<PAGE> 1
As filed with the Securities and Exchange Commission on September 14, 1998
REGISTRATION NO. 333-36997
===============================================================================
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
---------------------------
PRE-EFFECTIVE AMENDMENT NO. 2 TO
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
---------------------------
TECH DATA CORPORATION
(Exact name of registrant as specified in its charter)
5350 TECH DATA DRIVE
CLEARWATER, FL 33760
(727) 539-7429
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
---------------------------
FLORIDA NO. 59-1578329
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification Number)
---------------------------
JEFFERY P. HOWELLS
EXECUTIVE VICE PRESIDENT AND CHIEF FINANCIAL OFFICER
TECH DATA CORPORATION
5350 TECH DATA DRIVE, CLEARWATER, FLORIDA 33760
(727) 539-7429
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
COPY TO:
FRANK N. FLEISCHER, ESQ.
SCHIFINO & FLEISCHER, P.A.
ONE TAMPA CITY CENTER, SUITE 2700
TAMPA, FLORIDA 33602
(813) 223-1535
----------------------------------
Approximate Date of Commencement of Proposed Sales to the Public: From
time to time after the effective date of this Registration Statement.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. / /
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, as amended, other than securities offered only in
connection with dividend or interest reinvestment plans, check the following
box. /X/
If this Form is filed to register additional securities for an
offering pursuant to Rule 462(b) under the Securities Act, please check the
following box and list the Securities Act registration statement for the same
offering. / /
If this Form is a post-effective amendment filed pursuant to
Rule 462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. / /
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. / /
<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
==========================================================================================================================
PROPOSED MAXIMUM PROPOSED MAXIMUM
TITLE OF EACH CLASS OF SECURITIES AMOUNT TO OFFERING PRICE AGGREGATE AMOUNT OF
TO BE REGISTERED BE REGISTERED PER UNIT (1) OFFERING PRICE(1) REGISTRATION FEE(2)(3)
-------------------------------------- ------------------ ------------------- ------------------ -------------------------
<S> <C> <C> <C> <C>
Common Stock, $.0015 Par Value 2,195,945 Shares $44.50 $ 97,719,552.50 $ 28,827.27
-----------
5% Convertible Subordinated Notes $300,000,000 $1,000 $ 300,000,000 $ 88,500.00
-----------
Common Stock, $.0015 Par Value 5,333,100 Shares $ 0.00 $ 0.00 $ 0
-----------
Total $117,327.27
-----------
==========================================================================================================================
</TABLE>
(1) Estimated solely for the purpose of calculating the registration fee.
(2) Calculated pursuant to Rule 457(c).
(3) Of the $117,327.27 filing fee due, $60,925 was paid at the time of the
original filing on October 2, 1997.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE
OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a),
MAY DETERMINE.
<PAGE> 2
PROSPECTUS
2,195,945 SHARES
COMMON STOCK
AND
$300,000,000
5% CONVERTIBLE SUBORDINATED NOTES DUE JULY 1, 2003
[TECH DATA LOGO]
-----------------
This Prospectus relates to 2,195,945 shares (the "Shares") of Common
Stock, $.0015 par value (the "Common Stock"), of Tech Data Corporation (the
"Company" or "Tech Data"), $300,000,000 5% Convertible Subordinated Notes due
July 1, 2003 (the "Notes") and up to 5,333,100 shares of Common Stock (subject
to adjustment as described herein) issuable upon conversion of the Notes (the
"Underlying Shares"). The Shares and the Notes may be offered by the holder of
both the Shares and the Notes or certain affiliates of such holder
(collectively, the "Selling Holder") from time to time in transactions for its
own account (which may include block transactions) in the over-the-counter
market, in negotiated transactions, or a combination of such methods of sales,
at fixed prices which may be changed, at market prices prevailing at the time
of sale, at prices related to such prevailing market prices or at negotiated
prices. The Selling Holder may effect such transactions by selling the Shares
and/or the Notes to or through broker-dealers, and such broker-dealers may
receive compensation in the form of discounts, concessions or commissions from
the Selling Holder or the purchasers of the Shares and/or the Notes for whom
such broker-dealers may act as agent or to whom they sell as principal, or both
(which compensation as to a particular broker-dealer might be in excess of
customary commissions). See "Plan of Distribution".
-------------------
The Common Stock is quoted on the Nasdaq National Market under the symbol
"TECD." On September 11, 1998 the last reported sale price for the Common Stock,
as reported on the Nasdaq National Market, was $46.50 per share. The Notes are
not listed on any securities exchange or quoted on the Nasdaq National Market
nor is any market maker making a market in the Notes.
-------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
COMMISSION OR ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR
ADEQUACY OF THIS PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY
IS A CRIMINAL OFFENSE.
The date of this Prospectus is September , 1998
<PAGE> 3
TABLE OF CONTENTS
<TABLE>
<CAPTION>
Page
----
<S> <C>
Available Information...................................................................................... 2
Incorporation of Certain Information by Reference ......................................................... 2
The Company................................................................................................ 3
Use of Proceeds............................................................................................ 3
Selling Holder............................................................................................. 3
Sales of the Shares and the Notes.......................................................................... 3
Description of Capital Stock............................................................................... 4
Description of Notes....................................................................................... 5
Plan of Distribution....................................................................................... 5
Certain Federal Income Tax Considerations.................................................................. 15
Legal Matters.............................................................................................. 18
</TABLE>
--------------------
No person has been authorized to give any information or to make any
representation not contained in this Prospectus, and, if given or made, such
information or representation must not be relied upon as having been authorized.
This Prospectus does not constitute an offer to sell or a solicitation of an
offer to buy any securities other than the securities to which it relates or an
offer to sell or the solicitation of an offer to buy such securities in any
circumstances in which such offer or solicitation is unlawful. Neither the
delivery of this Prospectus nor any sale made hereunder shall, under any
circumstances, create any implication that there has not been any change in the
facts set forth in this Prospectus or in the affairs of the Company since the
date hereof or that the information contained herein is correct as of any time
subsequent to its date.
--------------------
2
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended, (the "Exchange Act") and in
accordance therewith files reports, proxy statements and other information with
the Securities and Exchange Commission (the "Commission"), all of which may be
inspected and copied at the public reference facilities maintained by the
Commission at Room 1024, 450 Fifth Street, N.W., Washington, D.C. 20549, and at
the Commission's regional offices at 7 World Trade Center, Suite 1300, New
York, New York 10048 and 500 West Madison Street, Suite 1400, Chicago, Illinois
60661-2511. Copies of such material also can be obtained at prescribed rates by
writing to the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Reports, proxy and information statements and
other information concerning the Company can also be inspected at the Nasdaq
National Market at 1735 K Street, N.W., Washington, D.C. 20006.
This Prospectus constitutes part of a Registration Statement filed by
the Company with the Commission under the Securities Act of 1933, as amended.
This Prospectus omits certain of the information contained in the Registration
Statement in accordance with the rules and regulations of the Commission.
Reference is hereby made to the Registration Statement and related exhibits for
further information with respect to the Company and the Common Stock.
Statements contained herein concerning the provisions of any document are not
necessarily complete and, in each instance, where a copy of such document has
been filed as an exhibit to the Registration Statement or otherwise has been
filed with the Commission, reference is made to the copy so filed. Each such
statement is qualified in its entirety by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents have been filed by the Company with the
Commission pursuant to the Exchange Act, File No. 0-14625, and are incorporated
herein by reference:
1. Quarterly Report on Form 10-Q for the quarter ended April 30, 1998.
2. Annual Report on Form 10-K for the fiscal year ended January 31,
1998.
3. Proxy Statement for the Annual Meeting of Shareholders held on June
23, 1998.
4. Current Report on Form 8-K dated July 1, 1998 and filed with the
Commission on July 15, 1998.
5. Current Report on Form 8-K dated July 28, 1998 and filed with the
Commission on August 12, 1998.
6. Form 8-K/A filed with the Commission on September 14, 1998.
7. Quarterly Report on Form 10-Q for the quarter ended July 31, 1998.
8. The Registration Statement on Form 8-A under the Exchange Act as
filed with the Commission on May 14, 1986.
All documents filed by the Company pursuant to Sections 13(a), 13(c),
14 or 15(d) of the Exchange Act subsequent to the date of this Prospectus and
prior to the termination of the offering of the Shares, the Notes and/or the
Underlying Shares hereby shall be deemed to be incorporated by reference into
this Prospectus and to be a part hereof from the date of filing of such
documents. Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or superseded
for purposes of this Prospectus to the extent that a statement contained herein
or in any other subsequently filed document which is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
such statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company will provide without charge to each person, including any
beneficial owner, to whom a copy of this Prospectus is delivered, upon the
written or oral request of such person, a copy of any and all of the documents
incorporated herein by reference (not including the exhibits to such documents,
unless such exhibits are specifically incorporated by reference into such
documents). Requests for such copies should be directed to Mr. Arthur W.
Singleton, Vice President, Treasurer and Secretary of the Company, at Tech Data
Corporation, 5350 Tech Data Drive, Clearwater, Florida 33760.
2
<PAGE> 5
THE COMPANY
The Company is a leading full-line distributor of technology products
worldwide. With its acquisition of a majority interest in Computer 2000 AG (see
"Sales of the Shares and the Notes"), the Company and its subsidiaries operate
in over 30 countries, serving more than 100,000 resellers in the United States,
Canada, the Caribbean, Latin America, Europe and the Middle East. In addition
to distributing more than 75,000 products from the world's leading
manufacturers and publishers, Tech Data provides extensive pre- and post-sale
training, service and support. The Company also offers high-quality integration
and assembly services and a full range of electronic commerce solutions. Tech
Data's Web site can be found at www.techdata.com
The Company's principal executive offices are located at 5350 Tech
Data Drive, Clearwater, Florida 33760 and its telephone number is 727/539-7429.
USE OF PROCEEDS
The Company will not receive any proceeds from the sales of the Shares
or the Notes by the Selling Holder.
SELLING HOLDER
The following tables show (i) the name of the Selling Holder, (ii) the
number of shares of Common Stock and the principal amount of Notes owned
beneficially or of record by it, (iii) the percentage of total Common Stock and
total Notes owned beneficially or of record by it, (iv) the maximum number of
Shares and principal amount of Notes to be offered by it, and (v) the number of
shares of Common Stock and the principal amount of the Notes to be owned by it
after completion of any such offering, assuming that all the shares of Common
Stock and the total principal amount of the Notes are sold.
SHARES OF COMMON STOCK
<TABLE>
<CAPTION>
Number of
Number of Percentage of Maximum shares of
Shares Owned Total Number of Common Stock
Prior to Common Stock Shares Owned After the
Selling Holder the Offering Outstanding To Be Offered Offering(1)
- ------------------------ -------------------- ---------------- ----------------- -----------------
<S> <C> <C> <C> <C>
Klockner & Co. AG 2,195,945 4.3% 2,195,945 --
</TABLE>
- ----------
(1) Assuming sale of all of the Notes and, if any Notes are converted prior to
sale, the Underlying Shares related to such converted Notes.
5% CONVERTIBLE SUBORDINATED NOTES
<TABLE>
<CAPTION>
Maximum
Principal Amount Principal
Principal Amount Percentage of Par Value Amount of Notes
Selling Holder of Notes Total of Notes Owned
Owned Prior Notes To Be After the
to the Offering Outstanding Offered Offering
- ------------------------ -------------------- ---------------- ------------------ -----------------
<S> <C> <C> <C> <C>
Klockner & Co. AG $300,000,000 100% $300,000,000 --
</TABLE>
3
<PAGE> 6
SALES OF THE SHARES AND THE NOTES
Tech Data entered into a Share Purchase Agreement dated as of April
14, 1998, with Klockner & Co. AG, a stock corporation incorporated under German
law ("Klockner"). Pursuant to the Share Purchase Agreement, Tech Data acquired
approximately 80% of the outstanding voting common stock of Computer 2000 AG
from its parent company, Klockner, based in Duisburg, Germany. Klockner is a
subsidiary of Munich based conglomerate VIAG AG. In consideration of the
acquisition of such Common Stock, Tech Data issued the Shares and the Notes to
Klockner and agreed in the Share Purchase Agreement to file a Registration
Statement with the Commission in respect of the Shares, the Notes and the
Underlying Shares.
In its fiscal year ended September 30, 1997, Computer 2000 AG
generated sales of DM 8.2 billion ($4.7 billion) and operating profits of DM
110.0 million ($63.5 million). Computer 2000 AG serves more than 75,000
resellers in Europe and other parts of the world, with operations in Argentina,
Austria, Belgium, Bulgaria, Chile, Czech Republic, Denmark, Ireland, Estonia,
Finland, France, Germany, Great Britain, Hungary, Iceland, Italy, Latvia,
Lithuania, Netherlands, Norway, Peru, Poland, Portugal, Russia, Slovakia,
Spain, Sweden, Switzerland, United Arab Emirates and Uruguay.
DESCRIPTION OF CAPITAL STOCK
PREFERRED STOCK
The Company has authorized and outstanding 226,500 shares of Preferred
Stock, par value $.02. The Preferred Stock pays no dividends, has no
pre-emptive rights, and no redemption, sinking fund, or conversion provisions.
It does have a liquidation preference over the Company's Common Stock to the
extent of all distributions in the event of liquidation, not to exceed $.20 per
share. Each outstanding share of Preferred Stock is entitled to one vote on all
matters submitted to a vote of shareholders, except for matters involving
mergers, the sale of all Company assets, amendments to the Company's charter
and exchanges of Company Stock for stock of another company which requires
approval by a majority of each class of capital stock. In such matters, the
preferred and common shareholders will each vote as a separate class. See
"Class Voting and Classified Board of Directors."
COMMON STOCK
The Company has authorized 200,000,000 shares of Common Stock, par
value $.0015. Holders of the Common Stock have no pre-emptive rights. Each
outstanding share of Common Stock is entitled to one vote on all matters
submitted to a vote of the Company's shareholders. Holders of Common Stock are
entitled to receive such dividends as may be declared by the Board of Directors
out of funds legally available therefor. The holders of Common Stock are
entitled to share proportionately in any liquidating distribution to
shareholders after provisions for payment of creditors and after the payment of
the liquidation preference on any shares of Preferred Stock then outstanding.
All outstanding shares of Common Stock are fully paid and nonassessable. The
transfer agent and registrar for the Company's Common Stock is Chase Mellon
Shareholder Services, LLC.
CLASS VOTING AND CLASSIFIED BOARD OF DIRECTORS
The Company's Restated and Amended Articles of Incorporation require
that certain mergers, sale of substantially all the assets of the Company,
amendments to the Company's Restated and Amended Articles of Incorporation and
exchanges of Company stock for stock of another corporation pursuant to a vote
of shareholders be approved by a majority of each class of capital stock
entitled to vote. Thus, any person that controls at least one-half of any class
of stock can block an attempt to merge or sell substantially all the assets of
the Company or defeat the
4
<PAGE> 7
approval of certain other transactions. Edward C. Raymund, a director of the
Company, beneficially owns 113,260 shares of Preferred Stock (which, with the
113,240 shares beneficially owned by Annette L. Raymund, is all of the
Preferred Stock outstanding), each share of which is entitled to one vote. In
connection with the terms of an Employment Agreement dated as of January 31,
1991, between Edward C. Raymund and the Company, providing for Mr. Raymund's
employment from February 1, 1991 through January 31, 2001, Mr. Raymund entered
into an irrevocable proxy and escrow agreement (the "Irrevocable Proxy"). (In
connection with an amendment to the employment agreement dated November 13,
1992, Annette L. Raymund also entered into the Irrevocable Proxy.) Under the
terms of the Irrevocable Proxy, directors of the Company, Charles E. Adair,
Daniel M. Doyle, Donald F. Dunn, John Y. Williams and David M. Upton (in their
capacity as "outside" directors of the Company), have been granted full power
and authority to vote the 226,500 shares of Preferred Stock. The Irrevocable
Proxy has a three-year term in accordance with Section 607.0722 of the Florida
Business Corporation Act. For the Employment Agreement to remain in effect,
successive three-year Irrevocable Proxies must be executed by Mr. Raymund
through January 31, 2001. Mr. Raymund has renewed the Irrevocable Proxy in
accordance with the Employment Agreement.
The Company's Amended and Restated Articles of Incorporation also
divide the Board of Directors into three classes serving staggered three-year
terms. These provisions may discourage attempts to acquire control of the
Company.
PLAN OF DISTRIBUTION
Tech Data will not receive any of the proceeds from the sale of any
Shares, Notes or Underlying Shares pursuant to this Prospectus, all of which
will be sold by the Selling Holder. Such securities as are offered may be sold
from time to time to purchasers directly by the Selling Holder; alternatively,
the Selling Holder may from time to time offer such securities to and through
underwriters, broker/sellers or agents, who may receive compensation in the
form of underwriting discounts, concessions or commissions from the Selling
Holder or the purchasers of such securities for whom they may act as agents.
The Selling Holder and any underwriters, broker/dealers and agents that
participate in the distribution of such securities may be deemed to be
"underwriters" within the meaning of the Securities Act and any profit on the
sale of such securities by them and any discount commissions or other
compensation received by any such underwriter, broker/dealer or agent may be
deemed to be underwriting discounts and commissions under the Securities Act.
Such securities as are offered hereby may be sold from time to time in
one or more transactions at fixed prices, at prevailing market prices at the
time of sale, at varying prices determined at the time of sale or at negotiated
prices. The sale of such securities may be effected in transactions (which may
involve crosses or block transactions) (i) on any national securities exchange
or quotation service on which such securities may be listed or quoted at the
time of sale, (ii) in the over-the-counter market, (iii) in transactions
otherwise than on such exchanges or in the over-the-counter market, or (iv)
through the writing of options or through other derivative transactions
relating to the Shares, the Notes and/or the Underlying Shares (which may
include short sales by counter parties of the Selling Holder). At the time a
particular offering of such securities is made, a Prospectus Supplement, if
required, will be distributed which will set forth the aggregate amount of
Common Stock being offered and the terms of the offering, including the name or
names of any underwriters, broker/dealers or agents, any discounts, commissions
and other terms constituting compensation from the Selling Holder and any
discounts, commissions or concessions allowed or reallowed or paid to
broker/dealers.
To comply with the securities laws of certain jurisdictions, if
applicable, any Shares, Notes or Underlying Shares offered hereby will be
offered or sold in such jurisdictions only through registered or licensed
brokers or dealers. In addition, in certain jurisdictions, such securities may
not be offered or sold unless they have been registered or qualified for sale
in such jurisdictions or any exemption from registration or qualification is
available and is complied with.
5
<PAGE> 8
All expenses of the registration of the Common Stock, the Notes and
the Underlying Shares will be paid by Tech Data, including, without limitation,
SEC filing fees and expenses of compliance with, state securities or "blue sky"
laws; provided, however, that the Selling Holder will pay all underwriting
discounts and selling commissions, if any.
DESCRIPTION OF NOTES
The Notes have been issued under the Indenture dated as of July 1,
1998 (the "Indenture"), between the Company and The First National Bank of
Chicago, as Trustee (the "Trustee"), a copy of which is filed as an exhibit to
the Registration Statement. Wherever particular defined terms of the Indenture
(including the Notes) are referred to, such defined terms are incorporated
herein by reference (the Notes being referred to in the Indenture as
"Securities"). The following summaries of certain provisions of the Indenture
do not purport to be complete and are subject to, and are qualified in their
entirety by reference to, the detailed provisions of the Notes and the
Indenture, including the definitions therein of certain terms.
GENERAL
The Notes are general unsecured subordinated obligations of the
Company, limited to $300,000,000 aggregate principal amount and will mature on
July 1, 2003. Payment in full of the principal amount of the Notes will be due
on July 1, 2003, at a price of 100% of the principal amount thereof. The Notes
will bear interest at the rate of 5% per annum from July 1, 1998, payable
semi-annually on January 1 and July 1 of each year, commencing January 1, 1999,
until the principal thereof is paid or made available for payment, to the
Person in whose name the Note is registered at the close of business on the
preceding June 15 or December 15, as the case may be. Interest on the Notes at
such rate will be computed on the basis of a 360-day year, comprised of twelve
30-day months.
The Notes will be convertible at any time prior to maturity, unless
previously redeemed or repurchased, into shares of Common Stock at a conversion
rate of 17.777 shares per each $1,000 principal amount of Notes (equivalent to
a conversion price of approximately $56.25 per share), subject to adjustment
upon the occurrence of certain events described under "-- Conversion Rights,"
at any time prior to the close of business on July 1, 2003. The Notes are
redeemable at the option of the Company, at any time on or after July 1, 2001,
in whole or in part, at the redemption prices set forth below under "--
Optional Redemption," plus accrued interest to the redemption date. The Notes
also are subject to repurchase by the Company at the option of the Holders, as
described below under "-- Repurchase at Option of Holders Upon a Change of
Control."
The principal of, premium, if any, and interest on the Notes will be
payable, and the Notes may be surrendered for registration of transfer,
exchange and conversion, at the office or agency of the Trustee in the Borough
of Manhattan, The City of New York. In addition, payment of interest may, at
the option of the Company, be made by check mailed to the address of the Person
entitled thereto as it appears in the Security Register. See "-- Payment and
Conversion." Payments, transfers, exchanges and conversions relating to
beneficial interests in Notes issued in book-entry form will be subject to the
procedures applicable to Global Notes described below.
The Company has initially appointed the Trustee at its Corporate Trust
Office as paying agent, transfer agent, registrar and conversion agent for the
Notes. In such capacities, the Trustee will be responsible for, among other
things, (i) maintaining a record of the aggregate holdings of Notes represented
by the Global Note (as defined below) and accepting Notes for exchange and
registration of transfer, (ii) ensuring that payments of principal, premium, if
any, and interest received by the Trustee from the Company in respect of the
Notes are duly paid to DTC or its nominees, (iii) transmitting to the Company
any notices from Holders of the Notes, (iv) accepting conversion notices and
related documents and transmitting the relevant items to the Company and (v)
delivering certificates for Common Stock issued upon conversion of the Notes.
6
<PAGE> 9
The Company will cause the transfer agent to act as a registrar and
will cause to be kept at the office of such transfer agent a register in which,
subject to such reasonable regulations as it may prescribe, the Company will
provide for registration of transfers of the Notes. The Company may vary or
terminate the appointment of any paying agent, transfer agent or conversion
agent, or appoint additional or other such agents or approve any change in the
office through which any such agent acts, provided that there shall at all
times be maintained by the Company a paying agent, a transfer agent and a
conversion agent in the Borough of Manhattan, The City of New York. The Company
will cause notice of any resignation, termination or appointment of the Trustee
or any paying agent, transfer agent or conversion agent, and of any change in
the office through which any such agent will act, to be provided to Holders of
the Notes.
No service charge will be made for any registration of transfer or
exchange of Notes, but the Company may require payment of a sum sufficient to
cover any tax or other governmental charge payable in connection therewith.
FORM, DENOMINATION, TRANSFER, EXCHANGE AND BOOK-ENTRY PROCEDURES
Notes are issued only in fully registered form, without interest
coupons, in minimum denominations of $1,000 and integral multiples in excess
thereof.
The Notes initially will be represented by one or more Notes in
registered, global form without interest coupons (collectively, the "Global
Notes" or "Global Note"). The Global Notes have been deposited with the Trustee
as custodian for DTC, in New York, New York, and registered in the name of DTC
or its nominee, in each case for credit to an account of a direct or indirect
participant in DTC as described below.
Transfers of beneficial interests in the Global Notes will be subject
to the applicable rules and procedures of DTC and its direct or indirect
participants, which may change from time to time. Except as set forth below,
the Global Notes may be transferred, in whole and not in part, only to another
nominee of DTC or to a successor of DTC or its nominee. Beneficial interests in
the Global Notes may not be exchanged for Notes in certificated form except in
the limited circumstances described below under "-- Exchanges of Book-Entry
Notes for Certificated Notes."
EXCHANGES OF BOOK-ENTRY NOTES FOR CERTIFICATED NOTES. A beneficial
interest in a Global Note may not be exchanged for a Note in certificated form
unless (i) DTC (x) notifies the Company that it is unwilling or unable to
continue as Depositary for the Global Note or (y) has ceased to be a clearing
agency registered under the Exchange Act and in either case the Company
thereupon fails to appoint a successor Depositary, (ii) the Company, at its
option, notifies the Trustee in writing that it elects to cause the issuance of
the Notes in certificated form or (iii) there shall have occurred and be
continuing an Event of Default or any event which after notice or lapse of time
or both would be an Event of Default with respect to the Notes. In all cases,
certificated Notes delivered in exchange for any Global Note or beneficial
interests therein will be registered in the names, and issued in any approved
denominations, requested by or on behalf of the Depositary (in accordance with
its customary procedures).
CERTAIN BOOK-ENTRY PROCEDURES FOR GLOBAL NOTES. The descriptions of
the operations and procedures of DTC, that follow are provided solely as a
matter of convenience. These operations and procedures are solely within the
control of DTC and are subject to changes by them from time to time. The
Company takes no responsibility for these operations and procedures and urges
investors to contact DTC or its participants directly to discuss these matters.
DTC has advised the Company as follows: DTC is a limited purpose trust
company organized under the laws of the State of New York, a member of the
Federal Reserve System, a "clearing corporation" within the meaning of the
Uniform Commercial Code and a "Clearing Agency" registered pursuant to the
provisions of Section 17A of the Exchange Act. DTC was created to hold
securities for its participants ("participants") and facilitate the clearance
and settlement of securities transactions between participants through
electronic book-entry changes in accounts of its participants, thereby
eliminating the need for physical transfer and delivery of certificates.
Participants include
7
<PAGE> 10
securities brokers and dealers, banks, trust companies and clearing
corporations and may include certain other organizations. Indirect access to
the DTC system is available to other entities such as banks, brokers, dealers
and trust companies that clear through or maintain a custodial relationship
with a participant, either directly or indirectly ("indirect participants").
DTC has advised the Company that its current practice, upon the
issuance of a Global Note, is to credit, on its internal system, the respective
principal amount of the individual beneficial interests represented by such
Global Note to the accounts with DTC of the participants through which such
interests are to be held. Ownership of beneficial interests in the Global Note
will be shown on, and the transfer of that ownership will be affected only
through, records maintained by DTC or its nominees (with respect to interests
of participants) and the records of participants and indirect participants
(with respect to interests of persons other than participants).
AS LONG AS DTC, OR ITS NOMINEE, IS THE REGISTERED HOLDER OF A GLOBAL
NOTE, DTC OR SUCH NOMINEE, AS THE CASE MAY BE, WILL BE CONSIDERED THE SOLE
OWNER AND HOLDER OF THE NOTES REPRESENTED BY SUCH GLOBAL NOTE FOR ALL PURPOSES
UNDER THE INDENTURE AND THE NOTES. Except in the limited circumstances
described above under "-Exchanges of Book-Entry Notes for Certificated Notes,"
owners of beneficial interests in a Global Note will not be entitled to have
any portions of such Global Note registered in their names, will not receive or
be entitled to receive physical delivery of Notes in definitive form and will
not be considered the owners or Holders of the Global Note (or any Notes
represented thereby) under the Indenture or the Notes.
Investors may hold their interests in the Global Note directly through
DTC, if they are participants in such system, or indirectly through
organizations that are participants in such system. All interests in a Global
Note will be subject to the procedures and requirements of DTC.
The laws of some states require that certain persons take physical
delivery in definitive form of securities that they own. Consequently, the
ability to transfer beneficial interests in a Global Note to such persons may
be limited to that extent. Because DTC can act only on behalf of its
participants, which in turn act on behalf of indirect participants and certain
banks, the ability of a person having beneficial interests in a Global Note to
pledge such interest to persons or entities that do not participate in the DTC
system, or otherwise take actions in respect of such interests, may be affected
by the lack of a physical certificate evidencing such interests.
Payments of the principal of, premium, if any, and interest on the
Notes will be made to DTC or its nominee, as the case may be, as the registered
owner of the Global Note. Neither the Company, the Trustee nor any of their
respective agents will have any responsibility or liability for any aspect of
the records relating to or payments made on account of beneficial ownership
interests in a Global Note or for maintaining, supervising or reviewing any
records relating to such beneficial ownership interests.
The Company expects that DTC or its nominee, upon receipt of any
payment of principal or interest in respect of a Global Note representing any
Notes held by it or its nominee, will immediately credit participants' accounts
with payments in amounts proportionate to their respective beneficial interests
in the principal amount of such Global Note for such Notes as shown on the
records of DTC or its nominee. The Company also expects that payments by
participants to owners of beneficial interests in such Global Note held through
such participants will be governed by standing instructions and customary
practices, as is now the case with securities held for the accounts of
customers registered in "street name." Such payments will be the responsibility
of such participants. Interests in the Global Note will trade in DTC's Same-Day
Funds Settlement System, and secondary market trading activity in such
interests will therefore settle in immediately available funds, subject in all
cases to the rules and procedures of DTC and its participants. Transfers
between participants in DTC will be effected in accordance with DTC's
procedures, and will be settled in same-day funds. DTC has advised the Company
that it will take any action permitted to be taken by a
8
<PAGE> 11
holder of Notes (including the presentation of Notes for exchange as described
below and the conversion of Notes) only at the direction of one or more
participants to whose account with DTC interests in the Global Notes are
credited and only in respect of such portion of the aggregate principal amount
of the Notes as to which such participant or participants has or have given
such direction. However, if there is an Event of Default (as defined below)
under the Notes, DTC reserves the right to exchange the Global Notes for Notes
in certificated form, and to distribute such Notes to its participants.
None of the Company, the Trustee nor any of their respective agents
will have any responsibility for the performance by DTC, its participants or
indirect participants of its respective obligations under the rules and
procedures governing its operations, including maintaining, supervising or
reviewing the records relating to, or payments made on account of, beneficial
ownership interests in Global Notes.
PAYMENT AND CONVERSION
The principal of the Notes will be payable in U.S. dollars, against
surrender thereof at the office or agency of the Company designated by it for
such purpose in the Borough of Manhattan, The City of New York, and at any
other office or agency of the Company maintained for such purpose, in U.S.
currency by dollar check or by transfer to a dollar account (such a transfer to
be made only to a Holder of an aggregate principal amount of Notes in excess of
$5,000,000 and only if such Holder shall have furnished wire instructions to
the Trustee in writing no later than 15 days prior to the relevant payment
date) maintained by the Holder with a bank in the United States. Payment of
interest on a Note may be made by dollar check mailed to the address of the
person entitled thereto as such address shall appear in the Security Register,
or, upon written application by the Holder to the Security Registrar setting
forth instructions not later than the relevant Record Date, by transfer to a
dollar account (such a transfer to be made only to a Holder of an aggregate
principal amount of Notes in excess of $5,000,000 and only if such Holder shall
have furnished wire instructions in writing to the Trustee no later than 15
days prior to the relevant payment date) maintained by the Holder with a bank
in the United States. Any payment on a Note due on any day that is not a
Business Day need not be made on such day, but may be made on the next
succeeding Business Day with the same force and effect as if made on such due
date, and no interest shall accrue on such payment for the period from and
after such date. "Business Day," when used with respect to any place of
payment, place of conversion or any other place, as the case may be, means each
Monday, Tuesday, Wednesday, Thursday and Friday that is not a day on which
banking institutions in such place of payment, place of conversion or other
place, as the case may be, are authorized or obligated by law or executive
order to close.
Notes may be surrendered for conversion at the office or agency of the
Trustee in the Borough of Manhattan, The City of New York, at any other office
or agency of the Trustee maintained for such purpose and at the office or
agency of any additional conversion agent appointed by the Company. In the case
of Global Notes, conversion will be effected by DTC upon notice from the holder
of a beneficial interest in a Global Note in accordance with its rules and
procedures. Notes surrendered for conversion must be accompanied by a
conversion notice and any payments in respect of interest, as applicable, as
described below under "-- Conversion Rights."
CONVERSION RIGHTS
The Holder of any Note will have the right, at the Holder's option, to
convert any portion of the principal amount of a Note that is an integral
multiple of $1,000 into shares of Common Stock, unless previously redeemed or
repurchased, at a conversion rate of 17.777 shares per $1,000 principal amount
of Notes (the "Conversion Rate"), subject to adjustment as described below. The
right to convert a Note called for redemption or delivered for repurchase will
terminate at the close of business on the Redemption Date or Repurchase Date
for such Note, unless the Company defaults in making the payment due upon
redemption or repurchase, as the case may be.
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<PAGE> 12
The right of conversion attaching to any Note may be exercised by the
Holder by delivering the Note at the office or agency of the Company in The
Borough of Manhattan, The City of New York, at any other office or agency of
the Company maintained for such purpose and at the office or agency of any
additional conversion agent appointed by the Company, accompanied by a duly
signed and completed notice of conversion, a copy of which may be obtained from
the Trustee and any conversion agent. The conversion date will be the date on
which the Note and the duly signed and completed notice of conversion are so
delivered. As promptly as practicable on or after the conversion date, the
Company will issue and deliver to the Trustee a certificate or certificates for
the number of full shares of Common Stock issuable upon conversion, together
with payment in lieu of any fraction of a share or, at the Company's option,
rounded up to the next whole number of shares; such certificate will be sent by
the Trustee to the Conversion Agent for delivery to the Holder. Such shares of
Common Stock issuable upon conversion of the Notes, in accordance with the
provisions of the Indenture, will be fully paid and nonassessable and will also
rank pari passu with the other shares of the Common Stock outstanding from time
to time.
