SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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FORM 8-K
CURRENT REPORT
PURSUANT TO SECTION 13 OR 15(d) of the
SECURITIES EXCHANGE ACT OF 1934
Date of Report (Date of earliest event reported): March 7, 2000
ANADARKO PETROLEUM CORPORATION
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(Exact name of registrant as specified in its charter)
Delaware 1-8968 76-0146568
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(State or other (Commission file (IRS employer
jurisdiction of number) identification
incorporation) no.)
17001 Northchase Drive, Houston, Texas 77060-2141
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(Address of principal executive offices) (Zip Code)
Registrant's telephone number, including area code (281) 875-1101
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Item 5. Other Events.
An exhibit is filed herewith in connection with the Registration Statement
on Form S-3 (File No. 333-76127) originally filed on April 12, 1999 by Anadarko
Petroleum Corporation (the "Company").
On March 2, 2000, the Company and Credit Suisse First Boston Corporation
entered into an underwriting agreement pursuant to which CSFB agreed to
purchase $600,000,000 principal amount of the Company's Zero Coupon Convertible
Debentures due March 2020 (the "Debentures"). In connection therewith, the
Company and Harris Trust and Savings Bank (the "Trustee") executed an indenture
dated March 7, 2000 supplemental (the "Supplemental Indenture") to the
Indenture dated as of September 1, 1997 between the Company and the Trustee and
the Supplemental Indenture is filed as an exhibit hereto.
On March 6, 2000, the Company filed a prospectus supplement (the
"Prospectus Supplement") pursuant to Rule 424(b) of the Securities Act of 1933,
as amended, relating to the Debentures.
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Item 7. Financial Statements and Exhibits.
(c) Exhibits.
4. Supplemental Indenture dated as of March 7, 2000 between the Company
and the Trustee.
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SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned, thereunto duly authorized.
Dated: March 7, 2000 ANADARKO PETROLEUM CORPORATION
By: /s/ Suzanne Suter
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Name: Suzanne Suter
Title: Corporate Secretary
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EXHIBIT INDEX
Exhibit No. Exhibit
4. Supplemental Indenture dated as of March 7, 2000 between
the Company and the Trustee
Exhibit 4
ANADARKO PETROLEUM CORPORATION
SUPPLEMENTAL INDENTURE NO. 3
THIS SUPPLEMENTAL INDENTURE NO. 3, dated as of March 7, 2000, between
Anadarko Petroleum Corporation, a corporation duly organized and existing under
the laws of the State of Delaware (the "Company") and Harris Trust and Savings
Bank, a banking corporation organized and existing under the laws of the State
of Illinois (the "Trustee").
W I T N E S S E T H
WHEREAS, the Company has heretofore executed and delivered to the
Trustee an Indenture, dated as of September 1, 1997 (together with the
supplements thereto, the "Indenture"), providing for the issuance from time to
time of one or more series of the Company's Securities;
WHEREAS, Section 901(7) 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 of Securities of a new series;
WHEREAS, Section 901(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 make provision with respect to matters arising under the Indenture
which do not adversely affect the interests of the Holders of Securities of any
series in any material respect; and
WHEREAS, the Company desires to issue Zero Coupon Convertible Debentures
due March 2020 (the "2020 Debentures"), a new series of Security the terms of
which were established by resolution of the Board of Directors of the Company
on March 1, 2000, and this supplemental indenture allows such 2020 Debentures
to contain certain terms not previously provided for in the Indenture and which
shall apply to such 2020 Debentures only.
NOW THEREFORE:
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In consideration of the premises provided for herein, the Company and the
Trustee mutually covenant and agree for the equal and proportionate benefit of
all Holders of the Securities as follows:
ARTICLE 1
RELATION TO INDENTURE; DEFINITIONS
SECTION 1.01. Integral Part. This Supplemental Indenture No. 3 constitutes
an integral part of the Indenture.
SECTION 1.02. General Definitions. For all purposes of this Supplemental
Indenture No. 3:
(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 Supplemental Indenture No. 3.
SECTION 1.03. Effectiveness. The amendments contained herein shall apply
to 2020 Debentures only and not to any other series of Security issued under
the Indenture. These amendments shall be effective for so long as there remains
2020 Debentures Outstanding.
ARTICLE 2
AMENDMENTS TO THE INDENTURE
SECTION 2.01. Definitions. Section 101 of the Indenture is amended by
inserting or restating, as the case may be, in their appropriate alphabetical
position, the following definitions:
"2020 Debentures" means the Zero Coupon Convertible Debentures due March
2020 of the Company established by resolution of the Board of Directors on
March 1, 2000 and dated March 7, 2000.
"Capital Stock" or "capital stock" of any Person means any and all shares,
interests, partnership interests, participations, rights or other equivalents
(however designated) of such Person's equity interest (however designated) by
resolution of the Board of Directors on March 1, 2000 and dated March 7, 2000.
