or are based upon the information relating to the Initial
Purchaser or such Holder or the intended plan of distribution of any such Holder
furnished to the Company in writing by the Initial Purchaser or such Holder
expressly for use therein; provided, however, that the Company shall not be
liable to any Holder of Registrable Securities (or any person controlling such
Holder) to the extent that any such Losses arise out of or are based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in any preliminary prospectus if either (A)(i) such Holder failed to send
or deliver a copy of the Prospectus with or prior to delivery of written
confirmation of the sale by such Holder to the person asserting the claims from
which such Losses arise and (ii) the Prospectus would have corrected such untrue
statement or alleged untrue statement or such omission or alleged omission, or
(B)(x) such untrue statement or alleged untrue statement, omission or alleged
omission is corrected in an amendment or supplement to the Prospectus and (y)
having previously been furnished by or on behalf of the Company with copies of
the Prospectus as so amended or supplemented, such Holder thereafter fails to
deliver such Prospectus as so amended or supplemented, with or prior to the
delivery of written
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confirmation of the sale of a Registrable Security to the person asserting the
claim from which such Losses arise. The Company shall also indemnify each
underwriter and each person who controls such person (within the meaning of
Section 15 of the Securities Act or Section 20(a) of the Exchange Act) to the
same extent and with the same limitations as provided above with respect to the
indemnification of the Initial Purchaser or the Holders of Registrable
Securities.
(b) Indemnification by Holder of Registrable Securities. Each
Holder agrees, and such agreement shall be evidenced by the Holder delivering
the notice described in Section 2(d) hereof, severally and not jointly to
indemnify and hold harmless the Initial Purchaser, the other selling Holders,
the Company, its directors, its officers who sign a Registration Statement, and
each person, if any, who controls the Company, the Initial Purchaser and any
other selling Holder (within the meaning of either Section 15 of the Securities
Act or Section 20 of the Exchange Act), from and against all losses arising out
of or based upon any untrue statement of a material fact contained in any
Registration Statement, Prospectus or preliminary prospectus or arising out of
or based upon any omission of a material fact required to be stated therein or
necessary to make the statements therein not misleading, to the extent, but only
to the extent that such untrue statement or omission is contained in any
information relating to such Holder so furnished in writing by such Holder (or
its representative) to the Company expressly for use in such Registration
Statement or Prospectus. In no event shall the liability of any selling Holder
of Registrable Securities hereunder be greater in amount than the dollar amount
of the gross proceeds received by such Holder upon the sale of the Registrable
Securities giving rise to such indemnification obligation.
(c) Conduct of Indemnification Proceedings. In case any
proceeding (including any governmental investigation) shall be instituted
involving any person in respect of which indemnity may be sought pursuant to
either of the two preceding paragraphs, such person (the "indemnified party")
shall promptly notify the person against whom such indemnity may be sought (the
"indemnifying party") in writing and the indemnifying party, upon request of the
indemnified party, shall retain counsel reasonably satisfactory to the
indemnified party to represent the indemnified party and any others the
indemnifying party may designate in such proceeding and shall pay the reasonable
fees and disbursements of such counsel related to such proceeding. In any such
proceeding, any indemnified party shall have the right to retain its own
counsel, but the fees and expenses of such counsel shall be at the expense of
such indemnified party unless (i) the indemnifying party and the indemnified
party shall have mutually agreed to the retention of such counsel or (ii) the
named parties to any such proceeding (including any impleaded parties) include
both the indemnifying party and the indemnified party and representation of both
parties by the same counsel would be inappropriate due to actual or potential
differing interests between them. It is understood that the indemnifying party
shall not, in respect of the legal expenses of any indemnified party in
connection with any proceeding or related proceedings in the same jurisdiction,
be liable for (a) the fees and expenses of more than one separate firm (in
addition to any local counsel) for the Initial Purchaser, all persons, if any,
who control the Initial Purchaser within the meaning of either Section 15 of the
Securities Act or
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Section 20 of the Exchange Act, all Holders and all persons, if any, who control
any Holder within the meaning of either Section 15 of the Securities Act or
Section 20 of the Exchange Act and (b) the fees and expenses of more than one
separate firm (in addition to any local counsel) for the Company, its directors,
its officers who sign a Registration Statement and each person. if any, who
controls the Company within the meaning of either such Section, and that all
such fees and expenses shall be reimbursed as they are incurred. In the case of
any such separate firm for the Company, and such directors, officers and control
persons of the Company, such firm shall be designated in writing by the Company.