Holders that surrender Notes for conversion on a date that is not an
Interest Payment Date are not entitled to receive any interest for the period
from the next preceding Interest Payment Date to the date of conversion, except
as described below. However, Holders of Notes on a Regular Record Date,
including Notes surrendered for conversion after the Regular Record Date, will
receive the interest payable on such Notes on the next succeeding Interest
Payment Date. Accordingly, any Note surrendered for conversion during the
period from the close of business on a Regular Record Date to the opening of
business on the next succeeding Interest Payment Date must be accompanied by
payment of an amount equal to the interest payable on such Interest Payment
Date on the principal amount of Notes being surrendered for conversion;
provided, however, that no such payment will be required upon the conversion of
any Note (or portion thereof) that has been called for redemption or that is
eligible to be delivered for repurchase if, as a result, the right to convert
such Note would terminate during the period between such Regular Record Date
and the next succeeding Interest Payment Date.
No other payment or adjustment for interest, or for any dividends in
respect of Common Stock, will be made upon conversion. Holders of Common Stock
issued upon conversion will not be entitled to receive any dividends payable to
holders of Common Stock as of any record date before the close of business on
the conversion date. No fractional shares will be issued upon conversion but,
in lieu thereof, the Company will calculate an appropriate amount to be paid in
cash on the basis set forth in the Indenture or, at its option, round up to the
next whole number of shares.
A Holder delivering a Note for conversion will not be required to pay
any taxes or duties in respect of the issue or delivery of Common Stock on
conversion. However, the Company shall not be required to pay any tax or duty
that may be payable in respect of any transfer involved in the issue or
delivery of the Common Stock in a name other than that of the Holder of the
Note. Certificates representing shares of Common Stock will not be issued or
delivered unless the person requesting such issue has paid to the Company the
amount of any such tax or duty or has established to the satisfaction of the
Company that such tax or duty has been paid.
The Conversion Rate is subject to adjustment in certain events,
including (a) dividends (and other distributions) payable in Common Stock on
shares of capital stock of the Company, (b) the issuance to all holders of
Common Stock of certain rights, options or warrants entitling them to subscribe
for or purchase Common Stock at less than the then current market price
(determined as provided in the Indenture) of Common Stock as of the record date
for holders entitled to receive such rights, options or warrants, (c)
subdivisions, combinations and reclassifications of Common Stock, (d)
distributions to all holders of Common Stock of evidences of indebtedness of
the Company, shares of capital stock or other property (including securities,
but excluding those dividends, rights, options, warrants and distributions
referred to in clauses (a) and (b) above, dividends and distributions paid
exclusively in cash and distributions upon mergers or consolidations to which
the next succeeding paragraph applies), (e) distributions consisting
exclusively of cash (excluding any cash portion of distributions referred to in
(d) above, or cash distributed upon a merger or consolidation to which the next
succeeding paragraph applies) to all holders of Common Stock in
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<PAGE> 13
an aggregate amount that, combined together with (i) other such all-cash
distributions made within the preceding 12 months in respect of which no
adjustment has been made and (ii) any cash and the fair market value of other
consideration payable in respect of any tender offer by the Company or any of
its Subsidiaries for Common Stock, to the extent that the cash and value of any
other consideration included in such payment per share of Common Stock exceeds
the current market price per share of Common Stock as of the last time that
tenders could have been made pursuant to such tender offer concluded within the
preceding 12 months in respect of which no adjustment has been made, exceeds
10% of the Company's market capitalization (being the product of the then
current market price (determined as provided in the Indenture) of the Common
Stock and the number of shares of Common Stock then outstanding) on the record
date for such distribution and (f) the successful completion of a tender offer
made by the Company or any of its subsidiaries for Common Stock, to the extent
that the cash and value of any other consideration included in such payment per
share of Common Stock exceeds the Current Market Price at such time, the
aggregate amount of which, together with (i) any cash and other consideration
in excess of the then Current Market Price paid in a tender offer by the
Company or any of its Subsidiaries for Common Stock expiring within the 12
months preceding the expiration of such tender offer in respect of which no
adjustment has been made and (ii) the aggregate amount of any such all-cash
distributions referred to in (a) above to all holders of Common Stock within
the 12 months preceding the expiration of such tender offer in respect of which
no adjustments have been made, exceeds 10% of the Company's market
capitalization on the expiration of such tender offer. The Company reserves the
right to make such increases in the conversion rate in addition to those
required in the foregoing provisions as it considers to be advisable in order
that any event treated for income tax purposes as a dividend or distribution of
stock or issuance of rights or warrants to purchase or subscribe for stock will
not be taxable to the recipients. No adjustment of the conversion rate will be
required to be made until the cumulative adjustments amount to 1.0% or more of
the conversion rate. The Company shall compute any adjustments to the
conversion price pursuant to this paragraph and will give notice to the Holders
of any such adjustments.
In case of any consolidation or merger of the Company with or into
another Person or any merger of another Person into the Company (other than a
merger which does not result in any reclassification, conversion, exchange or
cancellation of the Common Stock), or in the case of any conveyance, sale,
transfer or lease of all or substantially all of the properties and assets of
the Company, each Note then outstanding will, without the consent of the Holder
of any Note, become convertible only into the kind and amount of securities,
cash and other property receivable upon such consolidation, merger, sale,
conveyance, lease or other transfer by a holder of the number of shares of
Common Stock into which such Note was convertible immediately prior thereto
(assuming that (a) such holder of Common Stock (i) was not a Person involved in
such consolidation, merger, conveyance, sale, transfer or lease or an affiliate
of such Person and (ii) failed to exercise any rights of election and (b) that
such Note was then convertible).
The Company from time to time may increase the Conversion Rate by any
amount for any period of at least 20 days, in which case the Company shall give
at least 15 days' notice of such increase, if the Board of Directors has made a
determination that such increase would be in the best interests of the Company,
which determination shall be conclusive. No such increase shall be taken into
account for purposes of determining whether the closing price of the Common
Stock exceeds the Conversion Price (as defined below) by 105% in connection
with an event which otherwise would be a Change of Control.
If at any time the Company makes a distribution of property to its
shareholders that would be taxable to such shareholders as a dividend for
federal income tax purposes (e.g., distributions of evidences of indebtedness
or assets of the Company, but generally not stock dividends on Common Stock or
rights to subscribe for Common Stock) and, pursuant to the anti-dilution
provisions of the Indenture, the number of shares into which Notes are
convertible is increased, such increase may be deemed for federal income tax
purposes to be the payment of a taxable dividend to Holders of Notes. See
"Certain United States Federal Tax Considerations -- United States Holders."
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<PAGE> 14
SUBORDINATION
The payment of the principal of, premium, if any, and interest on the
Notes (including amounts payable on any redemption or repurchase) will be
subordinated in right of payment to the extent set forth in the Indenture to
the prior full and final payment of all Senior Debt of the Company. "Senior
Debt" means the principal of (and premium, if any) and interest (including all
interest accruing subsequent to the commencement of any bankruptcy or similar
proceeding, whether or not a claim for post-petition interest is allowable as a
claim in any such proceeding) on, and all fees and other amounts (including
collection expenses, attorney's fees and late charges) owing with respect to,
the following, whether direct or indirect, absolute or contingent, secured or
unsecured, due or to become due, outstanding at the date of execution of the
Indenture or thereafter incurred, created or assumed: (a) indebtedness of the
Company for money borrowed or evidenced by bonds, debentures, notes or similar
instruments, (b) reimbursement obligations of the Company with respect to
letters of credit, bankers' acceptances and similar facilities issued for the
account of the Company, (c) every obligation of the Company issued or assumed
as the deferred purchase price of property or services purchased by the
Company, excluding any trade payables and other accrued current liabilities
incurred in the ordinary course of business, (d) obligations of the Company as
lessee under leases that are required to be capitalized on the balance sheet of
the lessee under United States generally accepted accounting principles or that
can be capitalized under the United States Internal Revenue Code, (e)
obligations of the Company under interest rate and currency swaps, caps,
floors, collars or similar arrangements intended to protect the Company against
fluctuations in interest or currency exchange rates, (f) indebtedness of others
of the kinds described in the preceding clauses (a) through (f) that the
Company has assumed, guaranteed or otherwise assured the payment thereof,
directly or indirectly, and/or (g) deferrals, renewals, extensions and
refundings of, or amendments, modifications or supplements to, any indebtedness
or obligation described in the preceding clauses (a) through (f) whether or not
there is any notice to or consent of the Holders of Notes; provided, however,
that the following shall not constitute Senior Debt: (i) any particular
indebtedness or obligation that is owed by the Company to any of its direct and
indirect Subsidiaries and (ii) any particular indebtedness, deferral, renewal,
extension or refunding if it is expressly stated in the governing terms or in
the assumption thereof that the indebtedness involved is not senior in right of
payment to the Notes or that such indebtedness is pari passu with or junior to
the Notes.
No payment on account of principal of or premium, if any, or interest
on the Notes may be made if (a) there shall have occurred and be continuing (i)
a default in the payment of any Senior Debt or (ii) any other default with
respect to any Senior Debt permitting the holders thereof to accelerate the
maturity thereof, provided that, in the case of this clause (ii), such default
shall not have been cured or waived or ceased to exist after written notice of
such default shall have been given to the Company and the Trustee by any holder
of Senior Debt, or (b) in the event any judicial proceeding shall be pending
with respect to any such default in payment or event of default. Upon any
acceleration of the principal due on the Notes or payment or distribution of
assets of the Company to creditors upon any dissolution, winding up,
liquidation or reorganization, whether voluntary or involuntary, or in
bankruptcy, insolvency, receivership or other proceedings, all amounts due on
all Senior Debt must be paid in full before the Holders of the Notes are
entitled to receive any payment. By reason of such subordination, in the event
of insolvency of the Company, creditors of the Company who are holders of
Senior Debt may recover more, ratably, than the Holders of the Notes, and such
subordination may result in a reduction or elimination of payments to the
Holders of the Notes. As of July 31, 1998 the Company had approximately
$232 million of Senior Debt outstanding. In addition, the Notes will be
effectively subordinated to all indebtedness and other liabilities (including
trade payables and lease obligations) of the Company's subsidiaries. The
Indenture does not limit the ability of the Company or any of its subsidiaries
to incur indebtedness, including Senior Debt.
OPTIONAL REDEMPTION
The Notes may not be redeemed prior to the close of business on July
1, 2001. Thereafter, the Notes may be redeemed, in whole or in part, at the
option of the Company, upon not less than 30 nor more than 60 days' prior
notice
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<PAGE> 15
as provided under "-- Notices" below, at the redemption prices set forth
below. Such redemption prices (expressed as a percentage of principal amount)
are as follows for the 12-month period beginning on July 1 of the following
years:
<TABLE>
<CAPTION>
YEAR REDEMPTION PRICE
---- ----------------
<S> <C>
2000................................ 102 %
2001................................ 101
</TABLE>
and thereafter at a redemption price equal to 100% of the principal amount, in
each case together with accrued interest to the redemption date.
REPURCHASE AT OPTION OF HOLDERS UPON A CHANGE OF CONTROL
If a Change of Control (as defined below) occurs, each Holder of Notes
shall have the right, at the Holder's option, to require the Company to
repurchase all of such Holder's Notes, or any portion of the principal amount
thereof that is equal to $1,000 or an integral multiple of $1,000 in excess
thereof, on the date (the "Repurchase Date") that is 45 days after the date of
the Company Notice (as defined below), at a price in cash equal to 100% of the
principal amount of the Notes to be repurchased, together with interest accrued
to the Repurchase Date (the "Repurchase Price").
The Company may, at its option, in lieu of paying the Repurchase Price
in cash, pay the Repurchase Price by issuing shares of Common Stock. The number
of shares of Common Stock tendered in payment shall be determined by dividing
the Repurchase Price by the value of the Common Stock, which for this purpose
shall be equal to 95% of the average of the closing sale prices of the Common
Stock for the five consecutive Trading Days ending on and including the third
Trading Day preceding the Repurchase Date. Such payment may not be made in
Common Stock unless the Company satisfies certain conditions with respect
thereto prior to the Repurchase Date as provided in the Indenture.
On or before the 30th day after the occurrence of a Change of Control,
the Company is obligated to give to all Holders of the Notes notice, as
provided in the Indenture (the "Company Notice"), of the occurrence of such
Change of Control and of the repurchase right arising as a result thereof. To
exercise the repurchase right, a Holder of Notes must deliver on or before the
fifth day prior to the Repurchase Date irrevocable written notice to the
Trustee of the Holder's exercise of such right, together with the Notes with
respect to which the right is being exercised. A Change of Control shall be
deemed to have occurred at such time after the original issuance of the Notes
as there shall occur:
(i) the acquisition by any Person of beneficial ownership,
directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares
of capital stock of the Company entitling such Person to
exercise 50% or more of the total voting power of all shares
of capital stock of the Company entitled to vote generally in
elections of directors, other than any such acquisition by
the Company or any employee benefit plan of the Company; or
(ii) any consolidation or merger of the Company with
or into any other Person, any merger of another Person into
the Company, or any conveyance, transfer, sale, lease or
other disposition of all or substantially all of the
properties and assets of the Company to another Person (other
than (a) any such transaction (x) that does not result in any
reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock and (y) pursuant to which
holders of Common Stock immediately prior to such transaction
have the entitlement to exercise, directly or indirectly, 50%
or more of the total voting power of all shares of capital
stock entitled to vote generally in the election of directors
of the continuing or surviving person immediately after such
transaction and (b) any merger that is effected
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<PAGE> 16
solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or
exchange of outstanding shares of Common Stock solely into
shares of common stock of the surviving entity);
provided, however, that a Change of Control shall not be deemed to have
occurred if the closing sale price per share of the Common Stock for any five
Trading Days within the period of 10 consecutive Trading Days ending
immediately after the later of the date of the Change of Control or the date of
the public announcement of the Change of Control (in the case of a Change of
Control under clause (i) above) or ending immediately before the Change of
Control (in the case of a Change of Control under clause (ii) above) shall
equal or exceed 105% of the Conversion Price of the Notes in effect on each
such Trading Day. The "Conversion Price" is equal to $1,000 divided by the
Conversion Rate. "Beneficial owner" shall be determined in accordance with Rule
13d-3 promulgated by the Commission under the Exchange Act. "Person" includes
any syndicate or group which would be deemed to be a "person" under Section
13(d)(3) of the Exchange Act.
The Company may, to the extent permitted by applicable law, at any
time purchase Notes in the open market or by tender at any price or by private
agreement. Any Note so purchased by the Company may be reissued or resold or
may, at the Company's option, be surrendered to the Trustee for cancellation.
Any Notes surrendered as aforesaid may not be reissued or resold and will be
canceled promptly.
The foregoing provisions would not necessarily afford Holders of the
Notes protection in the event of highly leveraged or other transactions
involving the Company that may adversely affect Holders.
MERGERS AND SALES OF ASSETS BY THE COMPANY
The Company shall not consolidate with or merge into any other Person
or, directly or indirectly, convey, transfer, sell or lease all or
substantially all of its properties and assets to any Person, and the Company
shall not permit any Person to consolidate with or merge into the Company or
convey, transfer, sell or lease all or substantially all of its properties and
assets to the Company, unless (a) the Person formed by such consolidation or
into or with which the Company is merged or the Person to which the properties
and assets of the Company are so conveyed, transferred, sold or leased, is a
corporation, limited liability company, partnership or trust organized and
existing under the laws of the United States, any State thereof or the District
of Columbia and shall expressly assume the due and punctual payment of the
principal and of, premium, if any, and interest on the Notes and the
performance of the other covenants of the Company under the Indenture and shall
have provided for conversion rights as described above under "-- Conversion
Rights", (b) immediately after giving effect to such transaction, no Event of
Default, and no event which, after notice or lapse of time or both, would
become an Event of Default, shall have occurred and be continuing and (c) the
Company shall have provided to the Trustee an Officer's Certificate and Opinion
of Counsel as provided in the Indenture.
EVENTS OF DEFAULT
The following are Events of Default under the Indenture: (a) failure
to pay principal of or premium, if any, on any Note when due, whether or not
such payment is prohibited by the subordination provisions of the Indenture,
(b) failure to pay any interest on any Note when due, continuing for 30 days,
whether or not such payment is prohibited by the subordination provisions of
the Indenture; (c) default in the Company's obligation to provide notice of a
Change of Control; (d) failure to perform any other material covenant or
warranty of the Company in the Indenture, continuing for 60 days after written
notice to the Company by the Trustee or the Holders of at least 25% in
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<PAGE> 17
aggregate principal amount of Outstanding Notes; (e) failure to pay when due
the principal of, or acceleration of, any indebtedness for money borrowed by
the Company in excess of $25 million if such indebtedness is not discharged, or
such acceleration is not annulled, within 30 days after written notice to the
Company by the Trustee or the Holders of at least 25% in aggregate principal
amount of Outstanding Notes; and (f) certain events of bankruptcy, insolvency
or reorganization of the Company. Subject to the provisions of the Indenture
relating to the duties of the Trustee in case an Event of Default shall occur
and be continuing, the Trustee will be under no obligation to exercise any of
its rights or powers under the Indenture at the request or direction of any of
the Holders, unless such Holders shall have offered to the Trustee reasonable
indemnity. Subject to such provisions for the indemnification of the Trustee,
the Holders of a majority in aggregate principal amount of the Outstanding
Notes will have the right to direct the time, method and place of conducting
any proceeding for any remedy available to the Trustee or exercising any trust
or power conferred on the Trustee.
If an Event of Default (other than an Event of Default specified in
clause (f) above) occurs and is continuing, either the Trustee or the Holders
of not less than 25% in aggregate principal amount of the Outstanding Notes may
accelerate the maturity of all Notes. If an Event of Default specified in
clause (f) occurs and is continuing, the principal of and any accrued interest
on all of the Notes then Outstanding shall ipso facto become due and payable
immediately without any declaration or other act on the part of the Trustee or
any Holder.
At any time after a declaration of acceleration has been made but
before a judgment or decree based on acceleration has been issued, the Holders
of a majority in aggregate principal amount of Outstanding Notes may, under
certain circumstances as set forth in the Indenture, rescind and annul such
acceleration if all Events of Default, other than the nonpayment of accelerated
principal and interest, have been cured or waived as provided in the Indenture.
For information as to waiver of defaults, See "-- Modification and Waiver."
No Holder of any Note will have any right to institute any proceeding
with respect to the Indenture or for any remedy thereunder, unless such Holder
shall have previously given to the Trustee written notice of a continuing Event
of Default and unless also the Holders of at least 25% in aggregate principal
amount of the Outstanding Notes shall have made written request, and offered
reasonable indemnity, to the Trustee to institute such proceeding as trustee,
and the Trustee shall not have received from the Holders of a majority in
aggregate principal amount of the Outstanding Notes a direction inconsistent
with such request and shall have failed to institute such proceeding within 60
days. However, such limitations do not apply to a suit instituted by a Holder
of a Note for the enforcement of payment of the principal of or premium, if
any, or interest on such Note on or after the respective due dates expressed in
such Note or of the right to convert such Note in accordance with the
Indenture.
The Company will be required to furnish to the Trustee annually a
statement as to the performance by the Company of certain of its obligations
under the Indenture and as to any default in such performance.
MODIFICATION AND WAIVER
The Indenture contains provisions permitting the Company and the
Trustee to enter into a supplemental indenture for certain limited purposes
without the consent of the Holders. Generally, modifications and amendments of
the Indenture can only be made with the written consent of the Holders of not
less than a majority in principal amount of the Notes at the time Outstanding.
However, no such modification or amendment may, without the consent of the
Holder of each Outstanding Note affected thereby, (a) change the Stated
Maturity of the principal of, or any installment of interest on, any Note, (b)
reduce the principal amount of, or the premium, if any, or rate of interest on,
any Note, (c) modify the provisions with respect to the repurchase right of the
Holders in a manner adverse to the Holders, (d) change the place or currency of
payment of principal of, premium, if any, or interest on any Note, (e) impair
the right to institute suit for the enforcement of any payment on or with
respect to, or the right to convert, any Note, (f) except as otherwise
permitted or contemplated by provisions concerning consolidation, merger,
conveyance, transfer, sale or lease of all or substantially all of the property
and assets of the Company, adversely effect the right to convert Notes, (g)
modify the subordination provisions in a manner adverse to the Holders of the
Notes or (h) reduce the above-stated percentage of aggregate principal amount
of Outstanding Notes necessary for waiver of compliance with certain provisions
of the Indenture or for waiver of certain defaults.
15
<PAGE> 18
The Holders of a majority in aggregate principal amount of Outstanding
Notes may waive compliance by the Company with certain restrictive provisions
of the Indenture. The Holders of a majority in aggregate principal amount of
the Outstanding Notes may waive any past default by the Company under the
Indenture, except a default in the payment of principal, premium, if any, or
interest or a default in any covenant or provision that under the Indenture
cannot be modified or amended without the consent of each Holder of Outstanding
Notes.
NOTICES
Notice to Holders of the Notes will be given by mail to the addresses
of such Holders as they appear in the Security Register. Such notices will be
deemed to have been given on the date of mailing of the notice.
Notice of a redemption of Notes will be given at least once not less
than 30 nor more than 60 days prior to the Redemption Date (which notice shall
be irrevocable) and will specify the Redemption Date and the Redemption Price.
PAYMENT OF STAMP AND OTHER TAXES
The Company shall pay all stamp and other duties, if any, that may be
imposed by the United States or any political subdivision thereof or taxing
authority thereof or therein with respect to the issuance of the Notes. The
Company will not be required to make any payment with respect to any other tax,
assessment or governmental charge imposed by any government or any political
subdivision thereof or taxing authority therein.
GOVERNING LAW
The Indenture and the Notes will be governed by and construed in
accordance with the laws of the State of New York.
THE TRUSTEE
The Trustee for the holders of Notes issued under the Indenture will
be The First National Bank of Chicago.
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a summary of certain material United States federal
income tax considerations relating to the purchase, ownership and disposition
of the Notes and of Common Stock into which Notes may be converted, but does
not purport to be a complete analysis of all the potential tax considerations
relating thereto. This summary is based on laws, regulations, rulings and
decisions now in effect, all of which are subject to change, possibly on a
retroactive basis. This summary deals only with holders that will hold Notes
and Common Stock into which Notes may be converted as "capital assets" (within
the meaning of Section 1221 of the Internal Revenue Code of 1986, as amended
(the "Code"), and does not address tax considerations applicable to investors
that may be subject to special tax rules, such as banks, tax-exempt
organizations, insurance companies, broker-dealers, traders in securities that
elect to mark to market, persons that will hold Notes as a position in a
hedging transaction, "straddle" or "conversion transaction" for tax purposes or
persons who have a "functional currency" other than the U.S. dollar. As used
herein, the term "United States Holder" means (1) a citizen or resident of the
United States, (2) a corporation organized under the laws of the United States
or any State, (3) an estate the income of which is subject to the United States
federal income taxation regardless of its source or (4) a trust if (i) a court
within the United States is able to exercise primary supervision over the
trust's administration and (ii) one or more U.S. persons have the authority to
control all of the trust's substantial decisions. The Company has not sought
any ruling from the Internal Revenue Service (the "IRS") with respect to the
statements made and the conclusions reached in the following summary, and there
can be no assurance that the IRS will agree with such statements and
conclusions.
16
<PAGE> 19
INVESTORS CONSIDERING THE PURCHASE OF NOTES SHOULD CONSULT THEIR OWN TAX
ADVISORS WITH RESPECT TO THE APPLICATION OF THE UNITED STATES FEDERAL INCOME
TAX LAWS TO THEIR PARTICULAR SITUATIONS AS WELL AS ANY TAX CONSEQUENCES ARISING
UNDER THE LAWS OF ANY STATE, LOCAL OR FOREIGN TAXING JURISDICTION OR UNDER ANY
APPLICABLE TAX TREATY.
PAYMENT OF INTEREST
Interest on a Note generally will be includable in the income of a
United States Holder as ordinary income at the time such interest is received
or accrued, in accordance with such holder's method of accounting for United
States federal income tax purposes.
SALE, EXCHANGE OR REDEMPTION OF THE NOTES
Upon the sale, exchange or redemptions of a Note (excluding
conversion), a United States Holder generally will recognize capital gain or
loss equal to the difference between (i) the amount of cash proceeds and the
fair market value of any property received on the sale, exchange or redemption
(except to the extent such amount is attributable to accrued interest income
not previously included in income which is taxable as ordinary income) and (ii)
such holder's adjusted tax basis in the Note. A United States Holder's adjusted
tax basis in a Note generally will equal the cost of the Note to such holder.
Generally, such gain or loss will be capital gain or loss and will be long-term
capital gain or loss if the United States Holder's holding period in the Note
is more than one year at the time of sale, exchange or redemption. Long-term
capital gain of a non-corporate United States Holder is generally subject to a
maximum tax rate of 20% in respect of property held for more than one year.
CONVERSION OF THE NOTES
A United States Holder generally will not recognize any income, gain
or loss upon conversion of a Note into Common Stock except with respect to cash
received in lieu of a fractional share of Common Stock. A holder's tax basis in
the Common Stock received on conversion of a Note will be the same as such
holder's adjusted tax basis in the Note at the time of conversion (reduced by
any basis allocable to a fractional share interest), and the holding period for
the Common Stock received on conversion will generally include the holding
period of the Note converted.
Cash received in lieu of a fractional share of Common Stock upon
conversion will be treated as a payment in exchange for the fractional share of
Common Stock. Accordingly, the receipt of cash in lieu of a fractional share of
Common Stock generally will result in capital gain or loss (measured by the
difference between the cash received for the fractional share and the United
States Holder's adjusted tax basis in the fractional share).
CONSTRUCTIVE DISTRIBUTIONS
If at any time (i) the Company makes a distribution of cash or
property to its stockholders (including distributions of evidences of
indebtedness or assets, but generally not stock dividends or rights to
subscribe for Common Stock) or purchases Common Stock and such distribution or
purchase would be taxable to such stockholders as a dividend for United States
federal income tax purposes and, pursuant to the antidilution provisions of the
Indenture, the conversion price of the Notes is decreased or (ii) the
conversion price of the Notes is decreased at the discretion of the Company,
such decrease in conversion price may be deemed to be the payment of a taxable
dividend to Holders of Notes (pursuant to Section 305 of the Code). Holders of
Notes might therefore be required to recognize taxable income as a result of an
event pursuant to which they received no cash or property.
17
<PAGE> 20
DIVIDENDS
Any dividends paid on the Common Stock generally will be includable in
the income of a United States Holder as ordinary income to the extent of the
Company's current or accumulated earnings and profits. Subject to certain
limitations, a corporate taxpayer holding Common Stock that receives dividends
thereon generally will be eligible for a dividends-received deduction equal to
50% of the dividends received.
SALE OF COMMON STOCK
Upon the sale or exchange of Common Stock, a United States Holder
generally will recognize capital gain or loss equal to the difference between
(i) the amount of cash and the fair market value of any property received upon
the sale or exchange and (ii) such holder's adjusted tax basis in the Common
Stock. Such capital gain or loss will be subject to the rules discussed above
under "Sale, Exchange or Redemption of the Notes". A United States Holder's
basis and holding period in Common Stock received upon conversion of a Note are
determined as discussed above under "Conversion of the Notes."
INFORMATION REPORTING AND BACKUP WITHHOLDING TAX
In general, information reporting requirements will apply to payments
of principal, premium, if any, and interest on a Note, payments of dividends on
Common Stock, payments of the proceeds of the sale of a Note and payments of
the proceeds of the sale of Common Stock to certain noncorporate United States
Holders, and a 31% backup withholding tax may apply to such payments if the
United States Holder (i) fails to furnish or certify his correct taxpayer
identification number to the payor in the manner required, (ii) is notified by
the IRS that he has failed to report payments of interest and dividends
properly, or (iii) does not otherwise establish his entitlement to an
exemption. Any amounts withheld under the backup withholding rules from a
payment to a United States Holder will be allowed as a credit against such
holders's United States federal income tax and may entitle the United States
Holder to a refund, provided that the required information is furnished to the
IRS.
LEGAL MATTERS
The validity of the Shares, the Notes and the Underlying Shares
offered hereby will be passed upon for the Company by Schifino & Fleischer,
P.A., Tampa, Florida.
18
<PAGE> 21
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
<TABLE>
<S> <C>
SEC Registration Fee.................................................................................. $ 117,327.27
Printing and Engraving................................................................................ 25,000.00
Fees of Transfer Agent................................................................................ 1,000.00
Accountants Fees and Expenses......................................................................... 15,000.00
Legal Fees and Expenses of Registrant's Counsel....................................................... 30,000.00
Blue Sky Fees and Expenses............................................................................ 1,000.00
Miscellaneous......................................................................................... 10,672,00
------------
Total ........................................................................................... $ 200,000.00
</TABLE>
Except for SEC registration fee and NASD filing fee, the foregoing fees
are estimated.
Item 15. Indemnification of Directors and Officers.
The Company's By-Laws include the following provisions:
ARTICLE NINE
INDEMNIFICATION
"9.1 Under the circumstances prescribed in Section 9.3 and 9.4, the
Corporation shall indemnify and hold harmless any person who was or is a
party or is threatened to be made a party to any threatened, pending or
completed action, suit or proceeding, whether civil, criminal, administrative
or investigative (other than an action by or in the right of the Corporation)
by reason of the fact that he is or was a Director, officer, employee or
agent of the Corporation, or is or was serving at the request of the
Corporation as a Director, officer, employee or agent of the Corporation, or
is or was serving at the request of the Corporation as a Director, officer,
employee or agent of another corporation, partnership, joint venture, trust
or other enterprise, against expenses (include attorneys' fees), judgments,
fines and amounts paid in settlement actually and reasonably incurred by him
in connection with such action, suit or proceeding if he acted in a manner he
reasonably believed to be in or not opposed to the best interests of the
Corporation, and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. The termination of any
action, suit or proceeding by judgment, order, settlement, conviction or upon
a plea of nolo contenders or its equivalent, shall not, of itself, create a
presumption that the person did not act in a manner which he reasonably
believed to be in or not opposed to the best interest of the Corporation,
and, with respect to any criminal action or proceeding, had reasonable cause
to believe that this conduct was unlawful.
9.2 Under the circumstances prescribed in Section 9.3 and 9.4, the
Corporation shall indemnify and hold harmless any person who was or is
a party or is threatened to be made a party to any threatened, pending
or completed action or suit by or in the right of the Corporation to
procure a judgment in its favor by reason of the fact that he is or
was a Director, officer, employee or agent of the Corporation, or is
or was serving at the request of the Corporation as a Director,
officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise against expenses (including
attorneys' fees) actually and reasonably incurred by him in connection
with the defense or settlement of such action if he acted in good
faith and in a manner
II-1
<PAGE> 22
he reasonably believed to be in or not opposed to the best interests
of the Corporation; except that no indemnification shall be made in
respect of any claim, issue or matter as to which such person shall
have been adjudged to be liable for negligence or misconduct in the
performance of his duty to the Corporation, unless and only to the
extent that the court in which such action or suit was brought shall
determine upon application that, despite the adjudication of
liability but in view of all the circumstances of the case, such
person if fairly and reasonably entitled to indemnity for such
expenses that the court shall deem proper.
9.3 To the extent that a Director, officer, employee or agent of a
corporation has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in Sections 9.1 and 9.2,
or in defense of any claim, issue or matter therein, he shall be
indemnified against expenses (including attorneys' fees) actually and
reasonably incurred by him in connection therewith.
9.4 Except as provided in Section 9.3 and except as may be ordered by
a court, any indemnification under Sections 9.1 and 9.2 shall be made
by the Corporation only as authorized in the specific case upon a
determination that indemnification of the Director, officer, employee
or agent is proper in the circumstances because he has met the
applicable standard of conduct set forth in Sections 9.1 and 9.2. Such
a determination shall be made (1) by the Board of Directors by a
majority vote of a quorum consisting of Directors who were not parties
to such action, suit or proceeding, or (2) if such a quorum is not
obtainable, or, even if obtainable a quorum of disinterested Directors
so directs, by independent legal counsel in a written opinion, or (3)
by the affirmative vote of a majority of the shares entitled to vote
thereon owned by persons who were not parties to such action, suit or
proceeding.
9.5 Expenses, including attorneys' fees, incurred in defending
a civil or criminal action, suit, or proceeding may be paid by the
Corporation in advance of the final disposition of such action, suit,
or proceeding upon a preliminary determination following one of the
procedures set forth in Section 9.4 that the Director, officer,
employee or agent met the applicable standard of conduct set forth in
Section 9.1 or Section 9.2 or as authorized by the Board of Directors
in the specific case and, in either event, upon receipt of an
undertaking by or on behalf of the Director, officer, employee, or
agent to repay such amount unless it shall ultimately be determined
that he is entitled to be indemnified by the Corporation as
authorized in this Section.