"Change in Control" has the meaning specified in Section 1109.
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"Change in Control Purchase Notice" has the meaning specified in Section
1109.
"Common Stock" means any stock of any class of the Company which has no
preference in respect of dividends or of amounts payable in the event of any
voluntary or involuntary liquidation, dissolution or winding up of the Company
and which is not subject to redemption by the Company.
"Conversion Agent" shall be the agent specified in Section 1002.
"Conversion Date" has the meaning specified in Section 1402.
"Conversion Rate" has the meaning specified in Section 1401.
"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.
"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.
"Outstanding", when used with respect to Securities, means, as of the date
of determination, all Securities theretofore authenticated and delivered under
this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or delivered to
the Trustee for cancellation;
(ii) Securities for whose payment, repurchase or redemption money in
the necessary amount has been theretofore deposited with the Trustee or
any Paying Agent (other than the Company) in trust or set aside and
segregated in trust by the Company (if the Company shall act as its own
Paying Agent) for the Holders of such Securities; provided that, if such
Securities are to be redeemed, notice of such redemption has been duly
given pursuant to this Indenture or provision therefor satisfactory to the
Trustee has been made; and
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(iii) Securities which have been paid pursuant to Section 306 or in
exchange for or in lieu of which other Securities have been authenticated
and delivered pursuant to this Indenture, other than any such Securities
in respect of which there shall have been presented to the Trustee proof
satisfactory to it that such Securities are held by a bona fide purchaser
in whose hands such Securities are valid obligations of the Company; and
(iv) 2020 Debentures converted for Common Stock pursuant to Article
Fourteen;
provided, however, that in determining whether the Holders of the
requisite principal amount of the Outstanding Securities have given any
request, demand, authorization, direction, notice, consent or waiver hereunder,
Securities owned by the Company or any other obligor upon the Securities or any
Affiliate of the Company or of such other obligor shall be disregarded and
deemed not to be Outstanding, except that, in determining whether the Trustee
shall be protected in relying upon any such request, demand, authorization,
direction, notice, consent or waiver, only Securities which the Trustee knows
to be so owned shall be so disregarded. Securities so owned which have been
pledged in good faith may be regarded as Outstanding if the pledgee establishes
to the satisfaction of the Trustee the pledgee's right so to act with respect
to such Securities and that the pledgee is not the Company or any other obligor
upon the Securities or any Affiliate of the Company or of such other obligor.
"Principal Amount" of a 2020 Debenture means the Principal Amount as set
forth on the face of the 2020 Debenture.
"Repurchase Date" has the meaning specified in Section 1501.
"Repurchase Notice" has the meaning specified in Section 1501.
"Repurchase Price" has the meaning specified in Section 1501.
"Restated Principal Amount" has the meaning specified in Section 1601.
"Securities" has the meaning stated in the first recital of this Indenture
and more particularly means any Securities authenticated and delivered under
this Indenture, including 2020 Debentures.
"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 March 7, 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
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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 March 7, 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.
"Trading Day" means a day during which trading in securities generally
occurs on the New York Stock Exchange or, if the Common Stock is not listed on
the New York Stock Exchange, on the principal other national or regional
securities exchange on which the Common Stock is then listed or, if the Common
Stock is not listed on a national or regional securities exchange, on the
National Association of Securities Dealers Automated Quotation System or, if
the Common Stock is not quoted on the National Association of Securities
Dealers Automated Quotation System, on the principal other market on which the
Common Stock is then traded.
"Voting Stock" means any class or classes of Capital Stock pursuant to
which the holders thereof under ordinary circumstances have the power to vote
in the election of the board of directors, managers or trustees of any Person
(or other Persons performing similar functions), irrespective of whether or
not, at the time, Capital Stock of any other class or classes shall have, or
might have, voting power by reason of the happening of any contingency.
SECTION 2.02. Registration, Registration of Transfer and Exchange. The
Indenture shall be amended by replacing the seventh paragraph of Section 305
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 under
Section 1103 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
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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 2.03. Mutilated, Destroyed, Lost and Stolen Securities. The
Indenture shall be amended by replacing the third paragraph of Section 306 with
the following paragraph:
In case any such mutilated, destroyed, lost or stolen Security has or
is about to become due and payable, or is about to be redeemed or
purchased by the Company upon a Change in Control pursuant to Article
Eleven or purchased by the Company on a Repurchase Date pursuant to
Article Fifteen, the Company in its discretion may, instead of issuing a
new Security, pay such Security.
SECTION 2.04. Payment of Interest; Interest Rights Preserved. The
Indenture shall be amended by inserting the following paragraph after the final
paragraph in Section 307:
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
1402. 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 2.05. Unconditional Right of Holders to Receive Principal, Premium
and Interest. Section 508 of the Indenture shall be amended by replacing that
section with the following:
SECTION 508. Unconditional Right of Holders to Receive Principal, Premium
and Interest.