In such case involving the Initial Purchaser, persons who control the Initial
Purchaser or the Holders and such persons who control the Holders, such firm
shall be designated in writing by the Initial Purchaser and the Holders of the
majority of Registrable Securities sold pursuant to the Registration Statement.
The indemnifying party shall not be liable for any settlement of any proceeding
effected without its written consent, but if settled with such consent or if
there be a final judgment for the plaintiff, the indemnifying party agrees to
indemnify the indemnified party from and against any loss or liability by reason
of such settlement or judgment. No indemnifying party shall, without the prior
written consent of the indemnified party, effect any settlement of any pending
or threatened proceeding in respect of which any indemnified party is or could
have been a party and indemnity could have been sought hereunder by such
indemnified party, unless such settlement includes an unconditional release of
such indemnified party and its Affiliates from all liability or claims that are
the subject matter of such proceeding.
(d) Contribution. If the indemnification provided for in this
Section 6 is unavailable to an indemnified party under Section 6(a) or 6(b)
hereof in respect of any Losses or is insufficient to hold such indemnified
party harmless, then each applicable indemnifying party, in lieu of indemnifying
such indemnified party, shall contribute to the amount paid or payable by such
indemnified party as a result of such Losses, (i) in such proportion as is
appropriate to reflect the relative benefits received by the indemnifying party
or parties on the one hand and the indemnified party or parties on the other
hand or (ii) if the allocation provided by clause (i) above is not permitted by
applicable law, in such proportion as is appropriate to reflect not only the
relative benefits referred to in clause (i) above but also the relative fault of
the indemnifying party or parties on the one hand and of the indemnified party
or parties on the other hand in connection with the statements or omissions that
resulted in such Losses, as well as any other relevant equitable considerations.
Benefits received by the Company shall be deemed to be equal to the total net
proceeds from the initial placement (before deducting expenses) of the
Debentures pursuant to the Placement Agreement. Benefits received by the Initial
Purchaser shall be deemed to be equal to the total purchase discounts and
commissions received by it pursuant to the Placement Agreement and benefits
received by any other Holders shall be deemed to be equal to the incremental
value of receiving Debentures registered under the Securities Act. Benefits
received by any underwriter shall be deemed to be equal to the total
underwriting discounts and commissions, as set forth on the cover page of the
Prospectus forming a part of the Registration Statement which resulted in such
Losses. The relative fault of the Holders on the one hand and the Company on the
other hand shall be determined by reference to, among other things, whether
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the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the
Holders or by the Company and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Holders' respective obligations to contribute pursuant to this paragraph are
several in proportion to the respective number of Registrable Securities they
have sold pursuant to a Registration Statement, and not joint.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 6(d) were determined by pro rata
allocation or by any other method or allocation that does not take into account
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the Losses
referred to in the immediately preceding paragraph shall be deemed to include,
subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
or defending any such action or claim. Notwithstanding this Section 6(d), an
indemnifying party that is a selling Holder of Registrable Securities shall not
be required to contribute any amount in excess of the amount by which the total
price at which the Registrable Securities sold by such indemnifying party and
distributed to the public were offered to the public exceeds the amount of any
damages which such indemnifying party has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution form
any person who was not guilty of such fraudulent misrepresentations.
The indemnity, contribution and expense reimbursement obligations of the
Company hereunder shall be in addition to any liability the Company may
otherwise have hereunder, under the Placement Agreement or otherwise. The
provisions of this Section 6 shall survive so long as Registrable Securities
remain outstanding, notwithstanding any transfer of the Registrable Securities
by any Holder or any termination of this Agreement.
The indemnity and contribution provisions contained in this Section 6
shall remain operative and in full force and effect regardless of (i) any
termination of this Agreement, (ii) any investigation made by or on behalf of
the Initial Purchaser, any Holder or any person controlling any Holder, or the
Company, its officers or directors or any person controlling the Company and
(iii) the sale of any Registrable Securities by any Holder.