9.6 The Corporation shall have the power to make any other or further
indemnification of any of its Directors, officers employees, or
agents, under any By-Law, agreement, vote of shareholders or
disinterested Directors, or otherwise, both as to action in his
official capacity and as to action in another capacity while holding
such office, except an indemnification against gross negligence or
willful misconduct.
9.7 The indemnification provided by this Article Nine shall continue
as to a person who has ceased to be a Director, employee or agent and
shall inure to the benefit of the heirs, executors or administrators
of such a person.
9.8 The Corporation may purchase and maintain insurance on behalf of
any person who is or was a Director, officer, employee or agent of the
Corporation, or is or was serving at the request of the Corporation as
a Director, officer, employee or agent of another corporation,
partnership, joint venture, trust or other enterprise, against any
liability asserted against himself and incurred by him in any such
capacity, or arising out of his status as such, whether or not the
Corporation would have the power to indemnify him against such
liability under the provisions of this Article Nine.
9.9 If any expenses or other amounts are paid by way of
indemnification, otherwise than by court order or action by the
shareholder or by an insurance carrier pursuant to insurance
maintained by the Corporation, the
II-2
<PAGE> 23
Corporation shall, no later than the next annual meeting of
shareholders unless such a meeting is held within three months from
the date of such payment, and, in any event, within 15 months from
the date of such payment, deliver personally or send by first class
mail to its shareholders of record at the time entitled to vote for
the election of Directors a statement specifying the persons paid,
the amounts paid, and the nature and status at the time of such
payment of the litigation or threatened litigation."
Chapter 607 of the General Statutes of the State of Florida
permits a corporation to indemnify its officers and directors against
certain liabilities and provides for the conditions thereof.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and
controlling persons of the Company, the Company has been advised that
in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Act and
is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by
the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any
action, suit or proceeding) is asserted by such director, officer or
controlling person in connection with the securities being registered,
the Company undertakes, unless in the opinion of its counsel the
matter has been settled by controlling precedent, to submit to a court
of appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Act and agrees to
be governed by the final adjudication of such issue.
Item 16. Exhibits, Financial Statements and Schedules.
(a) The exhibit numbers on the following list correspond to the
numbers in the exhibit table required pursuant to Item 601 of Regulation S-K.
<TABLE>
<CAPTION>
EXHIBIT
NUMBER DESCRIPTION
------ -----------
<S> <C>
2-A(1) - Share Purchase Agreement between Klockner &
Co. AG and the Company dated April 14, 1998 and
amended June 30, 1998.
2-B(2) - Side Letter Agreement between Klockner & Co. AG and
Tech Data Corporation dated April 14, 1998.
3-A(3) - Articles of Incorporation of the Company as amended
to April 23, 1986.
3-B(4) - Articles of Amendment to Articles of Incorporation of
the Company filed on August 27, 1987.
3-C* - By-laws of the Company as amended to November 28,
1995.
3-E* - Articles of Amendment to Articles of Incorporation
of the Company filed on June 25, 1997.
3-G(2) - Amendment to By-laws of the Company as adopted on
June 23, 1998.
3-F(5) - Articles of Amendment to Articles of Incorporation of
the Company filed on July 15, 1993.
3-E(2) - Articles of Amendment to Amended and Restated
Articles of Incorporation of the Company as of
June 24, 1998.
</TABLE>
II-3
<PAGE> 24
<TABLE>
<S> <C>
4-F** - Indenture dated as of July 1, 1998 between the
Company and the First National Bank of Chicago, as
Trustee, relating to $300,000,000 5% Convertible
Subordinated Notes due July 1, 2003.
5** - Opinion of Schifino & Fleischer, P.A.
10-VV(6) - Amendment Number 3 to Amended and Restated Transfer
and Administration Agreement dated December 18, 1997.
10-UU* - Revolving Credit and Reimbursement Agreement dated
August 28, 1997.
23-A** - Consent of Schifino & Fleischer, P.A.(included
in Exhibit 5).
23-B** - Consent of PricewaterhouseCoopers LLP.
23-C** - Consent of Arthur Andersen LLP
23-D** - Consent of KPMG Hartfopf + Rentrop KG and AWT
Allgemeina Wirtschaftstreuhand GmbH.
24** - Power of Attorney is included on the Signature Page,
page II-6. Filed herewith.
25** - Statement of Eligibility of The First National Bank
of Chicago as Trustee including the consent of the
Trustee.
</TABLE>
- -----------
(1) Incorporated by reference to the Exhibit included in the Company's Current
Report on Form 8-K dated July 1, 1998 and filed on July 15, 1998, File No.
0-14625
(2) Incorporated by reference to the Exhibits included in the Company's Form
8-K/A filed with the Commission on September 14, 1998, File No. 0-14625.
(3) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-4135.
(4) Incorporated by reference to the Exhibits included in the Company's
Registration Statement on Form S-1, File No. 33-21997.
(5) Incorporated by reference to the Exhibits included in the Company's Form
10-K for the year ended January 31, 1994, File No. 0-14625.
(6) Incorporated by reference to the Exhibits included in the Company's Form
10-K/A filed with the Commission on May 29, 1998, File No. 0-14625.
*Previously Filed.
**Filed herewith
Item 17. Undertakings
The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15 (d) of the
II-4
<PAGE> 25
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes to deliver or cause to be
delivered with the prospectus, to each person to whom the prospectus is sent or
given, the latest annual report to security holders that is incorporated by
reference in the prospectus and furnished pursuant to and meeting the
requirements of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the prospectus, to deliver, or
cause to be delivered to each person to whom the prospectus is given, the
latest quarterly report that is specifically incorporated by reference in the
prospectus to provide such interim financial information.
Insofar as indemnification for liabilities arising under the
Securities Act of 1933 may be permitted to directors, officers and controlling
persons of the registrant pursuant to the foregoing provisions, or otherwise,
the registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities
Act of 1933, the information omitted from the form of prospectus
filed as part of this registration statement in reliance upon Rule
430A and contained in a form of prospectus filed by the registrant
pursuant to Rule 424 (b) (1) or (4), or 497 (h) under the
Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the
Securities Act of 1933, each post effective amendment that contains
a form of prospectus shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
II-5
<PAGE> 26
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets
all of the requirements for filing on Form S-3 and has duly caused this
Pre-Effective Amendment No. 1 to the Registration Statement to be signed on its
behalf by the undersigned, thereunto duly authorized in the City of Clearwater,
State of Florida, on September 14, 1998.
TECH DATA CORPORATION
By: /s/ STEVEN A. RAYMUND
-----------------------------------
Steven A. Raymund,
Chairman of the Board of Directors;
Chief Executive Officer
POWER OF ATTORNEY
Each person whose signature to this Registration Statement appears below
hereby appoints Jeffery P. Howells and Arthur W. Singleton, or either of them,
as his attorney-in-fact to sign on his behalf individually and in the capacity
stated below and to file all amendments and post-effective amendments to this
Registration Statement, and any and all instruments or documents filed as a
part of or in connection with this Registration Statement or the amendments
thereto, and the attorney-in-fact, or either of them, may make such changes and
additions to this Registration Statement as the attorney-in fact, or either of
them, may deem necessary or appropriate.
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
- --------- ----- -----
<S> <C> <C>
/s/ STEVEN A. RAYMUND Chairman of the Board of September 14, 1998
- --------------------- Directors; Chief Executive
Steven A. Raymund Officer
/s/ ANTHONY A. IBARGUN President; Chief Operating Officer; September 14, 1998
- ----------------------- Director
Anthony A. Ibargun
/s/ JEFFERY P. HOWELLS Executive Vice President and September 14, 1998
- ---------------------- Chief Financial Officer;
Jeffery P. Howells (principal financial
officer); Director
/s/ JOSEPH B. TREPANI Senior Vice President and Corporate September 14, 1998
- --------------------- Controller; (principal accounting
Joseph B. Trepani officer)
</TABLE>
II-6
<PAGE> 27
<TABLE>
<S> <C> <C>
/s/ CHARLES E. ADAIR Director September 14, 1998
- --------------------
Charles E. Adair
/s/ MAXIMILIAN ARDELT Director September 14, 1998
- ---------------------
Maximilian Ardelt
/s/ DANIEL M. DOYLE Director September 14, 1998
- -------------------
Daniel M. Doyle
/s/ DONALD F. DUNN Director September 14, 1998
- ------------------
Donald F. Dunn
/s/ EDWARD C. RAYMUND Director; Chairman Emeritus September 14, 1998
- ---------------------
Edward C. Raymund
/s/ DAVID M. UPTON Director September 14, 1998
- ------------------
David M. Upton
/s/ JOHN Y. WILLIAMS Director September 14, 1998
- --------------------
John Y. Williams
</TABLE>
II-7
<PAGE> 1
EXHIBIT 4-F
-----------------------------------------------------
TECH DATA CORPORATION
as Issuer
TO
THE FIRST NATIONAL BANK OF CHICAGO,
as Trustee
----------------
Indenture
Dated as of July 1, 1998
----------------
$ 300,000,000
5% Convertible Subordinated Notes
due July 1, 2003
-----------------------------------------------------
<PAGE> 2
TECH DATA CORPORATION
CERTAIN SECTIONS OF THIS INDENTURE RELATING TO
SECTIONS 310 THROUGH 318, INCLUSIVE, OF THE
TRUST INDENTURE ACT OF 1939:
<TABLE>
<CAPTION>
TRUST INDENTURE
ACT SECTION INDENTURE SECTION
<S> <C>
Section 310(a)(1) ....................................................... 6.9
(a)(2) ........................................................ 6.9
(a)(3) ........................................................ Not Applicable
(a)(4) ........................................................ Not Applicable
(b) ........................................................ 6.8
6.10
Section 311(a) ........................................................ 6.13
(b) ........................................................ 6.13
Section 312(a) ........................................................ 7.1
7.2
(b) ........................................................ 7.2
(c) ........................................................ 7.2
Section 313(a) ........................................................ 7.3
(b) ........................................................ 7.3
(c) ........................................................ 7.3
(d) ........................................................ 7.3
Section 314(a) ........................................................ 7.4
(a)(4) ........................................................ 1.1
10.4
(b) ........................................................ Not Applicable
(c)(1) ........................................................ 1.2
(c)(2) ........................................................ 1.2
(c)(3) ........................................................ Not Applicable
(d) ........................................................ Not Applicable
(e) ........................................................ 1.2
Section 315(a) ........................................................ 6.1
(b) ........................................................ 6.2
(c) ........................................................ 6.1
(d) ........................................................ 6.1
(e) ........................................................ 5.14
Section 316(a) ........................................................ 1.1
(a)(1)(A) ........................................................ 5.2
5.12
(a)(1)(B) ........................................................ 5.13
(a)(2) ........................................................ Not Applicable
(b) ........................................................ 5.8
(c) ........................................................ 1.4
Section 317(a)(1) ........................................................ 5.3
(a)(2) ........................................................ 5.4
(b) ........................................................ 10.3
Section 318(a) ........................................................ 1.7
</TABLE>
- -------------------
NOTE: This reconciliation and tie shall not, for any purpose, be deemed to be
a part of the Indenture.
<PAGE> 3
TABLE OF CONTENTS
-----------
<TABLE>
<CAPTION>
Page
----
<S> <C> <C>
RECITALS OF THE COMPANY.........................................................................6
ARTICLE ONE DEFINITIONS AND OTHER PROVISIONS OF GENERAL APPLICATION
SECTION 1.1. Definitions.......................................................................1
Act ...................................................................................2
Affiliate..............................................................................2
Agent Member...........................................................................2
Applicable Procedures..................................................................2
Authenticating Agent...................................................................2
Board of Directors.....................................................................2
Board Resolution.......................................................................2
Business Day...........................................................................2
Cash Distribution......................................................................2
Change of Control......................................................................2
Closing Price..........................................................................3
Commission.............................................................................3
Common Stock...........................................................................3
common stock...........................................................................3
Company ...............................................................................3
Company Notice.........................................................................3
Company Request or Company Order.......................................................3
Constituent Person.....................................................................3
Conversion Rate........................................................................3
Corporate Trust Office.................................................................3
Corporation............................................................................4
Defaulted Interest.....................................................................4
Depositary.............................................................................4
Determination Date.....................................................................4
Dollar or U.S.$........................................................................4
DTC ...................................................................................4
Event of Default.......................................................................4
Exchange Act...........................................................................4
Excess Purchase Payment................................................................4
Expiration Date........................................................................4
Global Security........................................................................4
Holder ................................................................................4
Indenture..............................................................................4
Interest Payment Date..................................................................4
Market Capitalization..................................................................5
Maturity ..............................................................................5
Non-electing Share.....................................................................5
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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<TABLE>
<S> <C> <C>
Officers' Certificate..................................................................5
Opinion of Counsel.....................................................................5
Outstanding............................................................................5
Paying Agent...........................................................................5
Person ................................................................................6
Predecessor Security...................................................................6
Record Date............................................................................6
Record Date Period.....................................................................6
Redemption Date........................................................................6
Redemption Price.......................................................................6
Regular Record Date....................................................................6
Repurchase Date........................................................................6
Repurchase Price.......................................................................6
Responsible Officer....................................................................6
Securities.............................................................................6
Securities Act.........................................................................6
Security Register and Security Registrar...............................................6
Senior Debt............................................................................6
Special Record Date....................................................................7
Stated Maturity........................................................................7
Subsidiary.............................................................................7
Successor Security.....................................................................7
Trading Day............................................................................7
Trust Indenture Act....................................................................8
Trustee ...............................................................................8
Vice President.........................................................................8
SECTION 1.2. Compliance Certificates and Opinions..............................................8
SECTION 1.3. Form of Documents Delivered to the Trustee........................................8
SECTION 1.4. Acts of Holders of Securities.....................................................9
SECTION 1.5. Notices, Etc., to Trustee and Company............................................11
SECTION 1.6. Notice to Holders of Securities; Waiver..........................................11
SECTION 1.7. Effect of Headings and Table of Contents.........................................11
SECTION 1.8. Successors and Assigns...........................................................11
SECTION 1.9. Separability Clause..............................................................12
SECTION 1.10. Benefits of Indenture...........................................................12
SECTION 1.11. Governing Law...................................................................12
SECTION 1.12. Legal Holidays..................................................................12
SECTION 1.13. Conflict with Trust Indenture Act...............................................12
ARTICLE TWO SECURITY FORMS
SECTION 2.1. Forms Generally..................................................................13
SECTION 2.2. Forms of Securities..............................................................13
SECTION 2.3. Form of Trustee's Certificate of Authentication..................................20
SECTION 2.4. Form of Conversion Notice........................................................21
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
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<TABLE>
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ARTICLE THREE THE SECURITIES
SECTION 3.1. Title and Terms..................................................................22
SECTION 3.2. Denominations....................................................................22
SECTION 3.3. Execution, Authentication, Delivery and Dating...................................22
SECTION 3.4. Temporary Securities.............................................................23
SECTION 3.5. Global Securities; Non-Global Securities.........................................23
SECTION 3.6. Registration, Registration of Transfer and Exchange..............................24
SECTION 3.7. Mutilated, Destroyed, Lost or Stolen Securities..................................25
SECTION 3.8. Payment of Interest; Interest Rights Preserved...................................26
SECTION 3.9. Persons Deemed Owners............................................................27
SECTION 3.10. Cancellation.....................................................................27
SECTION 3.11. Computation of Interest..........................................................27
SECTION 3.12. CUSIP and ISIN Numbers...........................................................27
ARTICLE FOUR SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture..........................................28
SECTION 4.2. Application of Trust Money.......................................................29
ARTICLE FIVE REMEDIES
SECTION 5.1. Events of Default................................................................29
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment...............................30
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee..................31
SECTION 5.4. Trustee May File Proofs of Claim.................................................32
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities......................32
SECTION 5.6. Application of Money Collected...................................................32
SECTION 5.7. Limitation on Suits..............................................................32
SECTION 5.8. Unconditional Right of Holders to Receive Principal,
Premium and Interest and to Convert....................................33
SECTION 5.9. Restoration of Rights and Remedies ..............................................33
SECTION 5.10. Rights and Remedies Cumulative...................................................33
SECTION 5.11. Delay or Omission Not Waiver.....................................................34
SECTION 5.12. Control by Holders of Securities.................................................34
SECTION 5.13. Waiver of Past Defaults..........................................................34
SECTION 5.14. Undertaking for Costs............................................................34
SECTION 5.15. Waiver of Stay, Usury or Extension Laws..........................................35
ARTICLE SIX THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities..............................................35
SECTION 6.2. Notice of Defaults...............................................................36
SECTION 6.3. Certain Rights of Trustee........................................................36
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities...........................37
SECTION 6.5. May Hold Securities..............................................................37
SECTION 6.6. Money Held in Trust..............................................................37
SECTION 6.7. Compensation and Reimbursement...................................................38
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
iii
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<TABLE>
<S> <C> <C>
SECTION 6.8. Disqualification; Conflicting Interests.........................................38
SECTION 6.9. Corporate Trustee Required; Eligibility.........................................38
SECTION 6.10. Resignation and Removal; Appointment of Successor...............................39
SECTION 6.11. Acceptance of Appointment by Successor..........................................40
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.....................40
SECTION 6.13. Preferential Collection of Claims Against Company...............................40
SECTION 6.14. Appointment of Authenticating Agent.............................................40
ARTICLE SEVEN HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders........................42
SECTION 7.2. Preservation of Information; Communications to Holders...........................42
SECTION 7.3. Reports by Trustee...............................................................42
SECTION 7.4. Reports by Company...............................................................43
ARTICLE EIGHT CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.............................43
SECTION 8.2. Successor Substituted............................................................44
ARTICLE NINE SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders of
Securities.............................................................44
SECTION 9.2. Supplemental Indentures with Consent of Holders of Securities....................45
SECTION 9.3. Execution of Supplemental Indentures.............................................45
SECTION 9.4. Effect of Supplemental Indentures................................................46
SECTION 9.5. Conformity with Trust Indenture Act..............................................46
SECTION 9.6. Reference in Securities to Supplemental Indentures...............................46
ARTICLE TEN COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest......................................46
SECTION 10.2. Maintenance of Office or Agency.................................................46
SECTION 10.3. Money for Security Payments to Be Held in Trust.................................47
SECTION 10.4. Statement by Officers as to Default.............................................48
SECTION 10.5. Existence.......................................................................48
SECTION 10.6. Maintenance of Properties.......................................................48
SECTION 10.7. Payment of Taxes and Other Claims...............................................48
SECTION 10.8. Registration and Listing........................................................48
SECTION 10.9. Waiver of Certain Covenants.....................................................49
ARTICLE ELEVEN REDEMPTION OF SECURITIES
SECTION 11.1. Right of Redemption.............................................................49
SECTION 11.2. Applicability of Article........................................................49
SECTION 11.3. Election to Redeem; Notice to Trustee...........................................49
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
iv
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SECTION 11.4. Selection by Trustee of Securities to Be Redeemed...............................49
SECTION 11.5. Notice of Redemption............................................................50
SECTION 11.6. Deposit of Redemption Price.....................................................51
SECTION 11.7. Securities Payable on Redemption Date...........................................51
SECTION 11.8. Securities Redeemed in Part.....................................................51
ARTICLE TWELVE CONVERSION OF SECURITIES
SECTION 12.1. Conversion Privilege and Conversion Rate........................................52
SECTION 12.2. Exercise of Conversion Privilege................................................52
SECTION 12.3. Fractions of Shares.............................................................53
SECTION 12.4. Adjustment of Conversion Rate...................................................53
SECTION 12.5. Notice of Adjustments of Conversion Rate........................................56
SECTION 12.6. Notice of Certain Corporate Action..............................................57
SECTION 12.7. Company to Reserve Common Stock.................................................58
SECTION 12.8. Taxes on Conversions............................................................58
SECTION 12.9. Covenant as to Common Stock.....................................................58
SECTION 12.10. Cancellation of Converted Securities............................................58
SECTION 12.11. Provision in Case of Consolidation, Merger or Sale of Assets....................58
SECTION 12.12. Responsibility of Trustee for Conversion Provisions.............................59
ARTICLE THIRTEEN SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt...........................................60
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc..................................60
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Securities....................61
SECTION 13.4. No Payment When Senior Debt in Default..........................................61
SECTION 13.5. Payment Permitted If No Default.................................................62
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.................................62
SECTION 13.7. Provisions Solely to Define Relative Rights.....................................62
SECTION 13.8. Trustee to Effectuate Subordination.............................................62
SECTION 13.9. No Waiver of Subordination Provisions...........................................63
SECTION 13.10. Notice to Trustee...............................................................63
SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent..................64
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt................................64
SECTION 13.13. Rights of Trustee as Holder of Senior Debt;
Preservation of Trustee's Rights........................................64
SECTION 13.14. Article Applicable to Paying Agents.............................................64
SECTION 13.15. Certain Conversions and Repurchases Deemed Payment..............................64
ARTICLE FOURTEEN REPURCHASE OF SECURITIES AT THE OPTION OF THE HOLDER
UPON A CHANGE OF CONTROL
SECTION 14.1. Right to Require Repurchase.....................................................66
SECTION 14.2. Conditions to the Company's Election to Pay the
Repurchase Price in Common Stock....................................66
SECTION 14.3. Notices; Method of Exercising Repurchase Right, Etc.............................67
SECTION 14.4. Certain Definitions.............................................................69
</TABLE>
Note: This table of contents shall not, for any purpose, be deemed to be
a part of the Indenture.
v
<PAGE> 8
INDENTURE, dated as of July 1, 1998, between TECH DATA
CORPORATION, a corporation duly organized and existing under the laws of
Florida, having its principal executive office at 5350 Tech Data Drive,
Clearwater, Florida 37760 (herein called the "Company"), and THE FIRST NATIONAL
BANK OF CHICAGO , a national banking association, as Trustee hereunder (herein
called the "Trustee").
RECITALS OF THE COMPANY
The Company has duly authorized the creation of an issue of
its 5% Convertible Subordinated Notes due July 1, 2003 (herein called the
"Securities") of substantially the tenor and amount hereinafter set forth, and
to provide therefor the Company has duly authorized the execution and delivery
of this Indenture.
All things necessary to make the Securities, when the
Securities are executed by the Company and authenticated and delivered
hereunder, the valid obligations of the Company, and to make this Indenture a
valid agreement of the Company, in accordance with their and its terms, have
been done. Further, all things necessary to duly authorize the issuance of the
Common Stock of the Company issuable upon the conversion of the Securities, and
to duly reserve for issuance the number of shares of Common Stock issuable upon
such conversion, have been done.
NOW, THEREFORE, THIS INDENTURE WITNESSETH:
For and in consideration of the premises and the purchase of
the Securities by the Holders thereof, it is mutually covenanted and agreed,
for the equal and proportionate benefit of all Holders of the Securities, as
follows:
ARTICLE ONE
DEFINITIONS AND OTHER PROVISIONS
OF GENERAL APPLICATION
SECTION 1.1. Definitions.
For all purposes of this Indenture, except as otherwise
expressly provided or unless the context otherwise requires:
(1) the terms defined in this Article have the meanings
assigned to them in this Article and include the plural as well as the
singular;
(2) all other terms used herein which are defined in the
Trust Indenture Act, either directly or by reference therein, have the
meanings assigned to them therein;
(3) unless the context otherwise requires, any reference to a
statute, rule or regulation refers to the same (including any
successor statute, rule or regulation thereto) as it may be amended
from time to time; and
<PAGE> 9
the meanings assigned to them in accordance with generally accepted
accounting principles in the United States, and, except as otherwise
herein expressly provided, the term "generally accepted accounting
principles" with respect to any computation required or permitted
hereunder shall mean such accounting principles as are generally
accepted at the date of such computation; and
(5) the words "herein", "hereof" and "hereunder" and other
words of similar import refer to this Indenture as a whole and not to
any particular Article, Section or other subdivision.
"Act", when used with respect to any Holder of a Security, has
the meaning specified in Section 1.4.
"Affiliate" of any specified Person means any other Person
directly or indirectly controlling or controlled by or under direct or indirect
common control with such specified Person. For the purposes of this definition,
"control", when used with respect to any specified Person, means the power to
direct the management and policies of such Person, directly or indirectly,
whether through the ownership of voting securities, by contract or otherwise;
and the terms "controlling" and "controlled" have meanings correlative to the
foregoing.
"Agent Member" means any member of, or participant in, the
Depositary.
"Applicable Procedure" means, with respect to any transfer or
transaction involving a Global Security or beneficial interest therein, the
rules and procedures of the Depositary for such Security, to the extent
applicable to such transaction and as in effect from time to time.
"Authenticating Agent" means any Person authorized pursuant
to Section 6.14 to act on behalf of the Trustee to authenticate Securities.
"Board of Directors" means either the board of directors of
the Company or any duly authorized committee of that board.
"Board Resolution" means a vote duly adopted by the Board of
Directors, a copy of which, certified by the Secretary or an Assistant
Secretary of the Company to have been duly adopted by the Board of Directors
and to be in full force and effect on the date of such certification, shall
have been delivered to the Trustee.
"Business Day", when used with respect to any place of
payment, place of conversion or any other place, as the case may be, means each
Monday, Tuesday, Wednesday, Thursday and Friday which is not a day on which
banking institutions in such place of payment, place of conversion or other
place, as the case may be, are authorized or obligated by law or executive
order to close; provided, however, that a day on which banking institutions in
New York, New York and Chicago, Illinois are authorized or obligated by law or
executive order to close shall not be a Business Day for purposes of Sections
10.1, 10.3 or 11.7.
"Cash Distribution" means the distribution by the Company to
all holders of its Common Stock of cash, other than any cash that is
distributed upon a merger or consolidation to which Section 12.11 applies or as
part of a distribution referred to in paragraph (4) of Section 12.4.
"Change of Control" has the meaning specified in Section 14.4.
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<PAGE> 10
"Closing Price" means, with respect to the Common Stock of the
Company, for any day, the reported last sale price per share on the New York
Stock Exchange or, if the Common Stock is not listed on the New York Stock
Exchange, on the principal national securities exchange or inter-dealer
quotation system on which the Common Stock is listed or admitted to trading, or
if not listed on the New York Stock Exchange or listed or admitted to trading on
any national securities exchange or inter-dealer quotation system, the average
of the closing bid and asked prices per share in the over-the-counter market as
furnished by any New York Stock Exchange member firm selected from time to time
by the Company for that purpose.
"Commission" means the United States Securities and Exchange
Commission, as from time to time constituted, created under the Exchange Act,
or, if at any time after the execution of this instrument such Commission is not
existing and performing the duties now assigned to it under the Trust Indenture
Act, then the body performing such duties at such time.
"Common Stock" means the Common Stock, par value $.0015 per
share, of the Company authorized at the date of this instrument as originally
executed. Subject to the provisions of Section 12.11, shares issuable on
conversion or repurchase of Securities shall include only shares of Common Stock
or shares of any class or classes of common stock resulting from any
reclassification or reclassifications thereof; provided, however, that if at any
time there shall be more than one such resulting class, the shares so issuable
on conversion of Securities shall include shares of all such classes, and the
shares of each such class then so issuable shall be substantially in the
proportion which the total number of shares of such class resulting from all
such reclassifications bears to the total number of shares of all such classes
resulting from all such reclassifications.
"common stock" includes any stock of any class of capital
stock 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 issuer thereof and which is not subject to redemption by the issuer
thereof.
"Company" means the Person named as the "Company" in the first
paragraph of this instrument until a successor Person shall have become such
pursuant to the applicable provisions of this Indenture, and thereafter
"Company" shall mean such successor Person.
"Company Notice" has the meaning specified in Section 14.3.
"Company Request" or "Company Order" means a written request
or order signed in the name of the Company by its Chairman of the Board, its
Chief Executive Officer, its President or a Vice President, and by its principal
financial officer, Treasurer, an Assistant Treasurer, its Secretary or an
Assistant Secretary, and delivered to the Trustee.
"Constituent Person" has the meaning specified in
Section 12.11.
"Conversion Rate: has the meaning specified in Section 12.1.
"Corporate Trust Office" shall mean the principal office of
the Trustee at which at any particular time its corporate trust business shall
be administered which office at the date of the execution of the Indenture is
located at One First National Plaza, Suite 0126, Chicago, Illinois 60670,
Attention: Corporate Trust and Service Division, with an agency office at 14
Wall Street, 8th Floor, New York, New York 10005, or at any other time at such
other address as the Trustee may designate from time to time by notice to the
Noteholders.
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<PAGE> 11
"Corporation" means a corporation, company, association,
joint-stock company or business trust.
"Defaulted Interest" has the meaning specified in Section 3.8.
"Depositary" means, with respect to any Security, a clearing
agency that is registered as such under the Exchange Act and is designated by
the Company to act as Depositary for such Security (or any successor securities
clearing agency so registered).
"Determination Date" means, in the case of a dividend or other
distribution, including the issuance of rights, options or warrants, to
shareholders, the date fixed for the determination of shareholders entitled to
receive such dividend or other distribution and, in the case of a tender offer,
the last time that tenders could have been made pursuant to such tender offer.
"Dollar" or "U.S.$" means a dollar or other equivalent unit in
such coin or currency of the United States as at the time shall be legal tender
for the payment of public and private debts.
"DTC" means The Depositary Trust Company, a New York
corporation.
"Event of Default" has the meaning specified in Section 5.1.
"Exchange Act" means the United States Securities Exchange
Act of 1934, as amended from time to time.
"Excess Purchase Payment" means the excess, if any, of
(i) the amount of cash plus the fair market value (as determined by the Board of
Directors, whose determination shall be conclusive and described in a Board
Resolution) of any non-cash consideration required to be paid with respect to
one share of Common Stock acquired or to be acquired in a tender offer made by
the Company or any Subsidiary for all or any portion of the Common Stock over
(ii) the current market price per share as of the last time that tenders could
have been made pursuant to such tender offer.
"Expiration Date" has the meaning specified in Section 1.4.
"Global Security" means a Security that is registered in the
Security Register in the name of a Depositary or a nominee thereof.
"Holder" means the Person in whose name a Security is
registered in the Security Register.
"Indenture" means this instrument as originally executed or as
it may from time to time be supplemented or amended by one or more indentures
supplemental hereto entered into pursuant to the applicable provisions hereof,
including, for all purposes of this instrument and any such supplemental
indenture, the provisions of the Trust Indenture Act that are deemed to be a
part of and govern this instrument and any such supplemental indenture,
respectively.
"Interest Payment Date" means the Stated Maturity of an
installment of interest on the Securities.
-4-
<PAGE> 12
"Market Capitalization" means, with respect to a specified
date, the product of (i) the current market price per share (determined as
provided in paragraph (8) of Section 12.4) of the Common Stock as of such date
times (ii) the number of shares of Common Stock outstanding on such date.
"Maturity", when used with respect to any Security, means the
date on which the principal of such Security becomes due and payable as therein
or herein provided, whether at the Stated Maturity or by declaration of
acceleration, call for redemption, exercise of the repurchase right set forth
in Article Fourteen or otherwise.
"Non-electing Share" has the meaning specified in
Section 12.11.
"Officers' Certificate" means a certificate signed by the
Chairman of the Board, the Chief Executive Officer, the President or a Vice
President and by the principal financial officer, the Treasurer, an Assistant
Treasurer, the Secretary or an Assistant Secretary of the Company, and
delivered to the Trustee.
"Opinion of Counsel" means a written opinion of counsel,
who may be counsel for the Company and who shall be reasonably acceptable to
the Trustee.
"Outstanding", when used with respect to Securities, means,
as of the date of determination, all Securities theretofore authenticated and
delivered under this Indenture, except:
(i) Securities theretofore cancelled by the Trustee or
delivered to the Trustee for cancellation;
(ii) Securities for the payment or redemption of which 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
(iii) Securities which have been paid pursuant to Section 3.7
or in exchange for or in lieu of which other Securities have been
authenticated and delivered pursuant to this Indenture;
provided, however, that in determining whether the Holders of the requisite
principal amount of 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 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 a Responsible Officer of the Trustee
actually 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
such other obligor.
"Paying Agent" means any Person authorized by the Company to
pay the principal of or interest on any Securities on behalf of the Company.
-5-
<PAGE> 13
"Person" means any individual, corporation, limited liability
company, partnership, joint venture, trust, estate, unincorporated organization
or government or any agency or political subdivision thereof.
"Predecessor Security" of any particular Security means every
previous Security evidencing all or a portion of the same debt as that
evidenced by such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Record Date" means any Regular Record Date or Special Record
Date.
"Record Date Period" means the period from the close of
business of any Regular Record Date next preceding any Interest Payment Date to
the opening of business on such Interest Payment Date.
"Redemption Date", when used with respect to any Security to
be redeemed, means the date fixed for such redemption by or pursuant to this
Indenture.
"Redemption Price", when used with respect to any Security to
be redeemed, means the price at which it is to be redeemed pursuant to this
Indenture.