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Notwithstanding any other provision in this Indenture, the Holder of
any Security shall have the right, which is absolute and unconditional, to
receive payment of the principal of (and premium, if any) and (subject to
Section 307) interest on such Security on the Stated Maturity or
Maturities expressed in such Security (in the case of redemption, on the
Redemption Date, in the case of a repurchase, on the Repurchase Date, or
in the case of a Change in Control, on the Change in Control Purchase
Date) and to institute suit for the enforcement of any such payment, and
such rights shall not be impaired without the consent of such Holder.
SECTION 2.06. Consolidation, Merger and Sale. The Indenture shall be
amended by inserting "and shall have provided for conversion rights in
accordance with Section 1411" at the end of Section 801(1).
SECTION 2.07. Supplemental Indentures Without Consent of Holders. Section
901 of the Indenture shall be amended by inserting the following paragraph:
(10) to make provision with respect to the conversion rights, if any, to
Holders of 2020 Debentures pursuant to the requirements of Article Fourteen
hereof.
SECTION 2.08. Supplemental Indenture with Consent of Holder. The Indenture
shall be amended by inserting "adversely affect the right to convert any 2020
Debenture as provided in Article Fourteen, or adversely affect the right to
require the Company to repurchase the 2020 Debentures as provided in Article
Fifteen." at the end of Section 902(1).
SECTION 2.09. Maintenance of Office or Agency. The first paragraph of
Section 1002 of the Indenture is amended by changing the first sentence thereof
to read in its entirety as follows:
The Company will maintain in each Place of Payment for any series of
Securities an office or agency where Securities of that series may be presented
or surrendered for payment, where Securities of that series may be surrendered
for registration of transfer or exchange, where 2020 Debentures may be
surrendered for conversion and where notices and demands to or upon the Company
in respect of the Securities of that series and this Indenture may be served.
The Company will give prompt written notice to the Trustee of the location, and
any change in the location, of such office or agency. If at any time the
Company shall fail to maintain any such required office or agency or shall fail
to furnish the Trustee with the address thereof, such presentations,
surrenders, notices and demands may be made or served at the Corporate Trust
Office of the Trustee, and the Company
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hereby appoints the Trustee as its agent to receive all such presentations,
surrenders, notices and demands.
SECTION 2.10. Redemption. Article 11 shall be amended by inserting the
following sections in their entirety:
SECTION 1108. 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 Eleven, 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 1108 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 Fourteen) surrendered by such purchasers for conversion,
all as of 11:00 A.M. New York City time on the Redemption Date, subject to
payment of the above amount as aforesaid. The Paying Agent shall hold and pay
to the Holders whose 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 arising out of or in
connection with the exercise or performance of any of its powers, duties,
responsibilities or obligations
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under this Indenture, in accordance with the indemnity provisions applicable to
the Trustee set forth herein.
SECTION 1109. Purchase of Securities at Option of the Holder Upon Change
in Control.
Section 1109 through Section 1114 of this Article Eleven shall apply only
to 2020 Debentures.
(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 30 Business Days after
the occurrence of the Change in Control (the "Change in Control Purchase Date")
at a purchase price equal to the Issue Price plus accrued Original Issue
Discount through the Change in Control Purchase Date (or, if the option under
Section 1601 has been exercised, the Restated Principal Amount plus accrued and
unpaid interest from the Option Exercise Date to the Change in Control Purchase
Date) (the "Change in Control Purchase Price"), subject to satisfaction by or
on behalf of any Holder of the requirements set forth in subsection (c) of this
Section 1109.
A "Change in Control" shall be deemed to have occurred if any of the
following occurs after the Issue Date:
(1) any "person" or "group" (as such terms are defined below) is or
becomes the "beneficial owner" (as defined below), directly or indirectly, of
shares of Voting Stock of the Company representing 50% or more of the total
voting power of all outstanding classes of Voting Stock of the Company or has
the power, directly or indirectly, to elect a majority of the members of the
Board of Directors of the Company; or
(2) the Company consolidates with, or merges with or into, another person
or the Company sells, assigns, conveys, transfers, leases or otherwise disposes
of all or substantially all of the assets of the Company, or any person
consolidates with, or merges with or into, the Company, in any such event other
than pursuant to a transaction in which the persons that "beneficially owned"
(as defined below), directly or indirectly, shares of Voting Stock of the
Company immediately prior to such transaction "beneficially own" (as defined
below), directly or indirectly, shares of Voting Stock of the Company
representing at least a majority of the total voting power of all outstanding
classes of Voting Stock of the surviving or transferee person; or
(3) there shall occur the liquidation or dissolution of the Company.
