FIRST SUPPLEMENTAL INDENTURE
between
GLOBAL MARINE INC.
and
WILMINGTON TRUST COMPANY
as Trustee
______________
Dated as of
June 23, 2000
TO INDENTURE DATED SEPTEMBER 1, 1997
_______________
ZERO COUPON CONVERTIBLE DEBENTURES DUE JUNE 23, 2020
TABLE OF CONTENTS
ARTICLE ONE
THE 2020 DEBENTURES
Section 101 DESIGNATION OF 2020 DEBENTURES;
ESTABLISHMENT OF FORM . . . . . . . . . . . . . . .2
Section 102 TRANSFER AND EXCHANGE. . . . . . . . . . . . . . . .3
Section 103 AMOUNT . . . . . . . . . . . . . . . . . . . . . . .8
Section 104 ACCRUAL OF ORIGINAL ISSUE DISCOUNT; INTEREST . . . .9
Section 105 ADDITIONAL INTEREST. . . . . . . . . . . . . . . . .9
Section 106 DENOMINATIONS. . . . . . . . . . . . . . . . . . . .9
Section 107 PLACE OF PAYMENT . . . . . . . . . . . . . . . . . .9
Section 108 REDEMPTION . . . . . . . . . . . . . . . . . . . . .9
Section 109 CONVERSION . . . . . . . . . . . . . . . . . . . . 10
Section 110 MATURITY . . . . . . . . . . . . . . . . . . . . . 10
Section 111 REPURCHASE . . . . . . . . . . . . . . . . . . . . 10
Section 112 COVENANTS. . . . . . . . . . . . . . . . . . . . . 10
Section 113 AMOUNT DUE UPON EVENT OF DEFAULT . . . . . . . . . 10
Section 114 DISCHARGE OF LIABILITY ON 2020 DEBENTURES. . . . . 11
Section 115 OTHER TERMS OF 2020 DEBENTURES . . . . . . . . . . 11
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
Section 201 AMENDMENTS APPLICABLE ONLY TO 2020 DEBENTURES. . . 11
Section 202 DEFINITIONS. . . . . . . . . . . . . . . . . . . . 11
Section 203 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE15
Section 204 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES . 15
Section 205 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED . . 16
Section 206 REDEMPTION . . . . . . . . . . . . . . . . . . . . 16
Section 207 CONSOLIDATION, MERGER AND SALE . . . . . . . . . . 18
Section 208 DEFAULTS AND REMEDIES. . . . . . . . . . . . . . . 18
Section 209 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE
PRINCIPAL, PREMIUM AND INTEREST. . . . . . . . . . 18
Section 210 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS 19
Section 211 SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDER. . . 19
Section 212 CONVERSION, TAX EVENT, REPURCHASE. . . . . . . . . 19
ARTICLE THREE
MISCELLANEOUS PROVISIONS
Section 301 INTEGRAL PART. . . . . . . . . . . . . . . . . . . 52
Section 302 GENERAL DEFINITIONS. . . . . . . . . . . . . . . . 53
Section 303 ADOPTION, RATIFICATION AND CONFIRMATION. . . . . . 53
Section 304 TRUST INDENTURE ACT CONTROLS . . . . . . . . . . . 53
Section 305 GOVERNING LAW. . . . . . . . . . . . . . . . . . . 53
Section 306 SEVERABILITY . . . . . . . . . . . . . . . . . . . 53
Section 307 COUNTERPART ORIGINALS. . . . . . . . . . . . . . . 53
Section 308 SUCCESSORS . . . . . . . . . . . . . . . . . . . . 54
Section 309 TABLE OF CONTENTS, HEADINGS, ETC.. . . . . . . . . 54
Section 310 BENEFIT OF FIRST SUPPLEMENTAL INDENTURE. . . . . . 54
Section 311 ACCEPTANCE BY TRUSTEE. . . . . . . . . . . . . . . 54
ANNEX A Form of Zero Coupon Convertible Debentures Due
June 23, 2020. . . . . . . . . . . . . . . . . . . A-1
THIS FIRST SUPPLEMENTAL INDENTURE, dated as of June 23, 2000,
between Global Marine Inc., a Delaware corporation (the "Company"),
and Wilmington Trust Company (the "Trustee").
RECITALS OF THE COMPANY
WHEREAS, the Company has heretofore executed and delivered to
the Trustee an Indenture, dated as of September 1, 1997 (the
"Indenture"), providing for the issuance from time to time of one
or more series of the Company's Securities;
WHEREAS, Section 9.01(9) of the Indenture provides that the
Company and the Trustee may from time to time enter into one or
more indentures supplemental thereto to establish the form or terms
of Securities of a new series;
WHEREAS, Sections 9.01(6) and 9.01(7) of the Indenture permit
the execution of supplemental indentures without the consent of any
Holders to add to the covenants of the Company for the benefit of,
and to add any additional Events of Default with respect to, all or
any series of Securities;
WHEREAS, Section 9.01(8) of the Indenture permits the
execution of supplemental indentures without the consent of any
Holders to change or eliminate any provisions of the Indenture;
PROVIDED, that any such change or elimination does not adversely
affect in any material respect any outstanding Security of any
series created prior to the execution of such supplemental
indenture;
WHEREAS, Section 2.01 of the Indenture provides that the
Company may enter into supplemental indentures to establish the
terms and provisions of a series of Securities issued pursuant to
the Indenture;
WHEREAS, the Company desires to issue Zero Coupon Convertible
Debentures due June 23, 2020 (the "2020 Debentures"), a new series
of Security, the issuance of which was authorized by or pursuant to
resolutions of the Board of Directors of the Company;
WHEREAS, the Company, pursuant to the foregoing authority,
proposes in and by this First Supplemental Indenture to supplement
and amend in certain respects the Indenture insofar as it will
apply only to the 2020 Debentures (and not to any other series);
and
WHEREAS, all things necessary have been done to make the 2020
Debentures, when executed by the Company and authenticated and
delivered hereunder and duly issued by the Company, the valid
obligations of the Company, and to make this First Supplemental
Indenture a valid agreement of the Company, in accordance with
their and its terms.
NOW THEREFORE:
In consideration of the premises provided for herein, the
Company and the Trustee mutually covenant and agree for the equal
and proportionate benefit of all Holders of the 2020 Debentures as
follows:
ARTICLE ONE
THE 2020 DEBENTURES
SECTION 101 DESIGNATION OF 2020 DEBENTURES; ESTABLISHMENT OF FORM
There shall be a series of Securities designated "Zero Coupon
Convertible Debentures Due June 23, 2020" of the Company, and the
form thereof shall be substantially as set forth in Annex A hereto,
which is incorporated into and shall be deemed a part of this First
Supplemental Indenture, in each case with such appropriate
insertions, omissions, substitutions and other variations as are
required or permitted by the Indenture, and may have such letters,
numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the
rules of any securities exchange or as may, consistently herewith,
be determined by the officers of the Company executing such 2020
Debentures, as evidenced by their execution of the 2020 Debentures.
(a) RESTRICTED GLOBAL SECURITIES. All of the 2020
Debentures are initially being offered and sold to qualified
institutional buyers as defined in Rule 144A (collectively, "QIBs"
or individually a "QIB") in reliance on Rule 144A under the
Securities Act and shall be issued initially in the form of one or
more Restricted Global Securities, which shall be deposited on
behalf of the purchasers of the 2020 Debentures represented thereby
with the Trustee, at its Corporate Trust Office, as Security
Custodian for the depositary, The Depository Trust Company ("DTC")
(such depositary, or any successor thereto, being hereinafter
referred to as the "Depositary"), and registered in the name of its
nominee, Cede & Co., duly executed by the Company and authenticated
by the Trustee as hereinafter provided. The aggregate Principal
Amount of a Restricted Global Security may from time to time be
increased or decreased by adjustments made on the records of the
Security Custodian as hereinafter provided, subject in each case to
compliance with the Applicable Procedures. Until sold pursuant to
Rule 144, pursuant to an effective registration statement under the
Securities Act or pursuant to any other available exemption (other
than Rule 144A) from the registration requirements of the
Securities Act, 2020 Debentures shall be deemed "Rule 144A
Securities" for the purpose of Section 4.03(b) of the Indenture and
entitled to the benefits thereof.
(b) GLOBAL SECURITIES IN GENERAL. Each Global Security
shall represent such of the outstanding 2020 Debentures as shall be
specified therein and each shall provide that it shall represent
the aggregate amount of outstanding 2020 Debentures from time to
time endorsed thereon and that the aggregate amount of outstanding
2020 Debentures represented thereby may from time to time be
reduced or increased, as appropriate, to reflect exchanges,
redemptions, purchases or conversions of such 2020 Debentures. Any
endorsement of a Global Security to reflect the amount of any
increase or decrease in the Principal Amount of Outstanding 2020
Debentures represented thereby shall be made by the Security
Custodian in accordance with the standing instructions and
procedures existing between the Depositary and the Security
Custodian.
Members of, or participants in, the Depositary ("Agent
Members") shall have no rights under this Indenture with respect to
any Global Security held on their behalf by the Depositary or under
the Global Security, and the Depositary (including, for this
purpose, its nominee) may be treated by the Company, the Trustee
and any agent of the Company or the Trustee as the absolute owner
and Holder of such Global Security for all purposes whatsoever.
Notwithstanding the foregoing, nothing herein shall (A) prevent the
Company, the Trustee or any agent of the Company or the Trustee
from giving effect to any written certification, proxy or other
authorization furnished by the Depositary or (B) impair, as between
the Depositary and its Agent Members, the operation of customary
practices governing the exercise of the rights of a Holder of any
2020 Debenture.
(c) CERTIFICATED SECURITIES. Certificated Securities
shall be issued only under the limited circumstances provided in
Section 102(a)(1) hereof.
The Company initially appoints The Depository Trust Company to
act as Depositary with respect to the Global Securities.
The Company initially appoints the Trustee to act as Paying
Agent and Conversion Agent with respect to the 2020 Debentures.
SECTION 102 TRANSFER AND EXCHANGE
(a) TRANSFER AND EXCHANGE OF GLOBAL SECURITIES
(1) Certificated Securities shall be issued in
exchange for interests in the Global Securities only if (x)
the Depositary notifies the Company that it is unwilling or
unable to continue as depositary for the Global Securities or
if it at any time ceases to be a "clearing agency" registered
under the Exchange Act if so required by applicable law or
regulation and a successor depositary is not appointed by the
Company within 90 days, or (y) an Event of Default has
occurred and is continuing. In either case, the Company shall
execute, and the Trustee shall, upon receipt of a Company
Order (which the Company agrees to deliver promptly),
authenticate and deliver Certificated Securities in an
aggregate Principal Amount equal to the Principal Amount of
such Global Securities in exchange therefor. Only Restricted
Certificated Securities shall be issued in exchange for
beneficial interests in Restricted Global Securities, and only
Unrestricted Certificated Securities shall be issued in
exchange for beneficial interests in Unrestricted Global
Securities. Certificated Securities issued in exchange for
beneficial interests in Global Securities shall be registered
in such names and shall be in such authorized denominations
as the Depositary, pursuant to instructions from its direct
or indirect participants or otherwise, shall instruct the
Trustee. The Trustee shall deliver or cause to be delivered
such Certificated Securities to the persons in whose names
such Securities are so registered. Such exchange shall be
effected in accordance with the Applicable Procedures.
Nothing herein shall require the Trustee to communicate
directly with beneficial owners, and the Trustee shall in
connection with any transfers hereunder be entitled to rely on
instructions received through the registered Holder.
(2) Notwithstanding any other provisions of this
Indenture other than the provisions set forth in Section
102(a)(1) hereof, a Global Security 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 of the Depositary or by the
Depositary or any such nominee to a successor Depositary or
a nominee of such successor Depositary.
(b) TRANSFER AND EXCHANGE OF CERTIFICATED SECURITIES.
When Certificated Securities are presented by a Holder to a
Registrar with a request:
(1) to register the transfer of the Certificated
Securities to a person who will take delivery thereof in the
form of Certificated Securities only; or
(2) to exchange such Certificated Securities for an
equal Principal Amount of Certificated Securities of other
authorized denominations,
such Registrar shall register the transfer or make the exchange as
requested; PROVIDED, HOWEVER, that the Certificated Securities
presented or surrendered for register of transfer or exchange:
(A) shall be duly endorsed or accompanied by a
written instrument of transfer in accordance with the second
paragraph of Section 2.08 of the Indenture; and
(B) in the case of a Restricted Certificated
Security, such request shall be accompanied by the following
additional information and documents, as applicable:
(i) if such Restricted Certificated Security
is being delivered to the Registrar by a Holder for
registration in the name of such Holder, without
transfer, or such Restricted Certificated Security is
being transferred to the Company or a Subsidiary of the
Company, a certification to that effect from such Holder
(in substantially the form set forth in the Transfer
Certificate required pursuant to Section 102(e)(1)
hereof);
(ii) if such Restricted Certificated Security
is being transferred to a person the Holder reasonably
believes is a QIB in accordance with Rule 144A or
pursuant to an effective registration statement under
the Securities Act, a certification to that effect from
such Holder (in substantially the form set forth in the
Transfer Certificate); or
(iii) if such Restricted Certificated Security
is being transferred (x) pursuant to an exemption from
the registration requirements of the Securities Act in
accordance with Rule 144, (y) pursuant to an exemption
from the registration requirements of the Securities Act
(other than pursuant to Rule 144A or Rule 144) and as a
result of which, in the case of a Security transferred
pursuant to this clause (y), such Security shall cease
to be a "restricted security" within the meaning of Rule
144, a certification to that effect from the Holder or
(z) pursuant to an exemption from the registration
requirements of the Securities Act to a non-U.S. person
in an offshore transaction under Regulation S under the
Securities Act, a certification to that effect from the
transferor (in substantially the form set forth in the
Transfer Certificate), and, in the case of each of (x),
(y) and (z), if the Company or such Registrar so
requests, a customary opinion of counsel, certificates
and other information reasonably acceptable to the
Company and such Registrar to the effect that such
transfer is in compliance with the Securities Act.
(c) TRANSFER OF A BENEFICIAL INTEREST IN A RESTRICTED
GLOBAL SECURITY FOR A BENEFICIAL INTEREST IN AN UNRESTRICTED GLOBAL
SECURITY. Any person having a beneficial interest in a Restricted
Global Security may upon request, subject to the Applicable
Procedures, transfer such beneficial interest to a person who is
required or permitted to take delivery thereof in the form of an
Unrestricted Global Security. Upon receipt by the Trustee of
written instructions or such other form of instructions as is
customary for the Depositary, from the Depositary or its nominee on
behalf of any person having a beneficial interest in a Restricted
Global Security and the following additional information and
documents in such form as is customary for the Depositary from the
Depositary or its nominee on behalf of the person having such
beneficial interest in the Restricted Global Security (all of which
may be submitted by facsimile or electronically):
(1) if such beneficial interest is being
transferred pursuant to an effective registration statement
under the Securities Act, a certification to that effect from
the transferor (in substantially the form set forth in the
Transfer Certificate); or
(2) if such beneficial interest is being
transferred (i) pursuant to an exemption from the
registration requirements of the Securities Act in accordance
with Rule 144 or (ii) pursuant to an exemption from the
registration requirements of the Securities Act (other than
pursuant to Rule 144A or Rule 144) and as a result of which,
in the case of a Security transferred pursuant to this clause
(ii), such Security shall cease to be a "restricted security"
within the meaning of Rule 144, a certification to that
effect from the transferor and, in the case of each of (i)
and (ii), if the Company or the Trustee so requests, a
customary opinion of counsel, certificates and other information
reasonably acceptable to the Company and the Trustee to the effect
that such transfer is in compliance with the Securities Act,
the Trustee, as a Registrar and Security Custodian, shall reduce or
cause to be reduced the aggregate Principal Amount of the
Restricted Global Security by the appropriate Principal Amount and
shall increase or cause to be increased the aggregate Principal
Amount of the Unrestricted Global Security by a like Principal
Amount. Such transfer shall otherwise be effected in accordance
with the Applicable Procedures. If no Unrestricted Global Security
is then outstanding, the Company shall execute and the Trustee
shall, upon receipt of a Company Order (which the Company agrees to
deliver promptly), authenticate and deliver an Unrestricted Global
Security.
(d) TRANSFERS OF CERTIFICATED SECURITIES FOR BENEFICIAL
INTEREST IN GLOBAL SECURITIES. In the event that Certificated
Securities are issued in exchange for beneficial interests in
Global Securities and, thereafter, the events or conditions
specified in Section 102(a)(1) hereof which required such exchange
shall have ceased to exist, the Company shall mail notice to the
Trustee and to the Holders stating that Holders may exchange
Certificated Securities for interests in Global Securities by
complying with the procedures set forth in this Indenture and
briefly describing such procedures and the events or circumstances
requiring that such notice be given. Thereafter, if Certificated
Securities are presented by a Holder to a Registrar with a request:
(1) to register the transfer of such Certificated
Securities to a person who will take delivery thereof in the
form of a beneficial interest in a Global Security, which
request shall specify whether such Global Security will be a
Restricted Global Security or an Unrestricted Global
Security; or
(2) to exchange such Certificated Securities for an
equal Principal Amount of beneficial interests in a Global
Security, which beneficial interests will be owned by the
Holder transferring such Certificated Securities (provided
that in the case of such an exchange, Restricted Certificated
Securities may be exchanged only for Restricted Global
Securities and Unrestricted Certificated Securities may be
exchanged only for Unrestricted Global Securities),
the Registrar shall register the transfer or make the exchange as
requested by canceling such Certificated Security and causing, or
directing the Security Custodian to cause, the aggregate Principal
Amount of the applicable Global Security to be increased
accordingly and, if no such Global Security is then outstanding,
the Company shall issue and the Trustee shall authenticate and
deliver a new Global Security; PROVIDED, HOWEVER, that the
Certificated Securities presented or surrendered for registration
of transfer or exchange:
(A) shall be duly endorsed or accompanied by a
written instrument of transfer in accordance with the first
paragraph of Section 2.08 of the Indenture;
(B) in the case of a Restricted Certificated
Security to be transferred for a beneficial interest in an
Unrestricted Global Security, such request shall be
accompanied by the following additional information and
documents, as applicable:
(i) if such Restricted Certificated Security
is being transferred pursuant to an effective
registration statement under the Securities Act, a
certification to that effect from such Holder (in
substantially the form set forth in the Transfer
Certificate); or
(ii) if such Restricted Certificated Security
is being transferred pursuant to (x) an exemption from
the registration requirements of the Securities Act in
accordance with Rule 144 or (y) pursuant to an
exemption from the registration requirements of the
Securities Act (other than pursuant to Rule 144A or Rule
144) and as a result of which, in the case of a Security
transferred pursuant to this clause (y), such Security
shall cease to be a "restricted security" within the
meaning of Rule 144, a certification to that effect from
such Holder, and, in the case of each of (x) and (y),
if the Company or the Registrar so requests, a customary
opinion of counsel, certificates and other information reasonably
acceptable to the Company and the Trustee to the effect that such
transfer is in compliance with the Securities Act;
(C) in the case of a Restricted Certificated
Security to be transferred or exchanged for a beneficial
interest in a Restricted Global Security, such request shall
be accompanied by a certification from such Holder (in
substantially the form set forth in the Transfer Certificate)
to the effect that such Restricted Certificated Security is
being transferred to (i) a person the Holder reasonably
believes is a QIB (which, in the case of an exchange, shall
be such Holder) in accordance with Rule 144A or (ii) a non-
U.S. person in an offshore transaction under Regulation S
under the Securities Act, and, in the case of (ii), if the
Company or the Trustee so requests, a customary opinion of counsel,
certificates and other information reasonably acceptable to the
Company and the Trustee to the effect that such transfer is in
compliance with the Securities Act; and
(D) in the case of an Unrestricted Certificated
Security to be transferred or exchanged for a beneficial
interest in an Unrestricted Global Security, such request
need not be accompanied by any additional information or
documents.