"Regular Record Date" for interest payable in respect of any
Security on any Interest Payment Date means June 15 or December 15 (whether or
not a Business Day), as the case may be, next preceding such Interest Payment
Date.
"Repurchase Date" has the meaning specified in Section 14.1.
"Repurchase Price" has the meaning specified in Section 14.1.
"Responsible Officer" shall mean when used with respect to
the Trustee any officer assigned by the Trustee to administer corporate trust
matters.
"Securities" has the meaning ascribed to it in the first
paragraph under the caption "Recitals of the Company".
"Securities Act" means the United States Securities Act of
1933, as amended from time to time.
"Security Registrar" and "Security Registrar" have the
respective meanings specified in Section 3.6.
-6-
<PAGE> 14
"Senior Debt" means the principal of (and premium, if any)
and interest (including all interest accruing subsequent to the commencement of
any bankruptcy or similar proceeding, whether or not a claim for post-petition
interest is allowable as a claim in any such proceeding) on, and all fees and
other amounts (including collection expenses, attorney's fees and late charges)
owing with respect to, the following, whether direct or indirect, absolute or
contingent, secured or unsecured, due or to become due, outstanding at the date
of execution of this Indenture or thereafter incurred, created or assumed: (a)
indebtedness of the Company for money borrowed or evidenced by bonds,
debentures, notes or similar instruments, (b) reimbursement obligations of the
Company with respect to letters of credit, bankers' acceptances and similar
facilities issued for the account of the Company, (c) every obligation of the
Company issued or assumed as the deferred purchase price of property or
services purchased by the Company, excluding any trade payables and other
accrued current liabilities incurred in the ordinary course of business, (d)
obligations of the Company as lessee under leases required to be capitalized on
the balance sheet of the lessee under United States generally accepted
accounting principles or can be capitalized under the United States Internal
Revenue Code, (e) obligations of the Company under interest rate and currency
swaps, caps, floors, collars or similar arrangements intended to protect the
Company against fluctuations in interest or currency exchange rates, (f)
indebtedness of others of the kinds described in the preceding clauses (a)
through (e) that the Company has assumed, guaranteed or otherwise assured the
payment thereof, directly or indirectly, and/or (g) deferrals, renewals,
extensions and refundings of, or amendments, modifications or supplements to,
any indebtedness or obligation described in the preceding clauses (a) through
(f) whether or not there is any notice to or consent of the Holders; provided,
however, that the following shall not constitute Senior Debt: (i) any
particular indebtedness or obligation that is owed by the Company to any of its
direct and indirect Subsidiaries and (ii) any particular indebtedness,
deferral, renewal, extension or refunding if it is expressly stated in the
governing terms or in the assumption thereof that the indebtedness involved is
not senior in right of payment to the Securities or that such indebtedness is
pari passu with or junior to the Securities.
"Special Record Date" for the payment of any Defaulted
Interest means a date fixed by the Company pursuant to Section 3.8.
"Stated Maturity", when used with respect to any Security or
any installment of interest thereon, means the date specified in such Security
as the fixed date on which the principal of such Security or such installment
of interest is due and payable.
"Subsidiary" means a corporation, limited liability company,
partnership or other entity more than 50% of the outstanding voting stock of
which is owned, directly or indirectly, by the Company or by one or more other
Subsidiaries, or by the Company and one or more other Subsidiaries. For the
purposes of this definition, "voting stock" means stock or other equity
interests in the corporation, limited liability company, partnership or other
entity which ordinarily has or have voting power for the election of directors,
or persons performing similar functions, whether at all times or only so long
as no senior class of stock or other interests has or have such voting power by
reason of any contingency.
"Successor Security" of any particular Security means every
Security issued after, and evidencing all or a portion of the same debt as that
evidenced by, such particular Security; and, for the purposes of this
definition, any Security authenticated and delivered under Section 3.7 in
exchange for or in lieu of a mutilated, destroyed, lost or stolen Security
shall be deemed to evidence the same debt as the mutilated, destroyed, lost or
stolen Security.
"Trading Day" means (i) if the Common Stock is listed or
admitted for trading on the New York Stock Exchange or any other national
securities exchange, a day on which such exchange is open for business; (ii) if
the Common Stock is quoted on the Nasdaq National Market or any other system of
automated dissemination of quotations of securities prices, a day on which
trades may be effected through such system; or (iii) if the Common Stock is not
listed or admitted for trading on any national securities exchange or quoted on
the Nasdaq National Market or any other system of automated dissemination of
quotation of securities prices, a day on which the Common Stock is traded
regular way in the over-the-counter market and for which a closing bid and a
closing asked price for the Common Stock are available.
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<PAGE> 15
"Trust Indenture Act" means the Trust Indenture Act of 1939
as in force at the date as of which this instrument was executed; provided,
however, that in the event the Trust Indenture Act of 1939 is amended after
such date, "Trust Indenture Act" means, to the extent required by any such
amendment, the Trust Indenture Act of 1939 as so amended.
"Trustee" means the Person named as the "Trustee" in the
first paragraph of this instrument until a successor Trustee shall have become
such pursuant to the applicable provisions of this Indenture, and thereafter
"Trustee" shall mean such successor Trustee.
"Vice President", when used with respect to the Company,
means any vice president, whether or not designated by a number or a word or
words added before or after the title "vice president".
SECTION 1.2. Compliance Certificates and Opinions.
Upon any application or request by the Company to the Trustee
to take any action under any provision of this Indenture, the Company shall
furnish to the Trustee an Officers' Certificate stating that all conditions
precedent, if any, provided for in this Indenture relating to the proposed
action have been complied with and an Opinion of Counsel stating that in the
opinion of such counsel all such conditions precedent, if any, have been
complied with, except that in the case of any such application or request as to
which the furnishing of such documents is specifically required by any
provision of this Indenture relating to such particular application or request,
no additional certificate or opinion need be furnished.
Every certificate or opinion with respect to compliance with
a condition or covenant provided for in this Indenture shall include:
(1) a statement that each individual signing such certificate
or opinion has read such covenant or condition and the definitions
herein relating thereto;
(2) a brief statement as to the nature and scope of the
examination or investigation upon which the statements or opinions
contained in such certificate or opinion are based;
(3) a statement that, in the opinion of such individual, he
has made such examination or investigation as is necessary to enable
him to express an informed opinion as to whether or not such covenant
or condition has been complied with; and
(4) a statement as to whether, in the opinion of each such
individual, such condition or covenant has been complied with.
SECTION 1.3. Form of Documents Delivered to the Trustee.
In any case where several matters are required to be certified
by, or covered by an opinion of, any specified Person, it is not necessary that
all such matters be certified by, or covered by the opinion of, only one such
Person, or that they be so certified or covered by only one document, but one
such Person may certify or give an opinion with respect to some matters and one
or more other such Persons as to other matters, and any such Person may certify
or give an opinion as to such matters in one or several documents.
-8-
<PAGE> 16
Any certificate or opinion of an officer of the Company may
be based, insofar as it relates to legal matters, upon a certificate or opinion
of, or representations by, counsel, unless such officer knows, or in the
exercise of reasonable care should know, that the certificate or opinion or
representations with respect to the matters upon which such certificate or
opinion is based are erroneous. Any such certificate or opinion of counsel may
be based, insofar as it relates to factual matters, upon a certificate or
opinion of, or representations by, an officer or officers of the Company
stating that the information with respect to such factual matters is in the
possession of the Company, unless such counsel knows, or in the exercise of
reasonable care should know, that the certificate or opinion or representations
with respect to such matters are erroneous.
Where any Person is required to make, give or execute two or
more applications, requests, consents, certificates, statements, opinions or
other instruments under this Indenture, they may, but need not, be consolidated
and form one instrument.
SECTION 1.4. Acts of Holders of Securities.
Any request, demand, authorization, direction, notice,
consent, waiver or other action provided or permitted by this Indenture to be
given or taken by Holders of Securities may be embodied in and evidenced by one
or more instruments of substantially similar tenor signed by such Holders in
person or by an agent or proxy duly appointed in writing; and except as herein
otherwise expressly provided, such action shall become effective when such
instrument or instruments or record is delivered to the Trustee and, where it
is hereby expressly required, to the Company. The Trustee shall promptly
deliver to the Company copies of all such instruments and records delivered to
the Trustee. Such instrument or instruments and record (and the action embodied
therein and evidenced thereby) are herein sometimes referred to as the "Act" of
the Holders of Securities signing such instrument or instruments. Proof of
execution of any such instrument or of a writing appointing any such agent or
proxy, or of the holding by any Person of a Security, shall be sufficient for
any purpose of this Indenture and conclusive in favor of the Trustee and the
Company if made in the manner provided in this Section.
The fact and date of the execution by any Person of any such
instrument or writing may be proved by the affidavit of a witness of such
execution or by a certificate of a notary public or other officer authorized by
law to take acknowledgements of deeds, certifying that the individual signing
such instrument or writing acknowledged to him the execution thereof. Where
such execution is by a signer acting in a capacity other than his individual
capacity, such certificate or affidavit shall also constitute sufficient proof
of his authority. The fact and date of execution of any such instrument or
writing and the authority of the Person executing the same may also be proved
in any other manner which the Trustee deems sufficient.
The ownership of Securities shall be proved by the Security
Register.
Any request, demand, authorization, direction, notice,
consent, waiver or other Act of the Holder of any Security shall bind every
future Holder of the same Security and the Holder of every Security issued upon
the registration of transfer thereof or in exchange therefor or in lieu thereof
in respect of anything done, omitted or suffered to be done by the Trustee or
the Company in reliance thereon, regardless of whether notation of such action
is made upon such Security.
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<PAGE> 17
The Company may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to give, make or
take any request, demand, authorization, direction, notice, consent, waiver or
other action provided or permitted by this Indenture to be given, made or taken
by Holders, provided that the Company may not set a record date for, and the
provisions of this paragraph shall not apply with respect to, the giving or
making of any notice, declaration, request or direction referred to in the next
paragraph. If any record date is set pursuant to this paragraph, the Holders of
Outstanding Securities on such record date, and no other Holders, shall be
entitled to take the relevant action, regardless of whether such Holders remain
Holders after such record date; provided that no such action shall be effective
hereunder unless taken on or prior to the applicable Expiration Date, if any,
by Holders of the requisite principal amount of Outstanding Securities on such
record date. Nothing in this paragraph shall be construed to prevent the
Company from setting a new record date for any action for which a record date
has previously been set pursuant to this paragraph (whereupon the record date
previously set shall automatically and with no action by any Person be
cancelled and of no effect), and nothing in this paragraph shall be construed
to render ineffective any action taken by Holders of the requisite principal
amount of Outstanding Securities on the date such action is taken. Promptly
after any record date is set pursuant to this paragraph, the Company, at its
own expense, shall cause notice of such record date, the proposed action by
Holders and the applicable Expiration Date to be given to the Trustee in
writing and to each Holder of Securities in the manner set forth in Section
1.6.
The Trustee may set any day as a record date for the purpose
of determining the Holders of Outstanding Securities entitled to join in the
giving or making of (i) any Notice of Default, (ii) any declaration of
acceleration referred to in Section 5.2, (iii) any request to institute
proceedings referred to in Section 5.7(2) or (iv) any direction referred to in
Section 5.12. If any record date is set pursuant to this paragraph, the Holders
of Outstanding Securities on such record date, and no other Holders, shall be
entitled to join in such notice, declaration, request or direction, regardless
of whether such Holders remain Holders after such record date; provided that no
such action shall be effective hereunder unless taken on or prior to the
applicable Expiration Date, if any, by Holders of the requisite principal
amount of Outstanding Securities on such record date. Nothing in this paragraph
shall be construed to prevent the Trustee from setting a new record date for
any action (whereupon the record date previously set shall automatically and
without any action by any Person be cancelled and of no effect), nor shall
anything in this paragraph be construed to render ineffective any action taken
by Holders of the requisite principal amount of Outstanding Securities on the
date such action is taken. Promptly after any record date is set pursuant to
this paragraph, the Trustee, at the Company's expense, shall cause notice of
such record date, the proposed action by Holders and the applicable Expiration
Date to be given to the Company in writing and to each Holder of Securities in
the manner set forth in Section 1.6.
With respect to any record date set pursuant to this Section,
the party hereto that sets such record date may designate any day as the
"Expiration Date" and from time to time may change the Expiration Date to any
earlier or later day, provided that no such change shall be effective unless
notice of the proposed new Expiration Date is given to the other party hereto
in writing, and to each Holder of Securities in the manner set forth in Section
1.6, on or prior to the existing Expiration Date. If an Expiration Date is not
designated with respect to any record date set pursuant to this Section, the
party hereto that set such record date shall be deemed to have initially
designated the 180th day after such record date as the Expiration Date with
respect thereto, subject to its right to change the Expiration Date as provided
in this paragraph. Notwithstanding the foregoing, no Expiration Date shall be
later than the 180th day after the applicable record date.
Without limiting the foregoing, a Holder entitled hereunder
to take any action hereunder with regard to any particular Security may do so
with regard to all or any part of the principal amount of such Security or by
one or more duly appointed agents each of which may do so pursuant to such
appointment with regard to all or any part of such principal amount.
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<PAGE> 18
SECTION 1.5. Notices, Etc., to Trustee and Company.
Any request, demand, authorization, direction, notice,
consent, election, waiver or other Act of Holders of Securities or other
document provided or permitted by this Indenture to be made upon, given or
furnished to, or filed with,
(1) the Trustee by any Holder or by the Company shall be
sufficient for every purpose hereunder if made, given, furnished or
filed in writing to or with the Trustee and received at its Corporate
Trust Office, Attention: Corporate Trust Services Division, Fax (312)
407-1708, or
(2) the Company by the Trustee or by any Holder shall be
sufficient for every purpose hereunder (unless otherwise herein
expressly provided) if in writing, mailed, first-class postage
prepaid, or telecopied and confirmed by mail, first-class postage
prepaid, or delivered by hand or overnight courier, addressed to the
Company at 5350 Tech Data Drive, Clearwater, Florida, telecopy no.:
(813) 538-5860, Attention: Arthur W. Singleton, Secretary or at any
other address previously furnished in writing to the Trustee by the
Company.
SECTION 1.6. Notice to Holders of Securities; Waiver.
Where this Indenture provides for notice to Holders of any
event, such notice shall be sufficiently given (unless otherwise herein
expressly provided) if in writing and mailed, first-class postage prepaid, to
each Holder affected by such event, at his address as it appears in the
Security Register, not later than the latest date (if any), and not earlier
than the earliest date (if any), prescribed for the giving of such notice. In
any case where notice to Holders is given by mail, neither the failure to mail
such notice, nor any defect in any notice so mailed, to any particular Holder
shall affect the sufficiency of such notice with respect to other Holders.
Where this Indenture provides for notice in any manner, such
notice may be waived in writing by the Person entitled to receive such notice,
either before or after the event, and such waiver shall be the equivalent of
such notice. Waivers of notice by Holders shall be filed with the Trustee, but
such filing shall not be a condition precedent to the validity of any action
taken in reliance upon such waiver.
In case by reason of the suspension of regular mail service
or by reason of any other cause it shall be impracticable to give such notice
by mail, then such notification as shall be made with the approval of the
Trustee shall constitute a sufficient notification for every purpose hereunder.
SECTION 1.7. Effect of Headings and Table of Contents.
The Article and Section headings herein and the Table of
Contents are for convenience only and shall not affect the construction hereof.
SECTION 1.8. Successors and Assigns.
All covenants and agreements in this Indenture by the Company
shall bind its successors and assigns, whether so expressed or not.
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<PAGE> 19
SECTION 1.9. Separability Clause.
In case any provision in this Indenture or the Securities
shall be invalid, illegal or unenforceable, the validity, legality and
enforceability of the remaining provisions shall not in any way be affected or
impaired thereby.
SECTION 1.10. Benefits of Indenture.
Nothing in this Indenture or in the Securities, express or
implied, shall give to any Person, other than the parties hereto and their
successors hereunder, the holders of Senior Debt and the Holders of Securities,
any benefit or any legal or equitable right, remedy or claim under this
Indenture.
SECTION 1.11. Governing Law.
THIS INDENTURE AND THE SECURITIES SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, THE UNITED
STATES OF AMERICA WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
SECTION 1.12. Legal Holidays.
In any case where any Interest Payment Date, Redemption Date,
Repurchase Date or Stated Maturity of any Security or the last day on which a
Holder of a Security has a right to convert his Security shall not be a
Business Day at a place of payment or place of conversion, as the case may be,
then (notwithstanding any other provision of this Indenture or of the
Securities) payment of principal of, premium, if any, or interest on, or
conversion of, such Security need not be made on such day, but may be made on
or by the next succeeding Business Day with the same force and effect as if
made on the Interest Payment Date, Redemption Date or Repurchase Date, or at
the Stated Maturity or on such last day for conversion; provided, however, that
in the case that payment is made on such succeeding Business Day, no interest
shall accrue for the period from and after such Interest Payment Date,
Redemption Date, Repurchase Date, Stated Maturity or last day for conversion,
as the case may be, to such succeeding Business Day.
SECTION 1.13. Conflict with Trust Indenture Act.
If any provision hereof limits, qualifies or conflicts with a
provision of the Trust Indenture Act that is required under such act to be a
part of and govern this Indenture, the latter provision of the Trust Indenture
Act shall control. If any provision of this Indenture modifies or excludes any
provision of the Trust Indenture Act that may be so modified or excluded, the
latter provision of the Trust Indenture Act shall be deemed to apply to this
Indenture as so modified or to be excluded, as the case may be.
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<PAGE> 20
ARTICLE TWO
SECURITY FORMS
SECTION 2.1. Forms Generally.
The Securities shall be in substantially the forms set forth in this
Article, with such appropriate insertions, omissions, substitutions and other
variations as are required or permitted by this Indenture, and may have such
letters, numbers or other marks of identification and such legends or
endorsements placed thereon as may be required to comply with the rules of any
securities exchange or as may, consistently herewith, be determined by the
officers executing such Securities, as evidenced by their execution of the
Securities.
The definitive Securities shall be printed, lithographed or engraved
or produced by any combination of these methods on steel engraved borders or
may be produced in any other manner provided that it is permitted by the rules
of any securities exchange on which the Securities may be listed, all as
determined by the officers executing such Securities, as evidenced by their
execution thereof.
Upon their original issuance, the Securities shall be issued in the
form of one or more Global Securities registered in the name of DTC, as
Depositary, or its nominee and deposited with the Trustee, as custodian for
DTC, for credit by DTC to the respective accounts of beneficial owners of the
Securities represented thereby (or such other accounts as they may direct).
SECTION 2.2. Forms of Securities.
[FORM OF FACE]
[IF THE SECURITY IS A GLOBAL SECURITY, THEN INSERT --THIS SECURITY IS
A GLOBAL SECURITY WITHIN THE MEANING OF THE INDENTURE HEREINAFTER REFERRED TO
AND IS REGISTERED IN THE NAME OF A DEPOSITARY OR A NOMINEE THEREOF. THIS
SECURITY MAY NOT BE EXCHANGED IN WHOLE OR IN PART FOR A SECURITY REGISTERED,
AND NO TRANSFER OF THIS SECURITY IN WHOLE OR IN PART MAY BE REGISTERED, IN THE
NAME OF ANY PERSON OTHER THAN SUCH DEPOSITARY OR A NOMINEE THEREOF, EXCEPT IN
THE LIMITED CIRCUMSTANCES DESCRIBED IN THE INDENTURE.]
[IF THE SECURITY IS A GLOBAL SECURITY AND THE DEPOSITARY TRUST COMPANY
IS TO BE THE DEPOSITARY THEREFOR, THEN INSERT -- UNLESS THIS CERTIFICATE IS
PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF THE DEPOSITARY TRUST COMPANY, A
NEW YORK CORPORATION ("DTC"), TO THE ISSUER OR ITS AGENT FOR REGISTRATION OF
TRANSFER, EXCHANGE OR PAYMENT, AND ANY CERTIFICATE ISSUED IS REQUESTED BY AN
AUTHORIZED REPRESENTATIVE OF DTC), ANY TRANSFER, PLEDGE OR OTHER USE HEREOF FOR
VALUE OR OTHERWISE BY OR TO ANY PERSON IS WRONGFUL INASMUCH AS THE REGISTERED
OWNER HEREOF, CEDE & CO., HAS AN INTEREST HEREIN.]
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<PAGE> 21
[RESTRICTED SECURITIES LEGEND BEFORE REGISTRATION UNDER THE SECURITIES
ACT OF 1933 -- "THIS SECURITY HAS NOT BEEN REGISTERED UNDER THE SECURITIES ACT
OF 1933, AS AMENDED (THE "SECURITIES ACT"), OR THE SECURITIES LAWS OF ANY STATE
OR OTHER JURISDICTION. NEITHER THIS SECURITY NOR ANY INTEREST OR PARTICIPATION
HEREIN MAY BE REOFFERED, SOLD, ASSIGNED, TRANSFERRED, PLEDGED OR ENCUMBERED
EXCEPT PURSUANT TO AN EFFECTIVE REGISTRATION STATEMENT UNLESS SUCH TRANSACTION
IS EXEMPT FROM, OR NOT SUBJECT TO, SUCH REGISTRATION."]
TECH DATA CORPORATION
5% CONVERTIBLE SUBORDINATED NOTE DUE JULY 1, 2003
No. _____________ $300,000,000
CUSIP NO.
TECH DATA CORPORATION, a corporation duly organized and
existing under the laws of Florida (herein called the "Company", which term
includes any successor Person under the Indenture referred to on the reverse
hereof), for value received, hereby promises to pay to Cede & Co., as nominee
for the Depositary Trust Company or registered assigns, the principal sum of
Three Hundred Million Dollars ($300,000,000) [IF THIS SECURITY IS A GLOBAL
SECURITY, THEN INSERT -- (which principal amount may from time to time be
increased or decreased to such other principal amounts which, taken together
with the principal amounts of all other Outstanding Securities, shall not
exceed $300,000.000 in the aggregate at any time by adjustments made on the
records of the Trustee hereinafter referred to in accordance with the
Indenture) on July 1, 2003 and to pay interest thereon, from July 1, 1998, or
from the most recent Interest Payment Date to which interest has been paid or
duly provided for, semi-annually on January 1 and July 1 in each year,
commencing January 1, 1999, at the rate of 5% per annum, until the principal
hereof is due, and at the rate of 7% per annum on any overdue principal and
premium, if any, and, to the extent permitted by law, on any overdue interest.
The interest so payable, and punctually paid or duly provided for, on any
Interest Payment Date will, as provided in the Indenture, be paid to the Person
in whose name this Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest, which shall be June 15 or December 15 (whether or not a Business
Day), as the case may be, next preceding such Interest Payment Date. Except as
otherwise provided in the Indenture, any such interest not so punctually paid
or duly provided for will forthwith cease to be payable to the Holder on such
Regular Record Date and may either be paid to the Person in whose name this
Security (or one or more Predecessor Securities) is registered at the close of
business on a Special Record Date for the payment of such Defaulted Interest to
be fixed by the Company, notice whereof shall be given to Holders of Securities
not less than 10 days prior to such Special Record Date, or be paid at any time
in any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon such notice
as may be required by such exchange, all as more fully provided in the
Indenture. Payment of the principal of (and premium, if any, on) this Security
shall be made upon the surrender of this Security at the option of the Holder
at the office or agency of the Company as may be designated by it for such
purpose in the Borough of Manhattan, The City of New York, in such coin or
currency of the United States of America as at the time of payment shall be
legal tender for the payment of public and private debts, or at such other
offices or agencies as the Company may designate, by Dollar check or by
transfer to a Dollar account (such a transfer to be made only to a Holder of an
aggregate principal amount of Securities in excess of $5,000,000, and only if
such Holder shall have furnished wire instructions in writing to the Trustee no
later than 15 days prior to the relevant payment date) maintained by the payee
with a bank in the United States of America. Payment of interest on this
Security may be made by Dollar check mailed to the address of the Person
entitled thereto as such address shall appear in the Security Register, or,
upon written application by the Holder to the Security Registrar setting forth
wire instructions not later than the relevant Record Date, by transfer to a
Dollar account (such a transfer to be made only to a Holder of an aggregate
principal amount of Securities in excess of $5,000,000 and only if such Holder
shall have furnished wire instructions in writing to the Trustee no later than
15 days prior to the relevant payment date) maintained by the payee with a bank
in the United States of America.
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<PAGE> 22
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.
(The balance of this page intentionally left blank)
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<PAGE> 23
IN WITNESS WHEREOF, the Company has caused this Security to
be duly executed under its corporate seal.
Dated:
TECH DATA CORPORATION
By:
--------------------------
Name:
Title:
Attest:
- ------------------------
Name:
Title:
[FORM OF REVERSE]
This Security is one of a duly authorized issue of securities
of the Company designated as its "5% Convertible Subordinated Notes due July 1,
2003" (herein called the "Securities"), limited in aggregate principal amount
to $300,000,000, issued and to be issued under an Indenture, dated as of July
1, 1998 (herein called the "Indenture"), between the Company and The First
National Bank of Chicago, as Trustee, (herein called the "Trustee"), which term
includes any successor trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a statement of the
respective rights, limitations of rights, duties and immunities thereunder of
the Company, the Trustee, the holders of Senior Debt and the Holders of the
Securities and of the terms upon which the Securities are, and are to be,
authenticated and delivered.
The Securities are subject to redemption upon not less than
30 nor more than 60 days' notice by mail, at any time on or after July 1, 2001,
as a whole or in part, at the election of the Company, at the following
Redemption Prices (expressed as percentages of the principal amount) if
redeemed during the 12-month period beginning July 1 of the years indicated:
<TABLE>
<CAPTION>
Year Redemption Price
- ---- ----------------
<S> <C>
2001 ............................................................................. 102%
2002 ............................................................................. 101%
</TABLE>
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<PAGE> 24
and thereafter at a Redemption Price equal to 100% of the principal amount,
together in the case of any such redemption with accrued interest to the
Redemption Date, but interest installments whose Stated Maturity is on or prior
to such Redemption Date will be payable to the Holders of such Securities, or
one or more Predecessor Securities, of record at the close of business on the
relevant Record Dates referred to on the face hereof, all as provided in the
Indenture.
Subject to and upon compliance with the provisions of the
Indenture, the Holder of this Security is entitled at any time before the close
of business on July 1, 2003 (or, in case this Security or a portion hereof is
called for redemption or the Holder hereof has exercised his right to require
the Company to repurchase this Security or a portion hereof, then in respect of
this Security or such portion hereof, as the case may be, until and including,
but (unless the Company defaults in making the payment due upon redemption or
repurchase, as the case may be) not after, the close of business on the
Redemption Date or the Repurchase Date, as the case may be) to convert this
Security (or any portion of the principal amount hereof that is an integral
multiple of $1,000), into fully paid and nonassessable shares (calculated as to
each conversion to the nearest 1/100 of a share) of Common Stock of the Company
at the rate of 17.777 shares of Common Stock for each $1,000 principal amount
of Security (or at the current adjusted rate if an adjustment has been made as
provided in the Indenture) by surrender of this Security, duly endorsed or
assigned to the Company or in blank to the Company at the Corporate Trust
Office of the Trustee, at the office or agency of the Company in the Borough of
Manhattan, The City of New York, at any other office or agency of the Company
maintained for such purpose and at the office or agency of any additional
conversion agent appointed by the Company, accompanied by written notice to the
Company that the Holder hereof elects to convert this Security (or if less than
the entire principal amount hereof is to be converted, specifying the portion
hereof to be converted). Holders that surrender Securities for conversion on a
date that is not an Interest Payment Date are not entitled to receive any
interest for the period from the next preceding Interest Payment Date to the
date of conversion, except as described below. However, Holders of Securities
on a Regular Record Date, including Securities surrendered for conversion after
the Regular Record Date, will receive the interest payable on such Securities
on the next succeeding Interest Payment Date. Accordingly, any Security
surrendered for conversion during the period from the close of business on a
Regular Record Date to the opening of business on the next succeeding Interest
Payment Date must be accompanied by payment of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of Securities
being surrendered for conversion; provided, however, that no such payment will
be required upon the conversion of any Security (or portion thereof) that has
been called for redemption or that is eligible to be delivered for repurchase
if, as a result, the right to convert such Security would terminate during the
period between such Regular Record Date and the next succeeding Interest
Payment Date. No fractions of shares or scrip representing fractions of shares
will be issued on conversion, but instead of any fractional interest, the
Company shall pay a cash adjustment as provided in the Indenture or, at its
option, the Company shall round up to the next higher whole share.
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<PAGE> 25
The Conversion Rate is subject to adjustment as provided in
the Indenture. The Indenture also provides that in case of certain
consolidations or mergers to which the Company is a party or the conveyance,
transfer, sale or lease of all or substantially all of the properties and
assets of the Company, the Indenture shall be amended, without the consent of
any Holders of Securities, so that this Security, if then Outstanding, will be
convertible thereafter, during the period this Security shall be convertible as
specified above, only into the kind and amount of securities, cash and other
property receivable upon such consolidation, merger, conveyance, transfer, sale
or lease (including any Common Stock retainable) by a holder of the number of
shares of Common Stock of the Company into which this Security could have been
converted immediately prior to such consolidation, merger, conveyance,
transfer, sale or lease (assuming such holder of Common Stock failed to
exercise any rights of election and received per share the kind and amount
received per share by a plurality of non-electing Shares and further assuming,
if such consolidation, merger, conveyance, transfer, sale or lease is prior to
the first date on which this Security may be converted as provided above, that
this Security was convertible immediately prior to the time of such occurrence
at the initial Conversion Rate specified above as adjusted from the first
original issue date of the Securities to such time as provided in the
Indenture). No adjustment in the Conversion Rate will be made until such
adjustment would require an increase or decrease of at least one percent of
such rate, provided that any adjustment that would otherwise be made will be
carried forward and taken into account in the computation of any subsequent
adjustment.
If a Change of Control occurs, the Holder of this Security,
at the Holder's option, shall have the right, in accordance with the provisions
of the Indenture, to require the Company to repurchase this Security (or any
portion of the principal amount hereof that is an integral multiple of $1,000)
at a Repurchase Price equal to 100% of the principal amount thereof plus
interest accrued to the Repurchase Date. At the option of the Company, the
Repurchase Price may be paid in cash or, subject to the conditions provided in
the Indenture, by delivery of shares of Common Stock having a fair market value
equal to the Repurchase Price. For purposes of this paragraph, the fair market
value of shares of Common Stock shall be determined by the Company and shall be
equal to 95% of the average of the Closing Price for the five consecutive
Trading Days ending on and including the third Trading Day immediately
preceding the Repurchase Date. Whenever in this Security there is a reference,
in any context, to the principal of any Security as of any time, such reference
shall be deemed to include reference to the Repurchase Price payable in respect
of such Security to the extent that such Repurchase Price is, was or would be
so payable at such time, and express mention of the Repurchase Price in any
provision of this Security shall not be construed as excluding the Repurchase
Price so payable in those provisions of this Security where such express
mention is not made; provided, however, that for the purposes of the second
succeeding paragraph (regarding subordination), such reference shall be deemed
to include reference to the Repurchase Price only if the Repurchase Price is
payable in cash.
[IF NOT A GLOBAL SECURITY INSERT -- In the event of
redemption, repurchase or conversion of this Security in part only, a new
Security or Securities for the unredeemed, unrepurchased or unconverted portion
hereof will be issued in the name of the Holder hereof.]
[IF A GLOBAL SECURITY INSERT -- In the event of a deposit or
withdrawal of an interest in this Security (including upon an exchange,
transfer, redemption, repurchase or conversion of this Security in part only)
effected in accordance with the Applicable Procedures, the Security Registrar,
upon receipt of notice of such event from the Depositary's custodian for this
Security, shall make an adjustment on its records to reflect an increase or
decrease of the Outstanding principal amount of this Security resulting from
such deposit or withdrawal, as the case may be.]
The indebtedness evidenced by this Security is, to the extent
and in the manner provided in the Indenture, subordinate and subject in right
of payment to the prior payment in full of all Senior Debt of the Company, and
this Security is issued subject to such provisions of the Indenture with
respect thereto. Each Holder of this Security, by accepting the same, (a)
agrees to and shall be bound by such provisions, (b) authorizes and directs the
Trustee on his behalf to take such action as may be necessary or appropriate to
effectuate the subordination so provided and (c) appoints the Trustee his
attorney-in-fact for any and all such purposes.
If an Event of Default shall occur and be continuing, the
principal of all the Securities may be declared due and payable in the manner
and with the effect provided in the Indenture.
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<PAGE> 26
The Indenture permits, with certain exceptions as therein
provided, the amendment thereof and the modification of the rights and
obligations of the Company and the rights of the Holders of the Securities
under the Indenture at any time by the Company and the Trustee with the consent
of the Holders of a majority in principal amount of the Securities at the time
Outstanding. The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities at the time
Outstanding, on behalf of the Holders of all the Securities, to waive
compliance by the Company with certain provisions of the Indenture and certain
past defaults under the Indenture and their consequences. Any such consent or
waiver by the Holder of this Security shall be conclusive and binding upon such
Holder and upon all future Holders of this Security and of any Security issued
in exchange herefor or in lieu hereof, whether or not notation of such consent
or waiver is made upon this Security or such other Security.