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For the purpose of the definition of "Change in Control", (i) "person" and
"group" have the meanings given such terms under Section 13(d) and 14(d) of the
Exchange Act or any successor provision to either of the foregoing, and the
term "group" includes any group acting for the purpose of acquiring, holding or
disposing of securities within the meaning of Rule 13d-5(b)(1) under the
Exchange Act (or any successor provision thereto), (ii) a "beneficial owner"
shall be determined in accordance with Rule 13d-3 under the Exchange Act, as in
effect on March 7, 2000, except that the number of shares of Voting Stock of
the Company shall be deemed to include, in addition to all outstanding shares
of Voting Stock of the Company and Unissued Shares deemed to be held by the
"person" or "group" (as such terms are defined above) or other person with
respect to which the Change in Control determination is being made, all
Unissued Shares deemed to be held by all other persons, and (iii) the terms
"beneficially owned" and "beneficially own" shall have meanings correlative to
that of "beneficial owner". The term "Unissued Shares" means shares of Voting
Stock not outstanding that are subject to options, warrants, rights to purchase
or conversion privileges exercisable within 60 days of the date of
determination of a Change in Control.
(b) Within 10 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 and shall cause a copy of such notice to be published in a
daily newspaper of national circulation. 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 1109 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
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Fourteen 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 1109;
(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 1109 upon delivery of a written notice (which shall be in substantially
the form included as an attachment to the Security 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 1109, 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 1109 through 1114 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 in a portion thereof that is a Principal Amount of $1,000 or
in an integral multiple thereof at any time prior to the close of business on
the Business Day next preceding the Change in Control Purchase Date by delivery
of
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a written notice of withdrawal to the Paying Agent in accordance with Section
1110.
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 1110. Effect of Change in Control Purchase Notice.
Upon receipt by any Paying Agent of the Change in Control Purchase Notice
specified in Section 1109(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
1109(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 1109(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
shares of 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 1111. Deposit of Change in Control Purchase Price.
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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 1111 is made by the Company shall be at the option of the Company,
provided that such deposit shall be made in a manner such that 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 1112. 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 1113. Compliance With Securities Laws Upon Purchase of Securities.
In connection with any offer to purchase or purchase of 2020 Debentures
under Section 1109, 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 13E-4 (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
<PAGE>
the Holders and obligations of the Company under Sections 1109 through 1114 to
be exercised in the time and in the manner specified therein.
SECTION 1114. Repayment to the Company.
To the extent that the aggregate amount of cash deposited by the Company
pursuant to Section 1111 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.
SECTION 2.11. Conversion, Tax Event, Repurchase. The Indenture is amended
by adding the following Articles Fourteen, Fifteen and Sixteen to the
Indenture:
ARTICLE FOURTEEN
CONVERSION
SECTION 1401. 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
for 2020 Debentures, at the Conversion Rate then in effect. In case a 2020
Debenture or portion thereof is called for redemption pursuant to Article
Eleven, 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.
<PAGE>
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 Fourteen.
SECTION 1402. 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 1403. 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 shareholder 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, 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 Fourteen. On conversion of a 2020 Debenture, that portion of accrued
<PAGE>
Original Issue Discount (or interest, if the Company has exercised its option
provided for in Section 1601) attributable to the period from the Issue Date
(or, if the Company has exercised the option provided for in Section 1601, the
later of (x) the date of such exercise and (y) the date on which interest was
last paid) of the 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 (or interest, if the Company has exercised its option
provided for in Section 1601) accrued through the Conversion Date, and the
balance, if any, of such fair market value of such Common Stock (and any such
cash payment) shall be treated as issued in exchange for the Issue Price of the
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 unconverted portion of the
2020 Debenture surrendered.
Where the Company has exercised its option under Section 1601, 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 1403. 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
<PAGE>
in cash based upon the closing price of the Common Stock on the Trading Day
immediately prior to the Conversion Date.
SECTION 1404. 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 1405. Company to Provide Stock.
The Company shall, prior to issuance of any 2020 Debentures under this
Article Fourteen, 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 newly issued 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 will endeavor promptly to comply with all federal and state
securities laws regulating the offer and delivery of shares of Common Stock
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 Common Stock is then listed or quoted.
SECTION 1406. 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
<PAGE>
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 1406) on the record date for the determination of
shareholders 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 1406) 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
<PAGE>
distributions of Common Stock on Common Stock to which Section 1406(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 to
which 1406(d) applies or any rights or warrants referred to in 1406(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 1406) 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 1406) 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 shareholders
entitled to receive such distribution.
In the event that the Company implements a stockholder rights plan, such
rights plan shall provide, subject to customary exceptions, that upon
conversion of the Securities 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 1406(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 1406(c) (and no adjustment to the Conversion Rate
under this Section 1406(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,
<PAGE>
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 1406(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 1406 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 1406 has been made, exceeds an amount equal to 10% of the product
of the current market price per share of Common Stock (as determined in
accordance with subsection (e) of this Section 1406) 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 the
<PAGE>
Common Stock (as determined in accordance with subsection (e) of this Section
1406) on the Determination Date, and the denominator shall be the current
market price per share of the Common Stock (as determined in accordance with
subsection (e) of this Section 1406) 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 1406
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 1406 has been made, exceeds an amount equal to 10% of the product of
the current market price per share of Common Stock (as determined in accordance
with subsection (e) of this Section 1406) 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)
<PAGE>
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 (less any Purchased Shares and
excluding 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 1406) 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 the Common Stock (as
determined in accordance with subsection (e) of this Section 1406) 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 1406(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 1406(d)(2).