(e) LEGENDS.
(1) Except as permitted by the following paragraphs
(2) and (3), each Global Security and Certificated Security
(and all Securities issued in exchange therefor or upon
registration of transfer or replacement thereof and any
Common Stock issuable upon conversion thereof) shall bear a
legend in substantially the form called for by footnote 2 to
ANNEX A hereto (each a "Transfer Restricted Security" for so
long as such Security or Common Stock issuable upon conversion
thereof is required by this Indenture to bear such legend).
Each Transfer Restricted Security shall have attached thereto
a certificate (a "Transfer Certificate") in substantially the
form called for by footnote 5 to ANNEX A hereto.
(2) Upon any sale or transfer of a Transfer
Restricted Security (x) pursuant to Rule 144, (y) pursuant to
an effective registration statement under the Securities Act
or (z) pursuant to any other available exemption (other than
Rule 144A) from the registration requirements of the
Securities Act and as a result of which, in the case of a
Security transferred pursuant to this clause (z), such
Security shall cease to be a "restricted security" within the
meaning of Rule 144:
(A) in the case of any Restricted Certificated
Security, any Registrar shall permit the Holder thereof
to exchange such Restricted Certificated Security for an
Unrestricted Certificated Security, or (under the
circumstances described in Section 102(d) hereof) to
transfer such Restricted Certificated Security to a
transferee who shall take such Security in the form of a
beneficial interest in an Unrestricted Global Security,
and in each case shall rescind any restriction on the
transfer of such Security; provided, however, that the
Holder of such Restricted Certificated Security shall,
in connection with such exchange or transfer, comply with
the other applicable provisions of this Section 102; and
(B) in the case of any beneficial interest in
a Restricted Global Security, the Trustee shall permit
the beneficial owner thereof to transfer such beneficial
interest to a transferee who shall take such interest in
the form of a beneficial interest in an Unrestricted
Global Security and shall rescind any restriction on
transfer of such beneficial interest; PROVIDED, HOWEVER,
that such Unrestricted Global Security shall continue to
be subject to the provisions of Section 102(a)(2)
hereof; and PROVIDED FURTHER, HOWEVER, that the owner of
such beneficial interest shall, in connection with such
transfer, comply with the other applicable provisions of
this Section 102.
(3) Upon the exchange, registration of transfer or
replacement of Securities not bearing the legend described in
paragraph (1) above, the Company shall execute, the Trustee
shall authenticate and deliver Securities that do not bear
such legend and which do not have a Transfer Certificate
attached thereto.
(f) TRANSFERS TO THE COMPANY. Nothing in this Indenture
or in the Securities shall prohibit the sale or other transfer of
any Securities (including beneficial interests in Global
Securities) to the Company or any of its Subsidiaries, which
Securities shall thereupon be canceled in accordance with Section
2.13 of the Indenture.
SECTION 103 AMOUNT.
(a) The Trustee shall authenticate and deliver 2020
Debentures for original issue in an aggregate Principal Amount of
up to $600,000,000 upon Company Order for the authentication and
delivery of 2020 Debentures, without any further action by the
Company; PROVIDED, HOWEVER, that in the event that the Company
sells any Securities pursuant to the over-allotment option (the
"Option") granted to the Initial Purchaser pursuant to Section 3 of
the Purchase Agreement, then the Trustee shall authenticate and
deliver Securities for original issue in an aggregate Principal
Amount of up to $600,000,000 plus up to an additional aggregate
Principal Amount of up to $60,000,000 of Securities sold pursuant
to the Option upon a Company Order. The aggregate Principal Amount
of 2020 Debentures that may be authenticated and delivered under
the Indenture may not exceed the amount set forth in the foregoing
sentence, except for 2020 Debentures authenticated and delivered
upon registration of transfer of, or in exchange for, or in lieu
of, other 2020 Debentures pursuant to Sections 2.08, 2.09, 2.12,
3.07, 9.05. 12.11 and 13.04 of the Indenture.
(b) The Company may not issue new 2020 Debentures to
replace 2020 Debentures that it has paid or delivered to the
Trustee for cancellation or that any Holder has converted pursuant
to Article XI.
SECTION 104 ACCRUAL OF ORIGINAL ISSUE DISCOUNT; INTEREST.
The 2020 Debentures shall be Original Issue Discount
Securities. Original Issue Discount shall accrue with respect to
the 2020 Debentures at the rate set forth under the caption
"Interest" in the 2020 Debentures, commencing on the Issue Date of
the 2020 Debentures. Except as provided under the caption "Tax
Event" in the 2020 Debentures and in Article XIV hereof, there
shall be no periodic payments of interest on the 2020 Debentures.
SECTION 105 ADDITIONAL INTEREST.
Additional Interest with respect to the 2020 Debentures shall
be payable in accordance with the provisions and in the amounts set
forth in the Registration Rights Agreement.
SECTION 106 DENOMINATIONS.
The 2020 Debentures shall be in fully registered form without
coupons in denominations of $1,000 of Principal Amount or any
integral multiple thereof.
SECTION 107 PLACE OF PAYMENT.
The Place of Payment for the 2020 Debentures and the place or
places where the 2020 Debentures may be surrendered for
registration of transfer, exchange, repurchase, redemption or
conversion and where notices may be given to the Company in respect
of the 2020 Debentures is at the office or agency of the Trustee in
New York, New York; provided, however, that payment of interest may
be made at the option of the Company by check mailed to the address
of the Person entitled thereto as such address shall appear in the
Security Register (as defined in the Indenture). Payments in
respect of the 2020 Debentures evidenced by a Global Security shall
be made by transfer of immediately available funds to the accounts
specified by the Holder of the Global Security.
SECTION 108 REDEMPTION.
(a) There shall be no sinking fund for the retirement of
the 2020 Debentures.
(b) The Company, at its option, may redeem the 2020
Debentures in accordance with the provisions of and at the
Redemption Prices set forth under the captions "Optional
Redemption" and "Notice of Redemption" in the 2020 Debentures and
in accordance with the provisions of the Indenture, including,
without limitation, Article III.
SECTION 109 CONVERSION.
The 2020 Debentures shall be convertible in accordance with
the provisions and at the Conversion Rate set forth under the
caption "Conversion" in the 2020 Debentures and in accordance with
the provisions of the Indenture, including, without limitation,
Article XI.
SECTION 110 MATURITY.
The date on which the principal of the 2020 Debentures matures
and is payable, unless accelerated or required to be repurchased
pursuant to the Indenture, shall be June 23, 2020.
SECTION 111 REPURCHASE.
(a) The 2020 Debentures shall be repurchased by the
Company in accordance with the provisions and at the Repurchase
Prices set forth under the caption "Repurchase by the Company at
the Option of the Holder" in the 2020 Debentures and in accordance
with the provisions of the Indenture, including, without
limitation, Article XII.
(b) The 2020 Debentures shall be repurchased by the
Company in accordance with the provisions of and at the Change in
Control Purchase Prices set forth under the caption "Purchase of
Securities at Option of Holder Upon a Change in Control" in the
2020 Debentures and in accordance with the provisions of the
Indenture, including, without limitation, Article XIII.
SECTION 112 COVENANTS.
The 2020 Debentures shall benefit from each of the covenants
set forth in Article IV of the Indenture, including, without
limitation, Sections 4.08 ("Limitations on Liens") and 4.09
("Limitations on Sale/Leaseback Transactions") of the Indenture,
and the related definitions set forth in Section 1.01 of the
Indenture.
SECTION 113 AMOUNT DUE UPON EVENT OF DEFAULT.
The portion of the Principal Amount of each 2020
Debenture that shall become due pursuant to Section 6.02 in the
circumstances specified therein upon an Event of Default shall be
the Issue Price plus accrued Original Issue Discount on such 2020
Debentures (or, if the 2020 Debentures have been converted to
interest bearing 2020 Debentures pursuant to Section 14.01, the
Restated Principal Amount and all accrued and unpaid interest
thereon from the date of conversion).
SECTION 114 DISCHARGE OF LIABILITY ON 2020 DEBENTURES.
The 2020 Debentures may be discharged by the Company in
accordance with the provisions of Article VIII of the Indenture.
SECTION 115 OTHER TERMS OF 2020 DEBENTURES.
Without limiting the foregoing provisions of this Article One,
the terms of the 2020 Debentures shall be as set forth in the form
of the 2020 Debentures set forth in Annex A hereto and as provided
in the Indenture.
ARTICLE TWO
AMENDMENTS TO THE INDENTURE
SECTION 201 AMENDMENTS APPLICABLE ONLY TO 2020 DEBENTURES.
The amendments contained herein shall apply to the 2020
Debentures only and not to any other series of Security issued
under the Indenture and any covenants provided herein are expressly
being included solely for the benefit of the 2020 Debentures and
not for the benefit of any other series of Security issued under
the Indenture. These amendments shall be effective for so long as
there remain any 2020 Debentures Outstanding.
SECTION 202 DEFINITIONS.
Section 1.01 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
inserting or restating, as the case may be, in their appropriate
alphabetical position, the following definitions:
"ADDITIONAL INTEREST" shall have the meaning set forth in the
Registration Rights Agreement.
"AGENT MEMBERS" has the meaning specified in Section 101.
"APPLICABLE PROCEDURES" means, with respect to any transfer or
exchange of beneficial ownership interests in a Global Security,
the rules and procedures of the Depositary that are applicable to
such transfer or exchange.
"BENEFICIAL OWNER" has the meaning specified in Section
13.01(a).
"CERTIFICATED SECURITY" means a Security that is in
substantially the form attached hereto as ANNEX A and that does not
include the information or the schedule called for by footnotes 1,
4 and 5 thereof.
"CHANGE IN CONTROL" has the meaning specified in Section
13.01(a).
"CHANGE IN CONTROL PURCHASE DATE" has the meaning specified in
Section 13.01(c).
"CHANGE IN CONTROL PURCHASE NOTICE" has the meaning specified
in Section 13.01(c).
"CHANGE IN CONTROL PURCHASE PRICE" has the meaning specified
in Section 13.01(c).
"COMMON STOCK" means any stock of any class of the Company
(including, without limitation, the Company's common stock, par
value $0.01 per share) 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.
"COMPANY NOTICE DATE" has the meaning specified in Section
12.03.
"CONVERSION AGENT" shall be the agent specified in Section
101.
"CONVERSION DATE" has the meaning specified in Section 11.02.
"CONVERSION RATE" has the meaning specified in Section 11.01.
"DEPOSITARY" has the meaning specified in Section 101.
"DETERMINATION DATE" has the meaning specified in Section
11.06(d)(1).
"DTC" has the meaning specified in Section 101.
"EXPIRATION DATE" has the meaning specified in Section
11.06(d)(2).
"EXPIRATION TIME" has the meaning specified in Section
11.06(d)(2).
"GLOBAL SECURITY" means a permanent Global Security that is in
substantially the form attached hereto as ANNEX A and that includes
the information and schedule called for by footnotes 1, 3 and 4
thereof and which is deposited with the Depositary or the Security
Custodian and registered in the name of the Depositary or its
nominee.
"GROUP" has the meaning specified in Section 13.01(a).
"INDENTURE" has the meaning specified in the recitals.
"ISSUE DATE" of any 2020 Debenture means the date on which the
2020 Debenture was originally issued or deemed issued as set forth
on the face of the 2020 Debenture.
"ISSUE PRICE" of any 2020 Debenture means, in connection with
the original issuance of such 2020 Debenture, the initial issue
price at which the 2020 Debenture is sold as set forth on the face
of the 2020 Debenture.
"MARKET PRICE" has the meaning specified in Section 12.04.
"NON-ELECTING SHARE" has the meaning specified in Section
11.11.
"NYSE" has the meaning specified in Section 11.06(e).
"NASDAQ" has the meaning set forth in Section 11.06(e).
"OPTION EXERCISE DATE" has the meaning specified in Section
14.01.
"ORIGINAL ISSUE DISCOUNT" of any 2020 Debenture means the
difference between the Issue Price and the Principal Amount of the
2020 Debenture as set forth on the face of the 2020 Debenture.
"PRINCIPAL AMOUNT" of a 2020 Debenture means the principal
amount due at the Stated Maturity of the 2020 Debentures as set
forth on the face of the 2020 Debenture.
"PURCHASE AGREEMENT" means the Purchase Agreement, dated as of
June 20, 2000, between the Company and Credit Suisse First Boston
Corporation.
"PURCHASED SHARES" has the meaning specified in Section
11.06(d)(2).
"QIB" has the meaning specified in Section 101.
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement, dated as of June 23, 2000, between the Company and
Credit Suisse First Boston Corporation.
"REGULATION S" means Regulation S under the Securities Act or
any successor to such Rule.
"REPURCHASE DATE" has the meaning specified in Section 12.01.
"REPURCHASE NOTICE" has the meaning specified in Section
12.01.
"REPURCHASE PRICE" has the meaning specified in Section 12.01.
"RESTATED PRINCIPAL AMOUNT" has the meaning specified in
Section 14.01.
"RESTRICTED CERTIFICATED SECURITY" means a Certificated
Security which is a Transfer Restricted Security.
"RESTRICTED GLOBAL SECURITY" means a Global Security that is
a Transfer Restricted Security.
"RULE 144" means Rule 144 under the Securities Act or any
successor to such Rule.
"RULE 144A" means Rule 144A under the Securities Act or any
successor to such Rule.
"SALE PRICE" has the meaning specified in Section 12.04.
"SECURITIES" means any securities authenticated and delivered
under the Indenture, as the same may be amended or supplemented,
including 2020 Debentures.
"SECURITIES ACT" means the Securities Act of 1933, as amended,
or any successor statute.
"TAX EVENT" means that the Company shall have received an
opinion from independent tax counsel experienced in such matters to
the effect that, on or after June 23, 2000, as a result of (a) any
amendment to, or change (including any announced prospective
change) in, the laws (or any regulations thereunder) of the United
States or any political subdivision or taxing authority thereof or
therein or (b) any amendment to, or change in, an interpretation or
application of such laws or regulations by any legislative body,
court, governmental agency or regulatory authority, in each case,
which amendment or change is enacted, promulgated, issued or
announced or which interpretation is issued or announced or which
action is taken, on or after June 23, 2000, there is more than an
insubstantial risk that interest (including Original Issue
Discount) payable on the 2020 Debentures either (i) would not be
deductible on a current accrual basis or (ii) would not be
deductible under any other method, in either case, in whole or in
part, by the Company (by reason of deferral, disallowance or
otherwise) for United States Federal income tax purposes.
"TAX EVENT DATE" has the meaning specified in Section 14.01.
"TENDER OFFER" has the meaning specified in Section
11.06(d)(3).
"TRADING DAY" means a day during which trading in securities
generally occurs on the NYSE or, if the Common Stock is not listed
on the NYSE, on the principal other national or regional securities
exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange,
on the NASDAQ or, if the Common Stock is not quoted on the NASDAQ,
on the other principal market on which the Common Stock are then
traded.
"TRANSFER CERTIFICATE" has the meaning specified in Section
102(e)(1).
"TRANSFER RESTRICTED SECURITIES" has the meaning specified in
Section 102(e)(1).
"TRIGGER EVENT" has the meaning specified in Section 11.06(c).
"TRIGGERING DISTRIBUTION" has the meaning specified in Section
11.06(d)(1).
"2020 DEBENTURES" has the meaning specified in the recitals.
"UNRESTRICTED CERTIFICATED SECURITY" means a Certificated
Security which is not a Transfer Restricted Security.
"UNRESTRICTED GLOBAL SECURITY" means a Global Security which
is not a Transfer Restricted Security.
SECTION 203 REGISTRATION, REGISTRATION OF TRANSFER AND EXCHANGE.
The Indenture is hereby amended, subject to Section 201 hereof
and with respect to the 2020 Debentures only, by replacing the
final sentence of the third paragraph of Section 2.08 with the
following paragraph:
The Company shall not be required (i) to
issue, register the transfer of or exchange
the Securities of any series during a period
beginning at the opening of business 15 days
before the day of the mailing of a notice of
redemption of Securities of that series
selected for redemption and ending at the
close of business on the day of such mailing,
(ii) to register the transfer of or exchange
any 2020 Debenture so selected for redemption
in whole or in part, except the unredeemed
portion of any Security being redeemed in
part, or (iii) to exchange or register a
transfer of any 2020 Debenture or portions
thereof in respect of which a Change in
Control Purchase Notice or Repurchase Notice
has been delivered and not withdrawn by the
Holder thereof (except, in the case of the
purchase of a 2020 Debenture in part, the
portion not to be purchased).
SECTION 204 MUTILATED, DESTROYED, LOST AND STOLEN SECURITIES.