As provided in and subject to the provisions of the
Indenture, the Holder of this Security shall not have the right to institute
any proceeding with respect to the Indenture or for the appointment of a
receiver or trustee or for any other remedy thereunder, unless such Holder
shall have previously given the Trustee written notice of a continuing Event of
Default with respect to the Securities, the Holders of not less than 25% in
principal amount of the Securities at the time Outstanding shall have made
written request to the Trustee to institute proceedings in respect of such
Event of Default as Trustee and offered the Trustee reasonable indemnity and
the Trustee shall not have received from the Holders of a majority in principal
amount of Securities at the time Outstanding a direction inconsistent with such
request and shall have failed to institute any such proceeding for 60 days
after receipt of such notice, request and offer of indemnity. The foregoing
shall not apply to certain suits described in the Indenture, including any suit
instituted by the Holder of this Security for the enforcement of any payment of
principal hereof or any premium, if any, or interest hereon on or after the
respective due dates expressed herein or for the enforcement of the right to
convert this Security as provided in the Indenture.
No reference herein to the Indenture and no provision of this
Security or of the Indenture shall alter or impair the obligation of the
Company, which is absolute and unconditional, to pay the principal of, premium,
if any, and interest on this Security at the times, places and rate, and in the
coin or currency, herein prescribed or to convert this Security as provided in
the Indenture.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of Securities is registrable on the
Security Register upon surrender of a Security for registration of transfer at
the office or agency of the Company in the Borough of Manhattan, The City of
New York, and at such other offices or agencies as the Company may designate,
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 thereof or his attorney duly authorized in writing, and thereupon one or
more new Securities, of authorized denominations and for the same aggregate
principal amount, will be issued to the designated transferee or transferees.
The Securities are issuable only in registered form without
coupons in denominations of $1,000 and any integral multiple thereof. As
provided in the Indenture and subject to certain limitations therein set forth,
Securities are exchangeable for a like aggregate principal amount of Securities
of a different authorized denomination, as requested by the Holder surrendering
the same.
No service charge shall be made for any such registration of
transfer or exchange, but the Company may require payment of a sum sufficient
to recover any tax or other governmental charge payable in connection
therewith.
Prior to due presentation of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered, as the owner
thereof for all purposes, whether or not such Security be overdue, and neither
the Company, the Trustee nor any such agent shall be affected by notice to the
contrary.
THE INDENTURE AND THIS SECURITY SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, UNITED STATES
OF AMERICA WITHOUT REGARD TO ITS CONFLICTS OF LAW PRINCIPLES.
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<PAGE> 27
All terms used in this Security which are defined in the
Indenture shall have the meanings assigned to them in the Indenture.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to Section 14.1 of the Indenture, the undersigned
hereby elects to have all or a portion of this Security repurchased by the
Company.
2. The undersigned hereby directs the Trustee or the Company
to pay [choose one] (a) it or (b) Name: __________________; address:
__________________; Social Security or Other Taxpayer Identification Number, if
any: ____________, an amount in cash or, at the Company's election, Common
Stock valued as set forth in the Indenture, equal to 100% of the principal
amount to be repurchased (as set forth below), plus interest accrued to the
Repurchase Date, as provided in the Indenture.
Dated: -----------------------
-----------------------
Signature
Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if cash or Common Stock is to be delivered other than
to, and in the name of, the registered Holder.
-----------------------
Signature Guarantee
Principal amount to be repurchased
(an integral multiple of $1,000):
----------------------
Remaining principal amount following such repurchase (not less than $1,000):
NOTICE: The signature to the foregoing Election must correspond to the name as
written upon the face of this Security in every particular, without alteration
or any change whatsoever.
SECTION 2.3. Form of Trustee's Certificate of Authentication.
This is one of the Securities referred to in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK
OF CHICAGO,
as Trustee
By:
--------------------
Authorized Signatory
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<PAGE> 28
SECTION 2.4. Form of Conversion Notice.
CONVERSION NOTICE
The undersigned Holder of this Security hereby irrevocably
exercises the option to convert this Security, or any portion of the principal
amount hereof (which is an integral multiple of $1,000) below designated, into
shares of Common Stock in accordance with the terms of the Indenture referred
to in this Security, and directs that such shares, together with a check in
payment for any fractional share and any Securities representing any
unconverted principal amount hereof, be delivered to and be registered in the
name of the undersigned unless a different name has been indicated below. If
shares of Common Stock or Securities are to be registered in the name of a
Person other than the undersigned, the undersigned will pay all transfer taxes
payable with respect thereto. Any amount required to be paid by the undersigned
on account of interest accompanies this Security.
Dated:
--------------------------- ---------------------------
Signature
If shares or Securities are to be registered If only a portion of the
in the name of a Person other than the Securities is to be
Holder, please print such Person's name converted, please indicate:
and address:
1. Principal amount to be converted:
$
- ------------------------- -----------
Name
2. Principal amount and denomination
of Securities representing
unconverted principal amount to be
issued:
- -------------------------
Address
Amount: $
-----------
Denominations: $
------------
(any integral multiple of $1,000)
- -------------------------
Social Security or other Taxpayer
Identification Number, if any
Signature must be guaranteed by an eligible Guarantor Institution (banks,
stockbrokers, savings and loan associations and credit unions) with membership
in an approved signature medallion program pursuant to Securities and Exchange
Commission Rule 17Ad-15 if cash or Common Stock is to be delivered other than
to, and in the name of, the registered Holder.
[Signature Guarantee]
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<PAGE> 29
ARTICLE THREE
THE SECURITIES
SECTION 3.1. Title and Terms.
The aggregate principal amount of Securities which may be
authenticated and delivered under this Indenture is limited to $300,000,000,
except for Securities authenticated and delivered in exchange for, or in lieu
of, other Securities pursuant to Section 3.4, 3.5, 3.6, 3.7, 9.6, 11.8, 12.2 or
14.3.
The Securities shall be known and designated as the "5%
Convertible Subordinated Notes due July 1, 2003" of the Company. Their Stated
Maturity shall be July 1, 2003, and they shall bear interest at the rate of 5%
per annum, from July 1, 1998 or from the most recent Interest Payment Date to
which interest has been paid or duly provided for, as the case may be, payable
semi-annually on January 1 and July 1 commencing January 1, 1999, until the
principal thereof is paid or made available for payment.
The principal of, premium, if any, and interest on the
Securities shall be payable as provided in the forms of Securities set forth in
Section 2.2.
The Securities shall be redeemable as provided in Article
Eleven.
The Securities shall be convertible as provided in Article
Twelve.
The Securities shall be subordinated in right of payment to
Senior Debt as provided in Article Thirteen.
The Securities shall be subject to repurchase by the Company
at the option of the Holders as provided in Article Fourteen.
SECTION 3.2. Denominations.
The Securities shall be issuable only in registered form,
without coupons, in denominations of $1,000 and any integral multiple thereof.
SECTION 3.3. Execution, Authentication, Delivery and Dating.
The Securities shall be executed on behalf of the Company by
its Chairman of the Board, its Chief Executive Officer, its President or one of
its Vice Presidents, under its corporate seal reproduced thereon attested by
its Secretary or one of its Assistant Secretaries. Any such signature may be
manual or facsimile.
Securities bearing the manual or facsimile signature of
individuals who were at any time the proper officers of the Company shall bind
the Company, notwithstanding that such individuals or any of them have ceased
to hold such offices prior to the authentication and delivery of such
Securities or did not hold such offices at the date of such Securities.
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<PAGE> 30
At any time and from time to time after the execution and
delivery of this Indenture, the Company may deliver Securities executed by the
Company to the Trustee for authentication, together with a Company Order for
the authentication and delivery of such Securities, and the Trustee in
accordance with such Company Order shall authenticate and make available for
delivery such Securities as in this Indenture provided and not otherwise.
Each Security shall be dated the date of its authentication.
No Security shall be entitled to any benefit under this
Indenture or be valid or obligatory for any purpose unless there appears on
such Security a certificate of authentication substantially in the form
provided for herein executed by the Trustee by manual signature, and such
certificate upon any Security shall be conclusive evidence, and the only
evidence, that such Security has been duly authenticated and delivered
hereunder.
SECTION 3.4. Temporary Securities.
Pending the preparation of definitive Securities, the Company
may execute, and upon Company Order the Trustee shall authenticate and deliver,
temporary Securities which are printed, lithographed, typewritten, mimeographed
or otherwise produced, in any authorized denomination, substantially of the
tenor of the definitive Securities in lieu of which they are issued and with
such appropriate insertions, omissions, substitutions and other variations as
the officers executing such Securities may determine, as evidenced by their
execution of such Securities.
If temporary Securities are issued, the Company will cause
definitive Securities to be prepared without unreasonable delay. After the
preparation of definitive Securities, the temporary Securities shall be
exchangeable for definitive Securities upon surrender of the temporary
Securities at any office or agency of the Company designated pursuant to
Section 10.2, without charge to the Holder. Upon surrender for cancellation of
any one or more temporary Securities the Company shall execute and the Trustee
shall authenticate and deliver in exchange therefor a like principal amount of
definitive Securities of authorized denominations. Until so exchanged the
temporary Securities shall in all respects be entitled to the same benefits
under this Indenture as definitive Securities.
SECTION 3.5. Global Securities; Non-Global Securities.
(a) Each Global Security authenticated under this Indenture
shall be registered in the name of the Depositary designated by the Company for
such Global Security or a nominee thereof and delivered to such Depositary or a
nominee thereof or custodian therefor, and each such Global Security shall
constitute a single Security for all purposes of this Indenture.
(b) Notwithstanding any other provision in this Indenture, no
Global Security may be exchanged in whole or in part for Securities registered,
and no transfer of a Global Security in whole or in part may be registered, in
the name of any Person other than the Depositary for such Global Security or a
nominee thereof unless (i) such Depositary (A) has notified the Company that it
is unwilling or unable to continue as Depositary for such Global Security or
(B) has ceased to be a clearing agency registered as such under the Exchange
Act, and in either case the Company thereupon fails to appoint a successor
Depositary, (ii) there shall have occurred and be continuing an Event of
Default with respect to such Global Security or (iii) the Company executes and
delivers to the Trustee a Company Order stating that all Global Securities
shall be exchanged in whole for Securities that are not Global Securities (in
which case such exchange shall be effected by the Trustee).
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<PAGE> 31
(c) If any Global Security is to be exchanged for other
Securities or canceled in whole, it shall be surrendered by or on behalf of the
Depositary or its nominee to the Trustee, as Security Registrar, for exchange
or cancellation as provided in this Article Three. If any Global Security is to
be exchanged for other Securities or canceled in part, or if another Security
is to be exchanged in whole or in part for a beneficial interest in any Global
Security, in each case, as provided in Section 3.6, then either (i) such Global
Security shall be so surrendered for exchange or cancellation as provided in
this Article Three or (ii) the principal amount thereof shall be reduced or
increased by an amount equal to the portion thereof to be so exchanged or
canceled, or equal to the principal amount of such other Security to be so
exchanged for a beneficial interest therein, as the case may be, by means of an
appropriate adjustment made on the records of the Trustee, as Security
Registrar, whereupon the Trustee, in accordance with the Applicable Procedures,
shall instruct the Depositary or its authorized representative to make a
corresponding adjustment to its records. Upon any such surrender or adjustment
of a Global Security, the Trustee shall, subject to Section 3.6(c) and as
otherwise provided in this Article Three, authenticate and deliver any
Securities issuable in exchange for such Global Security (or any portion
thereof) to or upon the order of, and registered in such names as may be
directed by, the Depositary or its authorized representative. Upon the request
of the Trustee in connection with the occurrence of any of the events specified
in the preceding paragraph, the Company shall promptly make available to the
Trustee a reasonable supply of Securities that are not in the form of Global
Securities. The Trustee shall be entitled to conclusively rely upon any order,
direction or request of the Depositary or its authorized representative which
is given or made pursuant to this Article Three if such order, direction or
request is given or made in accordance with the Applicable Procedures.
(d) Every Security authenticated and delivered upon
registration of transfer of, or in exchange for or in lieu of, a Global
Security or any portion thereof, whether pursuant to this Article Three or
otherwise, shall be authenticated and delivered in the form of, and shall be, a
Global Security, unless such Security is registered in the name of a Person
other than the Depositary for such Global Security or a nominee thereof.
(e) The Depositary or its nominee, as registered owner of a
Global Security, shall be the Holder of such Global Security for all purposes
under the Indenture and the Securities, and owners of beneficial interests in a
Global Security shall hold such interests pursuant to the Applicable
Procedures. Accordingly, any such owner's beneficial interest in a Global
Security will be shown only on, and the transfer of such interest shall be
effected only through, records maintained by the Depositary or its nominee or
its Agent Members and such owners of beneficial interests in a Global Security
will not be considered the owners or holders of such Global Security for any
purpose of this Indenture or the Securities.
SECTION 3.6. Registration, Registration of Transfer and Exchange.
The Company shall cause to be kept at the Corporate Trust
Office of the Trustee a register (the register maintained in such office and in
any other office or agency of the Company designated pursuant to Section 10.2
being herein sometimes collectively referred to as the "Security Register") in
which, subject to such reasonable regulations as it may prescribe, the Company
shall provide for the registration of Securities and of transfers of
Securities. The Trustee is hereby appointed "Security Registrar" for the
purpose of registering Securities and transfers and exchanges of Securities as
herein provided.
Upon surrender for registration of transfer of any Security
at an office or agency of the Company designated pursuant to Section 10.2 for
such purpose, the Company shall execute, and the Trustee shall authenticate and
deliver, in the name of the designated transferee or transferees, one or more
new Securities of any authorized denominations and of a like aggregate
principal amount and bearing such restrictive legends as may be required by
this Indenture.
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<PAGE> 32
At the option of the Holder, and subject to the other
provisions of this Section 3.6, Securities may be exchanged for other
Securities of any authorized denomination and of a like aggregate principal
amount, upon surrender of the Securities to be exchanged at any such office or
agency. Whenever any Securities are so surrendered for exchange, the Company
shall execute, and the Trustee shall authenticate and deliver, the Securities
which the Holder making the exchange is entitled to receive.
All Securities issued upon any registration of transfer or
exchange of Securities shall be the valid obligations of the Company,
evidencing the same debt, and entitled to the same benefits under this
Indenture, as the Securities surrendered upon such registration of transfer or
exchange.
Every Security presented or surrendered for registration of
transfer or for exchange shall (if so required by the Company or the Security
Registrar) be duly endorsed, or be accompanied by a written instrument of
transfer in form satisfactory to the Company and the Security Registrar duly
executed, by the Holder thereof or his attorney duly authorized in writing.
No service charge shall be made for any registration of
transfer or exchange of Securities, but the Company may require payment of a
sum sufficient to cover any tax or other governmental charge that may be
imposed in connection with any registration of transfer or exchange of
Securities, other than exchanges pursuant to Section 3.4, 3.5, 9.6, 11.8, 12.2
or 14.3 not involving any transfer.
The Company shall not be required (i) to issue, register the
transfer of or exchange any Security during a period beginning at the opening
of business 15 days before the day of the mailing of a notice of redemption of
Securities selected for redemption under Section 11.4 and ending at the close
of business on the day of such mailing, or (ii) to register the transfer of or
exchange any Security so selected for redemption in whole or in part, except
the unredeemed portion of any Security being redeemed in part.
SECTION 3.7. Mutilated, Destroyed, Lost or Stolen Securities.
If any mutilated Security is surrendered to the Trustee or to
a Transfer Agent, the Company shall execute and the Trustee shall authenticate
and deliver in exchange therefor a new Security of like tenor and principal
amount and bearing a number not contemporaneously outstanding.
If there shall be delivered to the Company and the Trustee
(i) evidence to their satisfaction of the destruction, loss or theft of any
Security, and (ii) such security or indemnity as may be satisfactory to the
Company or the Trustee to save each of them and any agent of either of them
harmless, then, in the absence of actual notice to the Company or a Responsible
Officer of the Trustee that such Security has been acquired by a bona fide
purchaser, the Company shall execute and the Trustee shall authenticate and
deliver, in lieu of any such destroyed, lost or stolen Security, a new Security
of like tenor and principal amount and bearing a number not contemporaneously
outstanding.
In case any such mutilated, destroyed, lost or stolen
Security has become or is about to become due and payable, the Company in its
discretion, but subject to any conversion rights, may, instead of issuing a new
Security, pay such Security.
Upon the issuance of any new Security under this Section, the
Company may require the payment of a sum sufficient to cover any tax or other
governmental charge that may be imposed in relation thereto and any other
expenses (including the fees and expenses of the Trustee) connected therewith.
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<PAGE> 33
Every new Security issued pursuant to this Section in lieu of
any mutilated, destroyed, lost or stolen Security shall constitute an original
additional contractual obligation of the Company, whether or not the mutilated,
destroyed, lost or stolen Security shall be at any time enforceable by anyone,
and shall be entitled to all the benefits of this Indenture equally and
proportionately with any and all other Securities duly issued hereunder.
The provisions of this Section are exclusive and shall
preclude (to the extent lawful) all other rights and remedies of any Holder
with respect to the replacement or payment of mutilated, destroyed, lost or
stolen Securities.
SECTION 3.8. Payment of Interest; Interest Rights Preserved.
Interest on any Security which is payable, and is punctually
paid or duly provided for, on any Interest Payment Date shall be paid to the
Person in whose name that Security (or one or more Predecessor Securities) is
registered at the close of business on the Regular Record Date for such
interest.
Any interest on any Security which is payable, but is not
punctually paid or duly provided for, on any Interest Payment Date (herein
called "Defaulted Interest") shall forthwith cease to be payable to the Holder
on the relevant Regular Record Date by virtue of having been such Holder, and
such Defaulted Interest may be paid by the Company, at its election in each
case, as provided in Clause (1) or (2) below:
(1) The Company may elect to make payment of any Defaulted
Interest to the Persons in whose names the Securities (or their
respective Predecessor Securities) are registered at the close of
business on a Special Record Date for the payment of such Defaulted
Interest, which shall be fixed in the following manner. The Company
shall notify the Trustee in writing of the amount of Defaulted
Interest proposed to be paid on each Security, the date of the
proposed payment and the Special Record Date, and at the same time the
Company shall deposit with the Trustee an amount of money equal to the
aggregate amount proposed to be paid in respect of such Defaulted
Interest or shall make arrangements satisfactory to the Trustee for
such deposit prior to the date of the proposed payment, such money
when deposited to be held in trust for the benefit of the Persons
entitled to such Defaulted Interest as in this Clause provided. The
Special Record Date for the payment of such Defaulted Interest shall
be not more than 15 days and not less than 10 days prior to the date
of the proposed payment and not less than 10 days after the receipt by
the Trustee of the written notice of the proposed payment. The
Trustee, in the name and at the expense of the Company, shall cause
notice of the proposed payment of such Defaulted Interest and the
Special Record Date therefor to be mailed, first-class postage
prepaid, to each Holder of Securities at such Holder's address as it
appears in the Security Register, not less than 10 days prior to such
Special Record Date. Notice of the proposed payment of such Defaulted
Interest and the Special Record Date therefor having been so mailed,
such Defaulted Interest shall be paid to the Persons in whose names
the Securities (or their respective Predecessor Securities) are
registered at the close of business on such Special Record Date and
shall no longer be payable pursuant to the following Clause (2).
(2) The Company may make payment of any Defaulted Interest in
any other lawful manner not inconsistent with the requirements of any
securities exchange on which the Securities may be listed, and upon
such notice as may be required by such exchange, if, after notice
given by the Company to the Trustee of the proposed payment pursuant
to this Clause, such manner of payment shall be deemed practicable by
the Trustee.
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<PAGE> 34
Subject to the foregoing provisions of this Section, each
Security delivered under this Indenture upon registration of transfer of or in
exchange for or in lieu of any other Security shall carry the rights to
interest accrued and unpaid, and to accrue, which were carried by such other
Security.
Interest on any Security which is converted in accordance
with Section 12.2 during a Record Date Period shall be payable in accordance
with the provisions of Section 12.2.
SECTION 3.9. Persons Deemed Owners.
Prior to due presentment of a Security for registration of
transfer, the Company, the Trustee and any agent of the Company or the Trustee
may treat the Person in whose name such Security is registered as the owner of
such Security for the purpose of receiving payment of principal of (and
premium, if any) and (subject to Section 3.8) interest on such Security and for
all other purposes whatsoever, whether or not such Security be overdue, and
neither the Company, the Trustee nor any agent of the Company or the Trustee
shall be affected by notice to the contrary.
SECTION 3.10. Cancellation.
All Securities surrendered for payment, redemption,
repurchase, registration of transfer or exchange or conversion shall, if
surrendered to any Person other than the Trustee, be delivered to the Trustee
and shall be promptly cancelled by it. The Company may at any time deliver to
the Trustee for cancellation any Securities previously authenticated and
delivered hereunder which the Company may have acquired in any manner
whatsoever, and all Securities so delivered shall be promptly cancelled by the
Trustee. No Securities shall be authenticated in lieu of or in exchange for any
Securities cancelled as provided in this Section, except as expressly permitted
by this Indenture. All cancelled Securities held by the Trustee shall be
disposed of as directed by a Company Order.
SECTION 3.11. Computation of Interest.
Interest on the Securities shall be computed on the basis of
a 360-day year of twelve 30-day months.
SECTION 3.12. CUSIP and ISIN Numbers.
The Company in issuing Securities may use "CUSIP" and "ISIN"
numbers (if then generally in use) in addition to serial numbers; if so, the
Trustee shall use such "CUSIP" and "ISIN" numbers in addition to serial numbers
in notices of redemption and repurchase as a convenience to Holders; provided
that any such notice may state that no representation is made as to the
correctness of such CUSIP and ISIN numbers either as printed on the Securities
or as contained in any notice of a redemption or repurchase and that reliance
may be placed only on the serial or other identification numbers printed on the
Securities, and any such redemption or repurchase shall not be affected by any
defect in or omission of such CUSIP and ISIN numbers.
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<PAGE> 35
ARTICLE FOUR
SATISFACTION AND DISCHARGE
SECTION 4.1. Satisfaction and Discharge of Indenture.
This Indenture shall cease to be of further effect (except as
to any surviving rights of conversion, registration of transfer or exchange of
Securities herein expressly provided for), and the Trustee, on reasonable
demand of and at the expense of the Company, shall execute proper instruments
acknowledging satisfaction and discharge of this Indenture, when
(1) either
(A) all Securities theretofore authenticated and delivered
(other than (i) Securities which have been destroyed, lost or stolen
and which have been replaced or paid as provided in Section 3.7 and
(ii) Securities for whose payment money has theretofore been deposited
in trust or segregated and held in trust by the Company and thereafter
repaid to the Company or discharged from such trust, as provided in
Section 10.3) have been delivered to the Trustee for cancellation; or
(B) all such Securities not theretofore delivered to the
Trustee for cancellation
(i) have become due and payable, or
(ii) will become due and payable at their Stated Maturity
within one year, or
(iii) are to be called for redemption within one year
under arrangements satisfactory to the Trustee for the
giving of notice of redemption by the Trustee in the
name, and at the expense, of the Company,
and the Company, in the case of (i), (ii) or (iii) above, has
deposited or caused to be deposited with the Trustee as trust
funds in trust for the purpose an amount sufficient to pay
and discharge the entire indebtedness on such Securities not
theretofore delivered to the Trustee for cancellation, for
principal (and premium, if any) and interest to the date of
such deposit (in the case of Securities which have become due
and payable) or to the Stated Maturity or Redemption Date, as
the case may be;
(2) the Company has paid or caused to be paid all other sums
payable hereunder by the Company; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that all conditions
precedent herein provided for relating to the satisfaction and discharge of
this Indenture have been complied with.
Notwithstanding the satisfaction and discharge of this Indenture, the
obligations of the Company to the Trustee under Section 6.7, the obligations of
the Trustee to any Authenticating Agent under Section 6.14 and, if money shall
have been deposited with the Trustee pursuant to subclause (B) of Clause (1) of
this Section, the obligations of the Trustee under Section 4.2 and the last
paragraph of Section 10.3 shall survive. Funds held in trust pursuant to this
Section are not subject to the provisions of Article Thirteen.
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SECTION 4.2. Application of Trust Money.
Subject to the provisions of the last paragraph of Section
10.3, all money deposited with the Trustee pursuant to Section 4.1 shall be
held in trust and applied by it, in accordance with the provisions of the
Securities and this Indenture, to the payment, either directly or through any
Paying Agent (including the Company acting as its own Paying Agent) as the
Trustee may determine, to the Persons entitled thereto, of the principal (and
premium, if any) and interest for whose payment such money has been deposited
with the Trustee.
All moneys deposited with the Trustee pursuant to Section 4.1
(and held by it or any Paying Agent) for the payment of Securities subsequently
converted shall be returned to the Company upon Company Request.
ARTICLE FIVE
REMEDIES
SECTION 5.1. Events of Default.
"Event of Default", wherever used herein, means any one of
the following events (whatever the reason for such Event of Default and whether
it shall be occasioned by the provisions of Article Thirteen or be voluntary or
involuntary or be effected by operation of law or pursuant to any judgment,
decree or order of any court or any order, rule or regulation of any
administrative or governmental body):
(1) default in the payment of the principal of or premium,
if any, on any Security at its Maturity; or
(2) default in the payment of any interest upon any Security
when it becomes due and payable, and continuance of such default for a
period of 30 days; or
(3) failure by the Company to give the Company Notice in
accordance with Section 14.3; or
(4) default in the performance, or breach, of any material
covenant or warranty of the Company in this Indenture (other than a
covenant or warranty a default in the performance or breach of which
is specifically dealt with elsewhere in this Section), and continuance
of such default or breach for a period of 60 days after there has been
given, by registered or certified mail, to the Company by the Trustee
or to the Company and the Trustee by the Holders of at least 25% in
principal amount of the Outstanding Securities a written notice
specifying such default or breach and requiring it to be remedied and
stating that such notice is a "Notice of Default" hereunder; or
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(5) a default under any bond, debenture, note or other
evidence of indebtedness for money borrowed by the Company, or under
any agreement, mortgage, indenture or instrument under which there may
be issued or by which there may be secured or evidenced any
indebtedness for money borrowed by the Company, with a principal
amount then outstanding in excess of $25,000,000, whether such
indebtedness now exists or shall hereafter be created, which default
shall constitute a failure to pay the principal of such indebtedness
(in whole or in any part greater than $25,000,000) when due and
payable or shall have resulted in such indebtedness (in whole or in
any part greater than $25,000,000) becoming or being declared due and
payable prior to the date on which it would otherwise have become due
and payable, without such indebtedness having been discharged, or such
acceleration having been rescinded or annulled, within a period of 60
days after there shall have been given, by registered or certified
mail, to the Company by the Trustee or to the Company and the Trustee
by the Holders of at least 25% in aggregate principal amount of the
Outstanding Securities a written notice specifying such default and
requiring the Company to cause such indebtedness to be discharged or
cause such acceleration to be rescinded or annulled and stating that
such notice is a "Notice of Default" hereunder; or
(6) the entry by a court having jurisdiction in the premises
of (A) a decree or order for relief in respect of the Company in an
involuntary case or proceeding under any applicable Federal or State
bankruptcy, insolvency, reorganization or other similar law or (B) a
decree or order adjudging the Company bankrupt or insolvent, or
approving as properly filed a petition seeking reorganization,
arrangement, adjustment or composition of or in respect of the Company
under any applicable Federal or State law, or appointing a custodian,
receiver, liquidator, assignee, trustee, sequestrator or other similar
official of the Company or of any substantial part of its property, or
ordering the winding up or liquidation of its affairs, and the
continuance of any such decree or order for relief or any such other
decree or order unstayed and in effect for a period of 60 consecutive
days; or
(7) the commencement by the Company of a voluntary case or
proceeding under any applicable Federal or State bankruptcy,
insolvency, reorganization or other similar law or of any other case
or proceeding to be adjudicated a bankrupt or insolvent, or the
consent by it to the entry of a decree or order for relief in respect
of the Company in an involuntary case or proceeding under any
applicable Federal or State bankruptcy, insolvency, reorganization or
other similar law or to the commencement of any bankruptcy or
insolvency case or proceeding against it, or the filing by it of a
petition or answer or consent seeking reorganization or similar relief
under any applicable Federal or State law, or the consent by it to the
filing of such petition or to the appointment of or taking possession
by a custodian, receiver, liquidator, assignee, trustee, sequestrator
or other similar official of the Company or of any substantial part of
its property, or the making by it of an assignment for the benefit of
creditors, or the admission by it in writing of its inability to pay
its debts generally as they become due, or the taking of corporate
action by the Company in furtherance of any such action.
SECTION 5.2. Acceleration of Maturity; Rescission and Annulment.
If an Event of Default (other than an Event of Default
specified in Section 5.1(6) or 5.1(7)) occurs and is continuing, then in every
such case the Trustee or the Holders of not less than 25% in aggregate
principal amount of the Outstanding Securities may declare the principal of all
the Securities to be due and payable immediately, by a notice in writing to the
Company (and to the Trustee if given by the Holders), and upon any such
declaration such principal and all accrued interest thereon shall become
immediately due and payable. If an Event of Default specified in Section 5.1(6)
or 5.1(7) occurs and is continuing, the principal of, and accrued interest on,
all the Securities shall ipso facto become immediately due and payable without
any declaration or other Act of the Holders or any act on the part of the
Trustee.
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At any time after such declaration of acceleration has been
made and before a judgment or decree for payment of the money due has been
obtained by the Trustee as hereinafter in this Article provided, the Holders of
a majority in principal amount of the Outstanding Securities, by written notice
to the Company and the Trustee, may rescind and annul such declaration and its
consequences if
(1) the Company has paid or deposited with the Trustee a sum
sufficient to pay
(A) all overdue interest on all Securities,
(B) the principal of and premium, if any, on any
Securities which have become due otherwise than by such
declaration of acceleration and any interest thereon at the
rate borne by the Securities,
(C) to the extent that payment of such interest is
lawful, interest upon overdue interest at the rate provided
therefor in the Securities, and
(D) all sums paid or advanced by the Trustee hereunder
and the reasonable compensation, expenses, disbursements and
advances of the Trustee, its agents and counsel;
and
(2) all Events of Default, other than the nonpayment of the
principal of, and any premium and interest on, Securities which have
become due solely by such declaration of acceleration, have been cured
or waived as provided in Section 5.13.
No rescission or annulment referred to above shall affect any
subsequent default or impair any right consequent thereon.
SECTION 5.3. Collection of Indebtedness and Suits for Enforcement by Trustee.
The Company covenants that if
(1) default is made in the payment of any interest on any
Security when it becomes due and payable and such default continues
for a period of 30 days, or
(2) default is made in the payment of the principal of or
premium, if any, on any Security at the Maturity thereof,
the Company will, upon demand of the Trustee, pay to it, for the benefit of the
Holders of such Securities, the whole amount then due and payable on such
Securities for principal and interest and interest on any overdue principal and
premium, if any, and on any overdue interest, at the rate provided therefor in
the Securities, and in addition thereto, such further amount as shall be
sufficient to cover the costs and expenses of collection, including the
reasonable compensation, expenses, disbursements and advances of the Trustee,
its agents and counsel.
If an Event of Default occurs and is continuing, the Trustee,
subject to Article VI, may in its discretion proceed to protect and enforce its
rights and the rights of the Holders of Securities by such appropriate judicial
proceedings as the Trustee shall deem most effectual to protect and enforce any
such rights, whether for the specific enforcement of any covenant or agreement
in this Indenture or in aid of the exercise of any power granted herein, or to
enforce any other proper remedy.
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SECTION 5.4. Trustee May File Proofs of Claim.
In case of any judicial proceeding relative to the Company
(or any other obligor upon the Securities), its property or its creditors, the
Trustee shall be entitled and empowered, by intervention in such proceeding or
otherwise, to take any and all actions authorized under the Trust Indenture Act
in order to have claims of the Holders and the Trustee allowed in any such
proceeding. In particular, the Trustee shall be authorized to collect and
receive any moneys or other property payable or deliverable on any such claims
and to distribute the same; and any custodian, receiver, assignee, trustee,
liquidator, sequestrator or other similar official in any such judicial
proceeding is hereby authorized by each Holder to make such payments to the
Trustee and, in the event that the Trustee shall consent to the making of such
payments directly to the Holders, to pay to the Trustee any amount due it for
the reasonable compensation, expenses, disbursement and advances of the
Trustee, its agents and counsel, and any other amounts due the Trustee under
Section 6.7.
No provision of this Indenture shall be deemed to authorize
the Trustee to authorize or consent to or accept or adopt on behalf of any
Holder any plan of reorganization, arrangement, adjustment or composition
affecting the Securities or the rights of any Holder thereof or to authorize
the Trustee to vote in respect of the claim of any Holder of a Security in any
such proceeding; provided, however, that the Trustee may, on behalf of such
Holders, vote for the election of a trustee in bankruptcy or similar official
and be a member of a creditors' or other such committee.
SECTION 5.5. Trustee May Enforce Claims Without Possession of Securities.