(3) For purposes of this Section 1406(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 1406, 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 1406 or
(ii) the record date with respect to distributions, issuances or other events
requiring such computation under subsection (b) or (c) of this Section 1406.
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
<PAGE>
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 1406 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
1406, 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 1409) 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 1407. 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 1407 are not required to be made shall be carried
forward and taken into account in any subsequent adjustment. All calculations
under this Article
<PAGE>
Fourteen 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 1408. Adjustment for Tax Purposes.
The Company shall be entitled to make such reductions in the Conversion
Rate, in addition to those required by Section 1406, 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 shareholders shall not be taxable.
SECTION 1409. 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 1410. 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 1411, 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
<PAGE>
notice or any defect therein shall not affect the validity of any transaction
referred to in clause (1), (2) or (3) of this Section 1410.
SECTION 1411. 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 to which the Company is a party
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. 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 Fourteen. 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 1411 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 1411, the Company shall promptly file with the Trustee (x) an
Officers' Certificate briefly stating the reasons therefor, the kind or amount
of
<PAGE>
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 1412. Trustee's Disclaimer.
The Trustee shall have no duty to determine when an adjustment under this
Article Fourteen 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
1409. 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 Fourteen.
The Trustee shall not be under any responsibility to determine the
correctness of any provisions contained in any supplemental indenture executed
pursuant to Section 1411, 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 1411.
SECTION 1413. 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 FIFTEEN
REPURCHASE OF SECURITIES AT OPTION OF THE HOLDER
SECTION 1501. General.
The Company may be required to repurchase 2020 Debentures in accordance
with their terms and in accordance with this Article.
<PAGE>
2020 Debentures shall be purchased by the Company under the paragraph
"Repurchase by the Company at the Option of the Holder" of the Securities on
March 7, 2003, March 7, 2008 and March 7, 2013 (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 purchased,
(B) the portion of the Principal Amount of the 2020 Debenture which
the Holder will deliver to be purchased, 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 Securities and in this Indenture, 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 Fifteen 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.
The Company shall purchase from the Holder thereof, pursuant to this
Article Fifteen, 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 Fifteen shall be consummated by the delivery of the consideration
to be received by the Holder promptly following the later of the Repurchase
Date and the time of delivery of the Security.
<PAGE>
Notwithstanding anything herein to the contrary, any Holder delivering to
the Paying Agent the Repurchase Notice contemplated by this Section 1501 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 1505.
The Paying Agent shall promptly notify the Company of the receipt by it of
any Repurchase Notice or written notice of withdrawal thereof.
SECTION 1502. Manner of Payment of Repurchase Price.
The Repurchase Price of 2020 Debentures in respect of which a Repurchase
Notice pursuant to Section 1501 has been given, or a specified percentage
thereof, will be paid by the Company with cash equal to the aggregate
Repurchase Price of such 2020 Debentures. The Company Notice shall be sent to
Holders not less than 20 Business Days prior to such Repurchase Date (the
"Company Notice Date").
SECTION 1503. Notice of Election.
The Company's notice shall be sent to the Holders in the manner provided
in Section 106 at the time specified in Section 1502 (the "Company Notice").
Such 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 Fourteen 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);
<PAGE>
(F) the procedures the Holder must follow to exercise repurchase rights
under this Article Fifteen and a brief description of those rights;
(G) briefly, the conversion rights of the 2020 Debentures; and
(H) the procedures for withdrawing a Repurchase Notice.
At the Company's request, the Trustee shall give such Company Notice in
the Company's name and at the Company's expense; provided, however, that, in
all cases, the text of such Company Notice shall be prepared by the Company.
SECTION 1504. Procedure upon Repurchase.
The Company shall deposit cash at the time and in the manner as provided
in Section 1506, sufficient to pay the aggregate Repurchase Price of all 2020
Debentures to be purchased on the applicable Repurchase Date pursuant to this
Article Fifteen.
SECTION 1505. 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
paragraph) 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 by the Paying Agent, promptly following the
later of (x) the Repurchase Date with respect to such 2020 Debenture (provided
the conditions in Section 1501 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 1501. 2020 Debentures in respect of which a
Repurchase Notice has been given by the Holder thereof may not be converted
pursuant to Article Fourteen hereof on or after the date of the delivery of
such Repurchase Notice unless such Repurchase Notice has first been validly
withdrawn as specified in the following paragraph.
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,
<PAGE>
(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.