The Indenture is hereby amended, subject to Section 201 hereof
and with respect to the 2020 Debentures only, by replacing the
second sentence of Section 2.09 with the following sentence:
If any such mutilated, destroyed, lost or
stolen Security has or is about to become due
and payable, or is about to be redeemed or
purchased by the Company upon a Change in
Control pursuant to Article XIII or purchased
by the Company on a Repurchase Date pursuant
to Article XII, the Company in its discretion
may, instead of issuing a new Security, pay
such Security.
SECTION 205 PAYMENT OF INTEREST; INTEREST RIGHTS PRESERVED.
The Indenture is hereby amended, subject to Section 201 hereof
and with respect to the 2020 Debentures only, by inserting the
following paragraph before the final paragraph in Section 2.14:
In the event the Company exercises its option
pursuant to Section 14.01, then in the case of
any 2020 Debenture or portion thereof which is
surrendered for conversion after the Regular
Record Date immediately preceding any Interest
Payment Date and on or prior to such next
succeeding Interest Payment Date (unless such
2020 Debenture or portion thereof which is
being surrendered for conversion has been
called for redemption on a Redemption Date
within such period), interest whose Stated
Maturity is on such Interest Payment Date
shall be payable on such Interest Payment Date
notwithstanding such conversion, and such
interest (whether or not punctually paid or
duly provided for) shall be paid to the Person
in whose name that 2020 Debenture (or one or
more Predecessor Securities) is registered at
the close of business on such Regular Record
Date; PROVIDED, HOWEVER, that such payment of
interest shall be subject to the payment to
the Company by the Holder of such 2020
Debenture or portion thereof surrendered for
conversion (such payment to accompany such
surrender) of an amount equal to the amount of
such interest, in accordance with Section
1102. Except as otherwise provided in the
immediately preceding sentence, in the case of
any 2020 Debenture which is converted,
interest whose Stated Maturity is after the
date of conversion of such 2020 Debenture
shall not be payable.
SECTION 206 REDEMPTION.
(a) Article III of the Indenture is hereby amended,
subject to Section 201 hereof and with respect to the 2020
Debentures only, by replacing "30" in Section 3.04 with "15."
(b) Article III of the Indenture is hereby amended,
subject to Section 201 hereof and with respect to the 2020
Debentures only, by inserting the following section after Section
3.11:
SECTION 3.12 CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
In connection with 2020 Debentures, the
Company may arrange for the purchase and
conversion of any 2020 Debentures called for
redemption by an agreement with one or more
investment bankers or other purchasers to
purchase such 2020 Debentures by paying to a
Paying Agent (other than the Company or any of
its Affiliates) in trust for the Holders, on
or before 11:00 a.m. New York City time on the
Redemption Date, an amount that, together with
any amounts deposited with such Paying Agent
by the Company for the redemption of such 2020
Debentures, is not less than the Redemption
Price of such 2020 Debentures. Notwithstanding
anything to the contrary contained in this
Article III, the obligation of the Company to
pay the Redemption Price of such 2020
Debentures, including interest, if any, shall
be deemed to be satisfied and discharged to
the extent such amount is so paid by such
purchasers; provided, however, that nothing in
this Section 3.12 shall relieve the Company of
its obligation to pay the Redemption Price on
2020 Debentures called for redemption. If such
an agreement is entered into, any 2020
Debentures called for redemption and not
surrendered for conversion by the Holders
thereof prior to the relevant Redemption Date
may, at the option of the Company upon written
notice to the Trustee, be deemed, to the
fullest extent permitted by law, acquired by
such purchasers from such Holders and
(notwithstanding anything to the contrary
contained in Article III) surrendered by such
purchasers for conversion, all as of 11:00
A.M. New York City time on the Redemption
Date, subject to payment of the above amount
as aforesaid. The Paying Agent shall hold and
pay to the Holders whose 2020 Debentures are
selected for redemption any such amount paid
to it for purchase in the same manner as it
would money deposited with it by the Company
for the redemption of 2020 Debentures. Without
the Paying Agent's prior written consent, no
arrangement between the Company and such
purchasers for the purchase and conversion of
any 2020 Debentures shall increase or
otherwise affect any of the powers, duties,
responsibilities or obligations of the Paying
Agent as set forth in this Indenture, and the
Company agrees to indemnify the Paying Agent
from, and hold it harmless against, any loss,
liability or expense arising out of or in
connection with any such arrangement for the
purchase and conversion of any 2020 Debentures
between the Company and such purchasers,
including the costs and expenses incurred by
the Paying Agent in the defense of any claim
or liability reasonably incurred without
negligence or bad faith on its part arising
out of or in connection with the exercise or
performance of any of its powers, duties,
responsibilities or obligations under this
Indenture, in accordance with the indemnity
provisions applicable to the Trustee set forth
herein.
SECTION 207 CONSOLIDATION, MERGER AND SALE.
Section 5.01 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
inserting "and shall have expressly provided for conversion rights
in accordance with Section 11.11" at the end of Section 5.01(1)
before the semi-colon.
SECTION 208 DEFAULTS AND REMEDIES.
Section 6.01 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
deleting subsections (1) and (2), and inserting instead the
following as new subsections (1) and (2) thereof:
(1) the Company defaults in the payment of any
interest upon any 2020 Debenture when it becomes due and
payable, after conversion of the 2020 Debentures to interest
bearing debentures pursuant to Section 14.01, and continuance
of such default for a period of 30 days; or
(2) the Company defaults in the payment of the
Principal Amount at Maturity (or, if the 2020 Debentures have
been converted to interest-bearing 2020 Debentures pursuant to
Section 14.01, the Restated Principal Amount), the Issue Price
plus accrued Original Issue Discount, the Redemption Price,
the Repurchase Price or the Change in Control Purchase Price
of any 2020 Debenture when the same becomes due and payable;
or
SECTION 209 UNCONDITIONAL RIGHT OF HOLDERS TO RECEIVE PRINCIPAL,
PREMIUM AND INTEREST.
Section 6.07 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
replacing that section with the following:
SECTION 6.07 RIGHTS OF HOLDERS TO RECEIVE PAYMENT.
Notwithstanding any other provision in this
Indenture, the right of any Holder of a
Security to receive payment of the principal
of and (subject to Section 2.14) interest on
such Security on or after the respective due
dates expressed in such Security (or in the
case of redemption, to receive the Redemption
Price on the Redemption Date, in the case of a
repurchase, to receive the Repurchase Price on
the Repurchase Date, or in the case of a
Change in Control, to receive the Change in
Control Purchase Price on the Change in
Control Purchase Date), or to institute suit
for the enforcement of any such payment on or
after such respective dates, is absolute and
unconditional and shall not be impaired
without the consent of the Holder.
SECTION 210 SUPPLEMENTAL INDENTURES WITHOUT CONSENT OF HOLDERS.
Section 9.01 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
inserting the following paragraph:
(12) to make provision with respect to the
conversion rights, if any, to Holders of 2020
Debentures pursuant to the requirements of
Article XI hereof.
SECTION 211 SUPPLEMENTAL INDENTURE WITH CONSENT OF HOLDER.
Section 9.02 of the Indenture is hereby amended, subject to
Section 201 hereof and with respect to the 2020 Debentures only, by
inserting "; or (10) adversely affect the right to convert any 2020
Debenture as provided in Article XI, or adversely affect the right
to require the Company to repurchase the 2020 Debentures as
provided in Article XII" before the period at the end of Section
9.02(9).
SECTION 212 CONVERSION, TAX EVENT, REPURCHASE.
The Indenture is hereby amended, subject to Section 201 hereof
and with respect to the 2020 Debentures only, by adding the
following Articles XI, XII, XIII and XIV to the Indenture:
ARTICLE XI
CONVERSION
Section 11.01 CONVERSION PRIVILEGE.
2020 Debentures shall be convertible in
accordance with their terms and in accordance
with this Article.
A Holder of a 2020 Debenture may convert the
Principal Amount of such 2020 Debenture (or
any portion thereof equal to a Principal
Amount of $1,000 or any integral multiple of a
Principal Amount of $1,000 in excess thereof)
into Common Stock at any time prior to the
close of business on the date specified in the
2020 Debentures, at the Conversion Rate then
in effect. In case a 2020 Debenture or portion
thereof is called for redemption pursuant to
Article III, such conversion right shall
terminate at the close of business on the
Business Day immediately preceding the
Redemption Date for such 2020 Debenture or
such earlier date as the Holder presents such
2020 Debenture for redemption (unless the
Company shall default in making the redemption
payment when due, in which case the conversion
right shall terminate at the close of business
on the date such default is cured and such
2020 Debenture is redeemed). The number of
shares of Common Stock issuable upon
conversion of a 2020 Debenture per $1,000 of
Principal Amount thereof (the "Conversion
Rate") shall be that set forth under
"Conversion" in the 2020 Debentures, subject
to adjustment as herein set forth. Provisions
of this Indenture that apply to conversion of
all of a 2020 Debenture also apply to
conversion of a portion of a 2020 Debenture.
A 2020 Debenture in respect of which a Holder
has delivered a Repurchase Notice or Change in
Control Purchase Notice exercising the option
of such Holder to require the Company to
purchase such 2020 Debenture, may be converted
only if such notice of exercise is withdrawn
in accordance with the terms of this
Indenture. A Holder of 2020 Debentures is not
entitled to any rights of a holder of Common
Stock until such Holder has converted its 2020
Debentures to Common Stock, and only to the
extent such 2020 Debentures are deemed to have
been converted into Common Stock pursuant to
this Article XI.
SECTION 11.02 CONVERSION PROCEDURE.
To convert a 2020 Debenture, a Holder must (a)
complete and manually sign the conversion
notice on the back of the 2020 Debenture and
deliver such notice to a Conversion Agent, (b)
surrender the 2020 Debenture to a Conversion
Agent, (c) furnish appropriate endorsements
and transfer documents if required by the
Security Registrar or a Conversion Agent, and
(d) pay any transfer or similar tax, if
required. The date on which the Holder
satisfies all of those requirements is the
"Conversion Date." As soon as practicable
after the Conversion Date, the Company shall
deliver to the Holder through a Conversion
Agent a certificate for the number of whole
shares of Common Stock issuable upon the
conversion and cash in lieu of any fractional
shares pursuant to Section 11.03. Anything
herein to the contrary notwithstanding, in the
case of Global Securities, conversion notices
may be delivered and such 2020 Debentures may
be surrendered for conversion in accordance
with the applicable procedures of the
Depositary as in effect from time to time.
The Person in whose name the Common Stock
certificate is registered shall be deemed to
be a stockholder of record on the Conversion
Date; PROVIDED, HOWEVER, that no surrender of
a 2020 Debenture on any date when the stock
transfer books of the Company shall be closed
shall be effective to constitute the Person or
Persons entitled to receive the shares of
Common Stock upon such conversion as the
record holder or holders of such shares of
Common Stock on such date, but such surrender
shall be effective to constitute the Person or
Persons entitled to receive such shares of
Common Stock as the record holder or holders
thereof for all purposes at the close of
business on the next succeeding day on which
such stock transfer books are open; PROVIDED
FURTHER, HOWEVER, that such conversion shall
be at the Conversion Rate in effect on the
date that such 2020 Debenture shall have been
surrendered for conversion, as if the stock
transfer books of the Company had not been
closed. Upon conversion of a 2020 Debenture,
such Person shall no longer be a Holder of
such 2020 Debenture.
No payment or adjustment will be made for
dividends on, or other distributions with
respect to, any Common Stock except as
provided in this Article XI. On conversion of
a 2020 Debenture, that portion of accrued
Original Issue Discount (and interest, if the
Company has exercised its option provided for
in Section 14.01) attributable to the period
from the Issue Date (or, in the case of
interest, if the Company has exercised the
option provided for in Section 14.01, the
later of (x) the date of such exercise and (y)
the date on which interest was last paid) of
the 2020 Debenture through the Conversion Date
with respect to the converted 2020 Debenture
shall not be cancelled, extinguished or
forfeited, but rather shall be deemed to be
paid in full to the Holder thereof through
delivery of the Common Stock (together with
the cash payment, if any, in lieu of
fractional shares) in exchange for the 2020
Debenture being converted pursuant to the
provisions hereof; and the fair market value
of such shares of Common Stock (together with
any such cash payment in lieu of fractional
shares) shall be treated as issued, to the
extent thereof, first in exchange for Original
Issue Discount (and interest, if the Company
has exercised its option provided for in
Section 14.01) accrued through the Conversion
Date, and the balance, if any, of such fair
market value of such Common Stock (and any
such cash payment) shall be treated as issued
in exchange for the Issue Price of the 2020
Debenture being converted pursuant to the
provisions hereof.
If a Holder converts more than one 2020
Debenture at the same time, the number of
shares of Common Stock issuable upon the
conversion shall be based on the aggregate
Principal Amount of 2020 Debentures converted.
Upon surrender of a 2020 Debenture that is
converted in part, the Company shall execute,
and the Trustee shall authenticate and deliver
to the Holder, a new 2020 Debenture equal in
Principal Amount to the Principal Amount of
the unconverted portion of the 2020 Debenture
surrendered.
Where the Company has exercised its option
under Section 14.01, 2020 Debentures or
portions thereof surrendered for conversion
during the period from the close of business
on any Regular Record Date immediately
preceding any Interest Payment Date to the
opening of business on such Interest Payment
Date shall (unless such 2020 Debentures or
portions thereof have been called for
redemption on a Redemption Date within such
period) be accompanied by payment to the
Company or its order, in New York Clearing
House funds or other funds acceptable to the
Company, of an amount equal to the interest
payable on such Interest Payment Date on the
principal amount of 2020 Debentures or
portions thereof being surrendered for
conversion.
SECTION 11.03 FRACTIONAL SHARES.
The Company will not issue fractional shares
of Common Stock upon conversion of 2020
Debentures. In lieu thereof, the Company will
pay an amount in cash based upon the closing
price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
SECTION 11.04 TAXES ON CONVERSION.
If a Holder converts a 2020 Debenture, the
Company shall pay any documentary, stamp or
similar issue or transfer tax due on the issue
of shares of Common Stock upon such
conversion. However, 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 certificate
representing the 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 regulation.
SECTION 11.05 COMPANY TO PROVIDE COMMON STOCK.
The Company shall, prior to issuance of any
2020 Debentures under this Article XI, and
from time to time as may be necessary,
reserve, out of its authorized but unissued
Common Stock, a sufficient number of shares of
Common Stock to permit the conversion of all
2020 Debentures outstanding into shares of
Common Stock. All shares of Common Stock
delivered upon conversion of the 2020
Debentures shall be duly authorized, validly
issued, fully paid and nonassessable and shall
be free from preemptive rights and free of any
Lien or adverse claim.
The Company will endeavor promptly to comply
with all federal and state securities laws
regulating the registration of the offer and
delivery of shares of Common Stock to a
converting Holder upon conversion of 2020
Debentures, if any, and will list or cause to
have quoted such shares of Common Stock on
each national securities exchange or on the
NASDAQ National Market or other over-the-
counter market or such other market on which
the shares of Common Stock are then listed or
quoted.
SECTION 11.06 ADJUSTMENT OF CONVERSION RATE.
The Conversion Rate shall be adjusted from
time to time by the Company as follows:
(a)In case the Company shall (i) pay a dividend on its
Common Stock in shares of Common Stock, (ii) make a
distribution on its Common Stock in shares of Common
Stock, (iii) subdivide its outstanding Common Stock into
a greater number of shares, or (iv) combine its
outstanding 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 2020
Debenture thereafter surrendered for conversion shall be
entitled to receive that number of shares of Common Stock
which it would have owned had such 2020 Debenture been
converted immediately prior to the happening of such
event. An adjustment made pursuant to this subsection
(a) shall become effective immediately after the record
date in the case of a dividend or distribution and shall
become effective immediately after the effective date in
the case of subdivision or combination.
(b)In case the Company shall issue rights or warrants to
all or substantially all holders of its Common Stock
entitling them (for a period commencing no earlier than
the record date described below and expiring not more
than 60 days after such record date) to subscribe for or
purchase shares of Common Stock (or securities
convertible into Common Stock) at a price per share (or
having a conversion price per share) less than the
current market price per share of Common Stock (as
determined in accordance with subsection (e) of this
Section 11.06) on 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 rate determined by multiplying the Conversion Rate in
effect immediately prior to such record date by a
fraction of which the numerator shall be the number of
shares of Common Stock outstanding on such record date
plus the number of additional shares of Common Stock
offered (or into which the convertible securities so
offered are convertible), and of which the denominator
shall be the number of shares of Common Stock outstanding
on such record date plus the number of shares which the
aggregate offering price of the total number of shares of
Common Stock so offered (or the aggregate conversion
price of the convertible securities so offered, which
shall be determined by multiplying the number of shares
of Common Stock issuable upon conversion of such
convertible securities by the conversion price per share
of Common Stock pursuant to the terms of such convertible
securities) would purchase at the current market price
per share (as determined in accordance with subsection
(e) of this Section 11.06) of Common Stock on such record
date. Such adjustment shall be made successively
whenever any such rights or warrants are issued, and
shall become effective immediately after such record
date. If at the end of the period during which such
rights or warrants are exercisable not all rights or
warrants shall have been exercised, the adjusted
Conversion Rate shall be immediately readjusted to what
it would have been based upon the number of additional
shares of Common Stock actually issued (or the number of
shares of Common Stock issuable upon conversion of
convertible securities actually issued).
(c)In case the Company shall distribute to all or
substantially all holders of its Common Stock any shares
of capital stock (other than dividends or distributions
of Common Stock on Common Stock to which Section 11.06(a)
applies) of the Company, evidences of indebtedness or
other assets (including securities of any Person other
than the Company, but excluding all-cash distributions or
any rights or warrants referred to in 11.06(b)), then in
each such case the Conversion Rate shall be adjusted so
that the same shall equal the rate determined by
multiplying the current Conversion Rate by a fraction of
which the numerator shall be the current market price per
share (as determined in accordance with subsection (e) of
this Section 11.06) of the Common Stock on the record
date mentioned below, and of which the denominator shall
be the current market price per share (as determined in
accordance with subsection (e) of this Section 11.06) of
the Common Stock on such record date less the fair market
value on such record date (as determined by the Board of
Directors, whose determination shall be conclusive
evidence of such fair market value and which shall be
evidenced by an Officers' Certificate delivered to the
Trustee) of the portion of the capital stock, evidences
of indebtedness or other non-cash assets so distributed
or of such rights or warrants applicable to one share of
Common Stock (determined on the basis of the number of
shares of Common Stock outstanding on the record date).