All rights of action and claims under this Indenture or the
Securities may be prosecuted and enforced by the Trustee without the possession
of any of the Securities or the production thereof in any proceeding relating
thereto, and any such proceeding instituted by the Trustee shall be brought in
its own name as trustee of an express trust, and any recovery of judgment
shall, after provision for the payment of the reasonable compensation,
expenses, disbursements and advances of the Trustee, its agents and counsel, be
for the ratable benefit of the Holders of the Securities in respect of which
judgment has been recovered.
SECTION 5.6. Application of Money Collected.
Any money collected by the Trustee pursuant to this Article
shall be applied in the following order, at the date or dates fixed by the
Trustee and, in case of the distribution of such money on account of principal,
premium, if any, or interest, upon presentation of the Securities, or both, as
the case may be, and the notation thereon of the payment if only partially paid
and upon surrender thereof if fully paid:
FIRST: To the payment of all amounts due the Trustee under
Section 6.7; and
SECOND: Subject to Article Thirteen, to the payment of the
amounts then due and unpaid for principal of, premium, if any, or
interest on, the Securities in respect of which or for the benefit of
which such money has been collected, ratably, without preference or
priority of any kind, according to the amounts due and payable on such
Securities for principal, premium, if any, and interest, respectively.
SECTION 5.7. Limitation on Suits.
No Holder of any Security shall have any right to institute
any proceeding, judicial or otherwise, with respect to this Indenture, or for
the appointment of a receiver or trustee, or for any other remedy hereunder,
unless:
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(1) such Holder has previously given written notice to the
Trustee of a continuing Event of Default;
(2) the Holders of not less than 25% in principal amount of
the Outstanding Securities shall have made written request to the
Trustee to institute proceedings in respect of such Event of Default
in its own name as Trustee hereunder;
(3) such Holder or Holders have offered to the Trustee
reasonable indemnity against the costs, expenses and liabilities to be
incurred in compliance with such request;
(4) the Trustee for 60 days after its receipt of such notice,
request and offer of indemnity has failed to institute any such
proceeding; and
(5) no direction inconsistent with such written request has
been given to the Trustee during such 60-day period by the Holders of
a majority in principal amount of the Outstanding Securities;
it being understood and intended that no one or more of such Holders shall have
any right in any manner whatever by virtue of, or by availing of, any provision
of this Indenture to affect, disturb or prejudice the rights of any other of
such Holders, or to obtain or seek to obtain priority or preference over any
other of such Holders or to enforce any right under this Indenture, except in
the manner herein provided and for the equal and ratable benefit of all such
Holders.
SECTION 5.8. Unconditional Right of Holders to Receive Principal, Premium and
Interest and to Convert.
Notwithstanding any other provision in this Indenture, but
subject to the provisions of Article Thirteen, the Holder of any Security shall
have the right, which is absolute and unconditional, to receive payment of the
principal of, premium, if any, and (subject to Section 3.8) interest on such
Security or payment on the respective Stated Maturities expressed in such
Security (or, in the case of redemption or repurchase, on the Redemption Date
or Repurchase Date, as the case may be), and to convert such Security in
accordance with Article Twelve, and to institute suit for the enforcement of
any such payment and right to convert, and such rights shall not be impaired
without the consent of such Holder.
SECTION 5.9. Restoration of Rights and Remedies.
If the Trustee or any Holder has instituted any proceeding to
enforce any right or remedy under this Indenture and such proceeding has been
discontinued or abandoned for any reason, or has been determined adversely to
the Trustee or to such Holder, then and in every such case, subject to any
determination in such proceeding, the Company, the Trustee and the Holders
shall be restored severally and respectively to their former positions
hereunder and thereafter all rights and remedies of the Trustee and the Holders
shall continue as though no such proceeding had been instituted.
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SECTION 5.10. Rights and Remedies Cumulative.
Except as otherwise provided with respect to the replacement
or payment of mutilated, destroyed, lost or stolen Securities in the last
paragraph of Section 3.7, no right or remedy herein conferred upon or reserved
to the Trustee or to the Holders of Securities is intended to be exclusive of
any other right or remedy, and every right and remedy shall, to the extent
permitted by law, be cumulative and in addition to every other right and remedy
given hereunder or now or hereafter existing at law or in equity or otherwise.
The assertion or employment of any right or remedy hereunder, or otherwise,
shall not prevent the concurrent assertion or employment of any other
appropriate right or remedy.
SECTION 5.11. Delay or Omission Not Waiver.
No delay or omission of the Trustee or of any Holder of any
Security to exercise any right or remedy accruing upon any Event of Default
shall impair any such right or remedy or constitute a waiver of any such Event
of Default or any acquiescence therein. Every right and remedy given by this
Article Five or by law to the Trustee or to the Holders may be exercised from
time to time, and as often as may be deemed expedient, by the Trustee or by the
Holders, as the case may be.
SECTION 5.12. Control by Holders of Securities.
The Holders of a majority in principal amount of the
Outstanding Securities shall have the right to direct the time, method and
place of conducting any proceeding for any remedy available to the Trustee or
exercising any trust or power conferred on the Trustee, provided that
(1) such direction shall not be in conflict with any rule of
law or with this Indenture,
(2) the Trustee may take any other action deemed proper by
the Trustee which is not inconsistent with such direction,
(3) the Trustee may refuse to follow the directions if the
Trustee, upon the written advice of counsel, determines that it may
involve the Trustee in personal liability.
SECTION 5.13. Waiver of Past Defaults.
The Holders of not less than a majority in principal amount
of the Outstanding Securities may on behalf of the Holders of all the
Securities waive any past default hereunder and its consequences, except a
default
(1) in the payment of the principal of, premium, if any,
or interest on any Security, or
(2) in respect of a covenant or provision hereof which under
Article Nine cannot be modified or amended without the consent of the
Holder of each Outstanding Security affected.
Upon any such waiver, such default shall cease to exist, and
any Event of Default arising therefrom shall be deemed to have been cured, for
every purpose of this Indenture; but no such waiver shall extend to any
subsequent or other default or impair any right consequent thereon.
SECTION 5.14. Undertaking for Costs.
In any suit for the enforcement of any right or remedy under
this Indenture or in any suit against the Trustee for any action taken or
omitted by it as a Trustee, a court in its discretion may require the filing by
any party litigant in the suit of an undertaking to pay the costs of the suit,
and the court in its discretion may assess reasonable costs, including
reasonable attorney's fees, against any party litigant in the suit, having due
regard to the merits and good faith of the claims or defenses made by the party
litigant. This Section 5.14 does not apply to a suit by the Trustee, a suit by
a Holder to enforce the provisions of Section 5.8 hereof, or a suit by a Holder
or Holders or more than 10% in principal amount of the then outstanding Notes.
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SECTION 5.15. Waiver of Stay, Usury or Extension Laws.
Subject to Article Thirteen hereof, the Company covenants (to
the extent that it may lawfully do so) that it will not at any time insist
upon, or plead, or in any manner whatsoever claim or take the benefit or
advantage of, any stay, usury or extension law wherever enacted, now or at any
time hereafter in force, which may affect the covenants or the performance of
this Indenture; and the Company (to the extent that it may lawfully do so)
hereby expressly waives all benefit or advantage of any such law and covenants
that it will not hinder, delay or impede the execution of any power herein
granted to the Trustee, but will suffer and permit the execution of every such
power as though no such law had been enacted.
ARTICLE SIX
THE TRUSTEE
SECTION 6.1. Certain Duties and Responsibilities.
(a) Except during the continuance of an Event of Default,
(1) the Trustee undertakes to perform such duties and only
such duties as are specifically set forth in this Indenture, and no
implied covenants or obligations shall be read into this Indenture
against the Trustee; and
(2) in the absence of bad faith on its part, the Trustee may
conclusively rely, as to the truth of the statements and the
correctness of the opinions expressed therein, upon certificates or
opinions furnished to the Trustee and conforming to the requirements
of this Indenture; but in the case of any such certificates or
opinions which by any provision hereof are specifically required to be
furnished to the Trustee, the Trustee shall be under a duty to examine
the same to determine whether or not they conform to the requirements
of this Indenture, but not to verify the contents thereof.
(b) In case an Event of Default has occurred and is
continuing, the Trustee shall exercise such of the rights and powers vested in
it by this Indenture, and use the same degree of care and skill in their
exercise, as a prudent man would exercise or use under the circumstances in the
conduct of his own affairs.
(c) No provision of this Indenture shall be construed to
relieve the Trustee from liability for its own negligent action, its own
negligent failure to act, or its own willful misconduct, except that
(1) this paragraph (c) shall not be construed to limit the
effect of paragraph (a) of this Section;
(2) the Trustee shall not be liable for any error of judgment
made in good faith by a Responsible Officer, unless it shall be proved
that the Trustee was negligent in ascertaining the pertinent facts;
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(3) the Trustee shall not be liable with respect to any
action taken or omitted to be taken by it in good faith in accordance
with the direction of the Holders of a majority in principal amount of
the Outstanding Securities relating to the time, method and place of
conducting any proceeding for any remedy available to the Trustee, or
exercising any trust or power conferred upon the Trustee, under this
Indenture; and
(4) no provision of this Indenture shall require the Trustee
to expend or risk its own funds or otherwise incur any financial
liability in the performance of any of its duties hereunder, or in the
exercise of any of its rights or powers, if it shall have reasonable
grounds for believing that repayment of such funds or indemnity
satisfactory to it against such risk or liability is not reasonably
assured to it.
(d) Whether or not therein expressly so provided, every
provision of this Indenture relating to the conduct or affecting the liability
of or affording protection to the Trustee shall be subject to the provisions of
this Section.
SECTION 6.2. Notice of Defaults.
The Trustee shall give the Holders notice of any default
hereunder as and to the extent provided by the Trust Indenture Act; provided,
however, that in the case of any default of the character specified in Section
5.1(4), no such notice to Holders shall be given until at least 30 days after
the occurrence thereof. For the purpose of this Section, the term "default"
means any event which is, or after notice or lapse of time or both would
become, an Event of Default.
SECTION 6.3. Certain Rights of Trustee.
Subject to the provisions of Section 6.1:
(a) the Trustee may conclusively rely and shall be fully
protected in acting or refraining from acting upon any resolution,
certificate, statement, instrument, opinion, report, notice, request,
direction, consent, order, bond, debenture, note, other evidence of
indebtedness or other paper or document believed by it to be genuine
and to have been signed or presented by the proper party or parties;
(b) any request or direction of the Company mentioned herein
shall be sufficiently evidenced by a Company Request or Company Order
and any resolution of the Board of Directors may be sufficiently
evidenced by a Board Resolution;
(c) whenever in the administration of this Indenture the
Trustee shall deem it desirable that a matter be proved or established
prior to taking, suffering or omitting any action hereunder, the
Trustee may, in the absence of bad faith on its part, request and
conclusively rely upon an Officers' Certificate;
(d) the Trustee may consult with counsel and the written
advice of such counsel or any Opinion of Counsel shall be full and
complete authorization and protection in respect of any action taken,
suffered or omitted by it hereunder in good faith and in reliance
thereon;
(e) the Trustee shall be under no obligation to exercise any
of the rights or powers vested in it by this Indenture at the request
or direction of any of the Holders pursuant to this Indenture, unless
such Holders shall have offered to the Trustee reasonable security or
indemnity against the costs, expenses and liabilities which might be
incurred by it in compliance with such request or direction;
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(f) the Trustee shall not be bound to make any investigation
into the facts or matters stated in any resolution, certificate,
statement, instrument, opinion, report, notice, request, direction,
consent, order, bond, debenture, note, other evidence of indebtedness
or other paper or document, but the Trustee, in its discretion, may
make such further inquiry or investigation into such facts or matters
as it may see fit, and, if the Trustee shall determine to make such
further inquiry or investigation, it shall be entitled to examine the
books, records and premises of the Company, personally or by agent or
attorney so long as reasonable prior notice is provided to the Company
and such investigation does not unreasonably interfere with the
Company's operations;
(g) the permissive right of the Trustee to take or refrain
from taking any actions enumerated in this Indenture shall not be
construed as a duty and the Trustee shall not be answerable in any
such actions other than for its own negligence or willful misconduct;
(h) the Trustee shall not be liable for any action taken,
suffered or omitted to be taken by it in good faith and reasonably
believed by it to be authorized or within the discretion or rights and
powers conferred upon it by this Indenture; and
(i) in the event the Trustee is also acting as Paying Agent
or Transfer Agent and Security Registrar hereunder, the rights and
protections afforded to the Trustee pursuant to this Section 6.3 shall
also be afforded to such Paying Agent or Transfer Agent and Security
Registrar.
SECTION 6.4. Not Responsible for Recitals or Issuance of Securities.
The recitals contained herein and in the Securities, except
the Trustee's certificates of authentication, shall be taken as the statements
of the Company, and the Trustee assumes no responsibility for their
correctness. The Trustee makes no representations as to the validity or
sufficiency of this Indenture or of the Securities. The Trustee shall not be
accountable for the use or application by the Company of Securities or the
proceeds thereof.
SECTION 6.5. May Hold Securities.
The Trustee, any Authenticating Agent, any Paying Agent, any
Security Registrar or any other agent of the Company, in its individual or any
other capacity, may become the owner or pledgee of Securities and, subject to
Sections 6.8 and 6.13, may otherwise deal with the Company with the same rights
it would have if it were not Trustee, Authenticating Agent, Paying Agent,
Security Registrar or such other agent.
The Trustee may become and act as trustee under other
indentures under which other securities, or certificates of interest or
participation in other securities, of the Company are outstanding in the same
manner as if it were not Trustee hereunder.
SECTION 6.6. Money Held in Trust.
Money held by the Trustee in trust hereunder need not be
segregated from other funds except to the extent required by law. The Trustee
shall be under no liability for interest on any money received by it hereunder
except as otherwise agreed with the Company in writing.
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SECTION 6.7. Compensation and Reimbursement.
The Company agrees
(1) to pay to the Trustee from time to time reasonable
compensation for all services rendered by it hereunder in accordance
with the agreement between the Company and the Trustee (which
compensation shall not be limited by any provision of law in regard to
the compensation of a trustee of an express trust);
(2) except as otherwise expressly provided herein, to
reimburse the Trustee upon its written request for all reasonable
expenses, disbursements and advances incurred or made by the Trustee
in accordance with any provision of this Indenture (including the
reasonable compensation and the expenses and disbursements of its
agents and counsel) as detailed in such request, except any such
expense, disbursement or advance as may be attributable to its
negligence or bad faith;
(3) to indemnify the Trustee, its officers, directors,
employees and agents for, and to hold it and them harmless against,
any loss, liability or expense incurred without negligence or bad
faith on its or their part, arising out of or in connection with the
acceptance or administration of this trust, including the reasonable
costs and expenses of defending itself or themselves against any claim
or liability in connection with the exercise or performance of any of
its powers or duties hereunder; and
(4) to secure the Company's payment obligations in this
Section 6.7, the Trustee shall have a Lien prior to the Securities on
all money or property held or collected by the Trustee, except that
money and property held in trust to pay principal and interest on
particular Securities. Such Lien shall survive the satisfaction and
discharge of this Indenture.
When the Trustee incurs expenses or renders services in
connection with an Event of Default specified in Section 5.1(6) or Section
5.1(7), the expenses (including the reasonable fees and expenses of counsel)
and the compensation for the services are intended to constitute expenses of
the administration under any applicable Federal or state bankruptcy, insolvency
or other similar law.
The provisions of this Section shall survive the termination
of this Indenture or the earlier resignation or removal of the Trustee.
SECTION 6.8. Disqualification; Conflicting Interests.
If the Trustee has or shall acquire a conflicting interest
within the meaning of the Trust Indenture Act, the Trustee shall either
eliminate such interest or resign, to the extent and in the manner provided by,
and subject to the provisions of, the Trust Indenture Act and this Indenture.
SECTION 6.9. Corporate Trustee Required; Eligibility.
There shall at all times be a Trustee hereunder which shall
be a Person that is eligible pursuant to the Trust Indenture Act to act as such
and has a combined capital and surplus of at least $50,000,000. If such Person
publishes reports of condition at least annually, pursuant to law or to the
requirements of said supervising or examining authority, then for the purposes
of this Section, the combined capital and surplus of such Person shall be
deemed to be its combined capital and surplus as set forth in its most recent
report of condition so published. If at any time the Trustee shall cease to be
eligible in accordance with the provisions of this Section, it shall resign
immediately in the manner and with the effect hereinafter specified in this
Article.
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SECTION 6.10. Resignation and Removal; Appointment of Successor.
(a) No resignation or removal of the Trustee and no
appointment of a successor Trustee pursuant to this Article shall become
effective until the acceptance of appointment by the successor Trustee under
Section 6.11.
(b) The Trustee may resign at any time by giving written
notice thereof to the Company. If an instrument of acceptance by a successor
Trustee shall not have been delivered to the Trustee within 30 days after the
giving of such notice of resignation, the resigning Trustee may petition any
court of competent jurisdiction for the appointment of a successor Trustee.
(c) The Trustee may be removed at any time by Act of the
Holders of a majority in principal amount of the Outstanding Securities,
delivered to the Trustee and to the Company.
(d) If at any time:
(1) the Trustee shall fail to comply with Section 6.8 after
written request therefor by the Company or by any Holder who has been
a bona fide Holder of a Security for at least six months, or
(2) the Trustee shall cease to be eligible under Section 6.9
and shall fail to resign after written request therefor by the Company
or by any such Holder, or
(3) the Trustee shall become incapable of acting or shall be
adjudged a bankrupt or insolvent or a receiver of the Trustee or of
its property shall be appointed or any public officer shall take
charge or control of the Trustee or of its property or affairs for the
purpose of rehabilitation, conservation or liquidation,
then, in any such case, (i) the Company by a Board Resolution may remove the
Trustee, or (ii) subject to Section 5.14, any Holder who has been a bona fide
Holder of a Security for at least six months may, on behalf of himself and all
others similarly situated, petition any court of competent jurisdiction for the
removal of the Trustee and the appointment of a successor Trustee.
(e) If the Trustee shall resign, be removed or become
incapable of acting, or if a vacancy shall occur in the office of Trustee for
any cause, the Company, by a Board Resolution, shall promptly appoint a
successor Trustee. If, within one year after such resignation, removal or
incapability, or the occurrence of such vacancy, a successor Trustee shall be
appointed by Act of the Holders of a majority in principal amount of the
Outstanding Securities delivered to the Company and the retiring Trustee, the
successor Trustee so appointed shall, forthwith upon its acceptance of such
appointment, become the successor Trustee and supersede the successor Trustee
appointed by the Company. If no successor Trustee shall have been so appointed
by the Company or the Holders and accepted appointment in the manner
hereinafter provided, any Holder who has been a bona fide Holder of a Security
for at least six months may, on behalf of himself and all others similarly
situated, petition any court of competent jurisdiction for the appointment of a
successor Trustee.
(f) The Company shall give notice of each resignation and
each removal of the Trustee and each appointment of a successor Trustee to all
Holders in the manner provided in Section 1.6. Each notice shall include the
name of the successor Trustee and the address of its Corporate Trust Office.
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SECTION 6.11. Acceptance of Appointment by Successor.
Every successor Trustee appointed hereunder shall execute,
acknowledge and deliver to the Company and to the retiring Trustee an
instrument accepting such appointment, and thereupon the resignation or removal
of the retiring Trustee shall become effective and such successor Trustee,
without any further act, deed or conveyance, shall become vested with all the
rights, powers, trusts and duties of the retiring Trustee; but, on request of
the Company or the successor Trustee, such retiring Trustee shall, upon payment
of the fees and expenses and any other monies due and owing to the retiring
Trustee, execute and deliver an instrument transferring to such successor
Trustee all the rights, powers and trusts of the retiring Trustee and shall
duly assign, transfer and deliver to such successor Trustee all property and
money held by such retiring Trustee hereunder. Upon request of any such
successor Trustee, the Company shall execute any and all instruments for more
fully and certainly vesting in and confirming to such successor Trustee all
such rights, powers and trusts.
No successor Trustee shall accept its appointment unless at
the time of such acceptance such successor Trustee shall be qualified and
eligible under this Article.
SECTION 6.12. Merger, Conversion, Consolidation or Succession to Business.
Any corporation into which the Trustee may be merged or
converted or with which it may be consolidated, or any corporation resulting
from any merger, conversion or consolidation to which the Trustee shall be a
party, or any corporation succeeding to all or substantially all the corporate
trust business of the Trustee (including the trust created by this Indenture),
shall be the successor of the Trustee hereunder, provided such corporation
shall be otherwise qualified and eligible under this Article, without the
execution or filing of any paper or any further act on the part of any of the
parties hereto. In case any Securities shall have been authenticated, but not
delivered, by the Trustee then in office, any successor by merger, conversion
or consolidation to such authenticating Trustee may adopt such authentication
and deliver the Securities so authenticated with the same effect as if such
successor Trustee had itself authenticated such Securities.
SECTION 6.13. Preferential Collection of Claims Against Company.
The Trustee is subject to the Trust Indenture Act Section
311(a), excluding any creditor relationship listed in the Trust Indenture Act
Section 311(b). A Trustee who has resigned or been removed shall be subject to
the Trust Indenture Act Section 311(a) to the extent indicated therein.
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SECTION 6.14. Appointment of Authenticating Agent.
The Trustee may appoint an Authenticating Agent or Agents
which shall be authorized to act on behalf of the Trustee to authenticate
Securities issued upon original issue and upon exchange, registration of
transfer, partial conversion or partial redemption or pursuant to Section 3.7,
and Securities so authenticated shall be entitled to the benefits of this
Indenture and shall be valid and obligatory for all purposes as if
authenticated by the Trustee hereunder. Wherever reference is made in this
Indenture to the authentication and delivery of Securities by the Trustee or
the Trustee's certificate of authentication, such reference shall be deemed to
include authentication and delivery on behalf of the Trustee by an
Authenticating Agent and a certificate of authentication executed on behalf of
the Trustee by an Authenticating Agent. Each Authenticating Agent shall be
acceptable to the Company and shall at all times be a corporation organized and
doing business under the laws of the United States of America, any State
thereof or the District of Columbia, authorized under such laws to act as
Authenticating Agent, having a combined capital and surplus of not less than
$50,000,000 and subject to supervision or examination by Federal or State
authority. If such Authenticating Agent publishes reports of condition at least
annually, pursuant to law or to the requirements of said supervising or
examining authority, then for the purposes of this Section, the combined
capital and surplus of such Authenticating Agent shall be deemed to be its
combined capital and surplus as set forth in its most recent report of
condition so published. If at any time an Authenticating Agent shall cease to
be eligible in accordance with the provisions of this Section, such
Authenticating Agent shall resign immediately in the manner and with the effect
specified in this Section.
Any corporation into which an Authenticating Agent may be
merged or converted or with which it may be consolidated, or any corporation
resulting from any merger, conversion or consolidation to which such
Authenticating Agent shall be a party, or any corporation succeeding to the
corporate agency or corporate trust business of an Authenticating Agent, shall
continue to be an Authenticating Agent, provided such corporation shall be
otherwise eligible under this Section, without the execution or filing of any
paper or any further act on the part of the Trustee or the Authenticating
Agent.
An Authenticating Agent may resign at any time by giving
written notice thereof to the Trustee and to the Company. The Trustee may at
any time terminate the agency of an Authenticating Agent by giving written
notice thereof to such Authenticating Agent and to the Company. Upon receiving
such a notice of resignation or upon such a termination, or in case at any time
such Authenticating Agent shall cease to be eligible in accordance with the
provisions of this Section, the Trustee may appoint a successor Authenticating
Agent which shall be acceptable to the Company and shall mail written notice of
such appointment by first-class mail, postage prepaid, to all Holders as their
names and addresses appear in the Security Register. Any successor
Authenticating Agent upon acceptance of its appointment hereunder shall become
vested with all the rights, powers and duties of its predecessor hereunder,
with like effect as if originally named as an Authenticating Agent. No
successor Authenticating Agent shall be appointed unless eligible under the
provisions of this Section.
The Company agrees to pay to each Authenticating Agent from
time to time reasonable compensation for its services under this Section.
If an appointment is made pursuant to this Section, the
Securities may have endorsed thereon, in addition to the Trustee's certificate
of authentication, an alternative certificate of authentication in the
following form:
This is one of the Securities described in the
within-mentioned Indenture.
THE FIRST NATIONAL BANK,
OF CHICAGO
As Trustee
By_______________________
As Authenticating Agent
By___________________________
Authorized Signatory
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ARTICLE SEVEN
HOLDERS' LISTS AND REPORTS BY TRUSTEE AND COMPANY
SECTION 7.1. Company to Furnish Trustee Names and Addresses of Holders.
The Company will furnish or cause to be furnished to the
Trustee
(a) semi-annually, not more than 15 days after each Regular
Record Date, a list, in such form as the Trustee may reasonably
require, of the names and addresses of the Holders as of such Regular
Record Date, excluding from any such list names and addresses received
by the Trustee in its capacity as Security Registrar; provided, that,
if after so excluding such names and addresses there are no names and
addresses to furnish, the Company shall not be obligated to furnish or
cause to be furnished such list, and
(b) at such other times as the Trustee may request in
writing, within 30 days after the receipt by the Company of any such
request, a list of similar form and content as of a date not more than
15 days prior to the time such list is furnished, excluding from any
such list names and addresses received by the Trustee in its capacity
as Security Registrar.
SECTION 7.2. Preservation of Information; Communications to Holders.
(a) The Trustee shall preserve, in as current a form as is
reasonably practicable, the names and addresses of Holders contained in the
most recent list furnished to the Trustee as provided in Section 7.1 and the
names and addresses of Holders received by the Trustee in its capacity as
Security Registrar. The Trustee may destroy any list furnished to it as
provided in Section 7.1 upon receipt of a new list so furnished.
(b) The rights of Holders to communicate with other Holders
with respect to their rights under this Indenture or under the Securities, and
the corresponding rights and duties of the Trustee, shall be as provided by the
Trust Indenture Act.
(c) Every Holder of Securities, by receiving and holding the
same, agrees with the Company and the Trustee that neither the Company nor the
Trustee nor any agent of either of them shall be held accountable by reason of
any disclosure of information as to names and addresses of Holders made
pursuant to the Trust Indenture Act.
SECTION 7.3. Reports by Trustee.
(a) The Trustee shall transmit to Holders such reports
concerning the Trustee and its actions under this Indenture as may be required
pursuant to the Trust Indenture Act at the times and in the manner provided
pursuant thereto.
(b) A copy of each such report shall, at the time of such
transmission to Holders, be filed by the Trustee with each stock exchange upon
which the Securities are listed, with the Commission and with the Company. The
Company will notify the Trustee when the Securities are listed on any stock
exchange.
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SECTION 7.4. Reports by Company.
The Company shall file with the Trustee and the Commission,
and transmit to Holders, such information, documents and other reports, and
such summaries thereof, as may be required pursuant to the Trust Indenture Act
at the times and in the manner provided pursuant to such Act; provided that any
such information, documents or reports required to be filed with the Commission
pursuant to Section 13 or 15(d) of the Exchange Act shall be filed with the
Trustee within 15 days after the same is so required to be filed with the
Commission.
ARTICLE EIGHT
CONSOLIDATION, MERGER, CONVEYANCE, TRANSFER OR LEASE
SECTION 8.1. Company May Consolidate, Etc., Only on Certain Terms.
The Company shall not consolidate with or merge into any
other Person or, directly or indirectly, convey, transfer, sell or lease all or
substantially all of its properties and assets to any Person, and the Company
shall not permit any Person to consolidate with or merge into the Company or,
directly or indirectly, convey, transfer, sell or lease all or substantially
all of its properties and assets to the Company, unless:
(1) in case the Company shall consolidate with or merge into
another Person or convey, transfer, sell or lease all or substantially
all of its properties and assets to any Person, the Person formed by
such consolidation or into which the Company is merged or the Person
which acquires by conveyance, transfer or sale, or which leases, all
or substantially all the properties and assets of the Company shall be
a corporation, limited liability company, partnership or trust, shall
be organized and validly existing under the laws of the United States
of America, any State thereof or the District of Columbia and shall
expressly assume, by an indenture supplemental hereto, executed and
delivered to the Trustee, in form satisfactory to the Trustee, the due
and punctual payment of the principal of (and premium, if any) and
interest on all the Securities and the performance or observance of
every covenant of this Indenture on the part of the Company to be
performed or observed and shall have provided for conversion rights in
accordance with Article Twelve;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes an obligation of the Company
or a Subsidiary as a result of such transaction as having been
incurred by the Company or such Subsidiary at the time of such
transaction, no Event of Default, and no event which, after notice or
lapse of time or both, would become an Event of Default, shall have
happened and be continuing; and
(3) the Company has delivered to the Trustee an Officers'
Certificate and an Opinion of Counsel, each stating that such
consolidation, merger, conveyance, transfer, sale or lease and, if a
supplemental indenture is required in connection with such
transaction, such supplemental indenture, comply with this Article and
that all conditions precedent herein provided for relating to such
transaction have been complied with.
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SECTION 8.2. Successor Substituted.
Upon any consolidation of the Company with, or merger of the
Company into, any other Person or any conveyance, transfer, sale or lease of
all or substantially all of the properties and assets of the Company in
accordance with Section 8.1, the successor Person formed by such consolidation
or into which the Company is merged or to which such conveyance, transfer, sale
or lease is made shall succeed to, and be substituted for, and may exercise
every right and power of, the Company under this Indenture with the same effect
as if such successor Person had been named as the Company herein, and
thereafter, except in the case of a lease, the predecessor Person shall be
relieved of all obligations and covenants under this Indenture and the
Securities.
ARTICLE NINE
SUPPLEMENTAL INDENTURES
SECTION 9.1. Supplemental Indentures Without Consent of Holders of Securities.
Without the consent of any Holders, the Company, when
authorized by a Board Resolution, and the Trustee, at any time and from time to
time, may enter into one or more indentures supplemental hereto, in form
satisfactory to the Trustee, for any of the following purposes:
(1) to evidence the succession of another Person to the
Company and the assumption by any such successor of the covenants and
obligations of the Company herein and in the Securities as permitted
by this Indenture; or
(2) to add to the covenants of the Company for the benefit of
the Holders of Securities, or to surrender any right or power herein
conferred upon the Company; or
(3) to secure the Securities; or
(4) to make provision with respect to the conversion rights
of Holders of Securities pursuant to Section 12.11; or
(5) to comply with the requirements of the Trust Indenture
Act or the rules and regulations of the Commission thereunder in order
to effect or maintain the qualification of this Indenture under the
Trust Indenture Act, as contemplated by this Indenture or otherwise;
or
(6) to cure any ambiguity, to correct or supplement any
provision herein which may be inconsistent with any other provision
herein or to make any other provisions with respect to matters or
questions arising under this Indenture which shall not be inconsistent
with the provisions of this Indenture, provided that such action
pursuant to this Clause (7) shall not adversely affect the interests
of the Holders of Securities.
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SECTION 9.2. Supplemental Indentures with Consent of Holders of Securities.
With the consent of the Holders of not less than a majority
in principal amount of the Outstanding Securities, by Act of said Holders
delivered to the Company and the Trustee, the Company, when authorized by a
Board Resolution, and the Trustee may enter into an indenture or indentures
supplemental hereto for the purpose of adding any provisions to or changing in
any manner or eliminating any of the provisions of this Indenture or of
modifying in any manner the rights of the Holders under this Indenture;
provided, however, that no such supplemental indenture shall, without the
consent or affirmative vote of the Holder of each Outstanding Security affected
thereby,
(1) change the Stated Maturity of the principal of, or any
installment of interest on, any Security or reduce the principal
amount or the rate of interest payable thereon or any premium payable
upon redemption or mandatory repurchase thereof, or change the coin or
currency in which any Security or the interest or any premium thereon
or any other amount in respect thereof is payable, modify the
provisions of Article Fourteen in a manner adverse to the Holders or
impair the right to institute suit for the enforcement of any payment
in respect of any Security on or after the Stated Maturity thereof
(or, in the case of redemption or any repurchase, on or after the
Redemption Date or Repurchase Date, as the case may be) or the right
to convert any Security or, except as permitted by Section 12.11,
adversely affect the right to convert any Security as provided in
Article Twelve, or modify the provisions of this Indenture with
respect to the subordination of the Securities in a manner adverse to
the Holders of Securities, or
(2) reduce the percentage in principal amount of the
Outstanding Securities the consent of whose Holders is required for
any such supplemental indenture or the consent of whose Holders is
required for any waiver (of compliance with certain provisions of this
Indenture or certain defaults hereunder and their consequences)
provided for in this Indenture, or
(3) modify the obligation of the Company to maintain an
office or agency in the Borough of Manhattan, The City of New York
pursuant to Section 10.2, or
(4) modify any of the provisions of this Section or Section
5.13 or 10.9, except to increase any percentage contained herein or
therein or to provide that certain other provisions of this Indenture
cannot be modified or waived without the consent of the Holder of each
Outstanding Security affected thereby.