There shall be no purchase of any 2020 Debentures pursuant to this Article
Fifteen 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 1506. 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) 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 1507. 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 1508. Comply with Securities Laws Upon Purchase of Securities
<PAGE>
In connection with any offer to purchase or purchase of 2020 Debentures
under this Article Fifteen hereof (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 13E-4 (or any
successor schedule, form or report) under the Exchange Act, and (iii) otherwise
comply with all Federal and state securities laws so as to permit the rights
and obligations under Article Fifteen to be exercised in the time and in the
manner specified in this Article Fifteen.
SECTION 1509. Repayment to the Company.
The Trustee and the Paying Agent shall return to the Company any cash that
remains 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 deposited by the Company pursuant to Section 1506
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.
ARTICLE SIXTEEN
SPECIAL TAX EVENT CONVERSION
SECTION 1601. Optional Conversion to Interest-Bearing Securities Upon Tax
Event.
From and after (i) the date (the "Tax Event Date") of the occurrence of a
Tax Event and (ii) the date the Company exercises such option, whichever is
later (the "Option Exercise Date"), at the option of the Company with respect
to its 2020 Debentures only, interest in lieu of future Original Issue Discount
shall accrue at the rate of 3.50% 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
<PAGE>
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 3
FORM OF 2020 DEBENTURES
SECTION 3.01. Debentures. The 2020 Debentures shall be in substantially
the form set forth in Annex A hereto.
ARTICLE 4
MISCELLANEOUS PROVISIONS
SECTION 4.01. Adoption, Ratification and Confirmation. The Indenture, as
supplemented and amended by this Supplemental Indenture No. 3, is in all
respects hereby adopted, ratified and confirmed.
SECTION 4.02. Counterparts. This Supplemental Indenture No. 3 may be
executed in any number of counterparts, each of which when so executed shall be
deemed an original; and all such counterparts shall together constitute but one
and the same instrument.
SECTION 4.03. Governing Law. THIS SUPPLEMENTAL INDENTURE NO. 3 SHALL BE
GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
<PAGE>
IN WITNESS WHEREOF, the parties hereto have caused this Supplemental
Indenture No. 3 to be duly executed and their respective corporate seals to be
hereunto fixed and attested as of the day and year first written above.
ANADARKO PETROLEUM CORPORATION
By: /s/ A. L. Richey
---------------------------------
Name: A. L. Richey
Title: Vice President and Treasurer
Attest:
By /s/ Suzanne Suter
-----------------------------
Name: Suzanne Suter
Title: Corporate Secretary
HARRIS TRUST AND SAVINGS BANK,
as Trustee
By: /s/ Amy Roberts
---------------------------------
Name: Amy Roberts
Title: Vice President
Attest:
By /s/ Mark F. McLaughlin
-----------------------------
Name: Mark F. McLaughlin
Title: Vice President
<PAGE>
STATE OF TEXAS }
COUNTY OF HARRIS }
On the __th day of March, 2000, before me personally came______________,
to me known, who, being by me duly sworn, did depose and say that he is
____________________ of ANADARKO PETROLEUM CORPORATION, one of the corporations
described in and which executed the foregoing instrument; that he knows the
seal of said corporation; that the seal affixed to said instrument is such
corporate seal; that it was so affixed by authority of the Board Directors of
said corporation, and that he signed his name thereto by like authority.
-------------------------
Notary
<PAGE>
STATE OF NEW YORK }
COUNTY OF NEW YORK }
On the __th day of March, 2000, before me personally came______________,
to me known, who, being by me duly sworn, did depose and say that such person
is a _____________________ of HARRIS TRUST AND SAVINGS BANK, one of the
corporations described in and which executed the foregoing instrument; that he
knows the seal of said corporation; that the seal affixed to said instrument is
such corporate seal; that it was so affixed by authority of the Board Directors
of said corporation, and that such person signed his name thereto by like
authority.
-------------------------
Notary
<PAGE>
ANNEX A
GLOBAL SECURITY
[FORM OF ZERO COUPON CONVERTIBLE DEBENTURES
DUE MARCH 2020]
ANADARKO PETROLEUM CORPORATION
Issue Date: Maturity: March 7, 2020
Principal Amount: $ CUSIP: 032511 AP 2
Original Issue Discount: $500.40 Issue Price: $499.60
(per $1,000 Principal Amount) (per $1,000 Principal Amount)
Registered: No. R-
Unless this certificate is presented by an authorized representative of
The Depository Trust Company (55 Water Street, New York, New York) to the
issuer or its agent for registration of transfer, exchange or payment, and any
certificate issued is registered in the name of Cede & Co. or such other name
as requested by an authorized representative of The Depository Trust Company
and any payment is made to Cede & Co., ANY TRANSFER, PLEDGE OR OTHER USE HEREOF
FOR VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL since the registered
owner hereof, Cede & Co., has an interest herein.
Unless and until it is exchanged in whole or in part for the individual
Securities represented hereby, this Global Security may not be transferred
except as a whole by the Depositary to a nominee of the Depositary or by a
nominee of the Depositary to the Depositary or another nominee of the
Depositary or by the Depositary or any such nominee to a successor Depositary
or a nominee of such successor Depositary.