7. Information Requirements.
(a) For so long as there are any Registrable Securities
outstanding, the Company shall file the reports required to be filed by it under
the Securities Act and the Exchange Act, and if at any time the Company is not
required to file such reports, it will, upon the request of any Holder of
Registrable Securities, make publicly available the information to permit sales
pursuant to Rule 144 and Rule 144A under the Securities Act. The Company further
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covenants that it will cooperate with any Holder of Registrable Securities and
take such further reasonable action as any Holder of Registrable Securities may
reasonably request (including, without limitation, making such reasonable
representations as any such Holder may reasonably request), all to the extent
required from time to time to enable such Holder to sell Registrable Securities
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 and Rule 144A under the Securities Act. Upon the
written request of any Holder of Registrable Securities, the Company shall
deliver to such Holder a written statement as to whether it has complied with
such filing requirements. Notwithstanding the foregoing, nothing in this Section
7 shall be deemed to require the Company to register any of its securities under
any section of the Exchange Act.
(b) The Company shall file the reports required to be filed by it
under the Exchange Act and shall comply with all other requirements set forth in
the General Instructions I.A and B.4 to Form S-3 in order to allow the Company
to be eligible to file registration statements on Form S-3 in connection with
secondary offerings.
8. Miscellaneous.
(a) Remedies. In the event of a breach by the Company of its
obligations under this Agreement, each Holder of Registrable Securities, in
addition to being entitled to exercise all rights granted by law, including
recovery of damages, will be entitled to specific performance of its rights
under this Agreement; provided, however, that the sole damages payable for a
violation of the terms of this Agreement for which Liquidated Damages are
expressly provided pursuant to Section 2(e) hereof shall be such Liquidated
Damages. The Company agrees that monetary damages would not be adequate
compensation for any loss incurred by reason of a breach by it of any of the
provisions of this Agreement and hereby further agrees that, in the event of any
action for specific performance in respect of such breach, it shall waive the
defense that a remedy at law would be adequate.
(b) No Conflicting Agreements. The Company has not, as of the
date hereof, and shall not, on or after the date of this Agreement, enter into
any agreement with respect to its securities which conflicts with the rights
granted to the Holders of Registrable Securities in this Agreement. The Company
represents and warrants that the rights granted to the Holders of Registrable
Securities hereunder do not in any way conflict with the rights granted to the
holders of the Company's securities under any other agreements.
(c) Amendments and Waivers. The provisions of this Agreement,
including the provisions of this sentence, may not be amended, modified or
supplemented, and waivers or consents to departures from the provisions hereof
may not be given, unless the Company has obtained the written consent of Holders
of a majority of the then outstanding Common Stock constituting Registrable
Securities (with Holders of Debentures deemed to be the Holders, for purposes of
this Section, of the number of outstanding shares of Common Stock into which
such
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Debentures are convertible). Notwithstanding the foregoing, a waiver or consent
to depart from the provisions hereof with respect to a matter that relates
exclusively to the rights of Holders of Registrable Securities whose securities
are being sold pursuant to a Registration Statement and that does not directly
or indirectly affect the rights of other Holders of Registrable Securities may
be given by Holders of at least a majority of the Registrable Securities being
sold by such Holders; provided, however, that the provisions of this sentence
may not be amended, modified, or supplemented except in accordance with the
provisions of the immediately preceding sentence.
(d) Notices. All notices and other communications provided for or
permitted hereunder shall be made in writing and shall be deemed given (i) when
made, if made by hand delivery, (ii) upon confirmation, if made by telecopier,
or (iii) one business day after being deposited with a reputable next-day
courier, postage prepaid, to the parties as follows:
(x) if to a Holder of Registrable Securities, at the most
current address given by such Holder to the Company in a Notice and
Questionnaire or any amendment thereto;
(y) if to the Company:
Triarc Companies, Inc.
280 Park Avenue
New York, NY 10017
Attention: General Counsel
Telecopy No.: (212) 451-3216
(Confidential)
with a copy to:
Paul, Weiss, Rifkind, Wharton & Garrison
1285 Avenue of the Americas
New York, New York
Attention: Neale Albert, Esq.