It shall not be necessary for any Act of Holders of
Securities under this Section to approve the particular form of any proposed
supplemental indenture, but it shall be sufficient if such Act shall approve
the substance thereof.
SECTION 9.3. Execution of Supplemental Indentures.
In executing, or accepting the additional trusts created by,
any supplemental indenture permitted by this Article or the modifications
thereby of the trusts created by this Indenture, the Trustee shall be entitled
to receive, and shall be fully protected in relying upon, an Officer's
Certificate and an Opinion of Counsel stating that the execution of such
supplemental indenture is authorized or permitted by this Indenture. The
Trustee may, but shall not be obligated to, enter into any such supplemental
indenture which affects the Trustee's own rights, duties or immunities under
this Indenture or otherwise.
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SECTION 9.4. Effect of Supplemental Indentures.
Upon the execution of any supplemental indenture under this
Article, this Indenture shall be modified in accordance therewith, and such
supplemental indenture shall form a part of this Indenture for all purposes;
and every Holder of Securities theretofore or thereafter authenticated and
delivered hereunder shall be bound thereby.
SECTION 9.5. Conformity with Trust Indenture Act.
Every supplemental indenture executed pursuant to this
Article shall conform to the requirements of the Trust Indenture Act.
SECTION 9.6. Reference in Securities to Supplemental Indentures.
Securities authenticated and delivered after the execution of
any supplemental indenture pursuant to this Article may, and shall if required
by the Trustee, bear a notation in form approved by the Trustee as to any
matter provided for in such supplemental indenture. If the Company shall so
determine, new Securities so modified as to conform, in the opinion of the
Trustee and the Company, to any such supplemental indenture may be prepared and
executed by the Company and authenticated and delivered by the Trustee in
exchange for Outstanding Securities.
ARTICLE TEN
COVENANTS
SECTION 10.1. Payment of Principal, Premium and Interest.
The Company will duly and punctually pay the principal of
(and premium, if any) and interest on the Securities in accordance with the
terms of the Securities and this Indenture.
SECTION 10.2. Maintenance of Office or Agency.
The Company will maintain in the Borough of Manhattan, The
City of New York an office or agency where Securities may be presented or
surrendered for payment, where Securities may be surrendered for registration
of transfer or exchange, where Securities may be surrendered for conversion and
where notices and demands to or upon the Company in respect of the Securities
and this Indenture may be served. The Company 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 to a
Responsible Officer at the Corporate Trust Office of the Trustee, and the
Company hereby appoints the Trustee as its agent to receive all such
presentations, surrenders, notices and demands.
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The Company may also from time to time designate one or more
other offices or agencies (in or outside the Borough of Manhattan, The City of
New York) where the Securities may be presented or surrendered for any or all
such purposes and may from time to time rescind such designations; provided,
however, that no such designation or rescission shall in any manner relieve the
Company of its obligation to maintain an office or agency in the Borough of
Manhattan, The City of New York for such purposes. The Company will give prompt
written notice to the Trustee of any such designation or rescission and of any
change in the location of any such other office or agency.
SECTION 10.3. Money for Security Payments to Be Held in Trust.
If the Company shall at any time act as its own Paying Agent,
it will, on or before each due date of the principal of (and premium, if any)
or interest on any of the Securities, segregate and hold in trust for the
benefit of the Persons entitled thereto a sum sufficient to pay the principal
(and premium, if any) or interest so becoming due until such sums shall be paid
to such Persons or otherwise disposed of as herein provided and will promptly
notify the Trustee in writing of its action or failure so to act.
Whenever the Company shall have one or more Paying Agents, it
will, on or before to each due date of the principal of (and premium, if any)
or interest on any Securities, deposit with a Paying Agent a sum sufficient to
pay such amount, such sum to be held as provided by the Trust Indenture Act,
and (unless such Paying Agent is the Trustee) the Company will promptly notify
the Trustee in writing of its action or failure so to act.
The Company will cause each Paying Agent other than the
Trustee to execute and deliver to the Trustee an instrument in which such
Paying Agent shall agree with the Trustee, subject to the provisions of this
Section, that such Paying Agent will (i) comply with the provisions of the
Trust Indenture Act applicable to it as a Paying Agent and (ii) during the
continuance of any default by the Company (or any other obligor upon the
Securities) in the making of any payment in respect of the Securities, upon the
written request of the Trustee, forthwith pay to the Trustee all sums held in
trust by such Paying Agent as such.
The Company may at any time, for the purpose of obtaining the
satisfaction and discharge of this Indenture or for any other purpose, pay, or
by Company Order direct any Paying Agent to pay, to the Trustee all sums held
in trust by the Company or such Paying Agent, such sums to be held by the
Trustee upon the same trusts as those upon which such sums were held by the
Company or such Paying Agent; and, upon such payment by any Paying Agent to the
Trustee, such Paying Agent shall be released from all further liability with
respect to such money.
Subject to any applicable abandoned property laws, any money
deposited with the Trustee or any Paying Agent, or then held by the Company, in
trust for the payment of the principal of (and premium, if any) or interest on
any Security and remaining unclaimed for two years after such principal (and
premium, if any) or interest has become due and payable shall be paid to the
Company on Company Request, or (if then held by the Company) shall be
discharged from such trust; and the Holder of such Security shall thereafter,
as an unsecured general creditor, look only to the Company for payment thereof,
and all liability of the Trustee or such Paying Agent with respect to such
trust money, and all liability of the Company as trustee thereof, shall
thereupon cease; provided, however, that the Trustee or such Paying Agent,
before being required to make any such repayment, may at the expense of the
Company cause to be published once, in a newspaper published in the English
language, customarily published on each Business Day and of general circulation
in The City of New York, notice that such money remains unclaimed and that,
after a date specified therein, which shall not be less than 30 days from the
date of such publication, any unclaimed balance of such money then remaining
will be repaid to the Company.
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SECTION 10.4. Statement by Officers as to Default.
The Company will deliver to the Trustee, within 120 days
after the end of each fiscal year of the Company ending after the date hereof,
an Officers' Certificate, stating whether or not to the best knowledge of the
signers thereof the Company is in default in the performance and observance of
any of the terms, provisions and conditions of this Indenture (without regard
to any period of grace or requirement of notice provided hereunder) and, if the
Company shall be in default, specifying all such defaults and the nature and
status thereof of which they may have knowledge.
The Company shall deliver to the Trustee, as soon as possible
and in any event within 10 days after the Company becomes aware of the
occurrence of an Event of Default or an event which, with notice or the lapse
of time or both, would constitute an Event of Default, an Officers' Certificate
setting forth the details of such Event of Default or default, and the action
which the Company proposes to take with respect thereto.
SECTION 10.5. Existence.
Subject to Article Eight, the Company will do or cause to be
done all things necessary to preserve and keep in full force and effect its
existence, rights (charter and statutory) and franchises; provided, however,
that the Company shall not be required to preserve any such right or franchise
if the Company shall determine that the preservation thereof is no longer
desirable in the conduct of the business of the Company and that the loss
thereof is not disadvantageous in any material respect to the Holders.
SECTION 10.6. Maintenance of Properties.
The Company will cause all properties used or useful in the
conduct of its business or the business of any Subsidiary to be maintained and
kept in good condition, repair and working order and supplied with all
necessary equipment and will cause to be made all necessary repairs, renewals,
replacements, betterments and improvements thereof, all as in the judgment of
the Company may be necessary so that the business carried on in connection
therewith may be properly and advantageously conducted at all times; provided,
however, that nothing in this Section shall prevent the Company or any such
Subsidiary from discontinuing the operation or maintenance of any of such
properties if such discontinuance is, in the judgment of the Company, desirable
in the conduct of its business or the business of any Subsidiary and not
disadvantageous in any material respect to the Holders.
SECTION 10.7. Payment of Taxes and Other Claims.
The Company will pay or discharge or cause to be paid or
discharged, before the same shall become delinquent, (1) all taxes, assessments
and governmental charges levied or imposed upon the Company or any Subsidiary
or upon the income, profits or property of the Company or any Subsidiary, and
(2) all lawful claims for labor, materials and supplies which, if unpaid, might
by law become a lien upon the property of the Company or any Subsidiary;
provided, however, that the Company shall not be required to pay or discharge
or cause to be paid or discharged any such tax, assessment, charge or claim
whose amount, applicability or validity is being contested in good faith by
appropriate proceedings.
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SECTION 10.8. Registration and Listing.
The Company (i) will effect all registrations with, and
obtain all approvals by, all governmental authorities that may be necessary
under any United States Federal or state law (including the Securities Act, the
Exchange Act and state securities and Blue Sky laws) for the shares of Common
Stock issuable upon conversion of Securities to be lawfully issued and
delivered as provided herein, and thereafter publicly traded (if permissible
under the Securities Act) and qualified or listed as contemplated by clause
(ii); and (ii) will list the shares of Common Stock required to be issued and
delivered upon conversion of Securities, prior to such issuance or delivery, on
each national securities exchange on which outstanding Common Stock is listed
or quoted at the time of such delivery, or if the Common Stock is not then
listed on any securities exchange, to qualify the Common Stock for quotation on
the Nasdaq National Market or such other inter-dealer quotation system, if any,
on which the Common Stock is then quoted.
SECTION 10.9. Waiver of Certain Covenants.
The Company may omit in any particular instance to comply
with any covenant or conditions set forth in Sections 10.5 to 10.7, inclusive,
if before the time for such compliance the Holders of at least a majority in
principal amount of the Outstanding Securities, by Act of such Holders, either
waive such compliance in such instance or generally waive compliance with such
covenant or condition, but no such waiver shall extend to or affect such
covenant or condition except to the extent so expressly waived, and, until such
waiver shall become effective, the obligations of the Company and the duties of
the Trustee in respect of any such covenant or condition shall remain in full
force and effect.
ARTICLE ELEVEN
REDEMPTION OF SECURITIES
SECTION 11.1. Right of Redemption.
The Securities may be redeemed at the election of the
Company, as a whole or from time to time in part, at any time on or after July
1, 2001, at the Redemption Prices specified in the form of Security
hereinbefore set forth.
SECTION 11.2. Applicability of Article.
Redemption of Securities at the election of the Company, as
permitted by any provision of this Indenture, shall be made in accordance with
such provision and this Article.
SECTION 11.3. Election to Redeem; Notice to Trustee.
The election of the Company to redeem any Securities pursuant
to Section 11.1 shall be evidenced by a Board Resolution. In case of any
redemption at the election of the Company of less than all the Securities, the
Company shall, at least 45 days prior to the Redemption Date fixed by the
Company (unless a shorter notice shall be satisfactory to the Trustee), notify
the Trustee of such Redemption Date and of the principal amount of Securities
to be redeemed.
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SECTION 11.4. Selection by Trustee of Securities to Be Redeemed.
If less than all the Securities are to be redeemed, the
particular Securities to be redeemed shall be selected not more than 60 days
prior to the Redemption Date by the Trustee, from the Outstanding Securities
not previously called for redemption, by such method as the Trustee shall deem
fair and appropriate and which may provide for the selection for redemption of
portions (equal to $1,000 or any integral multiple thereof) of the principal
amount of Securities of a denomination larger than $1,000.
If (i) the Company selects any Security for partial
redemption and (ii) after receiving notice of such partial redemption (but
before the Redemption Date), the Holder of such Security tenders such Security
for conversion in part, then the converted portion of such Security shall be
deemed (so far as may be) to be the portion selected for redemption. Securities
which have been converted during a selection of Securities to be redeemed shall
be treated by the Trustee as Outstanding for the purpose of such selection.
The Trustee shall promptly notify the Company and each
Security Registrar in writing of the Securities selected for redemption and, in
the case of any Securities selected for partial redemption, the principal
amount thereof to be redeemed.
For all purposes of this Indenture, unless the context
otherwise requires, all provisions relating to the redemption of Securities
shall relate, in the case of any Securities redeemed or to be redeemed only in
part, to the portion of the principal amount of such Securities which has been
or is to be redeemed.
SECTION 11.5. Notice of Redemption.
Notice of redemption shall be given by first-class mail,
postage prepaid, mailed not less than 30 nor more than 60 days prior to the
Redemption Date, to each Holder of Securities to be redeemed, at his address
appearing in the Security Register.
All notices of redemption shall state:
(1) the Redemption Date,
(2) the Redemption Price,
(3) if less than all the Outstanding Securities are to be
redeemed, the identification (and, in the case of partial redemption
of any Securities, the principal amounts) of the particular Securities
to be redeemed,
(4) that on the Redemption Date the Redemption Price will
become due and payable upon each such Security to be redeemed and that
interest thereon will cease to accrue on and after said date,
(5) the Conversion Rate, the date on which the right to
convert the Securities to be redeemed will terminate and the place or
places where such Securities may be surrendered for conversion,
(6) the place or places where such Securities are to be
surrendered for payment of the Redemption Price.
Notice of redemption of Securities to be redeemed at the
election of the Company shall be given by the Company or, at the Company's
request, by the Trustee in the name and at the expense of the Company and shall
be irrevocable.
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SECTION 11.6. Deposit of Redemption Price.
On or before 12 noon New York time prior to any Redemption
Date, the Company shall deposit with the Trustee or with a Paying Agent (or, if
the Company is acting as its own Paying Agent, segregate and hold in trust as
provided in Section 10.3) an amount of money sufficient to pay the Redemption
Price of, and (except if the Redemption Date shall be an Interest Payment Date)
accrued interest on, all the Securities which are to be redeemed on that date
other than any Securities called for redemption on that date which have been
converted prior to the date of such deposit.
If any Security called for redemption is converted, any money
deposited with the Trustee or with any Paying Agent or so segregated and held
in trust for the redemption of such Security shall (subject to any right of the
Holder of such Security or any Predecessor Security to receive interest as
provided in the last paragraph of Section 3.8) be paid to the Company upon
Company Request or, if then held by the Company, shall be discharged from such
trust.
SECTION 11.7. Securities Payable on Redemption Date.
Notice of redemption having been given as aforesaid, the
Securities so to be redeemed shall, on the Redemption Date, become due and
payable at the Redemption Price therein specified, and from and after such date
(unless the Company shall default in the payment of the Redemption Price and
accrued interest) such Securities shall cease to bear interest. Upon surrender
of any such Security for redemption in accordance with said notice, such
Security shall be paid by the Company at the Redemption Price, together with
accrued interest to the Redemption Date; provided, however, that installments
of interest whose Stated Maturity is on or prior to the Redemption Date shall
be payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such at the close of business on the relevant Record
Dates according to their terms and the provisions of Section 3.8.
If any Security called for redemption shall not be so paid
upon surrender thereof for redemption, the principal (and premium, if any)
shall, until paid, bear interest from the Redemption Date at the rate borne by
the Security.
SECTION 11.8. Securities Redeemed in Part.
Any Security which is to be redeemed only in part shall be
surrendered at an office or agency of the Company designated for that purpose
pursuant to Section 10.2 (with, if the Company or the Trustee so requires, due
endorsement by, or a written instrument of transfer in form satisfactory to the
Company and the Trustee duly executed by, the Holder thereof or his attorney
duly authorized in writing), and the Company shall execute, and the Trustee
shall authenticate and deliver to the Holder of such Security without service
charge, a new Security or Securities, of any authorized denomination as
requested by such Holder, in aggregate principal amount equal to and in
exchange for the unredeemed portion of the principal of the Security so
surrendered.
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ARTICLE TWELVE
CONVERSION OF SECURITIES
SECTION 12.1. Conversion Privilege and Conversion Rate.
Subject to and upon compliance with the provisions of this
Article, at the option of the Holder thereof, any Security or any portion which
is $1,000 or an integral multiple thereof may be converted into fully paid and
nonassessable shares (calculated as to each conversion to the nearest 1/100th
of a share) of Common Stock of the Company at the Conversion Rate, determined
as hereinafter provided, in effect at the time of conversion. Such conversion
right shall commence upon issuance of such Security and shall expire at the
close of business on July 1, 2003, subject, in the case of conversion of any
Global Security, to any Applicable Procedures. In case a Security or portion
thereof is called for redemption at the election of the Company or the Holder
thereof exercises his right to require the Company to repurchase the Security,
such conversion right in respect of the Security, or portion thereof, so called
or repurchasable, shall expire at the close of business on the Redemption Date
or the Repurchase Date, as the case may be, unless the Company defaults in
making the payment due upon redemption or repurchase, as the case may be (in
each case subject as aforesaid to any Applicable Procedures with respect to any
Global Security).
The rate at which shares of Common Stock shall be delivered
upon conversion (herein called the "Conversion Rate") shall be initially 17.777
shares of Common Stock for each $1,000 principal amount of Securities. The
Conversion Rate shall be adjusted in certain instances as provided in this
Article Twelve.
SECTION 12.2. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the Holder of
any Security to be converted shall surrender such Security, duly endorsed or
assigned to the Company or in blank, at any office or agency of the Company
maintained for that purpose pursuant to Section 10.2, accompanied by a duly
signed conversion notice substantially in the form provided in Section 2.4
stating that the Holder elects to convert such Security or, if less than the
entire principal amount thereof is to be converted, the portion thereof to be
converted. Holders that surrender Securities for conversion on a date that is
not an Interest Payment Date are not entitled to receive any interest for the
period from the next preceding Interest Payment Date to the date of conversion,
except as described below. However, Holders of Securities on a Regular Record
Date, including Securities surrendered for conversion after the Regular Record
Date, will receive the interest payable on such Securities on the next
succeeding Interest Payment Date. Accordingly, any Security surrendered for
conversion during the period from the close of business on a Regular Record
Date to the opening of business on the next succeeding Interest Payment Date
must be accompanied by payment of an amount, in New York Clearing House funds,
equal to the interest payable on such Interest Payment Date on the principal
amount of Securities being surrendered for conversion; provided, however, that
no such payment will be required upon the conversion of any Security (or
portion thereof) that has been called for redemption or that is eligible to be
delivered for repurchase if, as a result, the right to convert such Security
would terminate during the period between such Regular Record Date and the next
succeeding Interest Payment Date. Except as provided in this paragraph, no cash
payment or adjustment shall be made upon any conversion on account of any
interest accrued from the Interest Payment Date next preceding the conversion
date, in respect of any Security (or part thereof, as the case may be)
surrendered for conversion, or on account of any dividends on the Common Stock
issued upon conversion.
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Securities shall be deemed to have been converted immediately
prior to the close of business on the day of surrender of such Securities for
conversion in accordance with the foregoing provisions, and at such time the
rights of the Holders of such Securities as Holders shall cease, and the Person
or Persons entitled to receive the Common Stock issuable upon conversion shall
be treated for all purposes as the record holder or holders of such Common
Stock at such time. As promptly as practicable on or after the conversion date,
the Company shall issue and deliver to the Trustee, for delivery to the Holder,
a certificate or certificates for the number of full shares of Common Stock
issuable upon conversion, together with payment in lieu of any fraction of a
share, as provided in Section 12.3.
All shares of Common Stock delivered upon such conversion of
Securities shall rank pari passu with other shares of Common Stock of the
Company.
In the case of any Security which is converted in part only,
upon such conversion the Company shall execute and the Trustee shall
authenticate and deliver to the Holder thereof, at the expense of the Company,
a new Security or Securities of authorized denominations in an aggregate
principal amount equal to the unconverted portion of the principal amount of
such Security.
SECTION 12.3. Fractions of Shares.
No fractional shares of Common Stock shall be issued upon
conversion of any Security or Securities. If more than one Security shall be
surrendered for conversion at one time by the same Holder, the number of full
shares which shall be issuable upon conversion thereof shall be computed on the
basis of the aggregate principal amount of the Securities (or specified
portions thereof) so surrendered. Instead of any fractional share of Common
Stock which would otherwise be issuable upon conversion of any Security or
Securities (or specified portions thereof), the Company shall calculate and pay
a cash adjustment in respect of such fraction (calculated to the nearest
1/100th of a share) in an amount equal to the same fraction of the Closing
Price at the close of business on the day of conversion (or, if such day is not
a Trading Day, on the Trading Day immediately preceding such day),
alternatively, the Company shall round up to the next higher whole share.
SECTION 12.4. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustments from time
to time as follows:
(1) In case the Company shall pay or make a dividend or other
distribution on any class of capital stock of the Company payable in shares of
Common Stock, the Conversion Rate in effect at the opening of business on the
day following the Determination Date for such dividend or other distribution
shall be increased by dividing such Conversion Rate by a fraction (a) the
numerator of which shall be the number of shares of Common Stock outstanding at
the close of business on such Determination Date and (b) the denominator of
which shall be the sum of such number of shares and the total number of shares
constituting such dividend or other distribution, such increase to become
effective immediately after the opening of business on the day following such
Determination Date. For the purposes of this paragraph (1), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not pay any dividend or make any distribution on shares of Common
Stock held in the treasury of the Company.
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(2) Subject to the last sentence of paragraph (7) of this
Section, in case the Company shall issue rights, options or warrants to all
holders of its Common Stock entitling them to subscribe for or purchase shares
of Common Stock at a price per share less than the current market price per
share (determined as provided in paragraph (8) of this Section 12.4) of the
Common Stock on the Determination Date for such distribution, the Conversion
Rate in effect at the opening of business on the day following such
Determination Date shall be increased by dividing such Conversion Rate by a
fraction (a) the numerator of which shall be the number of shares of Common
Stock outstanding at the close of business on such Determination Date plus the
number of shares of Common Stock which the aggregate of the offering price of
the total number of shares of Common Stock so offered for subscription or
purchase would purchase at such current market price and (b) the denominator of
which shall be the number of shares of Common Stock outstanding at the close of
business on such Determination Date plus the number of shares of Common Stock
so offered for subscription or purchase, such increase to become effective
immediately after the opening of business on the day following such
Determination Date. For the purposes of this paragraph (2), the number of
shares of Common Stock at any time outstanding shall not include shares held in
the treasury of the Company but shall include shares issuable in respect of
scrip certificates issued in lieu of fractions of shares of Common Stock. The
Company will not issue any rights, options or warrants in respect of shares of
Common Stock held in the treasury of the Company.
(3) In case outstanding shares of Common Stock shall be
subdivided into a greater number of shares of Common Stock, the Conversion Rate
in effect at the opening of business on the day following the day upon which
such subdivision becomes effective shall be proportionately increased, and,
conversely, in case outstanding shares of Common Stock shall each be combined
into a smaller number of shares of Common Stock, the Conversion Rate in effect
at the opening of business on the day following the day upon which such
combination becomes effective shall be proportionately reduced, such increase
or reduction, as the case may be, to become effective immediately after the
opening of business on the day following the day upon which such subdivision or
combination becomes effective.
(4) Subject to the last sentence of paragraph (7) of this
Section, in case the Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness, shares of any class
of capital stock, or other property (including securities, but excluding (i)
any rights, options or warrants referred to in paragraph (2) of this Section,
(ii) any dividend or distribution paid exclusively in cash, (iii) any dividend
or distribution referred to in paragraph (1) of this Section and (iv) any
merger or consolidation to which Section 12.11 applies), the Conversion Rate
shall be adjusted so that the same shall equal the rate determined by dividing
the Conversion Rate in effect immediately prior to the close of business on the
Determination Date for such distribution by a fraction (a) the numerator of
which shall be the current market price per share (determined as provided in
paragraph (8) of this Section 12.4) of the Common Stock on such Determination
Date less the then fair market value (as determined by the Board of Directors,
whose determination shall be conclusive and described in a Board Resolution
filed with the Trustee) of the portion of the assets, shares or evidences of
indebtedness so distributed applicable to one share of Common Stock and (b) the
denominator of which shall be such current market price per share of the Common
Stock, such adjustment to become effective immediately prior to the opening of
business on the day following such Determination Date. If the Board of
Directors determines the fair market value of any distribution for purposes of
this paragraph (4) by reference to the actual or when issued trading market for
any securities comprising such distribution, it must in doing so consider the
prices in such market over the same period used in computing the current market
price per share pursuant to paragraph (8) of this Section.
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(5) In case the Company shall, by dividend or otherwise, make
a Cash Distribution in an aggregate amount that, combined with (i) the
aggregate amount of any other Cash Distributions made within the 12 months
preceding the date of payment of such distribution in respect of which no
adjustment pursuant to this paragraph (5) has been made and (ii) any Excess
Purchase Payment made within the 12 months preceding the date of such
distribution and in respect of which no adjustment has been made pursuant to
paragraph (6) of this Section 12.4, exceeds 10% of the Company's Market
Capitalization on the Determination Date for such Cash Distribution, then, and
in each such case, immediately after the close of business on the Determination
Date for such Cash Distribution, the Conversion Rate shall be adjusted so that
the same shall equal the rate determined by dividing the Conversion Rate in
effect immediately prior to the close of business on such Determination Date by
a fraction (a) the numerator of which shall be equal to the current market
price per share (determined as provided in paragraph (8) of this Section) of
the Common Stock on such Determination Date less an amount equal to the
quotient of (1) the amount of such excess divided by (2) the number of shares
of Common Stock outstanding on such Determination Date and (b) the denominator
of which shall be equal to the current market price per share (determined as
provided in paragraph (8) of this Section 12.4) of the Common Stock on such
Determination Date.
(6) In case the Company or any Subsidiary shall make an
Excess Purchase Payment in an aggregate that, combined with (i) the aggregate
amount of any other Excess Purchase Payments made by the Company or any
Subsidiary within the 12 months preceding such Excess Purchase Payment in
respect of which no adjustment pursuant to this paragraph (6) has been made and
(ii) the aggregate amount of any Cash Distributions made within the 12 months
preceding such Excess Purchase Payment in respect of which no adjustment
pursuant to paragraph (5) of this Section 12.4 has been made, exceeds 10% of
the Company's Market Capitalization as of the Determination Date, then, and in
each such case, immediately prior to the opening of business on the day after
the tender offer in respect of which such Excess Purchase Payment is to be made
expires, the Conversion Rate shall be adjusted so that the same shall equal the
rate determined by dividing the Conversion Rate in effect immediately prior to
the close of business on the Determination Date for such tender offer by a
fraction (a) the numerator of which shall be equal (1) to the product of (A)
the number of shares of Common Stock outstanding (including any tendered
shares) at such Determination Date less (B) the amount of such excess and (b)
the denominator of which shall be equal to the product of (X) the current
market price per share of the Common Stock (determined as provided in paragraph
(8) of this Section 12.4) as of such Determination Date multiplied by (Y) the
number of shares of Common Stock outstanding (including any tendered shares) as
of the Determination Date less the number of all shares validly tendered and
not withdrawn as of the Determination Date.
(7) The reclassification of Common Stock into securities
other than Common Stock (other than any reclassification upon a consolidation
or merger to which Section 12.11 applies) shall be deemed to involve (a) a
distribution of such securities other than Common Stock to all holders of
Common Stock (and the effective date of such reclassification shall be deemed
to be the Determination Date), and (b) a subdivision or combination, as the
case may be, of the number of shares of Common Stock outstanding immediately
prior to such reclassification into the number of shares of Common Stock
outstanding immediately thereafter (and the effective date of such
reclassification shall be deemed to be "the day upon which such subdivision
becomes effective" or "the day upon which such combination becomes effective",
as the case may be, and "the day upon which such subdivision or combination
becomes effective" within the meaning of paragraph (3) of this Section 12.4).
Rights or warrants issued by the Company to all holders of its Common Stock
entitling the holders thereof to subscribe for or purchase shares of Common
Stock, which rights or warrants (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, in each case in clauses (i)
through (iii) until the occurrence of a specified event or events ("Trigger
Event"), shall for purposes of this Section 12.4 not be deemed issued until the
occurrence of the earliest Trigger Event.
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(8) For the purpose of any computation under paragraphs (2),
(4), (5) or (6) of this Section 12.4, the current market price per share of
Common Stock on any date shall be calculated by the Company and be deemed to be
the average of the daily Closing Prices for the five consecutive Trading Days
selected by the Company commencing not more than 10 Trading Days before, and
ending not later than, the earlier of the day in question and the day before
the "ex" date with respect to the issuance or distribution requiring such
computation. For purposes of this paragraph, the term "ex date", when used with
respect to any issuance or distribution, means the first date on which the
Common Stock trades regular way in the applicable securities market or on the
applicable securities exchange without the right to receive such issuance or
distribution.
(9) No adjustment in the Conversion Rate shall be required
unless such adjustment (plus any adjustments not previously made by reason of
this paragraph (9)) would require an increase or decrease of at least one
percent in such rate; provided, however, that any adjustments which by reason
of this paragraph (9) are not required to be made shall be carried forward and
taken into account in any subsequent adjustment. All calculations under this
Article shall be made to the nearest cent or to the nearest one-hundredth of a
share, as the case may be.
(10) The Company may make such increases in the Conversion
Rate, for the remaining term of the Securities or any shorter term, in addition
to those required by paragraphs (1), (2), (3), (4), (5) and (6) of this Section
12.4, as it considers to be advisable in order to avoid or diminish any income
tax to any holders of shares of Common Stock resulting from any dividend or
distribution of stock or issuance of rights or warrants to purchase or
subscribe for stock or from any event treated as such for income tax purposes.
The Company shall have the power to resolve any ambiguity or correct any error
in the application of this paragraph (10) and its actions in so doing shall,
absent manifest error, be final and conclusive.
(11) The Company from time to time at its option may increase
the Conversion Rate by any amount for any period of at least 20 calendar days
if the Board of Directors has made a determination that such increase would be
in the best interests of the Company, which determination shall be conclusive
and evidenced by a Board Resolution. To exercise this option the Company shall
provide a written notice to the Trustee and the Holders in accordance with
Sections 1.5 and 1.6 at least 15 calendar days prior to the first day of the
period during which the Conversion Rate will be adjusted stating that the
Conversion Rate will be adjusted pursuant to this provision, the period during
which the adjusted Conversion Rate will be in effect and the adjusted
Conversion Rate.
SECTION 12.5. Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as provided in
Section 12.4:
(1) the Company shall compute the adjusted Conversion Rate in
accordance with Section 12.4 and shall prepare a certificate signed by
either the chief financial officer, the treasurer or the controller of
the Company setting forth the adjusted Conversion Rate and showing in
reasonable detail the facts upon which such adjustment is based, and
such certificate shall promptly be filed with the Trustee and at each
office or agency maintained for the purpose of conversion of
Securities pursuant to Section 10.2; and
(2) a written notice stating that the Conversion Rate has
been adjusted and setting forth the adjusted Conversion Rate shall
forthwith be prepared, and as soon as practicable after it is
prepared, such written notice shall be provided by the Company to the
Trustee and to all Holders in accordance with Sections 1.5 and 1.6.
Unless and until the Trustee receives such written notice, it need not
inquire into whether any adjustment of the Conversion Rate is required
and may assume that no such adjustment has been, or is required to be,
made.
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SECTION 12.6. Notice of Certain Corporate Action.
In case:
(a) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable (i) otherwise than
exclusively in cash or (ii) exclusively in cash in an amount that
would require any adjustment pursuant to Section 12.4; or
(b) the Company shall authorize the granting to all the
holders of its Common Stock of rights, options or warrants to
subscribe for or purchase any shares of capital stock of any class or
of any other rights; or
(c) of any reclassification of the Common Stock of the
Company, or of any consolidation, merger or share exchange to which
the Company is a party and for which approval of any shareholders of
the Company is required, or of the conveyance, sale, transfer or lease
of all or substantially all of the assets of the Company; or
(d) of the voluntary or involuntary dissolution, liquidation
or winding up of the Company; or
(e) the Company or any Subsidiary shall commence a tender
offer for all or a portion of the Company's outstanding shares of
Common Stock (or shall amend any such tender offer);
then the Company shall cause to be filed with the Trustee and at each office or
agency maintained for the purpose of conversion of Securities pursuant to
Section 10.2, and shall cause to be provided to all Holders in accordance with
Section 1.6, at least 20 days (or 10 days in any case specified in clause (a)
or (b) above) prior to the applicable record, expiration or effective date
hereinafter specified, a written notice stating (x) the date on which a record
is to be taken for the purpose of such dividend, distribution, rights, options
or warrants, or, if a record is not to be taken, the date as of which the
holders of Common Stock of record to be entitled to such dividend,
distribution, rights, options or warrants are to be determined, (y) the date on
which the right to make tenders under such tender offer expires or (z) the date
on which such reclassification, consolidation, merger, conveyance, transfer,
sale, lease, dissolution, liquidation or winding up is expected to become
effective, and the date as of which it is expected that holders of Common Stock
of record shall be entitled to exchange their shares of Common Stock for
securities, cash or other property deliverable upon such reclassification,
consolidation, merger, conveyance, transfer, sale, lease, dissolution,
liquidation or winding up. Neither the failure to give such written notice or
the notice referred to in the following paragraph nor any defect therein shall
affect the legality or validity of the proceedings described in clauses (a)
through (e) of this Section 12.6.
The preceding paragraph to the contrary notwithstanding, the
Company shall cause to be filed at each office or agency maintained for the
purpose of conversion of Securities pursuant to Section 10.2, and shall cause
to be provided to all Holders in accordance with Section 1.6, notice of any
tender offer by the Company or any Subsidiary for all or any portion of the
Common Stock at or about the time that such notice of tender offer is provided
to the public generally.