Such adjustment shall be made successively whenever any
such distribution is made and shall become effective
immediately after the record date for the determination
of stockholders entitled to receive such distribution.
In the event that the Company implements a
shareholder rights plan, such rights plan
shall provide, subject to customary exceptions
and limitations, that upon conversion of the
2020 Debentures the Holders will receive, in
addition to the Common Stock issuable upon
such conversion, the rights issued under such
rights plan (notwithstanding the occurrence of
an event causing such rights to separate from
the Common Stock at or prior to the time of
conversion). Any distribution of rights or
warrants pursuant to a stockholder rights plan
complying with the requirements set forth in
the immediately preceding sentence of this
paragraph shall not constitute a distribution
of rights or warrants for the purposes of this
Section 11.06(c).
Rights or warrants distributed by the Company
to all holders of Common Stock entitling the
holders thereof to subscribe for or purchase
shares of the Company's capital stock (either
initially or under certain circumstances),
which rights or warrants, until the occurrence
of a specified event or events ("Trigger
Event"): (i) are deemed to be transferred with
such shares of Common Stock; (ii) are not
exercisable; and (iii) are also issued in
respect of future issuances of Common Stock,
shall be deemed not to have been distributed
for purposes of this Section 11.06(c) (and no
adjustment to the Conversion Rate under this
Section 11.06(c) will be required) until the
occurrence of the earliest Trigger Event. If
such right or warrant is subject to subsequent
events, upon the occurrence of which such
right or warrant shall become exercisable to
purchase different securities, evidences of
indebtedness or other assets or entitle the
holder to purchase a different number or
amount of the foregoing or to purchase any of
the foregoing at a different purchase price,
then the occurrence of each such event shall
be deemed to be the date of issuance and
record date with respect to a new right or
warrant (and a termination or expiration of
the existing right or warrant without exercise
by the holder thereof). In addition, in the
event of any distribution (or deemed
distribution) of rights or warrants, or any
Trigger Event or other event (of the type
described in the preceding sentence) with
respect thereto, that resulted in an
adjustment to the Conversion Rate under this
Section 11.06(c), (1) in the case of any such
rights or warrants which shall all have been
redeemed or repurchased without exercise by
any holders thereof, the Conversion Rate shall
be readjusted upon such final redemption or
repurchase to give effect to such distribution
or Trigger Event, as the case may be, as
though it were a cash distribution, equal to
the per share redemption or repurchase price
received by a holder of Common Stock with
respect to such rights or warrants (assuming
such holder had retained such rights or
warrants), made to all holders of Common Stock
as of the date of such redemption or
repurchase, and (2) in the case of such rights
or warrants all of which shall have expired or
been terminated without exercise, the
Conversion Rate shall be readjusted as if such
rights and warrants had never been issued.
(d)(1) In case the Company shall, by dividend or
otherwise, at any time distribute (a "Triggering
Distribution") to all or substantially all holders of its
Common Stock all-cash distributions in an aggregate
amount that, together with the aggregate amount of (A)
any cash and the fair market value (as determined by the
Board of Directors, whose determination shall be
conclusive evidence thereof and which shall be evidenced
by an Officers' Certificate delivered to the Trustee) of
any other consideration payable in respect of any tender
offer by the Company or a Subsidiary of the Company for
Common Stock consummated within the 12 months preceding
the date of payment of the Triggering Distribution and in
respect of which no Conversion Rate adjustment pursuant
to this Section 11.06 has been made and (B) all other
cash distributions to all or substantially all holders of
its Common Stock made within the 12 months preceding the
date of payment of the Triggering Distribution and in
respect of which no Conversion Rate adjustment pursuant
to this Section 11.06 has been made, exceeds an amount
equal to 12.5% of the product of the current market price
per share of Common Stock (as determined in accordance
with subsection (e) of this Section 11.06) on the
Business Day (the "Determination Date") immediately
preceding the day on which such Triggering Distribution
is declared by the Company multiplied by the number of
shares of Common Stock outstanding on the Determination
Date (excluding shares held in the treasury of the
Company), the Conversion Rate shall be increased so that
the same shall equal the rate determined by multiplying
such Conversion Rate in effect immediately prior to the
Determination Date by a fraction of which the numerator
shall be such current market price per share of Common
Stock (as determined in accordance with subsection (e) of
this Section 11.06) on the Determination Date, and the
denominator shall be the current market price per share
of Common Stock (as determined in accordance with
subsection (e) of this Section 11.06) on the
Determination Date less the sum of the aggregate amount
of cash and the aggregate fair market value (determined
as aforesaid) of any such other consideration so
distributed, paid or payable within such 12 months
(including, without limitation, the Triggering
Distribution) applicable to one share of Common Stock
(determined on the basis of the number of shares of
Common Stock outstanding on the Determination Date), such
increase to become effective immediately prior to the
opening of business on the day following the date on
which the Triggering Distribution is paid.
(2) In case any tender offer made by the
Company or any of its Subsidiaries for Common
Stock shall expire and such tender offer (as
amended upon the expiration thereof) shall
involve the payment of aggregate consideration
in an amount (determined as the sum of the
aggregate amount of cash consideration and the
aggregate fair market value (as determined by
the Board of Directors, whose determination
shall be conclusive evidence thereof and which
shall be evidenced by an Officers' Certificate
delivered to the Trustee thereof ) of any
other consideration) that, together with the
aggregate amount of (A) any cash and the fair
market value (as determined by the Board of
Directors, whose determination shall be
conclusive evidence thereof and which shall be
evidenced by an Officers' Certificate
delivered to the Trustee) of any other
consideration payable in respect of any other
tender offers by the Company or any Subsidiary
of the Company for Common Stock consummated
within the 12 months preceding the date of the
Expiration Date (as defined below) and in
respect of which no Conversion Rate adjustment
pursuant to this Section 11.06 has been made
and (B) all cash distributions to all or
substantially all holders of its Common Stock
made within the 12 months preceding the
Expiration Date and in respect of which no
Conversion Rate adjustment pursuant to this
Section 11.06 has been made, exceeds an amount
equal to 12.5% of the product of the current
market price per share of Common Stock (as
determined in accordance with subsection (e)
of this Section 11.06) as of the last date
(the "Expiration Date") tenders could have
been made pursuant to such tender offer (as it
may be amended) (the last time at which such
tenders could have been made on the Expiration
Date is hereinafter sometimes called the
"Expiration Time") multiplied by the number of
shares of Common Stock outstanding (including
tendered shares but excluding any shares held
in the treasury of the Company) at the
Expiration Time, then, immediately prior to
the opening of business on the day after the
Expiration Date, the Conversion Rate shall be
increased so that the same shall equal the
rate determined by multiplying the Conversion
Rate in effect immediately prior to close of
business on the Expiration Date by a fraction
of which the numerator shall be the sum of (x)
the aggregate consideration (determined as
aforesaid) payable to stockholders based on
the acceptance (up to any maximum specified in
the terms of the tender offer) of all shares
validly tendered and not withdrawn as of the
Expiration Time (the shares deemed so
accepted, up to any such maximum, being
referred to as the "Purchased Shares") and (y)
the product of the number of shares of Common
Stock outstanding (excluding any Purchased
Shares and any shares held in the treasury of
the Company) at the Expiration Time and the
current market price per share of Common Stock
(as determined in accordance with subsection
(e) of this Section 11.06) on the Trading Day
next succeeding the Expiration Date, and the
denominator shall be the product of the number
of shares of Common Stock outstanding
(including tendered shares but excluding any
shares held in the treasury of the Company) at
the Expiration Time multiplied by the current
market price per share of Common Stock (as
determined in accordance with subsection (e)
of this Section 11.06) on the Trading Day next
succeeding the Expiration Date, such increase
to become effective immediately prior to the
opening of business on the day following the
Expiration Date. In the event that the Company
is obligated to purchase shares pursuant to
any such tender offer, but the Company is
permanently prevented by applicable law from
effecting any or all such purchases or any or
all such purchases are rescinded, the
Conversion Rate shall again be adjusted to be
the Conversion Rate which would have been in
effect based upon the number of shares
actually purchased. If the application of this
Section 11.06(d)(2) to any tender offer would
result in a decrease in the Conversion Rate,
no adjustment shall be made for such tender
offer under this Section 11.06(d)(2).
(3) For purposes of this Section 11.06(d), the
term "tender offer" shall mean and include
both tender offers and exchange offers, all
references to "purchases" of shares in tender
offers (and all similar references) shall mean
and include both the purchase of shares in
tender offers and the acquisition of shares
pursuant to exchange offers, and all
references to "tendered shares" (and all
similar references) shall mean and include
shares tendered in both tender offers and
exchange offers.
(e)For the purpose of any computation under subsections
(b), (c) and (d) of this Section 11.06, the current
market price per share of Common Stock on any date shall
be deemed to be the average of the daily closing prices
for the 30 consecutive Trading Days commencing 45 Trading
Days before (i) the Determination Date or the Expiration
Date, as the case may be, with respect to distributions
or tender offers under subsection (d) of this Section
11.06 or (ii) the record date with respect to
distributions, issuances or other events requiring such
computation under subsection (b) or (c) of this Section
11.06. The closing price for each day shall be the last
reported sales price or, in case no such reported sale
takes place on such date, the average of the reported
closing bid and asked prices in either case on the New
York Stock Exchange (the "NYSE") or, if the Common Stock
is not listed or admitted to trading on the NYSE, on the
principal national securities exchange on which the
Common Stock is listed or admitted to trading or, if not
listed or admitted to trading on any national securities
exchange, the last reported sales price of the Common
Stock as quoted on NASDAQ (the term "NASDAQ" shall
include, without limitation, the NASDAQ National Market)
or, in case no reported sales takes place, the average of
the closing bid and asked prices as quoted on NASDAQ or
any comparable system or, if the Common Stock is not
quoted on NASDAQ or any comparable system, the closing
sales price or, in case no reported sale takes place, the
average of the closing bid and asked prices, as furnished
by any two members of the National Association of
Securities Dealers, Inc. selected from time to time by
the Company for that purpose. If no such prices are
available, the current market price per share shall be
the fair value of a share of Common Stock as determined
by the Board of Directors (which shall be evidenced by an
Officers' Certificate delivered to the Trustee).
(f)In any case in which this Section 11.06 shall require
that an adjustment be made following a record date or a
Determination Date or Expiration Date, as the case may
be, established for purposes of this Section 11.06, the
Company may elect to defer (but only until five Business
Days following the filing by the Company with the Trustee
of the certificate described in Section 11.09) issuing to
the Holder of any 2020 Debenture converted after such
record date or Determination Date or Expiration Date the
shares of Common Stock and other capital stock of the
Company issuable upon such conversion over and above the
shares of Common Stock and other capital stock of the
Company issuable upon such conversion only on the basis
of the Conversion Rate prior to adjustment; and, in lieu
of the shares the issuance of which is so deferred, the
Company shall issue or cause its transfer agents to issue
due bills or other appropriate evidence prepared by the
Company of the right to receive such shares. If any
distribution in respect of which an adjustment to the
Conversion Rate is required to be made as of the record
date or Determination Date or Expiration Date therefor is
not thereafter made or paid by the Company for any
reason, the Conversion Rate shall be readjusted to the
Conversion Rate which would then be in effect if such
record date had not been fixed or such effective date or
Determination Date or Expiration Date had not occurred.
SECTION 11.07 NO ADJUSTMENT.
No adjustment in the Conversion Rate shall be
required unless the adjustment would require
an increase or decrease of at least 1% in the
Conversion Rate as last adjusted; PROVIDED,
HOWEVER, that any adjustments which by reason
of this Section 11.07 are not required to be
made shall be carried forward and taken into
account in any subsequent adjustment. All
calculations under this Article XI shall be
made to the nearest cent or to the nearest
1/1000th of a share, as the case may be.
No adjustment need be made for issuances of
Common Stock pursuant to a Company plan for
reinvestment of dividends or interest or for a
change in the par value or a change to no par
value of the Common Stock.
To the extent that the 2020 Debentures become
convertible into the right to receive cash, no
adjustment need be made thereafter as to the
cash. Interest will not accrue on the cash.
SECTION 11.08 ADJUSTMENT FOR TAX PURPOSES.
The Company shall be entitled to make such
adjustments in the Conversion Rate, in
addition to those required by Section 11.06,
as it in its discretion shall determine to be
advisable in order that any stock dividends,
subdivisions of shares, distributions of
rights to purchase stock or securities or
distributions of securities convertible into
or exchangeable for stock hereafter made by
the Company to its stockholders shall not be
taxable.
SECTION 11.09 NOTICE OF ADJUSTMENT.
Whenever the Conversion Rate is adjusted, the
Company shall promptly mail to Holders a
notice of the adjustment and file with the
Trustee an Officers' Certificate specifying
the adjusted Conversion Rate, and briefly
stating the facts requiring the adjustment and
the manner of computing it.
SECTION 11.10 NOTICE OF CERTAIN TRANSACTIONS.
In the event that:
(1) the Company takes any action which would
require an adjustment in the Conversion Rate,
(2) the Company takes any action that
requires a supplemental indenture pursuant to
Section 11.11, or
(3) there is a dissolution or liquidation of
the Company,
the Company shall mail to Holders and file with the
Trustee a notice stating the proposed record or
effective date, as the case may be. The Company shall
mail the notice at least fifteen days before such date.
Failure to mail such notice or any defect therein shall
not affect the validity of any transaction referred to
in clause (1), (2) or (3) of this Section 11.10.
SECTION 11.11 EFFECT OF RECLASSIFICATION, CONSOLIDATION, MERGER
OR SALE ON CONVERSION PRIVILEGE.
If any of the following shall occur, namely:
(a) any reclassification or change of shares
of Common Stock issuable upon conversion of
the 2020 Debentures (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); (b)
any consolidation or merger in which the
Company is a party consolidating with another
entity or merging with or into another entity
other than a merger in which the Company is
the continuing corporation and which does not
result in any reclassification of, or change
(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) in, outstanding shares of Common
Stock; or (c) any sale or conveyance of all or
substantially all of the property and assets
of the Company to any Person, then the
Company, or such successor, purchasing or
transferee corporation, as the case may be,
shall, as a condition precedent to such
reclassification, change, consolidation,
merger, sale or conveyance, execute and
deliver to the Trustee a supplemental
indenture providing that the Holder of each
2020 Debenture then outstanding shall have the
right to convert such 2020 Debenture into the
kind and amount of shares of stock and other
securities and property (including cash)
receivable upon such reclassification, change,
consolidation, merger, sale or conveyance by a
holder of the number of shares of Common Stock
deliverable upon conversion of such 2020
Debenture immediately prior to such
reclassification, change, consolidation,
merger, sale or conveyance, assuming such holder
of Common Stock of the Company (i) is not a person
party to such transaction and (ii) failed to exercise
his rights of an election, if any, as to the kind or
amount of securities, cash and other property
receivable upon such reclassification, change,
consolidation, merger, sale or conveyance, provided,
however, that if the kind or amount of shares of stock
and other securities and property (including
cash) receivable upon such reclassification,
change, consolidation, merger, sale or
conveyance is not the same for each share of
Common Stock of the Company held immediately
prior to such reclassification, change,
consolidation, merger, sale or conveyance in
respect of which such rights of election shall
not have been exercised ("non-electing
share"), then for the purpose of this Section
11.11 the kind and amount of securities, cash
and other property receivable upon such
reclassification, change, consolidation,
merger, sale or conveyance by each non-
electing share shall be deemed to be the kind
and amount so receivable per share by a
plurality of the non-electing shares. Such
supplemental indenture shall provide for
adjustments of the Conversion Rate which shall
be as nearly equivalent as may be practicable
to the adjustments of the Conversion Rate
provided for in this Article XI. If, in the
case of any such consolidation, merger, sale
or conveyance, the stock or other securities
and property (including cash) receivable
thereupon by a holder of Common Stock include
shares of stock or other securities and
property of a Person other than the successor,
purchasing or transferee corporation, as the
case may be, in such consolidation, merger,
sale or conveyance, then such supplemental
indenture shall also be executed by such other
Person and shall contain such additional
provisions to protect the interests of the
Holders of the 2020 Debentures as the Board of
Directors shall reasonably consider necessary
by reason of the foregoing. The provisions of
this Section 11.11 shall similarly apply to
successive reclassifications, changes,
consolidations, mergers, sales or conveyances.
In the event the Company shall execute a
supplemental indenture pursuant to this
Section 11.11, the Company shall promptly file
with the Trustee (x) an Officers' Certificate
briefly stating the reasons therefor, the kind
or amount of shares of stock or other
securities or property (including cash)
receivable by Holders of the 2020 Debentures
upon the conversion of their 2020 Debentures
after any such reclassification, change,
consolidation, merger, sale or conveyance, any
adjustment to be made with respect thereto and
that all conditions precedent have been
complied with and (y) an Opinion of Counsel
that all conditions precedent have been
complied with, and shall promptly mail notice
thereof to all Holders.
SECTION 11.12 TRUSTEE'S DISCLAIMER.
The Trustee shall have no duty to determine
when an adjustment under this Article XI
should be made, how it should be made or what
such adjustment should be, but may accept as
conclusive evidence of that fact or the
correctness of any such adjustment, and shall
be protected in relying upon, an Officers'
Certificate including the Officers'
Certificate with respect thereto which the
Company is obligated to file with the Trustee
pursuant to Section 11.09. The Trustee makes
no representation as to the validity or value
of any securities or assets issued upon
conversion of 2020 Debentures, and the Trustee
shall not be responsible for the Company's
failure to comply with any provisions of this
Article XI.
The Trustee shall not be under any
responsibility to determine the correctness of
any provisions contained in any supplemental
indenture executed pursuant to Section 11.11,
but may accept as conclusive evidence of the
correctness thereof, and shall be fully
protected in relying upon, the Officers'
Certificate with respect thereto which the
Company is obligated to file with the Trustee
pursuant to Section 11.11.
SECTION 11.13 VOLUNTARY INCREASE.
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 or
such longer period as may be required by law
and if the increase is irrevocable during the
period.
ARTICLE XII
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 12.01 GENERAL.