ANADARKO PETROLEUM CORPORATION, a corporation duly organized and existing
under the laws of Delaware (herein called the "Company", which term includes
any successor corporation under the indenture hereinafter referred to), for
value received, hereby promises to pay to Cede & Co., or registered assigns,
the principal sum of ($ ) on March 7, 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
<PAGE>
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.
Reference is hereby made to the further provisions of this Security set
forth on the reverse hereof, which further provisions shall for all purposes
have the same effect as if set forth at this place.
Unless the certificate of authentication hereon has been executed by the
Trustee referred to on the reverse hereof by manual signature, this Security
shall not be entitled to any benefit under the Indenture or be valid or
obligatory for any purpose.
IN WITNESS WHEREOF, the Company has caused this instrument to be duly
executed under its corporate seal.
Dated: ANADARKO PETROLEUM
CORPORATION
By:
----------------------------------
Title: Vice President and Treasurer
- -------------------------
Corporate Secretary
TRUSTEE'S CERTIFICATE OF AUTHENTICATION
This is one of the Securities of the series designated therein referred to in
the within-mentioned Indenture.
HARRIS TRUST AND SAVINGS BANK
as Trustee
- -------------------------
Authorized Signature
<PAGE>
[FORM OF REVERSE SIDE OF SECURITY]
ANADARKO PETROLEUM CORPORATION
ZERO COUPON CONVERTIBLE DEBENTURE DUE MARCH 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 (herein called
the "Indenture"), between the Company and Harris Trust and Savings Bank, as
Trustee (herein called the "Trustee", which term includes any successor trustee
under the Indenture), to which Indenture and all indentures supplemental
thereto reference is hereby made for a statement of the respective rights,
limitations of rights, duties and immunities thereunder of the Company, the
Trustee and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This Security is
one of the series designated on the face hereof, limited in aggregate principal
amount to $690,000,000.
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 502 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 3.50% 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 3.50% per
<PAGE>
annum, on a semiannual bond equivalent basis using a 360-day year composed of
twelve 30-day months, from the Issue Date of this Security.
Method of Payment
Payments in respect of principal of and interest, if any, on the
Securities shall be made by the Company in immediately available funds.
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, after March 7, 2003.
The table below shows Redemption Prices of a Security per $1,000 Principal
Amount on the dates shown below and at Stated Maturity, which prices reflect
accrued Original Issue Discount calculated 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.
(2)
Accrued (3)
(1) Original Issue Redemption
Debenture Discount Price
Redemption Date Issue Price at 3.50% (1) + (2)
--------------- ----------- -------- ---------
March 7, 2003.................. $ 499.60 $ 54.81 $ 554.41
March 7, 2004.................. 499.60 74.38 573.98
March 7, 2005.................. 499.60 94.65 594.25
March 7, 2006.................. 499.60 115.63 615.23
March 7, 2007.................. 499.60 137.35 636.95
March 7, 2008.................. 499.60 159.84 659.44
March 7, 2009.................. 499.60 183.12 682.72
March 7, 2010.................. 499.60 207.22 706.82
March 7, 2011.................. 499.60 232.18 731.78
March 7, 2012.................. 499.60 258.02 757.62
March 7, 2013.................. 499.60 284.76 784.36
March 7, 2014.................. 499.60 312.46 812.06
March 7, 2015.................. 499.60 341.13 840.73
March 7, 2016.................. 499.60 370.81 870.41
March 7, 2017.................. 499.60 401.54 901.14
<PAGE>
March 7, 2018.................. 499.60 433.36 932.96
March 7, 2019.................. 499.60 466.30 965.90
At stated maturity............. 499.60 500.40 1,000.00
If converted to a 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 March
7, 2003.
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 30 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.
<PAGE>
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 11.6288 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 1601 of
the Indenture to have interest in lieu of Original Issue Discount accrue on the
Security following a Tax Event, the Holder will be entitled on conversion to
receive the same number of 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
<PAGE>
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 (or interest if the Security is converted to an interest-bearing
debenture) attributable to the period from the Issue Date (or, 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 canceled,
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 (or 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
<PAGE>
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
--------------- ----------------
March 7, 2003 $554.41
March 7, 2008 $659.44
March 7, 2013 $784.36
The Repurchase Price (equal to the Issue Price plus accrued Original Issue
Discount through the Repurchase Date) will be paid in cash.
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, Original Issue Discount ceases to accrue on
such Securities (or portions thereof) immediately after such Repurchase Date,
and the Holder thereof shall have no other rights as such (other than the right
to receive the Repurchase Price upon surrender of such Security).