Telecopy No.: (212) 757-3990
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and
(z) if to the Initial Purchaser:
Morgan Stanley & Co. Incorporated
1585 Broadway
New York, New York 10036
Attention: Brooks Harris
Telecopy No.: (212) 761-0538
with a copy to:
Cravath, Swaine & Moore
Worldwide Plaza
825 Eighth Avenue
Attention: Kris F. Heinzelman
Telecopy No.: (212) 474-3700
or to such other address as such person may have furnished to the other persons
identified in this Section 8(d) in writing in accordance herewith.
(e) Owner of Registrable Securities. The Company will maintain,
or will cause its registrar and transfer agent to maintain, a register with
respect to the Registrable Securities in which all transfers of Registrable
Securities of which the Company has received notice will be recorded. The
Company may deem and treat the person in whose name Registrable Securities are
registered in such register of the Company as the owner thereof for all
purposes, including without limitation, the giving of notices under this
Agreement.
(f) Approval of Holders. Whenever the consent or approval of
Holders of a specified percentage of Registrable Securities is required
hereunder, (i) Holders of Debentures shall be deemed to be Holders, for such
purposes, of the number of outstanding shares of Common Stock into which such
Debentures are convertible and (ii) Registrable Securities held by the Company
or its Affiliates (other than the Initial Purchaser or subsequent Holders of
Registrable Securities if such subsequent Holders are deemed to be such
affiliates solely by reason of their holdings of such Registrable Securities)
shall not be counted in determining whether such consent or approval was given
by the Holders of such required percentage.
(g) Successors and Assigns. Any person who purchases any
Registrable Securities from the Initial Purchaser shall be deemed, for purposes
of this Agreement, to be an assignee of the Initial Purchaser. This Agreement
shall inure to the benefit of and be binding upon the successors and assigns of
each of the parties and shall inure to the benefit of and be binding upon each
Holder of any Registrable Securities.
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<PAGE>
(h) Counterparts. This Agreement may be executed in any number of
counterparts and by the parties hereto in separate counterparts, each of which
when so executed shall be deemed to be original and all of which taken together
shall constitute one and the same agreement.
(i) Headings. The headings in this Agreement are for convenience
of reference only and shall not limit or otherwise affect the meaning hereof.
(j) Governing Law. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, AS APPLIED TO
CONTRACTS MADE AND TO BE PERFORMED WITHIN THE STATE OF NEW YORK WITHOUT REGARD
TO PRINCIPLES OF CONFLICT OF LAWS.
(k) Severability. If any term, provision, covenant or restriction
of this Agreement is held to be invalid, illegal, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions set forth herein
shall remain in full force and effect and shall in no way be affected, impaired
or invalidated thereby, and the parties hereto shall use their best efforts to
find and employ an alternative means to achieve the same or substantially the
same result as that contemplated by such term, provision, covenant or
restriction. It is hereby stipulated and declared to be the intention of the
parties that they would have executed the remaining terms, provisions, covenants
and restrictions without including any of such which may be hereafter declared
invalid, illegal, void or unenforceable.
(l) Entire Agreement. This Agreement is intended by the parties
as a final expression of their agreement and is intended to be a complete and
exclusive statement of the agreement and understanding of the parties hereto in
respect of the subject matter contained herein and the registration rights
granted by the Company with respect to the Registrable Securities. Except as
provided in the Placement Agreement, there are no restrictions, promises,
warranties or undertakings, other than those set forth or referred to herein,
with respect to the registration rights granted by the Company with respect to
the Registrable Securities. This Agreement supersedes all prior agreements and
understandings among the parties with respect to such registration rights.
(m) Attorneys' Fees. In any action or proceeding brought to
enforce any provision of this Agreement, or where any provision hereof is
validly asserted as a defense, the prevailing party, as determined by the court,
shall be entitled to recover reasonable attorneys' fees in addition to any other
available remedy.
(n) Further Assurances. Each of the parties hereto shall use all
reasonable efforts to take, or cause to be taken, all appropriate action, do or
cause to be done all things reasonably necessary, proper or advisable under
applicable law, and execute and deliver such documents and other papers, as may
be required to carry out the provisions of this Agreement
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<PAGE>
and the other documents contemplated hereby and consummate and make effective
the transactions contemplated hereby.