The Company may be required to repurchase 2020
Debentures in accordance with their terms and
in accordance with this Article.
2020 Debentures shall be purchased by the
Company under the paragraph "Repurchase by the
Company at the Option of the Holder" of the
2020 Debentures on June 23, 2005, June 23,
2010 and June 23, 2015 (each, a "Repurchase
Date"), at the repurchase price specified
therein (each, a "Repurchase Price"), at the
option of the Holder thereof, upon:
(1) delivery to the Paying Agent by the
Holder of a written notice of purchase (a
"Repurchase Notice") at any time from the
opening of business on the date that is 20
Business Days prior to a Repurchase Date until
the close of business on such Repurchase Date
stating:
(A) the certificate number of the 2020
Debenture which the Holder will deliver to be
repurchased or if any of the 2020 Debentures is in
the form of a Global Security, then a beneficial
owner of a 2020 Debenture shall comply with the
procedures of the Depositary applicable to the
repurchase of a Global Security,
(B) the portion of the Principal Amount of
the 2020 Debenture which the Holder will deliver to
be repurchased, which portion must be $1,000 or an
integral multiple thereof,
(C) that such 2020 Debenture shall be
purchased as of the Repurchase Date pursuant to the
terms and conditions specified under the paragraph
"Repurchase by the Company at the Option of the
Holder" of the 2020 Debentures and in this
Indenture,
(D) in the event that the Company elects,
pursuant to Section 12.02 hereof, to pay the
Repurchase Price to be paid as of such Repurchase
Date, in whole or in part, in Common Stock but such
portion of the Repurchase Price shall ultimately be
payable to such Holder entirely in cash because any
of the conditions to payment of the Repurchase
Price in Common Stock is not satisfied prior to the
close of business on such Repurchase Date, as set
forth in Section 12.03 hereof, whether such Holder
elects (i) to withdraw such Repurchase Notice as to
some or all of the 2020 Debentures to which such
Repurchase Notice relates (stating the Principal
Amount at Maturity and certificate numbers of the
2020 Debentures as to which such withdrawal shall
relate or if certificated 2020 Debentures have not
been issued, a beneficial owner of a 2020 Debenture
shall comply with the procedures of the Depositary
applicable to the withdrawal of a Repurchase Note),
or (ii) to receive cash in respect of the entire
Repurchase Price for all 2020 Debentures (or
portions thereof) to which such Repurchase Price
relates, and
(2) delivery of such 2020 Debenture to the
Paying Agent prior to, on or after the
Repurchase Date (together with all necessary
endorsements) at the offices of the Paying
Agent, such delivery being a condition to
receipt by the Holder of the Repurchase Price
therefor; PROVIDED, HOWEVER, that such
Repurchase Price shall be so paid pursuant to
this Article XII only if the 2020 Debenture so
delivered to the Paying Agent shall conform in
all respects to the description thereof in the
related Repurchase Notice.
If a Holder, in such Holder's Repurchase
Notice and in any written notice of withdrawal
delivered by such Holder pursuant to the terms
of Section 12.09 hereof, fails to indicate
such Holder's choice with respect to the
election set forth in clause (D) of Section
12.01(1), such Holder shall be deemed to have
elected to receive cash in respect of the
Repurchase Price for all 2020 Debentures
subject to the Repurchase Notice in the
circumstances set forth in such clause (D).
The Company shall purchase from the Holder
thereof, pursuant to this Article XII, a
portion of a 2020 Debenture 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 2020 Debenture also apply to the
purchase of such portion of such 2020
Debenture.
Any purchase by the Company contemplated
pursuant to the provisions of this Article
XII, shall be consummated by the delivery of
the consideration to be received by the Holder
promptly following the later of the Repurchase
Date and the time of delivery of the 2020
Debenture.
Notwithstanding anything herein to the
contrary, any Holder delivering to the Paying
Agent the Repurchase Notice contemplated by
this Section 12.01 shall have the right to
withdraw such Repurchase Notice at any time
prior to the close of business on the
Repurchase Date by delivery of a written
notice of withdrawal to the Paying Agent in
accordance with Section 12.09.
The Paying Agent shall promptly notify the
Company of the receipt by it of any Repurchase
Notice or written notice of withdrawal
thereof.
SECTION 12.02 THE COMPANY'S RIGHT TO ELECT MANNER OF PAYMENT OF
REPURCHASE PRICE.
(a) The Repurchase Price of 2020 Debentures
in respect of which a Repurchase Notice
pursuant to Section 12.01 has been given will
be paid by the Company, at the election of the
Company, with cash or Common Stock or in any
combination of cash and Common Stock, subject
to the conditions set forth in Section 12.02
and 12.03 hereof. The Company shall
designate, in the Company Notice delivered
pursuant to Section 12.05 hereof, whether the
Company will purchase the 2020 Debentures for
cash or Common Stock, or, if a combination
thereof, the percentages of the Repurchase
Price of 2020 Debentures in respect of which
it will pay in cash and Common Stock;
PROVIDED, HOWEVER, that the Company will pay
cash for fractional interests in Common Stock.
For purposes of determining the existence of
potential fractional interests, all 2020
Debentures subject to purchase by the Company
held by a Holder shall be considered together
(no matter how many separate certificates are
to be presented). Each Holder whose 2020
Debentures are purchased pursuant to this
Article XII shall receive the same percentage
of cash or Common Stock in payment of the
Repurchase Price for such 2020 Debentures,
except (i) as provided in Section 12.04 with
regard to the payment of cash in lieu of
fractional Common Stock and (ii) in the event
that the Company is unable to purchase the
2020 Debentures of a Holder or Holders for
Common Stock because any necessary
qualifications or registrations of the Common
Stock under applicable state securities laws
cannot be obtained, the Company may purchase
the 2020 Debentures of such Holder or Holders
for cash. The Company may not change its
election with respect to the consideration (or
components or percentages of components
thereof) to be paid once the Company has given
its Company Notice to Holders except pursuant
to this Section 12.02 or pursuant to Section
12.04 in the event of a failure to satisfy,
prior to the close of business on the
Repurchase Date, any condition to the payment
of the Repurchase Price, in whole or in part,
in Common Stock.
At least three Business Days before the
Company Notice Date, the Company shall deliver
an Officers' Certificate to the Trustee
specifying:
(i) the manner of payment selected by the Company,
(ii) the information required by Section 12.05,
(iii) if the Company elects to pay the
Repurchase Price, or a specified percentage
thereof, in Common Stock, that the conditions
to such manner of payment set forth in Section
12.04 have been or will be complied with, and
(iv) whether the Company desires the Trustee
to give the Company Notice required by Section
12.05.
SECTION 12.03 PURCHASE WITH CASH.
On each Repurchase Date, at the option of the
Company, the Repurchase Price of 2020
Debentures in respect of which a Repurchase
Notice pursuant to Section 12.01 has been
given, or a specified percentage thereof, may
be paid by the Company with cash equal to the
aggregate Repurchase Price of such 2020
Debentures. If the Company elects to purchase
2020 Debentures with cash, the Company Notice,
as provided in Section 12.05, shall be sent to
Holders (and to beneficial owners as required
by applicable law) not less than 20 Business
Days prior to such Purchase Date (the "Company
Notice Date").
SECTION 12.04 PAYMENT BY ISSUANCE OF COMMON STOCK.
On each Repurchase Date, at the option of the
Company, the Repurchase Price of 2020
Debentures in respect of which a Repurchase
Notice pursuant to Section 12.01 has been
given, or a specified percentage thereof, may
be paid by the Company by the issuance of a
number of shares of Common Stock equal to the
quotient obtained by dividing (i) the amount
of cash to which the Holders would have been
entitled had the Company elected to pay all or
such specified percentage, as the case may be,
of the Repurchase Price of such 2020
Debentures in cash by (ii) the Market Price of
a share of Common Stock, subject to the next
succeeding paragraph.
The Company will not issue a fractional share
of Common Stock in payment of the Repurchase
Price. Instead the Company will pay cash for
the current market value of the fractional
share. The current market value of a fraction
of a share of Common Stock shall be determined
by multiplying the Market Price by such
fraction and rounding the product to the
nearest whole cent with one half cent being
rounded upwards. It is understood that if a
Holder elects to have more than one 2020
Debenture repurchased, the number of shares of
Common Stock shall be based on the aggregate
amount of 2020 Debentures to be repurchased.
If the Company elects to purchase the 2020
Debentures by the issuance of Common Stock,
the Company Notice, as provided in Section
12.05, 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 2020 Debentures pursuant to
this Article XII through the issuance of
Common Stock shall be conditioned upon:
(i) the Company's not having given its
Company Notice of an election to pay entirely
in cash and its giving of timely Company
Notice of election to purchase all or a
specified percentage of the 2020 Debentures
with Common Stock as provided herein;
(ii) the registration of the Common Stock to
be issued in respect of the payment of the
Repurchase Price under the Securities Act or
the Exchange Act, in each case, if required
for the initial issuance thereof;
(iii) any necessary qualification or
registration under applicable state securities
laws or the availability of an exemption from
such qualification and registration; and
(iv) the receipt by the Trustee of an
Officers' Certificate and an Opinion of
Counsel each stating that (A) the terms of the
issuance of the Common Stock are in conformity
with this Indenture and (B) the shares of
Common Stock to be issued by the Company in
payment of the Repurchase Price in respect of
2020 Debentures have been duly authorized and,
when issued and delivered pursuant to the
terms of this Indenture in payment of the
Repurchase Price in respect of the 2020
Debentures, will be validly issued, fully paid
and nonassessable and, to the best of such
counsel's knowledge, free from preemptive
rights, and, in the case of such Officer's
Certificate, stating that conditions (i), (ii)
and (iii) above and the condition set forth in
the second succeeding sentence have been
satisfied and, in the case of such Opinion of
Counsel, stating that conditions (ii) and
(iii) above have been satisfied.
Such Officers' Certificate shall also set
forth the number of shares of Common Stock to
be issued for each $1,000 Principal Amount of
2020 Debentures and the Sale Price of a share
of Common Stock on each trading day during the
period commencing on the first trading day of
the period during which the Market Price is
calculated and ending three Business Days
prior to the applicable Repurchase Date. The
Company may pay the Repurchase Price (or any
portion thereof) in Common Stock only if the
information necessary to calculate the Market
Price is published in THE WALL STREET JOURNAL
or another daily newspaper of national
circulation. If the foregoing conditions are
not satisfied with respect to a Holder or
Holders prior to the close of business on the
Repurchase Date and the Company has elected to
repurchase the 2020 Debentures pursuant to
this Article XII through the issuance of
Common Stock, the Company shall pay, without
further notice, the entire Repurchase Price of
the 2020 Debentures of such Holder or Holders
in cash.
The "Market Price" means the average of the
Sale Prices of the Common Stock for the five
trading day period ending on (if the third
Business Day prior to the applicable
Repurchase Date is a trading day, or if not,
then on the last trading day prior to), the
third Business Day prior to the applicable
Repurchase Date appropriately adjusted to take
into account the occurrence, during the period
commencing on the first of such trading days
during such five trading day period and ending
on such Repurchase Date, of any event
described in Section 11.06; subject, however,
to the conditions set forth in Sections
11.06(f) and 11.07.
The "Sale Price" of the Common Stock on any
date means the closing per share sale price
(or, if no closing sale price is reported, the
average of the bid and ask prices or, if more
than one in either case, the average of the
average bid and average ask prices) on such
date as reported in the composite transactions
for the principal United States securities
exchange on which the Common Stock is traded
or, if the Common Stock is not listed on a
United States national or regional securities
exchange, as reported by the National
Association of Securities Dealers Automated
Quotation System or its successors.
SECTION 12.05 NOTICE OF ELECTION.
The Company's notice of election to repurchase
with cash or Common Stock or any combination
thereof shall be sent to the Holders in the
manner provided in Section 10.02 of the
Indenture at the time specified in Section
12.03 or 12.04, as applicable (the "Company
Notice"). Such Company Notice shall state the
manner of payment elected and shall contain
the following information:
In the event the Company has elected to pay
the Repurchase Price (or a specified
percentage thereof) with Common Stock, the
Company Notice shall:
(1) state that each Holder will receive
Common Stock with a Market Price equal to such
specified percentage of the Repurchase Price
of the 2020 Debentures held by such Holder
(except any cash amount to be paid in lieu of
fractional shares);
(2) set forth the method of calculating the
Market Price of the Common Stock; and
(3) state that because the Market Price of
Common Stock will be determined prior to the
Repurchase Date, Holders will bear the market
risk with respect to the value of the Common
Stock to be received from the date such Market
Price is determined to the Repurchase Date.
In any case, each Company Notice shall include
a form of Repurchase Notice to be completed by
a Holder and shall state:
(A) the Repurchase Price and the Conversion Rate;
(B) the name and address of the Paying Agent
and the Conversion Agent;
(C) that 2020 Debentures as to which a
Repurchase Notice has been given may be
converted pursuant to Article XI hereof only
if the applicable Repurchase Notice has been
withdrawn in accordance with the terms of this
Indenture;
(D) that 2020 Debentures must be surrendered
to the Paying Agent to collect payment;
(E) that the Repurchase Price for any 2020
Debenture as to which a Repurchase Notice has
been given and not withdrawn will be paid
promptly following the later of the Repurchase
Date and the time of surrender of such 2020
Debenture as described in (D);
(F) the procedures the Holder must follow to
exercise repurchase rights under this Article
XII and a brief description of those rights;
(G) briefly, the conversion rights of the
2020 Debentures; and
(H) the procedures for withdrawing a
Repurchase Notice (including, without
limitation, for a conditional withdrawal
pursuant to the terms of Section 12.01 or
12.09).
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.
Upon determination of the actual number of
shares of Common Stock to be issued for each
$1,000 Principal Amount of 2020 Debentures,
the Company will publish such determination at
the Company's Web site on the World Wide Web
or through such other public medium as the
Company may use at that time.
SECTION 12.06 COVENANTS OF THE COMPANY.
All Common Stock delivered upon purchase of
the 2020 Debentures shall be newly issued
shares or treasury shares, shall be duly
authorized, validly issued, fully paid and
nonassessable and shall be free from
preemptive rights and free of any lien or
adverse claim. The Company shall use its
reasonable efforts to list or cause to have
quoted any Common Stock to be issued to
purchase 2020 Debentures on the principal
national securities exchange or over-the-
counter or other domestic market on which the
Common Stock is then listed or quoted.
SECTION 12.07 PROCEDURE UPON REPURCHASE.
The Company shall deposit cash (in respect of
a cash purchase under Section 12.03 or for
fractional shares of Common Stock, as
applicable) or Common Stock, or a combination
thereof, as applicable, at the time and in the
manner as provided in Section 12.10,
sufficient to pay the aggregate Repurchase
Price of all 2020 Debentures to be purchased
on the applicable Repurchase Date pursuant to
this Article XII.
As soon as practicable after the Repurchase
Date, the Company shall deliver to each Holder
entitled to receive Common Stock through the
Paying Agent, a certificate for the number of
full shares of Common Stock issuable in
payment of the Repurchase Price and cash in
lieu of any fractional shares of Common Stock.
The Person in whose name the certificate for
Common Stock is registered shall be treated as
a holder of record of Common Stock on the
Business Day following the Repurchase Date.
Subject to Section 12.04, no payment or
adjustment will be made for dividends on the
Common Stock the record date for which
occurred on or prior to the Repurchase Date.
SECTION 12.08 TAXES.
If a Holder of a 2020 Debenture is paid in
Common Stock, the Company shall pay any
documentary, stamp or similar issue or
transfer tax due on such issue of Common
Stock. However, the Holder shall pay any such
tax which is due because the Holder requests
the Common Stock to be issued in a name other
than the Holder's name. The Paying Agent may
refuse to deliver the certificates
representing the shares of 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 Common Stock are to be
issued in a name other than the Holder's name.
SECTION 12.09 EFFECT OF REPURCHASE NOTICE.
Upon receipt by the Paying Agent of the
Repurchase Notice, the Holder of the 2020
Debenture in respect of which such Repurchase
Notice was given shall (unless such Repurchase
Notice is withdrawn as specified in the
following two paragraphs) thereafter be
entitled to receive solely the Repurchase
Price with respect to such 2020 Debenture.
Such Repurchase Price shall be paid to such
Holder, subject to receipt of funds and/or
Common Stock by the Paying Agent, promptly
following the later of (x) the Repurchase Date
with respect to such 2020 Debenture (provided
the conditions in Section 12.01 have been
satisfied) and (y) the time of delivery of
such 2020 Debenture to the Paying Agent by the
Holder thereof in the manner required by
Section 12.01. 2020 Debentures in respect of
which a Repurchase Notice has been given by
the Holder thereof may not be converted
pursuant to Article XI hereof on or after the
date of the delivery of such Repurchase Notice
unless such Repurchase Notice has first been
validly withdrawn as specified in the
following two paragraphs.
A Repurchase Notice may be withdrawn by means
of a written notice of withdrawal delivered to
the office of the Paying Agent in accordance
with the Repurchase Notice at any time prior
to the close of business on the applicable
Repurchase Date specifying:
(1) the certificate number of the 2020
Debenture in respect of which such notice of
withdrawal is being submitted or if any of the
2020 Debentures is in the form of a Global
Security, then a beneficial owner of a 2020
Debenture shall comply with the procedures of
the Depositary applicable to the withdrawal of
a Repurchase Notice;
(2) the Principal Amount of the 2020
Debenture with respect to which such notice of
withdrawal is being submitted; and
(3) the Principal Amount, if any, of such
2020 Debenture which remains subject to the
original Repurchase Notice and which has been
or will be delivered for purchase by the
Company.
A written notice of withdrawal of a Repurchase
Notice may be in the form set forth in the
preceding paragraph or may be in the form of
(i) a conditional withdrawal contained in a
Repurchase Notice pursuant to the terms of
Section 12.01(1)(D) or (ii) a conditional
withdrawal containing the information set
forth in Section 12.01(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.