Tax Event
From and after (i) the date (the "Tax Event Date") of the occurrence of a
Tax Event and (ii) the date the Company exercises such option, whichever is
later (the "Option Exercise Date"), at the option of the Company, interest in
lieu of future Original Issue Discount shall accrue at the rate of 3.50% 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 March 15, and
September 15, of each year (each an "Interest Payment Date") to holders of
record at the close of business on March 1 or September 1 (each a "Regular
Record Date") immediately preceding such Interest Payment Date. Interest will
be computed on the basis of a 360-day year comprised of twelve 30-day months
and will accrue from the most recent
<PAGE>
date to which interest has been paid or, if no interest has been paid, from the
Option Exercise Date.
Interest on any Security that is payable, and is punctually paid or duly
provided for, on any Interest Payment Date shall be paid to the person in whose
name that Security is registered at the close of business on the Regular Record
Date for such interest at the office or agency of the Company maintained for
such purpose. Each installment of interest on any Security shall be paid in
same-day funds by transfer to an account maintained by the payee located inside
the United States.
Except as otherwise specified with respect to the Securities, any
Defaulted Interest on any Security shall forthwith cease to be payable to the
registered Holder thereof on the relevant Regular Record Date by virtue of
having been such Holder, and such Defaulted Interest may be paid by the Company
as provided for in Section 307 of the Indenture.
Conversion Arrangement on Call for Redemption
Any Securities called for redemption, 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
<PAGE>
the face of this Security, Securities of this series are exchangeable for a
like aggregate principal amount of Securities of this series of a different
authorized denomination as requested by the Holder surrendering the same.
No service charge shall be made for any such registration of transfer or
exchange, but the Company may require payment of a sum sufficient to cover any
tax or other governmental charge payable in connection therewith.
Prior to due presentment of this Security for registration of transfer,
the Company, the Trustee or any agent of the Company or the Trustee may treat
the Person in whose name this Security is registered as the owner hereof for
all purposes, whether or not this Security be overdue, and neither the Company,
the Trustee nor any such agent shall be affected by notice to the contrary.
Amendment, Supplement and Waiver
The Indenture permits, with certain exceptions as therein provided, the
amendment thereof and the modification of the rights and obligations of the
Company and the rights of the Holders of the Securities of each series to be
affected under the Indenture at any time by the Company and the Trustee with
the consent of the Holders of a majority in principal amount of the Securities
at the time Outstanding of each series to be affected. The Indenture also
contains provisions permitting the Holders of specified percentages in
principal amount of the Securities of each series at the time Outstanding, on
behalf of the Holders of all Securities of such series, to waive compliance by
the Company with certain past defaults under the Indenture and their
consequences. Any such consent or waiver by the Holder of this Security shall
be conclusive and binding upon such Holder and upon all future Holders of this
Security and of any Security issued upon the registration of transfer hereof or
in exchange hereof or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security.
Successor Corporation
When a successor corporation assumes all the obligations of its
predecessor under the Securities and the Indenture in accordance with the terms
and conditions of the Indenture, the predecessor corporation will (except in
certain circumstances specified in the Indenture) be released from those
obligations.
Defaults and Remedies
If an Event of Default with respect to Securities of this series shall
occur and be continuing, all unpaid Issue Price plus accrued Original Issue
Discount through the acceleration date (or, if the Security has been converted
to an interest-
<PAGE>
bearing debenture, the Restated Principal Amount plus accrued and unpaid
interest from the date of conversion to the acceleration date) of the
Securities of this series may be declared due and payable in the manner and
with the effect provided in the Indenture.
No Recourse Against Others
No recourse shall be had for the payment of the principal of or the
interest, if any, on this Security, for any claim based hereon, or otherwise in
respect hereof, or based on or in respect of the Indenture or any indenture
supplemental thereto, against any incorporator, shareholder, officer or
directory, as such, past, present or future, of the Company or of any successor
corporation, whether by virtue of any constitution, statute or rule of law or
by the enforcement of any assessment of penalty or otherwise, all such
liability being, by acceptance hereof and as part of the consideration for the
issue hereof, expressly waived and released.
Authentication
This Security shall not be valid until the Trustee or an authenticating
agent manually signs the certificate of authentication on the other side of
this Security.
Indenture to Control; Governing Law
In the case of any conflict between the provisions of this Security and
the Indenture, the provisions of the Indenture shall control.
THE INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK.
Abbreviations and Definitions
Customary abbreviations may be used in the name of the Holder or an
assignee, such as: TEN COM (= tenants in common), TEN ENT (= tenants by the
entireties), JT TEN (= joint tenants with right of survivorship and not as
tenants in common), CUST (= Custodian) and U/G/M/A (= Uniform Gifts to Minors
Act).
All terms defined in the Indenture and used in this Security but not
specifically defined herein are defined in the Indenture and are used herein as
so defined.
<PAGE>
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
Medallion Program (MSP); (iii) the Stock Exchange Medallion Program (SEMP); or
(iv) such other guaranty program acceptable to the Trustee.
<PAGE>
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 1109 of the Indenture, check the following
box: [ ]
If you want to have only part of this Security purchased by the Company
pursuant to Section 1109 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.