(o) Termination. This Agreement and the obligations of the
parties hereunder shall terminate upon the end of the Effectiveness Period,
except for any liabilities or obligations under Sections 4, 5 or 6 hereof and
the obligations to make payments of and provide for Liquidated Damages under
Section 2(e) hereof to the extent such damages accrue prior to the end of the
Effectiveness Period, each of which shall remain in effect in accordance with
their terms.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
TRIARC COMPANIES, INC.
By: Brian L. Schorr
Name: Brian L. Schorr
Title: Executive Vice President and
General Counsel
Accepted as of the date first above written:
MORGAN STANLEY & CO.
INCORPORATED
By: Bradford J. May
Name: Bradford J. May
Title: Vice President
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Exhibit 99.1
PRESS RELEASE
FOR IMMEDIATE RELEASE
CONTACT: JOHN L. BARNES, JR.
212/451-3060
BRIAN L. SCHORR
212/451-3045
TRIARC COMPANIES, INC.
TRIARC COMPLETES SALE OF ZERO COUPON
CONVERTIBLE SUBORDINATED DEBENTURES AND REPURCHASE OF
ONE MILLION SHARES OF COMMON STOCK
NEW YORK, New York -- February 9, 1998 -- Triarc Companies, Inc. (NYSE: TRY)
announced today that it has completed the sale of $360 million principal amount
at maturity of its Zero Coupon Convertible Subordinated Debentures due 2018 in a
private placement with Morgan Stanley & Co. Incorporated. Such amount included
the exercise in full by Morgan Stanley of its option to purchase an additional
$90 million principal amount at maturity of Debentures. The Debentures were
issued at a discount of 72.177% from the principal amount thereof payable at
maturity and generated net proceeds to Triarc of approximately $97 million. The
issue price represents a yield to maturity of 6.5% per annum (computed on a
semi-annual bond equivalent basis). The Debentures are convertible into Triarc
Class A Common Stock at a conversion rate of 9.465 shares per $1,000 principal
amount at maturity, which represents an initial conversion price of
approximately $29.40 per share of Common Stock. The conversion price will
increase over the life of the Debentures at 6.5% per annum computed on a
semi-annual bond equivalent basis. The conversion of all of the
<PAGE>
Debentures into Common Stock would result in the issuance of approximately 2.55
million shares of Common Stock. The Debentures are not redeemable by Triarc
prior to February 9, 2003.
In connection with the consummation of the sale of the Debentures, Triarc
purchased from Morgan Stanley one million shares of Triarc Class A Common Stock
for an aggregate price of approximately $25.6 million. The balance of the net
proceeds from the sale of Debentures will be used by Triarc for general
corporate purposes, which may include working capital, repayment or refinancing
of indebtedness and acquisitions and investments.
Neither the Debentures, nor the Common Stock issuable upon conversion, were
registered initially under the Securities Act of 1933, as amended, and may not
be offered or sold within the United States unless so registered or in a
transaction not subject to the registration requirements of the Securities Act.
This press release shall not constitute an offer to sell or a solicitation of an
offer to buy the Debentures or the Common Stock.
Triarc Companies, Inc. is a consumer products company with annualized sales of
approximately $1 billion in beverages (Snapple, Mistic, Royal Crown and
Stewart's) and restaurants (Arby's). In addition, Triarc has an equity interest
in liquefied petroleum gas (National Propane).
####
Note to follow
<PAGE>
NOTE TO PRESS RELEASE
The statements in this press release that are not historical facts constitute
"forward-looking statements" that involve risks, uncertainties and other factors
which may cause actual results to be materially different from those set forth
in the forward-looking statements. Such factors include, but are not limited to,
the following: general economic and business conditions; competition; success of
operating initiatives; development and operating costs; advertising and
promotional efforts; brand awareness; the existence or absence of adverse
publicity; acceptance of new product offerings; changing trends in consumer
tastes; the success of multi-branding; availability, locations and terms of
sites of restaurant development; changes in business strategy or development
plans; quality of management; availability, terms and deployment of capital;
business abilities and judgment of personnel; availability of qualified
personnel; labor and employee benefit costs; availability and cost of raw
materials and supplies; changing, or failure to comply with, government
regulations; regional weather conditions; changes in wholesale propane prices;
the costs and other effects of legal and administrative proceedings and other
risks and uncertainties detailed in Triarc's Securities and Exchange Commission
filings.
<PAGE>