There shall be no purchase of any 2020
Debentures pursuant to this Article XII (other
than through the issuance of Common Stock in
payment of the Repurchase Price, including
cash in lieu of fractional shares) if there
has occurred (prior to, on or after, as the
case may be, the giving, by the Holders of
such 2020 Debentures, of the required
Repurchase Notice) and is continuing an Event
of Default (other than a default in the
payment of the Repurchase Price with respect
to such 2020 Debentures). The Paying Agent
will promptly return to the respective Holders
thereof any 2020 Debentures (x) with respect
to which a Repurchase Notice has been
withdrawn in compliance with this Indenture,
or (y) held by it during the continuance of an
Event of Default (other than a default in the
payment of the Repurchase Price with respect
to such 2020 Debentures) in which case, upon
such return, the Repurchase Notice with
respect thereto shall be deemed to have been
withdrawn.
SECTION 12.10 DEPOSIT OF REPURCHASE PRICE.
Prior to 11:00 a.m. (New York City time) on
the Business Day following the Repurchase
Date, the Company shall deposit with the
Trustee or with the Paying Agent an amount of
money (in immediately available funds if
deposited on such Business Day) and/or Common
Stock, if permitted hereunder, sufficient to
pay the aggregate Repurchase Price of all of
the 2020 Debentures or portions thereof which
are to be purchased as of the Repurchase Date.
SECTION 12.11 SECURITIES REPURCHASED IN PART.
Any 2020 Debenture which is to be purchased
only in part shall be surrendered at the
office of the Paying Agent (with, if the
Company or the Trustee so requires, due
endorsement by, or a written instrument of
transfer in form satisfactory to the Company
or 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
deliver to the Holder of such 2020 Debenture,
without service charge, a new 2020 Debenture
or 2020 Debentures, of any authorized
denomination as requested by such Holder in
aggregate Principal Amount equal to, and in
exchange for, the portion of the Principal
Amount of the 2020 Debenture so surrendered
which is not purchased.
SECTION 12.12 COMPLY WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES.
In connection with any offer to purchase or
purchase of 2020 Debentures under this Article
XII (provided that such offer or purchase
constitutes an "issuer tender offer" for
purposes of Rule 13e-4 (which term, as used
herein, includes any successor provision
thereto) under the Exchange Act at the time of
such offer or purchase), the Company shall (i)
comply with Rule 13e-4 under the Exchange Act,
(ii) file the related Schedule TO (or any
successor schedule, form or report) under the
Exchange Act, and (iii) otherwise comply with
all Federal and state securities laws so as to
permit the rights and obligations under this
Article XII to be exercised in the time and in
the manner specified in this Article XII.
SECTION 12.13 REPAYMENT TO THE COMPANY.
The Trustee and the Paying Agent shall return
to the Company any cash or Common Stock that
remain unclaimed for two years, subject to
applicable unclaimed property law, together
with interest or dividends, if any, thereon
held by them for the payment of the Repurchase
Price; PROVIDED, HOWEVER, that to the extent
that the aggregate amount of cash or Common
Stock deposited by the Company pursuant to
Section 12.10 exceeds the aggregate Repurchase
Price of the 2020 Debentures or portions
thereof which the Company is obligated to
purchase as of the Repurchase Date, then
promptly after the Business Day following the
Repurchase Date the Trustee shall return any
such excess to the Company together with
interest or dividends, if any, thereon. After
that, Holders entitled to money must look to
the Company for payment as general creditors,
unless an applicable abandoned property law
designates another Person.
SECTION 12.14 CONVERSION ARRANGEMENT ON REPURCHASE.
Any Securities required to be repurchased
under this Article XII, unless surrendered for
conversion before the close of business on the
Repurchase Date, may be deemed to be purchased
from the Holders of such Securities for an
amount in cash not less than the Repurchase
Price, by one or more investment bankers or
other purchasers who may agree with the
Company to purchase such Securities from the
Holders, to convert them into Common Stock of
the Company and to make payment for such
Securities to the Trustee in trust for such
Holders.
ARTICLE XIII
PURCHASE OF SECURITIES AT OPTION OF
THE HOLDER UPON CHANGE IN CONTROL
SECTION 13.01 RIGHT TO REQUIRE REPURCHASE.
(a) If at any time that 2020 Debentures
remain outstanding there shall occur a Change
in Control, 2020 Debentures shall be purchased
by the Company at the option of the Holders
thereof as of the date that is 35 Business
Days after the occurrence of the Change in
Control (the "Change in Control Purchase
Date") at a purchase price equal to the Issue
Price plus accrued Original Issue Discount
through the Change in Control Purchase Date
(or, if the option under Section 14.01 has
been exercised, the Restated Principal Amount
plus accrued and unpaid interest from the
Option Exercise Date to the Change in Control
Purchase Date) (the "Change in Control
Purchase Price"), subject to satisfaction by
or on behalf of any Holder of the requirements
set forth in subsection (c) of this Section
13.01.
A "Change in Control" shall be deemed to have occurred at such
time as (a) any Person, or any Persons acting together in a manner
which would constitute a "group" (a "Group") for purposes of
Section 13(d) of the Exchange Act, or any successor provision
thereto, together with any Affiliates thereof become the Beneficial
Owners, directly or indirectly, of capital stock of the Company,
entitling such Person or Persons and its or their Affiliates to
exercise more than 50% of the total voting power of all classes of
the Company's capital stock entitled to vote generally in the
election of the Company's directors or (b) the Company shall
consolidate with or merge into any other Person (other than a
Subsidiary) , or any other Person (other than a Subsidiary) shall
consolidate with or merge into the Company, or the Company shall
sell, convey, transfer or lease its properties and assets
substantially as an entirety to any Person other than a Subsidiary,
and, in the case of any such transaction the outstanding Common
Stock is reclassified into, exchanged for or converted into the
right to receive any other property or security, unless the
stockholders of the Company immediately before such transaction
beneficially own, directly or indirectly, immediately following
such transaction, at least a majority of the combined voting power
of the outstanding voting securities of the Person resulting from
such transaction or the Person acquiring such properties and
assets, entitled to vote generally on the election of such
resulting or acquiring Person's directors, in substantially the
same proportion as their ownership of the Common Stock immediately
before such transaction, PROVIDED, HOWEVER, that, with respect to
both clause (a) and (b), a Change in Control shall not be deemed to
have occurred if at least 50% of the consideration (excluding cash
payments for fractional shares) in the transaction or transactions
constituting the Change in Control consists of shares of voting
common stock of such Person that are, or upon issuance will be,
traded on a United States national securities exchange or approved
for trading on an established automated over-the-counter trading
market in the United States.
The term "Beneficial Owner" shall be determined in accordance
with Rules 13d-3 and 13d-5 promulgated by the Securities and
Exchange Commission under the Exchange Act or any successor
provision thereto, except that a Person shall be deemed to have
"beneficial ownership" of all shares that such Person has the right
to acquire, whether such right is exercisable immediately or only
after the passage of time.
(b) Within 15 Business Days after the
occurrence of a Change in Control, the Company
shall mail a written notice of the Change in
Control to the Trustee and to each Holder. The
notice shall include the form of a Change in
Control Purchase Notice to be completed by the
Holder and shall state:
(1) the date of such Change in Control
and, briefly, the events causing such Change
in Control;
(2) the date by which the Change in
Control Purchase Notice pursuant to this
Section 13.01 must be given;
(3) the Change in Control Purchase Date;
(4) the Change in Control Purchase
Price;
(5) briefly, the conversion rights of
the 2020 Debentures;
(6) the name and address of each Paying
Agent and Conversion Agent;
(7) the Conversion Rate and any
adjustments thereto;
(8) that 2020 Debentures as to which a
Change in Control Purchase Notice has been
given may be converted into Common Stock
pursuant to Article XI only to the extent that
the Change in Control Purchase Notice has been
withdrawn in accordance with the terms of this
Indenture;
(9) the procedures that the Holder must
follow to exercise rights under this Section
13.01;
(10) the procedures for withdrawing a
Change in Control Purchase Notice, including a
form of notice of withdrawal; and
(11) that the Holder must satisfy the
requirements set forth in the 2020 Debentures
in order to convert the Securities.
If any of the 2020 Debentures is in the form
of a Global Security, then the Company shall
modify such notice to the extent necessary to
accord with the procedures of the Depositary
applicable to the repurchase of Global
Securities.
(c) A Holder may exercise its rights
specified in subsection (a) of this Section
13.01 upon delivery of a written notice (which
shall be in substantially the form included as
an attachment to the 2020 Debentures and which
may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in
any other written form and, in the case of
Global Securities, may be delivered
electronically or by other means in accordance
with the Depositary's customary procedures) of
the exercise of such rights (a "Change in
Control Purchase Notice") to any Paying Agent
at any time prior to the close of business on
the Business Day next preceding the Change in
Control Purchase Date.
The delivery of such 2020 Debenture to any
Paying Agent (together with all necessary
endorsements) at the office of such Paying
Agent shall be a condition to the receipt by
the Holder of the Change in Control Purchase
Price therefor.
The Company shall purchase from the Holder
thereof, pursuant to this Section 13.01, a
portion of a 2020 Debenture 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 2020 Debenture pursuant to Sections
13.01 through 13.06 also apply to the purchase
of such portion of such 2020 Debenture.
Notwithstanding anything herein to the
contrary, any Holder delivering to a Paying
Agent the Change in Control Purchase Notice
contemplated by this subsection (c) shall have
the right to withdraw such Change in Control
Purchase Notice in whole or as to a portion
thereof that is a Principal Amount of $1,000
or an integral multiple thereof at any time
prior to the close of business on the Business
Day next preceding the Change in Control
Purchase Date by delivery of a written notice
of withdrawal to the Paying Agent in
accordance with Section 13.02.
A Paying Agent shall promptly notify the
Company of the receipt by it of any Change in
Control Purchase Notice or written withdrawal
thereof.
Anything herein to the contrary
notwithstanding, in the case of Global
Securities, any Change in Control Purchase
Notice may be delivered or withdrawn and such
2020 Debentures may be surrendered or
delivered for purchase in accordance with the
applicable procedures of the Depositary as in
effect from time to time.
SECTION 13.02 EFFECT OF CHANGE IN CONTROL PURCHASE NOTICE.
Upon receipt by any Paying Agent of the Change
in Control Purchase Notice specified in
Section 13.01(c), the Holder of the 2020
Debenture in respect of which such Change in
Control Purchase Notice was given shall
(unless such Change in Control Purchase Notice
is withdrawn as specified below) thereafter be
entitled to receive the Change in Control
Purchase Price with respect to such 2020
Debenture. Such Change in Control Purchase
Price shall be paid to such Holder promptly
following the later of (a) the Change in
Control Purchase Date with respect to such
2020 Debenture (provided the conditions in
Section 13.01(c) have been satisfied) and (b)
the time of delivery of such 2020 Debenture to
a Paying Agent by the Holder thereof in the
manner required by Section 13.01(c). 2020
Debentures in respect of which a Change in
Control Purchase Notice has been given by the
Holder thereof may not be converted into
Common Stock on or after the date of the
delivery of such Change in Control Purchase
Notice unless such Change in Control Purchase
Notice has first been validly withdrawn.
A Change in Control Purchase Notice may be
withdrawn by means of a written notice (which
may be delivered by letter, overnight courier,
hand delivery, facsimile transmission or in
any other written form and, in the case of
Global Securities, may be delivered
electronically or by other means in accordance
with the Depositary's customary procedures) of
withdrawal delivered by the Holder to a Paying
Agent at any time prior to the close of
business on the Business Day immediately
preceding the Change in Control Purchase Date,
specifying the Principal Amount of the
Security or portion thereof (which must be a
Principal Amount of $1,000 or an integral
multiple of $1,000 in excess thereof) with
respect to which such notice of withdrawal is
being submitted.
SECTION 13.03 DEPOSIT OF CHANGE IN CONTROL PURCHASE PRICE.
On or before 11:00 a.m. New York City time on
the Change in Control Purchase Date, the
Company shall deposit with the Trustee or with
a Paying Agent (other than the Company or an
Affiliate of the Company) an amount of money
(in immediately available funds if deposited
on such Business Day) sufficient to pay the
aggregate Change in Control Purchase Price of
all the 2020 Debentures or portions thereof
that are to be purchased as of such Change in
Control Purchase Date. The manner in which the
deposit required by this Section 13.03 is made
by the Company shall be at the option of the
Company, PROVIDED, HOWEVER, that such deposit
shall be made in a manner such that the
Trustee or a Paying Agent shall have
immediately available funds on the Change in
Control Purchase Date.
If a Paying Agent holds, in accordance with
the terms hereof, money sufficient to pay the
Change in Control Purchase Price of any 2020
Debenture for which a Change in Control
Purchase Notice has been tendered and not
withdrawn in accordance with this Indenture
then, on the Change in Control Purchase Date,
such 2020 Debenture will cease to be
outstanding and the rights of the Holder in
respect thereof shall terminate (other than
the right to receive the Change in Control
Purchase Price as aforesaid). The Company
shall publicly announce the Principal Amount
of 2020 Debentures purchased as a result of
such Change in Control on or as soon as
practicable after the Change in Control
Purchase Date.
SECTION 13.04 SECURITIES PURCHASED IN PART.
Any 2020 Debenture that is to be purchased
only in part shall be surrendered at the
office of a Paying Agent and promptly after
the Change in Control Purchase Date the
Company shall execute and the Trustee shall
authenticate and deliver to the Holder of such
2020 Debenture, without service charge, a new
2020 Debenture or 2020 Debentures, of such
authorized denomination or denominations as
may be requested by such Holder, in aggregate
Principal Amount equal to, and in exchange
for, the portion of the Principal Amount of
the 2020 Debenture so surrendered that is not
purchased.
SECTION 13.05 COMPLIANCE WITH SECURITIES LAWS UPON PURCHASE OF
SECURITIES.
In connection with any offer to purchase or
purchase of 2020 Debentures under Section
13.01, the Company shall (a) comply with Rule
13e-4 (or any successor to either such Rule),
if applicable, under the Exchange Act, (b)
file the related Schedule TO (or any successor
or similar schedule, form or report) if
required under the Exchange Act, and (c)
otherwise comply with all federal and state
securities laws in connection with such offer,
all so as to permit the rights of the Holders
and obligations of the Company under Sections
13.01 through 13.06 to be exercised in the
time and in the manner specified therein.
SECTION 13.06 REPAYMENT TO THE COMPANY.
To the extent that the aggregate amount of
cash deposited by the Company pursuant to
Section 13.03 exceeds the aggregate Change in
Control Purchase Price together with interest,
if any, thereon of the 2020 Debentures or
portions thereof that the Company is obligated
to purchase, then promptly after the Change in
Control Purchase Date the Trustee or a Paying
Agent, as the case may be, shall return any
such excess to the Company.
ARTICLE XIV
SPECIAL TAX EVENT CONVERSION
SECTION 14.01 OPTIONAL CONVERSION TO INTEREST-BEARING SECURITIES
UPON TAX EVENT.
From and after the date (the "Option Exercise
Date") that is the later of (i) the date (the
"Tax Event Date") of the occurrence of a Tax
Event and (ii) the date the Company exercises
such option, at the option of the Company with
respect to its 2020 Debentures only, interest
in lieu of Original Issue Discount to accrue
from and after the Option Exercise Date shall
accrue at the rate of 3.5% per annum on a
restated principal amount per $1,000 original
Principal Amount (the "Restated Principal
Amount") equal to the Issue Price plus
Original Issue Discount accrued to the Option
Exercise Date and shall be payable
semiannually on each Interest Payment Date to
holders of record at the close of business on
each Regular Record Date immediately preceding
such Interest Payment Date. Interest will be
computed on the basis of a 360-day year
comprised of twelve 30- day months and will
accrue from the most recent date on which
interest has been paid or, if no interest has
been paid, from the Option Exercise Date.
Within 15 days of the occurrence of a Tax
Event, the Company shall mail a written notice
of such Tax Event by first-class mail to the
Trustee and within 15 days of its exercise of
such option the Company shall mail a written
notice of the Option Exercise Date by first-
class mail to the Trustee and Holders of the
2020 Debentures. From and after the Option
Exercise Date, (i) the Company shall be
obligated to pay at Stated Maturity, in lieu
of the Principal Amount of a Security, the
Restated Principal Amount thereof and (ii)
"Issue Price and accrued Original Issue
Discount," "Issue Price plus Original Issue
Discount" or similar words, as used herein,
shall mean Restated Principal Amount plus
accrued and unpaid interest with respect to
any 2020 Debenture. 2020 Debentures
authenticated and delivered after the Option
Exercise Date may, and shall if required by
the Trustee, bear a notation in a form
approved by the Trustee as to the conversion
of the 2020 Debentures to interest-bearing
2020 Debentures.
ARTICLE THREE
MISCELLANEOUS PROVISIONS
SECTION 301 INTEGRAL PART.
This First Supplemental Indenture constitutes an integral part
of the Indenture with respect to the 2020 Debentures only.
SECTION 302 GENERAL DEFINITIONS.
For all purposes of this First Supplemental Indenture:
(a) capitalized terms used herein without definition
shall have the meanings specified in the Indenture; and
(b) the terms "herein", "hereof", "hereunder" and other
words of similar import refer to this First Supplemental Indenture.
SECTION 302 ADOPTION, RATIFICATION AND CONFIRMATION.
The Indenture, as supplemented and amended by this First
Supplemental Indenture, is in all respects hereby adopted, ratified
and confirmed, and this First Supplemental Indenture shall be
deemed part of the Indenture in the manner and to the extent herein
and therein provided. The provisions of this First Supplemental
Indenture shall, subject to the terms hereof, supersede the
provisions of the Indenture to the extent the Indenture is
inconsistent herewith.
SECTION 304 TRUST INDENTURE ACT CONTROLS.
If any provision of this Indenture limits, qualifies or
conflicts with the duties imposed by operation of TIA Section 318(c), the
imposed duties shall control.
SECTION 305 GOVERNING LAW.
THIS FIRST SUPPLEMENTAL INDENTURE AND THE 2020 DEBENTURES
SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF
THE STATE OF NEW YORK, WITHOUT GIVING EFFECT TO APPLICABLE
PRINCIPLES OF CONFLICTS OF LAWS TO THE EXTENT THE LAWS OF ANOTHER
JURISDICTION WOULD BE REQUIRED THEREBY.
SECTION 306 SEVERABILITY.
In case any provision in this First Supplemental Indenture or
in the 2020 Debentures shall be invalid, illegal or unenforceable,
the validity, legality and enforceability of the remaining
provisions shall, to the fullest extent permitted by applicable
law, not in any way be affected or impaired thereby.
SECTION 307 COUNTERPART ORIGINALS.
The parties may sign any number of copies of this First
Supplemental Indenture. Each signed copy shall be an original, but
all of them together represent the same agreement.
SECTION 308 SUCCESSORS.
All agreements of the Company in this First Supplemental
Indenture and the 2020 Debentures shall bind its successors. All
agreements of the Trustee in this First Supplemental Indenture
shall bind its successors.
SECTION 309 TABLE OF CONTENTS, HEADINGS, ETC.
The table of contents, cross-reference table and headings of
the Articles and Sections of this First Supplemental Indenture have
been inserted for convenience of reference only, are not to be
considered a part hereof and shall in no way modify or restrict any
of the terms or provisions hereof.
SECTION 310 BENEFIT OF FIRST SUPPLEMENTAL INDENTURE.
Nothing in this First Supplemental Indenture, express or
implied, shall give to any Person, other than the parties hereto,
any Security Registrar, any Paying Agent and their successors
hereunder, and the Holders of the Securities, any benefit or any
legal or equitable right, remedy or claim under this First
Supplemental Indenture.
SECTION 311 ACCEPTANCE BY TRUSTEE.
The Trustee accepts the amendments to the Indenture effected
by this First Supplemental Indenture and agrees to execute the
trusts created by the Indenture as hereby amended, but only upon
the terms and conditions set forth in this First Supplemental
Indenture and the Indenture. Without limiting the generality of
the foregoing, the Trustee assumes no responsibility for the
correctness of the recitals contained herein, which shall be taken
as the statements of the Company and except as provided in the
Indenture the Trustee shall not be responsible or accountable in
any way whatsoever for or with respect to the validity or execution
or sufficiency of this First Supplemental Indenture and the Trustee
makes no representation with respect thereto.
IN WITNESS WHEREOF, the parties hereto have caused this First
Supplemental Indenture to be duly executed and their respective
corporate seals to be hereunto fixed and attested as of the day and
year first written above.
GLOBAL MARINE INC.
By: /s/W. Matt Ralls
Name: W. Matt Ralls
Title: Senior Vice President,
Chief Financial Officer and
Treasurer
WILMINGTON TRUST COMPANY
By: /s/David A. Vanaskey, Jr.
Name: David A. Vanaskey, Jr.
Title: Vice President
ANNEX A
[GLOBAL SECURITY]1
[FORM OF FACE OF SECURITY]
[UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY 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 THE DEPOSITORY TRUST COMPANY (AND ANY PAYMENT HEREON IS MADE TO
CEDE & CO. OR TO SUCH OTHER ENTITY AS IS REQUESTED BY AN AUTHORIZED
REPRESENTATIVE OF THE DEPOSITORY TRUST COMPANY), ANY TRANSFER,
PLEDGE OR OTHER USE HEREOF FOR VALUE OR OTHERWISE BY OR TO ANY
PERSON IS WRONGFUL SINCE THE REGISTERED OWNER HEREOF, CEDE & CO.,
HAS AN INTEREST HEREIN.
THIS SECURITY IS A GLOBAL SECURITY WITHIN THE MEANING OF THE
INDENTURE HEREINAFTER REFERRED TO AND IS REGISTERED IN THE NAME OF
A DEPOSITARY OR A NOMINEE THEREOF. THIS SECURITY IS EXCHANGEABLE
FOR SECURITIES REGISTERED IN THE NAME OF A PERSON OTHER THAN THE
DEPOSITARY OR ITS NOMINEE ONLY IN THE LIMITED CIRCUMSTANCES
DESCRIBED IN THE INDENTURE AND, UNLESS AND UNTIL IT IS EXCHANGED IN
WHOLE OR IN PART FOR SECURITIES IN DEFINITIVE FORM, THIS SECURITY
MAY NOT BE TRANSFERRED EXCEPT AS A WHOLE BY THE DEPOSITARY TO A
NOMINEE OF THE DEPOSITARY OR BY A NOMINEE OF THE DEPOSITARY TO THE
DEPOSITARY OR ANOTHER NOMINEE OF THE DEPOSITARY OR BY THE
DEPOSITARY OR ANY SUCH NOMINEE TO A SUCCESSOR DEPOSITARY OR A
NOMINEE OF SUCH SUCCESSOR DEPOSITARY.]1
[THIS SECURITY (OR ITS PREDECESSOR) WAS ORIGINALLY ISSUED IN
A TRANSACTION EXEMPT FROM REGISTRATION UNDER THE UNITED STATES
SECURITIES ACT OF 1933 (THE "SECURITIES ACT"), AND THIS SECURITY
AND THE COMMON STOCK ISSUABLE UPON CONVERSION THEREOF MAY NOT BE
OFFERED, SOLD OR OTHERWISE TRANSFERRED IN THE ABSENCE OF SUCH
REGISTRATION OR AN APPLICABLE EXEMPTION THEREFROM. EACH PURCHASER
OF THIS SECURITY IS HEREBY NOTIFIED THAT THE SELLER OF
THIS SECURITY MAY BE RELYING ON THE EXEMPTION FROM THE PROVISIONS
OF SECTION 5 OF THE SECURITIES ACT PROVIDED BY RULE 144A
THEREUNDER.
------------------
1. These paragraphs should be included only if the Security is a
Global Security.
THE HOLDER OF THIS SECURITY AGREES FOR THE BENEFIT OF THE
COMPANY THAT (A) THIS SECURITY AND THE COMMON STOCK ISSUABLE UPON
CONVERSION THEREOF MAY BE OFFERED, RESOLD, PLEDGED OR OTHERWISE
TRANSFERRED, ONLY (I) IN THE UNITED STATES TO A PERSON WHOM THE
SELLER REASONABLY BELIEVES IS A QUALIFIED INSTITUTIONAL BUYER (AS
DEFINED IN RULE 144A UNDER THE SECURITIES ACT) IN A TRANSACTION
MEETING THE REQUIREMENTS OF RULE 144A, (II) OUTSIDE THE UNITED
STATES IN AN OFFSHORE TRANSACTION IN ACCORDANCE WITH RULE 904 UNDER
THE SECURITIES ACT, (III) PURSUANT TO AN EXEMPTION FROM
REGISTRATION UNDER THE SECURITIES ACT PROVIDED BY RULE 144
THEREUNDER (IF AVAILABLE) OR (IV) PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE SECURITIES ACT, IN EACH OF CASES
(I) THROUGH (IV) IN ACCORDANCE WITH ANY APPLICABLE SECURITIES LAWS
OF ANY STATE OF THE UNITED STATES, AND (B) THE HOLDER WILL, AND
EACH SUBSEQUENT HOLDER IS REQUIRED TO, NOTIFY ANY PURCHASER OF THIS
SECURITY FROM IT OF THE RESALE RESTRICTIONS REFERRED TO IN (A)
ABOVE.]2
-----------------------
2. [These paragraphs to be included only if the Security is a
Transfer Restricted Security.]
[FORM OF FACE OF SECURITY]
GLOBAL MARINE INC.
ZERO COUPON CONVERTIBLE DEBENTURES DUE JUNE 23, 2020
Issue Date: June 23, 2000 Maturity: June 23, 2020
Principal Amount at Maturity: $_________ CUSIP: 379352 AM 9
Original Issue Discount: $500.40 Issue Price: $499.60
(per $1,000 Principal Amount) (per $1,000 Principal Amount)
Registered: No. R-
Global Marine Inc., a Delaware corporation (the "Company",
which term includes any successor Person under the indenture
hereinafter referred to), for value received, hereby promises to
pay to Cede & Co., or registered assigns, the principal sum of
__________________ DOLLARS ($_________) [(or such greater or lesser
amount as is indicated on the Schedule of Exchanges of Securities
on the other side of this Security)]3 on June 23, 2020. The
principal of this Security shall not bear interest, except in the
case of default in payment of principal upon acceleration,
redemption or maturity or as specified on the other side of this
Security. Original Issue Discount will accrue as specified on the
other side of this Security. This Security is convertible as
specified on the other side of this Security.
Payment of the principal of and interest, if any, on this
Security will be made at the office or agency of the Company
maintained for that purpose in The City of New York, in such coin
or currency of the United States of America as at the time of
payment is legal tender for payment of public and private debts;
PROVIDED, HOWEVER, that at the option of the Company, payment of
interest, if any, may be made by check mailed to the address of the
Person entitled thereto as such address shall appear in the
Security Register. [Payments in respect of this Security shall be
made by transfer of immediately available funds to the account
specified by the Holder.]4
Reference is hereby made to the further provisions of this
Security set forth on the reverse hereof, which further provisions
shall for all purposes have the same effect as if set forth at this
place.
----------------------
3 [This parenthetical to be included only if the Security is a
Transfer Restricted Security.]
4 [This sentence should be included only if the Security is a
Global Security.]
Unless the certificate of authentication hereon has been
executed by the Trustee referred to on the reverse hereof by manual
signature, this Security shall not be entitled to any benefit under
the Indenture or be valid or obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this Security to be
signed manually or by facsimile by its authorized officers and its
corporate seal or a facsimile thereof to be affixed or imprinted
hereon.
Dated:
GLOBAL MARINE INC.
[SEAL] By:
Name:
Title:
By:
Name:
Title:
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein
referred to in the within-mentioned Indenture.
WILMINGTON TRUST COMPANY, as
Trustee
Authorized Signature
Date of Authentication: __________________
[FORM OF REVERSE SIDE OF SECURITY]
GLOBAL MARINE INC.
ZERO COUPON CONVERTIBLE DEBENTURE DUE JUNE 23, 2020
This Security is one of a duly authorized issue of senior
securities of the Company (herein called the "Securities"), issued
and to be issued in one or more series under an Indenture, dated as
of September 1, 1997, as amended by the First Supplemental
Indenture thereto, dated as of June 23, 2000 (as so amended, herein
called the "Indenture"), between the Company and Wilmington Trust
Company, as Trustee (herein called the "Trustee", which term
includes any successor trustee under the Indenture), to which
Indenture and all indentures supplemental thereto reference is
hereby made for a statement of the respective rights, limitations
of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon
which the Securities are, and are to be, authenticated and
delivered. This Security is one of the series designated on the
face hereof, limited in aggregate principal amount at maturity to
$600,000,000; PROVIDED, HOWEVER, that in the event the Company
sells any Securities pursuant to the Option granted to the Initial
Purchaser pursuant to Section 3 of the Purchase Agreement, the
Securities shall be limited in aggregate principal amount at
maturity to up to $660,000,000.
INTEREST
This Security shall not bear interest, except as specified in
this paragraph or as described under "Tax Event". If the Principal
Amount hereof or any portion of such Principal Amount is not paid
when due (whether upon acceleration pursuant to Section 6.02 of the
Indenture, upon the date set for payment of the Redemption Price as
described under "Optional Redemption", upon the date set for
payment of the Change in Control Purchase Price pursuant to
"Purchase of Securities at Option of Holder Upon a Change in
Control", upon the date set for payment of the Repurchase Price
under "Repurchase by the Company at the Option of the Holder" or
upon the Stated Maturity of this Security) or if interest due
hereon, if any (or any portion of such interest), is not paid when
due, then in each such case the overdue amount shall, to the extent
permitted by law, bear interest at the rate of 3.5% per annum,
compounded semi-annually, which interest shall accrue from the date
such overdue amount was originally due to the date payment of such
amount, including interest thereon, has been made or duly provided
for. All such interest shall be payable as set forth in the
Indenture. The accrual of such interest on overdue amounts shall be
in lieu of, and not in addition to, the continued accrual of
Original Issue Discount. Original Issue Discount (the difference
between the Issue Price and the Principal Amount of the Security),
in the period during which a Security remains outstanding, shall
accrue at 3.5% per annum, on a semiannual bond equivalent basis
using a 360-day year composed of twelve 30-day months, from the
Issue Date of this Security.
OPTIONAL REDEMPTION
No sinking fund is provided for the Securities. The Securities
are redeemable as a whole, or from time to time in part, at any
time at the option of the Company at the Redemption Price set forth
below, on or after June 23, 2005.
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 through each such date. The Redemption Price of a
Security redeemed between such dates shall include an additional
amount reflecting the additional Original Issue Discount accrued
since the immediately preceding date in the table.
<TABLE>
<CAPTION>
(1) (2) (3)
Debenture Issue Accrued Original Redemption Price
Redemption Date Price Issue Discount (1)+(2)
<S> <C> <C> <C>
June 23, 2005 $499.60 $94.65 $594.25
June 23, 2006 499.60 115.63 615.23
June 23, 2007 499.60 37.35 636.95
June 23, 2008 499.60 159.84 659.44
June 23, 2009 499.60 183.12 682.72
June 23, 2010 499.60 207.22 706.82
June 23, 2011 499.60 232.18 731.78
June 23, 2012 499.60 258.02 757.62
June 23, 2013 499.60 284.76 784.36
June 23, 2014 499.60 312.46 812.06
June 23, 2015 499.60 341.13 840.73
June 23, 2016 499.60 370.81 870.41
June 23, 2017 499.60 401.54 901.14
June 23, 2018 499.60 433.36 932.96
June 23, 2019 499.60 466.30 965.90
At stated maturity 499.60 500.40 1,000.00
</TABLE>
If converted to an interest-bearing debenture following the
occurrence of a Tax Event, this Security will be redeemable at the
Restated Principal Amount plus accrued and unpaid interest from the
date of such conversion to the Redemption Date; but in no event
will this Security be redeemable before June 23, 2005.
If the Company redeems less than all of the outstanding
Securities, the Trustee will select the Securities to be redeemed
(i) by lot; (ii) pro rata; or (iii) by another method the Trustee
considers fair and appropriate. If the Trustee selects a portion of
a Holder's Securities for partial redemption and the Holder
converts a portion of the same Securities, the converted portion
will be deemed to be from the portion selected for redemption.
NOTICE OF REDEMPTION.
Notice of redemption will be mailed by first-class mail at
least 15 days but not more than 60 days before the Redemption Date
to each Holder of Securities to be redeemed at its registered
address. Securities in denominations larger than $1,000 Principal
Amount may be redeemed in part, but only in whole multiples of
$1,000. On and after the Redemption Date, subject to the deposit
with the Paying Agent of funds sufficient to pay the Redemption
Price, Original Issue Discount (or interest, if the Security is
converted to an interest-bearing debenture) ceases to accrue on
Securities or portions thereof called for redemption.
PURCHASE OF SECURITIES AT OPTION OF HOLDER UPON A CHANGE IN
CONTROL.
At the option of the Holder and subject to the terms and
conditions of the Indenture, the Company shall become obligated to
purchase all or any part specified by the Holder (so long as the
Principal Amount of such part is $1,000 or an integral multiple of
$1,000 in excess thereof) of the Securities held by such Holder on
the date that is 35 Business Days after the occurrence of a Change
in Control, at a Change in Control Purchase Price equal to the
Issue Price plus accrued Original Issue Discount through the Change
in Control Purchase Date. The Holder shall have the right to
withdraw any Change in Control Purchase Notice (in whole or in a
portion thereof that is $1,000 Principal Amount or an integral
multiple of $1,000 in excess thereof) at any time prior to the
close of business on the Business Day prior to the Change in
Control Purchase Date by delivering a written notice of withdrawal
to the Paying Agent in accordance with the terms of the Indenture.
If prior to a Change in Control Purchase Date this Security
has been converted to an interest-bearing debenture following the
occurrence of a Tax Event, the Change in Control Purchase Price
shall be equal to the Restated Principal Amount plus accrued and
unpaid interest from the date of conversion to the Change in
Control Purchase Date.
CONVERSION.
A Holder of a Security may convert the Security into shares of
Common Stock at any time until the close of business on the
Business Day prior to the Stated Maturity; provided, however, that
if the Security is called for redemption, the conversion right will
terminate at the close of business on the Business Day immediately
preceding the Redemption Date for such Security or such earlier
date as the Holder presents such Security for redemption (unless
the Company shall default in making the redemption payment when
due, in which case the conversion right shall terminate at the
close of business on the date such default is cured and such
Security is redeemed). A Security in respect of which a Holder has
delivered a Repurchase Notice exercising the option of such Holder
to require the Company to purchase such Security may be converted
only if such notice of exercise is withdrawn in accordance with the
terms of the Indenture. The initial Conversion Rate is 12.2182
shares of 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 Common Stock.
In the event the Company exercises its option pursuant to
Section 14.01 of the Indenture to have interest in lieu of Original
Issue Discount accrue on the Security following a Tax Event, the
Holder will be entitled on conversion to receive the same number of
shares of Common Stock such Holder would have received if the
Company had not exercised such option. If the Company exercises
such option, Securities surrendered for conversion during the
period from the close of business on any Regular Record Date
immediately preceding any Interest Payment Date to the opening of
business of such Interest Payment Date (except Securities or
portions of Securities to be redeemed on a Redemption Date
occurring during the period from the close of business on a Regular
Record Date and ending on the opening of business on the first
Business Day after the next Interest Payment Date, or if this
Interest Payment Date is not a Business Day, the second Business
Day after the Interest Payment Date) must be accompanied by payment
from the Holder of an amount equal to the interest thereon that the
registered Holder is to receive from the Company on such Interest
Payment Date. Except where Securities surrendered for conversion
must be accompanied by payment as described above, no interest on
converted Securities will be payable by the Company on any Interest
Payment Date subsequent to the date of conversion.
A Holder may convert a portion of a Security if the Principal
Amount of such portion is $1,000 or an integral multiple of $1,000.
No payment or adjustment will be made for dividends on the Common
Stock except as provided in the Indenture. On conversion of a
Security, that portion of accrued Original Issue Discount (and
interest if the Security is converted to an interest-bearing
debenture) attributable to the period from the Issue Date (or, in
the case of interest, if the Company has exercised the option
referred to in "Tax Event", the later of (x) the date of such
exercise and (y) the date on which interest was last paid) through
the Conversion Date with respect to the converted Security shall
not be cancelled, extinguished or forfeited, but rather shall be
deemed to be paid in full to the Holder thereof through the
delivery of the Common Stock (together with the cash payment, if
any, in lieu of fractional shares) in exchange for the Security
being converted pursuant to the terms hereof; and the fair market
value of such shares of Common Stock (together with any such cash
payment in lieu of fractional shares) shall be treated as issued,
to the extent thereof, first in exchange for Original Issue
Discount (and interest, if the Company has exercised its option
provided for in "Tax Event") accrued through the Conversion Date,
and the balance, if any, of such fair market value of such Common
Stock (and any such cash payment) shall be treated as issued in
exchange for the Issue Price of the Security being converted
pursuant to the provisions hereof.
No fractional shares will be issued upon conversion; in lieu
thereof, an amount will be paid in cash based upon the closing
price of the Common Stock on the Trading Day immediately prior to
the Conversion Date.
To convert a Security, a Holder must (a) complete and manually
sign the conversion notice set forth below and deliver such notice
to a Conversion Agent, (b) surrender the Security to the Conversion
Agent, (c) furnish appropriate endorsements and transfer documents
(including any certification that may be required under applicable
law) if required by the Conversion Agent, and (d) pay any transfer
or similar tax, if required.
REPURCHASE BY THE COMPANY AT THE OPTION OF THE HOLDER.
Subject to the terms and conditions of the Indenture, the
Company shall become obligated to purchase, at the option of the
Holder, the Securities held by such Holder on the following
Repurchase Dates and at the following Repurchase Prices per $1,000
Principal Amount, upon delivery of a Repurchase Notice containing
the information set forth in the Indenture, at any time from the
opening of business on the date that is 20 Business Days prior to
such Repurchase Date until the close of business on such Repurchase
Date and upon delivery of the Securities to the Paying Agent by the
Holder as set forth in the Indenture.
Repurchase Date Repurchase Price
--------------- ----------------
June 23, 2005 $594.25
June 23, 2010 $706.82
June 23, 2015 $840.73
The Repurchase Price (equal to the Issue Price plus accrued
Original Issue Discount through the Repurchase Date) may be paid,
at the option of the Company, in cash or by the issuance of Common
Stock (as provided in the Indenture), or in any combination
thereof.
If prior to a Repurchase Date this Security has been converted
to an interest-bearing debenture following the occurrence of a Tax
Event, the Repurchase Price will be equal to the Restated Principal
Amount plus accrued and unpaid interest from the date of conversion
to the Repurchase Date.
Holders have the right to withdraw any Repurchase Notice by
delivering to the Paying Agent a written notice of withdrawal prior
to the close of business on the Repurchase Date in accordance with
the provisions of the Indenture.
If cash (and/or securities if permitted under the Indenture)
sufficient to pay the Repurchase Price of all Securities or
portions thereof to be purchased as of the Repurchase Date, is
deposited with the Paying Agent on the Business Day following the
Repurchase Date, such Securities shall cease to be outstanding,
Original Issue Discount (or interest, if this Security has been
converted to an interest-bearing debenture following the occurrence
of a Tax Event) ceases to accrue on such Securities (or portions
thereof) immediately after such Repurchase Date, and the Holder
thereof shall have no other rights as such (other than the right to
receive the Repurchase Price upon surrender of such Security).
TAX EVENT.
From and after the date (the "Option Exercise Date") that is
the later of (i) the date (the "Tax Event Date") of the occurrence
of a Tax Event and (ii) the date the Company exercises such option,
at the option of the Company, interest in lieu of future Original
Issue Discount shall accrue at the rate of 3.5% per annum on a
Principal Amount per Security (the "Restated Principal Amount")
equal to the Issue Price plus Original Issue Discount accrued
through the Option Exercise Date and shall be payable semiannually
on June 23 and December 23 of each year (each an "Interest Payment
Date") to holders of record at the close of business on June 8 or
December 8 (each a "Regular Record Date") immediately preceding
such Interest Payment Date. Interest will be computed on the basis
of a 360-day year comprised of twelve 30-day months and will accrue
from the most recent date to which interest has been paid or, if no
interest has been paid, from the Option Exercise Date.
Interest on any Security that is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be
paid to the person in whose name that Security is registered at the
close of business on the Regular Record Date.
Except as otherwise specified with respect to the Securities,
any Defaulted Interest on any Security shall forthwith cease to be
payable to the registered Holder thereof on the relevant Regular
Record Date by virtue of having been such Holder, and such
Defaulted Interest may be paid by the Company as provided for in
Section 2.14 of the Indenture.
CONVERSION ARRANGEMENT ON CALL FOR REDEMPTION.
Any Securities called for redemption, unless surrendered for
conversion before the close of business on the Redemption Date, may
be deemed to be purchased from the Holders of such Securities at an
amount not less than the Redemption Price, by one or more
investment bankers or other purchasers who may agree with the
Company to purchase such Securities from the Holders, to convert
them into Common Stock of the Company and to make payment for such
Securities to the Paying Agent in trust for such Holders.
TRANSFER.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registrable in the Security Register, upon surrender of this
Security for registration or transfer at the office or agency in a
Place of Payment for Securities of this series, duly endorsed by,
or accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series,
of any authorized denominations and for the same aggregate
principal amount, executed by the Company and authenticated and
delivered by the Trustee, will be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in registered
form without coupons in denominations of $1,000 and any integral
multiple thereof. As provided in the Indenture and subject to
certain limitations set forth therein and on the face of this
Security, Securities of this series are exchangeable for a like
aggregate principal amount of Securities of this series of a
different authorized denomination as requested by the Holder
surrendering the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum
sufficient to cover any tax or other governmental charge payable in
connection therewith.
Prior to due presentment of this Security for registration of
transfer, the Company, the Trustee or any agent of the Company or
the Trustee may treat the Person in whose name this Security is
registered as the owner hereof for all purposes, whether or not
this Security be overdue, and neither the Company, the Trustee nor
any such agent shall be affected by notice to the contrary.
AMENDMENT, SUPPLEMENT AND WAIVER
Subject to certain exceptions and limitations, the Indenture
or the Securities may be amended or supplemented with the consent
of the Holders of at least a majority in principal amount of the
then outstanding Securities of all series of Securities affected by
such amendment or supplement (acting as one class), and any
existing or past Default or Event of Default under, or compliance
with any provision of, the Indenture may be waived (other than any
continuing Default or Event of Default in the payment of the
principal of or interest on the Securities) by the Holders of at
least a majority in principal amount of the then outstanding
Securities of any series or of all series (acting as one class) in
accordance with the terms of the Indenture. Without the consent of
any Holder, the Company and the Trustee may amend or supplement the
Indenture or the Securities or waive any provision of either, to
cure any ambiguity, omission, defect or inconsistency; to comply
with the provisions of the Indenture relating to merger,
consolidation and certain other transactions; to provide for
uncertificated Securities in addition to or in place of
certificated Securities; to provide any security for the Securities
or to add guarantees of the Securities; to comply with any
requirement in order to effect or maintain the qualification of the
Indenture under the TIA; to add to the covenants of the Company for
the benefit of the Holders of the Securities, or to surrender any
right or power conferred by the Indenture upon the Company; to add
any additional Events of Default with respect to all or any series
of the Debt Securities; to change or eliminate any of the
provisions of the Indenture, PROVIDED that no Security is adversely
affected in any material respect; to supplement any of the
provisions of the Indenture to such extent as shall be necessary to
permit or facilitate the defeasance and discharge of the Securities
pursuant to the Indenture; to evidence and provide for the
acceptance of appointment hereunder by a successor Trustee with
respect to the Securities and to add to or change any of the
provisions of this Indenture as shall be necessary to provide for
or facilitate the administration of the trusts thereunder by more
than one Trustee, pursuant to the requirements of the Indenture; or
to make provision with respect to the conversion rights of this
Security pursuant to the requirements of Article XI of the
Indenture.
The right of any Holder to participate in any consent required
or sought pursuant to any provision of the Indenture (and the
obligation of the Company to obtain any such consent otherwise
required from such Holder) may be subject to the requirement that
such Holder shall have been the Holder of record of any Securities
with respect to which such consent is required or sought as of a
date fixed in accordance with the terms of the Indenture.
Without the consent of each Holder affected, the Company may
not (i) reduce the amount of Securities whose Holders must consent
to an amendment, supplement or waiver, (ii) reduce the rate of or
change the time for payment of interest, including default
interest, on any Security, (iii) reduce the principal of or premium
on, or change the Stated Maturity of, any Security, (iv) reduce the
premium, if any, payable upon the redemption of any Security or
change the time at which any Security may or shall be redeemed,
(v) change the coin or currency in which any Security or any
premium or interest with respect thereto are payable, (vi) impair
the right to institute suit for the enforcement of any payment of
principal of or premium (if any) or interest on any Security, (vii)
make any change in the percentage of principal amount of Securities
necessary to waive compliance with certain provisions of the
Indenture, (viii) waive a continuing Default or Event of Default in
the payment of principal of or premium (if any) or interest on the
Securities, or (ix) adversely affect the right to convert this
Security as provided in Article XI of the Indenture, or adversely
affect the right to require the Company to repurchase this Security
as provided in Article XII of the Indenture.
A supplemental indenture that changes or eliminates any
covenant or other provision of the Indenture which has expressly
been included solely for the benefit of one or more particular
series of Securities under the Indenture, or which modifies the
rights of the Holders of Securities of such series with respect to
such covenant or other provision, shall be deemed not to affect the
rights under the Indenture of the Holders of Securities of any
other series.
SUCCESSOR PERSON
When a successor person assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance
with the terms and conditions of the Indenture, the predecessor
person will (except in certain circumstances specified in the
Indenture) be released from those obligations.
DEFAULTS AND REMEDIES
Events of Default are defined in the Indenture and generally
include: (i) default by the Company for 30 days in payment of any
interest on the Securities of this series; (ii) default in payment
of the Principal Amount (or, if the Securities of this series have
been converted to semiannual coupon debentures following a Tax
Event, the Restated Principal Amount), the Issue Price plus accrued
Original Issue Discount, the Redemption Price, Repurchase Price or
Change in Control Purchase Price, as the case may be, in respect of
the Securities when the same becomes due and payable; (iii) default
by the Company in compliance with any of its other covenants or
agreements in, or provisions of, the Securities or in the Indenture
which shall not have been remedied within 90 days after written
notice by the Trustee or by the holders of at least 25% in
principal amount of the Securities of the relevant series then
outstanding (or, in the event that other Securities issued under
the Indenture are also affected by the default, then 25% in
principal amount of all outstanding Securities so affected); or
(iv) certain events involving bankruptcy, insolvency or
reorganization of the Company. If an Event of Default occurs and
is continuing, the Trustee or the Holders of at least 25% in
principal amount of the then outstanding Securities of the series
affected by such default (or, in the case of an Event of Default
described in clause (iii) above, if outstanding Securities of other
series are affected by such Default, then at least 25% in principal
amount of the then outstanding Securities so affected), may declare
the principal of and interest on all the Securities to be
immediately due and payable, except that in the case of an Event of
Default arising from certain events of bankruptcy, insolvency or
reorganization of the Company, all outstanding Securities become
due and payable immediately without further action or notice. The
portion of the Principal Amount of each Security of this series
that shall become due upon the acceleration or upon such events of
bankruptcy, insolvency or reorganization of the Company is equal to
the Issue Price plus accrued Original Issue Discount on such
Security or, if such Security has been converted to an interest
bearing debenture, the Restated Principal Amount plus accrued and
unpaid interest from the date of conversion. Holders may not
enforce the Indenture or the Securities except as provided in the
Indenture. The Trustee may require indemnity reasonably
satisfactory to it before it enforces the Indenture or the
Securities. Subject to certain limitations, Holders of a majority
in principal amount of the then outstanding Securities of this
series (or all affected Securities) may direct the Trustee in its
exercise of any trust or power. The Trustee may withhold from
Holders notice of any continuing default (except a default in
payment of principal or interest) if it determines that withholding
notice is in their interests. The Company must furnish an annual
compliance certificate to the Trustee.
DISCHARGE PRIOR TO MATURITY
The Indenture with respect to the Securities shall be
discharged and canceled upon the payment of all of the Securities
and shall be discharged except for certain obligations upon the
irrevocable deposit with the Trustee of funds or U.S. Government
Obligations sufficient for such payment.
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. Each Holder by accepting a Security waives and releases
all such liability. The waiver and release are part of the
consideration for the issuance of the Securities.
AUTHENTICATION
This Security shall not be valid until authenticated by the
manual signature of the Trustee or an authenticating agent.
INDENTURE TO CONTROL; GOVERNING LAW
In the case of any conflict between the provisions of this
Security and the Indenture, the provisions of the Indenture shall
control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK,
WITHOUT GIVING EFFECT TO APPLICABLE PRINCIPLES OF CONFLICTS OF LAW
TO THE EXTENT THE LAWS OF ANOTHER JURISDICTION WOULD BE REQUIRED
THEREBY.
ABBREVIATIONS AND DEFINITIONS
Customary abbreviations may be used in the name of the Holder
or an assignee, such as: TEN COM (= tenants in common), TEN ENT (=
tenants by the entireties), JT TEN (= joint tenants with right of
survivorship and not as tenants in common),
CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors Act).
All terms defined in the Indenture and used in this Security
but not specifically defined herein are defined in the Indenture
and are used herein as so defined.
CONVERSION NOTICE
To convert this Security into Common Stock of the Company,
check the box: [ ]
To convert only part of this Security, state the Principal
Amount to be converted (must be $1,000 or a multiple of $1,000):
$______________.
If you want the stock certificate made out in another person's
name, fill in the form below:
____________________________________________________________________
(Insert other person's soc. sec. or tax I.D. no.)
____________________________________________________________________
(Print or type other person's name, address and zip code)
Your Signature:____________________ Date: _________________________
(Sign exactly as your name appears on the other side of this
Security)
*Signature guaranteed by: ____________________________________________
By: ___________________________
----------------------
* The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guaranty programs: (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallian Program (MSP); (iii) the Stock Exchange Medallion
Program (SEMP); or (iv) such other guaranty program acceptable to the
Trustee.
OPTION OF HOLDER TO ELECT PURCHASE ON CHANGE IN CONTROL
If you want to elect to have this Security purchased, in whole
or in part, by the Company pursuant to Section 13.01 of the
Indenture, check the following box: [ ]
If you want to have only part of this Security purchased by
the Company pursuant to Section 13.01 of the Indenture, state the
Principal Amount you want to be purchased (must be $1,000 or a
multiple of $1,000): $________________
Your Signature:_________________________ Date: _____________________
(Sign exactly as your name appears on the other side of this
Security)
*Signature guaranteed by: ___________________________________________
By: _________________________
-----------------------
*The signature must be guaranteed by an institution which is a member
of one of the following recognized signature guaranty programs: (i) the
Securities Transfer Agent Medallion Program (STAMP); (ii) the New York
Stock Exchange Medallion Program (MSP); (iii) the Stock Exchange Medallion
Program (SEMP); or (iv) such other guaranty program acceptable to the
Trustee.
SCHEDULE OF EXCHANGES OF SECURITIES5
The following exchanges, redemptions, repurchases or
conversions of a part of this Global Security have been made:
AMOUNT OF DECREASE IN AMOUNT OF INCREASE IN
PRINCIPAL AMOUNT OF THIS PRINCIPAL AMOUNT OF THE
DATE OF TRANSACTION GLOBAL SECURITY GLOBAL SECURITY
___________________ ________________________ _______________________
------------------
5 This schedule should be included only if the Security is a Global
Security.
CERTIFICATE TO BE DELIVERED UPON EXCHANGE OR REGISTRATION OF
TRANSFER OF RESTRICTED SECURITIES6
Re: Zero Coupon Convertible Debentures Due June 23, 2020 (the
"Securities") of Global Marine Inc.
This certificate relates to $_________ principal amount at
maturity of Securities owned in (check applicable box)
( ) book-entry or
( ) definitive form
by ____________________________________ (the "Transferor").
The Transferor has requested a Registrar or the Trustee to
exchange or register the transfer of such Securities.
In connection with such request and in respect of each such
Security, the Transferor does hereby certify that the Transferor
is familiar with transfer restrictions relating to the Securities
as provided in Section 102 of the First Supplemental Indenture
dated as of June 23, 2000 to the Indenture, dated as of September
1, 1997 (as so amended and supplemented, the "Indenture"), between
Global Marine Inc. and Wilmington Trust Company.
In connection with any transfer of any of the Securities
evidenced by this certificate occurring prior to the expiration of
the period referred to in Rule 144(k) under the Securities Act
after the later of the date of original issuance of such Securities
and the last date, if any, on which such Securities were owned by
the Company or any Affiliate of the Company, the undersigned
confirms that such Securities are being transferred in accordance
with its terms:
CHECK ONE BOX BELOW
(1) ( ) to the Company; or
(2) ( ) pursuant to an effective registration statement
under the Securities Act of 1933; or
(3) ( ) inside the United States to a "qualified
institutional buyer" (as defined in Rule 144A under
the Securities Act of 1933) that purchases for its
own account or for the account of a qualified
institutional buyer to whom notice is given that
--------------------
6 This certificate should only be included if this Security is a
Transfer Restricted Security.
such transfer is being made in reliance on Rule
144A, in each case pursuant to and in compliance
with Rule 144A under the Securities Act of 1933; or
(4) ( ) outside the United States in an offshore
transaction within the meaning of Regulation S
under the Securities Act in compliance with Rule
904 under the Securities Act of 1933; or
(5) ( ) pursuant to another available exemption from
registration provided by Rule 144 under the
Securities Act of 1933.
Unless one of the boxes is checked, the Trustee will refuse to
register any of the Securities evidenced by this certificate in the
name of any person other than the registered holder thereof;
PROVIDED, HOWEVER, that if box (4) or (5) is checked, the Trustee
may require, prior to registering any such transfer of the
Securities, such legal opinions, certifications and other
information as the Company has reasonably requested 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 of 1933, such as the exemption provided by Rule 144
under such Act.
Signature
Signature Guarantee:
Signature must be guaranteed Signature
TO BE COMPLETED BY PURCHASER IF (3) ABOVE IS CHECKED.
The undersigned represents and warrants that it is purchasing
this Security for its own account or an account with respect to
which it exercises sole investment discretion and that it and any
such account is a "qualified institutional buyer" within the
meaning of Rule 144A under the Securities Act of 1933, and is aware
that the sale to it is being made in reliance on Rule 144A and
acknowledges that it has received such information regarding the
Company as the undersigned has requested pursuant to Rule 144A or
has determined not to request such information and that it is aware
that the transferor is relying upon the undersigned's foregoing
representations in order to claim the exemption from registration
provided by Rule 144A.
Dated:______________________ ________________________________
NOTICE: To be executed by an
executive officer