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SECTION 12.7. Company to Reserve Common Stock.
The Company shall at all times reserve and keep available,
free from preemptive rights, out of its authorized but unissued Common Stock,
for the purpose of effecting the conversion of Securities, the full number of
shares of Common Stock then issuable upon the conversion of all Outstanding
Securities.
SECTION 12.8. Taxes on Conversions.
Except as provided in the next sentence, the Company will pay
any and all taxes and duties that may be payable in respect of the issue or
delivery of shares of Common Stock on conversion of Securities pursuant hereto.
The Company shall not, however, be required to pay any tax or duty which may be
payable in respect of any transfer involved in the issue and delivery of shares
of Common Stock in a name other than that of the Holder of the Security or
Securities to be converted, and no such issue or delivery shall be made unless
and until the Person requesting such issue has paid to the Company the amount
of any such tax or duty, or has established to the satisfaction of the Company
that such tax or duty has been paid.
SECTION 12.9. Covenant as to Common Stock.
The Company agrees that all shares of Common Stock which may
be delivered upon conversion of Securities, upon such delivery, will have been
duly authorized and validly issued and will be fully paid and nonassessable
(and shall be issued out of the Company's authorized but unissued Common Stock)
and, except as provided in Section 12.8, the Company will pay all taxes, liens
and charges with respect to the issue thereof.
SECTION 12.10. Cancellation of Converted Securities.
All Securities delivered for conversion shall be delivered to
the Trustee or the Paying Agent or its agent to be canceled by or at the
direction of the Trustee, which shall dispose of the same as provided in
Section 3.10.
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SECTION 12.11. Provision in Case of Consolidation, Merger or Sale of Assets.
In case of any consolidation of the Company with any other
Person, any merger of the Company into another Person or of another Person into
the Company (other than a merger which does not result in any reclassification,
conversion, exchange or cancellation of outstanding shares of Common Stock of
the Company) or any conveyance, sale, transfer or lease of all or substantially
all of the properties and assets of the Company, the Person formed by such
consolidation or resulting from such merger or which acquires such properties
and assets, as the case may be, shall execute and deliver to the Trustee a
supplemental indenture providing that the Holder of each Security then
Outstanding shall have the right thereafter, during the period such Security
shall be convertible as specified in Section 12.1, to convert such Security
only into the kind and amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer or lease (including
any Common Stock retainable) by a holder of the number of shares of Common
Stock of the Company into which such Security might have been converted
immediately prior to such consolidation, merger, conveyance, sale, transfer or
lease, (a) assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated, into which the Company merged or
which merged into the Company or to which such conveyance, sale, transfer or
lease was made, as the case may be (a "Constituent Person"), or an Affiliate of
a Constituent Person and (ii) failed to exercise his rights of election, if
any, as to the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer or lease (provided
that if the kind or amount of securities, cash and other property receivable
upon such consolidation, merger, conveyance, sale, transfer, or lease is not
the same for each share of Common Stock of the Company held immediately prior
to such consolidation, merger, conveyance, sale, transfer or lease by others
than a Constituent Person or an Affiliate thereof and in respect of which such
rights of election shall not have been exercised ("Non-electing Share"), then
for the purpose of this Section 12.11 the kind and amount of securities, cash
and other property receivable upon such consolidation, merger, conveyance,
sale, transfer or lease by the holders of each Non-electing Share shall be
deemed to be the kind and amount so receivable per share by a plurality of the
Non-electing Shares), and (b) further assuming that, if such consolidation,
merger, conveyance, transfer, sale or lease occurs before the first date on
which Securities may be converted as provided herein, such Security was
convertible immediately prior to the time of such occurrence at the initial
Conversion Rate as adjusted from the first original issue date of the
Securities to such time as provided herein. Such supplemental indenture shall
provide for adjustments which, for events subsequent to the effective date of
such supplemental indenture, shall be as nearly equivalent as may be
practicable to the adjustments provided for in this Article. The above
provisions of this Section 12.11 shall similarly apply to successive
consolidations, mergers, conveyances, sales, transfers or leases. Notice of the
execution of such a supplemental indenture shall be given by the Company to the
Holder of each Security as provided in Section 1.6 promptly upon such
execution. In this paragraph, "securities of the kind receivable" upon such
consolidation, merger, conveyance, transfer, sale or lease by a holder of
Common Stock means securities that, among other things, are registered and
transferable under the Securities Act, and listed and approved for quotation in
all securities markets, in each case to the same extent as such securities so
receivable by a holder of Common Stock.
Neither the Trustee nor any Paying Agent shall be under any
responsibility to determine the correctness of any provisions contained in any
such supplemental indenture relating either to the kind or amount of shares of
stock or other securities or property or cash receivable by Holders upon the
conversion of their Securities after any such consolidation, merger,
conveyance, transfer, sale or lease or to any such adjustment, but may accept
as conclusive evidence of the correctness of any such provisions, and shall be
fully protected in relying upon, an Opinion of Counsel with respect thereto,
which the Company shall cause to be furnished to the Trustee.
SECTION 12.12. Responsibility of Trustee for Conversion Provisions.
The Trustee shall not at any time be under any duty or
responsibility to any Holder to determine whether any facts exist which may
require any adjustment of the Conversion Rate, or with respect to the nature or
extent of any such adjustment when made, or with respect to the method
employed, or herein or in any supplemental indenture provided to be employed,
in making the same, or whether a supplemental indenture need be entered into.
The Trustee shall not be accountable with respect to the validity or value (or
the kind or amount) of any Common Stock, or of any other securities or property
or cash, which may at any time be issued or delivered upon the conversion of
any Security; and it or they do not make any representation with respect
thereto. The Trustee shall not be responsible for any failure of the Company to
make or calculate any cash payment or to issue, transfer or deliver any shares
of Common Stock or share certificates or other securities or property or cash
upon the surrender of any Security for the purpose of conversion; and the
Trustee shall not be responsible for any failure of the Company to comply with
any of the covenants of the Company contained in this Article.
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ARTICLE THIRTEEN
SUBORDINATION OF SECURITIES
SECTION 13.1. Securities Subordinate to Senior Debt.
The Company covenants and agrees, and each Holder of a
Security, by his acceptance thereof, likewise covenants and agrees, that, to
the extent and in the manner hereinafter set forth in this Article (subject to
the provisions of Article Four), the indebtedness represented by the Securities
and the payment of the principal of (and premium, if any) and interest on each
and all of the Securities and any payment of the Repurchase Price (other than
by delivery of shares of Common Stock) are hereby expressly made subordinate
and subject in right of payment to the prior payment in full of all Senior
Debt.
SECTION 13.2. Payment Over of Proceeds Upon Dissolution, Etc.
In the event of (a) any insolvency or bankruptcy case or
proceeding, or any receivership, liquidation, reorganization or other similar
case or proceeding in connection therewith, relative to the Company or to its
creditors, as such, or to its assets, or (b) any liquidation, dissolution or
other winding up of the Company, whether voluntary or involuntary and whether
or not involving insolvency or bankruptcy, or (c) any assignment for the
benefit of creditors or any other marshalling of assets and liabilities of the
Company, then and in any such event the holders of Senior Debt shall be
entitled to receive payment in full of all amounts due or to become due on or
in respect of all Senior Debt before the Holders of the Securities are entitled
to receive any payment on account of principal of (or premium, if any) or
interest on the Securities or on account of the purchase, redemption or other
acquisition of Securities, and to that end the holders of Senior Debt shall be
entitled to receive, for application to the payment thereof, any payment or
distribution of any kind or character, whether in cash, property or securities,
which may be payable or deliverable in respect of the Securities in any such
case, proceeding, dissolution, liquidation or other winding up or event.
In the event that, notwithstanding the foregoing provisions
of this Section, the Trustee or the Holder of any Security shall have received
any payment or distribution of assets of the Company of any kind or character,
whether in cash, securities or other property, before all Senior Debt is paid
in full, and if such fact shall, at or prior to the time of such payment or
distribution, have been made actually known to a Responsible Officer of the
Trustee or, as the case may be, such Holder, then and in such event such
payment or distribution shall be paid over or delivered forthwith to the
trustee in bankruptcy, receiver, liquidating trustee, custodian, assignee,
agent or other Person making payment or distribution of assets of the Company
for application to the payment of all Senior Debt remaining unpaid, to the
extent necessary to pay all Senior Debt in full, after giving effect to any
concurrent payment or distribution to or for the holders of Senior Debt.
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For purposes of this Article only, the words "cash,
securities or other property" shall not be deemed to include shares of stock of
the Company as reorganized or readjusted, or securities of the Company or any
other corporation provided for by a plan of reorganization or readjustment
which shares of stock are subordinated in right of payment to all then
outstanding Senior Debt to substantially the same extent as, or to a greater
extent than, the Securities are so subordinated as provided in this Article.
The consolidation of the Company with, or the merger of the Company into,
another Person or the liquidation or dissolution of the Company following the
conveyance or transfer of its properties and assets substantially as an
entirety to another Person upon the terms and conditions set forth in Article
Eight shall not be deemed a dissolution, winding up, liquidation,
reorganization, assignment for the benefit of creditors or marshalling of
assets and liabilities of the Company for the purposes of this Section if the
Person formed by such consolidation or into which the Company is merged or
which acquires by conveyance or transfer such properties and assets
substantially as an entirety, as the case may be, shall, as a part of such
consolidation, merger, conveyance or transfer, comply with the conditions set
forth in Article Eight.
SECTION 13.3. Prior Payment to Senior Debt Upon Acceleration of Securities.
In the event that any Securities are declared due and payable
before their Stated Maturity pursuant to Section 5.2, then and in such event
the holders of the Senior Debt outstanding at the time such Securities so
become due and payable shall be entitled to receive payment in full of all
amounts due or to become due on or in respect of all Senior Debt before the
Holders of the Securities are entitled to receive any payment by the Company on
account of the principal of (or premium, if any) or interest on the Securities
or on account of the purchase or other acquisition of Securities.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered forthwith to
the Company.
The provisions of this Section shall not apply to any payment
with respect to which Section 13.2 would be applicable.
SECTION 13.4. No Payment When Senior Debt in Default.
(a) (i) In the event and during the continuation of any
default in the payment of principal of (or premium, if any) or interest on any
Senior Debt beyond any applicable grace period with respect thereto or (ii) in
the event that any other event of default with respect to any Senior Debt shall
have occurred and be continuing which would then permit the holders of such
Senior Debt (or a trustee on behalf of the holders thereof) to declare such
Senior Debt due and payable prior to the date on which it would otherwise have
become due and payable, unless and until, in the case of this clause (ii), such
event of default shall have been cured or waived or shall have ceased to exist
after written notice of such event of default to the Company and the Trustee by
any holder of such Senior Debt (or a trustee on behalf of the holders thereof),
or (b) in the event any judicial proceeding shall be pending with respect to
any such default in payment or event of default, then no payment shall be made
by the Company on account of principal of (or premium, if any) or interest on
the Securities or on account of the purchase, redemption or other acquisition
of Securities.
In the event that, notwithstanding the foregoing, the Company
shall make any payment to the Trustee or the Holder of any Security prohibited
by the foregoing provisions of this Section, and if such fact shall, at or
prior to the time of such payment, have been made actually known to a
Responsible Officer of the Trustee or, as the case may be, such Holder, then
and in such event such payment shall be paid over and delivered forthwith to
the Company, in the case of the Trustee, or the Trustee, in the case of such
Holder.
The provisions of this Section shall not apply to any payment
with respect to which Section 13.2 would be applicable.
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SECTION 13.5. Payment Permitted If No Default.
Nothing contained in this Article or elsewhere in this
Indenture or in any of the Securities shall prevent (a) the Company, at any
time except during the pendency of any case, proceeding, dissolution,
liquidation or other winding up, assignment for the benefit of creditors or
other marshalling of assets and liabilities of the Company referred to in
Section 13.2 or under the conditions described in Section 13.3 or 13.4, from
making payments at any time of principal of (and premium, if any) or interest
on the Securities, or (b) the application by the Trustee of any money deposited
with it hereunder to the payment of or on account of the principal of (and
premium, if any) or interest on the Securities or the retention of such payment
by the Holders if, at the time of such application by the Trustee, it did not
have actual knowledge that such payment would have been prohibited by the
provisions of this Article.
SECTION 13.6. Subrogation to Rights of Holders of Senior Debt.
Subject to the payment in full of all Senior Debt, the
Holders of the Securities shall be subrogated to the extent of the payments or
distributions made to the holders of such Senior Debt pursuant to the
provisions of this Article to the rights of the holders of such Senior Debt to
receive payments and distributions of cash, property and securities applicable
to the Senior Debt until the principal of (and premium, if any) and interest on
the Securities shall be paid in full. For purposes of such subrogation, no
payments or distributions to the holders of the Senior Debt of any cash,
property or securities to which the Holders of the Securities or the Trustee
would be entitled except for the provisions of this Article, and no payments
over pursuant to the provisions of this Article to the holders of Senior Debt
by Holders of the Securities or the Trustee, shall, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
be deemed to be a payment or distribution by the Company to or on account of
the Senior Debt.
SECTION 13.7. Provisions Solely to Define Relative Rights.
The provisions of this Article are and are intended solely
for the purpose of defining the relative rights of the Holders of the
Securities on the one hand and the holders of Senior Debt on the other hand.
Nothing contained in this Article or elsewhere in this Indenture or in the
Securities is intended to or shall (a) impair, as among the Company, its
creditors other than holders of Senior Debt and the Holders of the Securities,
the obligation of the Company, which is absolute and unconditional, to pay to
the Holders of the Securities the principal of (and premium, if any) and
interest on the Securities as and when the same shall become due and payable in
accordance with their terms; or (b) affect the relative rights against the
Company of the Holders of the Securities and creditors of the Company other
than the holders of Senior Debt; or (c) prevent the Trustee or the Holder of
any Security from exercising all remedies otherwise permitted by applicable law
upon default under this Indenture, subject to the rights, if any, under this
Article of the holders of Senior Debt to receive cash, property and securities
otherwise payable or deliverable to the Trustee or such Holder.
SECTION 13.8. Trustee to Effectuate Subordination.
Each holder of a Security by his acceptance thereof
authorizes and directs the Trustee on his behalf to take such action as may be
necessary or appropriate to effectuate the subordination provided in this
Article and appoints the Trustee his attorney-in-fact for any and all such
purposes.
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SECTION 13.9. No Waiver of Subordination Provisions.
No right of any present or future holder of any Senior Debt
to enforce subordination as herein provided shall at any time in any way be
prejudiced or impaired by any act or failure to act on the part of the Company
or by any act or failure to act, in good faith, by any such holder of any
Senior Debt, or by any non-compliance by the Company with the terms, provisions
and covenants of this Indenture, regardless of any knowledge thereof any such
holder may have or be otherwise charged with.
Without in any way limiting the generality of the foregoing
paragraph, the holders of Senior Debt may, at any time and from time to time,
without the consent of or written notice to the Trustee or the Holders of the
Securities, without incurring responsibility to the Holders of the Securities
and without impairing or releasing the subordination provided in this Article
or the obligations hereunder of the Holders of the Securities to the holders of
Senior Debt, do any one or more of the following: (i) change the manner, place
or terms of payment or extend the time of payment of, or renew or alter, Senior
Debt, or otherwise amend or supplement in any manner Senior Debt or any
instrument evidencing the same or any agreement under which Senior Debt is
outstanding; (ii) sell, exchange, release or otherwise deal with any property
pledged, mortgaged or otherwise securing Senior Debt; (iii) release any Person
liable in any manner for the collection of Senior Debt; and (iv) exercise or
refrain from exercising any rights against the Company and any other Person.
SECTION 13.10. Notice to Trustee.
The Company shall give prompt written notice to the Trustee
of any fact known to the Company which would prohibit the making of any payment
to or by the Trustee in respect of the Securities. Notwithstanding the
provisions of this Article or any other provision of this Indenture, the
Trustee shall not be charged with knowledge of the existence of any facts which
would prohibit the making of any payment to or by the Trustee in respect of the
Securities, unless and until a Responsible Officer of the Trustee shall have
received written notice thereof from the Company or a holder of Senior Debt or
from any trustee therefor; and, prior to the receipt of any such written
notice, the Trustee shall be entitled in all respects to assume that no such
facts exist; provided, however, that if the Trustee shall not have received the
notice provided for in this Section at least two Business Days prior to the
date upon which by the terms hereof any money may become payable for any
purpose (including, without limitation, the payment of the principal of (and
premium, if any) or interest on any Security), then, anything herein contained
to the contrary notwithstanding, the Trustee shall have full power and
authority to receive such money and to apply the same to the purpose for which
such money was received and shall not be affected by any notice to the contrary
which may be received by it within two Business Days prior to such date.
The Trustee shall be entitled to conclusively rely on the
delivery to it of a written notice by a Person representing himself to be a
holder of Senior Debt (or a trustee therefor) to establish that such notice has
been given by a holder of Senior Debt (or a trustee therefor). In the event
that the Trustee determines in good faith that further evidence is required
with respect to the right of any Person as a holder of Senior Debt to
participate in any payment or distribution pursuant to this Article, the
Trustee may request such Person to furnish evidence to the reasonable
satisfaction of the Trustee as to the amount of Senior Debt held by such
Person, the extent to which such Person is entitled to participate in such
payment or distribution and any other facts pertinent to the rights of such
Person under this Article, and if such evidence is not furnished, the Trustee
may defer any payment to such Person pending judicial determination as to the
right of such Person to receive such payment.
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SECTION 13.11. Reliance on Judicial Order or Certificate of Liquidating Agent.
Upon any payment or distribution of assets of the Company
referred to in this Article, the Trustee and the Holders of the Securities
shall be entitled to conclusively rely upon any order or decree entered by any
court of competent jurisdiction in which such insolvency, bankruptcy,
receivership, liquidation, reorganization, dissolution, winding up or similar
case or proceeding is pending, or a certificate of the trustee in bankruptcy,
receiver, liquidating trustee, custodian, assignee for the benefit of
creditors, agent or other Person making such payment or distribution, delivered
to the Trustee or to the Holders of Securities, for the purpose of ascertaining
the Persons entitled to participate in such payment or distribution, the
holders of the Senior Debt and other indebtedness of the Company, the amount
thereof or payable thereon, the amount or amounts paid or distributed thereon
and all other facts pertinent thereto or to this Article.
SECTION 13.12. Trustee Not Fiduciary for Holders of Senior Debt.
The Trustee shall not be deemed to owe any fiduciary duty to
the holders of Senior Debt and shall not be liable to any such holders if it
shall in good faith mistakenly pay over or distribute to Holders of Securities
or to the Company or to any other Person cash, property or securities to which
any holders of Senior Debt shall be entitled by virtue of this Article or
otherwise.
SECTION 13.13. Rights of Trustee as Holder of Senior Debt; Preservation of
Trustee's Rights.
The Trustee in its individual capacity shall be entitled to
all the rights set forth in this Article with respect to any Senior Debt which
may at any time be held by it, to the same extent as any other holder of Senior
Debt, and nothing in this Indenture shall deprive the Trustee of any of its
rights as such holder.
Nothing in this Article shall apply to claims of, or payments
to, the Trustee under or pursuant to Section 6.7.
SECTION 13.14. Article Applicable to Paying Agents.
In case at any time any Paying Agent other than the Trustee
shall have been appointed by the Company and be then acting hereunder, the term
"Trustee" as used in this Article shall in such case (unless the context
otherwise requires) be construed as extending to and including such Paying
Agent within its meaning as fully for all intents and purposes as if such
Paying Agent were named in this Article in addition to or in place of the
Trustee; provided, however, that Section 13.12 shall not apply to the Company
or any Affiliate of the Company if it or such Affiliate acts as Paying Agent.
SECTION 13.15. Certain Conversions and Repurchases Deemed Payment.
For the purposes of this Article only, (1) the issuance and
delivery of junior securities upon conversion of Securities in accordance with
Article Twelve or upon the repurchase of Securities in accordance with Article
Fourteen shall not be deemed to constitute a payment or distribution on account
of the principal of or premium or interest on Securities or on account of the
purchase or other acquisition of Securities, and (2) the payment, issuance or
delivery of cash, property or securities (other than junior securities) upon
conversion of a Security shall be deemed to constitute payment on account of
the principal of such Security. For the purposes of this Section, the term
"junior securities" means (a) shares of any stock of any class of the Company
and any cash, property or securities into which the Securities are convertible
pursuant to Article Twelve and (b) securities of the Company which are
subordinated in right of payment to all Senior Debt which may be outstanding at
the time of issuance or delivery of such securities to substantially the same
extent as, or to a greater extent than, the Securities are so subordinated as
provided in this Article. Nothing contained in this Article or elsewhere in
this Indenture or in the Securities is intended to or shall impair, as among
the Company, its creditors other than holders of Senior Debt and the Holders of
the Securities, the right, which is absolute and unconditional, of the Holder
of any Security to convert such Security in accordance with Article Twelve or
to exchange such Security for Common Stock in accordance with Article Fourteen
if the Company elects to satisfy the obligations under Article Fourteen by the
delivery of Common Stock.
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ARTICLE FOURTEEN
REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE OF CONTROL
SECTION 14.1. Right to Require Repurchase.
In the event that a Change of Control (as hereinafter
defined) shall occur, then each Holder shall have the right, at such Holder's
option, to require the Company to repurchase, and upon the exercise of such
right the Company shall repurchase, all of such Holder's Securities, or any
portion of the principal amount thereof that is equal to $1,000 or any integral
multiple thereof, on the date (the "Repurchase Date") that is 45 days after the
date on which the Company Notice (as defined in Section 14.3) is given to
Holders at a purchase price equal to 100% of the principal amount of the
Securities to be repurchased plus interest accrued to the Repurchase Date (the
"Repurchase Price"); provided, however, that installments of interest on
Securities whose Stated Maturity is on or prior to the Repurchase Date shall be
payable to the Holders of such Securities, or one or more Predecessor
Securities, registered as such on the relevant Record Date according to their
terms and the provisions of Section 3.8. At the option of the Company, the
Repurchase Price may be paid in cash or, subject to the fulfillment by the
Company of the conditions set forth Section 14.2, by delivery of shares of
Common Stock having a fair market value equal to the Repurchase Price as
described in Section 14.2(a). Whenever in this Indenture (including Sections
2.2, 3.1, 5.1(1) and 5.8) there is a reference, in any context, to the
principal of any Security as of any time, such reference shall be deemed to
include reference to the Repurchase Price payable in respect of such Security
to the extent that such Repurchase Price is, was or would be so payable at such
time, and express mention of the Repurchase Price in any provision of this
Indenture shall not be construed as excluding the Repurchase Price in those
provisions of this Indenture when such express mention is not made; provided,
however, that for the purposes of Article Thirteen, such reference shall be
deemed to include reference to the Repurchase Price only if the Repurchase
Price is payable in cash.
SECTION 14.2. Conditions to the Company's Election to Pay the Repurchase Price
in Common Stock.
The Company may elect to pay the Repurchase Price by delivery of
shares of Common Stock pursuant to Section 14.1 if and only if the following
conditions have been satisfied:
(a) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have a fair market value as of the Repurchase Date of
not less than the Repurchase Price. For purposes of this Section 14.2, the fair
market value of shares of Common Stock shall be determined by the Company and
shall be equal to 95% of the average of the Closing Prices for the five
consecutive Trading Days ending on and including the third Trading Day
immediately preceding the Repurchase Date;
(b) The shares of Common Stock deliverable in payment of the
Repurchase Price shall have been listed on the New York Stock Exchange or, if
the Common Stock is not then so listed, such shares shall be have been approved
for quotation in the Nasdaq National Market, in either case, immediately prior
to the Repurchase Date; and
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(c) All shares of Common Stock deliverable in payment of the
Repurchase Price shall be issued out of the Company's authorized but unissued
Common Stock and will, upon issue, be duly and validly issued and fully paid
and non-assessable and free of any preemptive rights.
If all of the conditions set forth in this Section 14.2 are
not satisfied in accordance with the terms thereof, the Repurchase Price shall
be paid by the Company only in cash.
SECTION 14.3. Notices; Method of Exercising Repurchase Right, Etc.
(a) Unless the Company shall have theretofore called for
redemption all of the Outstanding Securities, on or before the 30th day after
the occurrence of a Change of Control, the Company or, at the request and
expense of the Company, the Trustee, shall give to all Holders of Securities,
in the manner provided in Section 1.6, notice (the "Company Notice") of the
occurrence of the Change of Control and of the repurchase right set forth
herein arising as a result thereof. The Company shall also deliver a copy of
such notice of a repurchase right to the Trustee.
Each notice of a repurchase right shall state:
(1) the Repurchase Date,
(2) the date by which the repurchase right must be exercised,
(3) the Repurchase Price, and whether the Repurchase Price
shall be paid by the Company in cash or by delivery of shares of
Common Stock,
(4) the instructions a Holder must follow to exercise a
repurchase right,
(5) that on the Repurchase Date the Repurchase Price, and
accrued interest, if any, will become due and payable upon each such
Security designated by the Holder to be repurchased, and that interest
thereon shall cease to accrue on and after said date, and
(6) the Conversion Rate then in effect, the date on which the
right to convert the principal amount of the Securities to be
repurchased will terminate and the place or places where such
Securities may be surrendered for conversion.
No failure of the Company to give the foregoing notices or
defect therein shall limit any Holder?s right to exercise a repurchase right or
affect the validity of the proceedings for the repurchase of Securities.
If any of the foregoing provisions or other provisions of
this Article Fourteen are inconsistent with applicable law, such law shall
govern.
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(b) To exercise a repurchase right, a Holder shall deliver to
the Trustee or any Paying Agent on or before the 5th day prior to the
Repurchase Date (i) written notice of the Holder's exercise of such right,
which notice shall set forth the name of the Holder, the principal amount of
the Securities to be repurchased (and, if any Security is to be repurchased in
part, the serial number thereof, the portion of the principal amount thereof to
be repurchased and the name of the Person in which the portion thereof to
remain Outstanding after such repurchase is to be registered) and a statement
that an election to exercise the repurchase right is being made thereby, and,
in the event that the Repurchase Price shall be paid in shares of Common Stock,
the name or names (with addresses) in which the certificate or certificates for
shares of Common Stock shall be issued, and (ii) the Securities with respect to
which the repurchase right is being exercised. Such written notice shall be
irrevocable, except that the right of the Holder to convert the Securities with
respect to which the repurchase right is being exercised shall continue until
the close of business on the Repurchase Date.
(c) In the event a repurchase right shall be exercised in
accordance with the terms hereof, the Company shall pay or cause to be paid to
the Trustee the Repurchase Price in cash or shares of Common Stock, as provided
above, for payment to the Holder on the Repurchase Date or, if shares of Common
Stock are to be paid, as promptly after the Repurchase Date as practicable,
together with accrued and unpaid interest to the Repurchase Date payable with
respect to the Securities as to which the purchase right has been exercised;
provided, however, that installments of interest that mature on or prior to the
Repurchase Date shall be payable in cash, to the Holders of the Securities, or
one or more Predecessor Securities, registered as such at the close of business
on the relevant Regular Record Date.
(d) If any Security (or portion thereof) surrendered for
repurchase shall not be so paid on the Repurchase Date, the principal amount of
such Security (or portion thereof, as the case may be) shall, until paid, bear
interest to the extent permitted by applicable law from the Repurchase Date at
the rate per annum borne by such Security, and each Security shall remain
convertible into Common Stock until the principal of such Security (or portion
thereof, as the case may be) shall have been paid or duly provided for.
(e) Any Security which is to be repurchased only in part
shall be surrendered to the Trustee at the office or agency of the Company
designated for that purpose pursuant to Section 10.2 (with, if the Company or
the Trustee so requires, due endorsement by, or a written instrument of
transfer in form satisfactory to the Company and the Trustee duly executed by,
the Holder thereof or his attorney duly authorized in writing), and the Company
shall execute, and the Trustee shall authenticate and make available for
delivery to the Holder of such Security without service charge, a new Security
or Securities, containing identical terms and conditions, each in an authorized
denomination in aggregate principal amount equal to and in exchange for the
unrepurchased portion of the principal of the Security so surrendered.
(f) Any issuance of shares of Common Stock in respect of the
Repurchase Price shall be deemed to have been effected immediately prior to the
close of business on the Repurchase Date and the Person or Persons in whose
name or names any certificate or certificates for shares of Common Stock shall
be issuable upon such repurchase shall be deemed to have become on the
Repurchase Date the holder or holders of record of the shares represented
thereby; provided, however, that any surrender for repurchase on a date when
the stock transfer books of the Company shall be closed shall constitute the
Person or Persons in whose name or names the certificate or certificates for
such shares are to be issued as the record holder or holders thereof for all
purposes at the opening of business on the next succeeding day on which such
stock transfer books are open. No payment or adjustment shall be made for
dividends or distributions on any Common Stock issued upon repurchase of any
Security declared prior to the Repurchase Date.
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(g) No fractions of shares shall be issued upon repurchase of
Securities. If more than one Security shall be repurchased from the same Holder
and the Repurchase Price shall be payable in shares of Common Stock, the number
of full shares which shall be issuable upon such repurchase shall be computed
on the basis of the aggregate principal amount of the Securities so
repurchased. Instead of any fractional share of Common Stock which would
otherwise be issuable on the repurchase of any Security or Securities, the
Company will deliver to the applicable Holder its check for the current market
value of such fractional share. The current market value of a fraction of a
share shall be determined by multiplying the current market price of a full
share by the fraction, and rounding the result to the nearest cent. For
purposes of this Section, the current market price of a share of Common Stock
shall be the Closing Price of the Common Stock on the Trading Day immediately
preceding the Repurchase Date.
(h) Any issuance and delivery of certificates for shares of
Common Stock on repurchase of Securities shall be made without charge to the
Holder of Securities being repurchased for such certificates or for any tax or
duty in respect of the issuance or delivery of such certificates or the
securities represented thereby; provided, however, that the Company shall not
be required to pay any tax or duty which may be payable in respect of any
transfer involved in the issuance or delivery of certificates for shares of
Common Stock in a name other than that of the Holder of the Securities being
repurchased, and no such issuance or delivery shall be made unless and until
the Person requesting such issuance or delivery has paid to the Company the
amount of any such tax or duty or has established, to the satisfaction of the
Company, that such tax or duty has been paid.
(i) All Securities delivered for repurchase shall be
delivered to the Trustee, the Paying Agent or any other agents (as shall be set
forth in the Company Notice) to be canceled at the direction of the Trustee,
which shall dispose of the same as provided in Section 3.10.
SECTION 14.4. Certain Definitions.
For purposes of this Article Fourteen,
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 promulgated by the Commission pursuant to
the Exchange Act;
(b) a "Change of Control" shall be deemed to have occurred at
the time, after the original issuance of the Securities, of:
(i) the acquisition by any person of beneficial ownership,
directly or indirectly, through a purchase, merger or other
acquisition transaction or series of transactions, of shares of
capital stock of the Company entitling such person to exercise 50% or
more of the total voting power of all shares of capital stock of the
Company entitled to vote generally in the elections of directors (any
shares of voting stock of which such person is the beneficial owner
that are not then outstanding being deemed outstanding for purposes of
calculating such percentage) other than any such acquisition by the
Company or any employee benefit plan of the Company; or
-68-
<PAGE> 76
(ii) any consolidation or merger of the Company with or into,
any other person, any merger of another person with or into the
Company, or any conveyance, transfer, sale, lease or other disposition
of all or substantially all of the assets of the Company to another
person (other than (a) any such transaction (x) which does not result
in any reclassification, conversion, exchange or cancellation of
outstanding shares of Common Stock and (y) pursuant to which holders
of Common Stock immediately prior to such transaction have the
entitlement to exercise, directly or indirectly, 50% or more of the
total voting power of all shares of capital stock entitled to vote
generally in the election of directors of the continuing or surviving
person immediately after such transaction and (b) any merger which is
effected solely to change the jurisdiction of incorporation of the
Company and results in a reclassification, conversion or exchange of
outstanding shares of Common Stock into solely shares of common
stock);
provided, however, that a Change of Control shall not be deemed to have
occurred if the Closing Price for any five Trading Days within the period of 10
consecutive Trading Days (x) ending immediately after the later of the date of
the Change of Control or the date of the public announcement of the Change of
Control (in the case of a Change of Control under Clause (i) above) or (y)
ending immediately prior to the date of the Change of Control (in the case of a
Change of Control under Clause (ii) above) shall equal or exceed 105% of the
Conversion Price in effect on each such Trading Day; provided, that any
temporary increase in the Conversion Rate made by the Company pursuant to
paragraph (11) of Section 12.4 shall not be taken into account for purposes of
the foregoing determination;
(c) the term "Conversion Price" on any day shall
equal $1,000 divided by the Conversion Rate in effect on each such day; and
(d) for purposes of this Section 14.4, the term "person"
shall include any syndicate or group which would be deemed to be a "person"
under Section 13(d)(3) of the Exchange Act.
-69-
<PAGE> 77
IN WITNESS WHEREOF, the parties hereto have caused this
Indenture to be duly executed, and their respective corporate seals to be
hereunto affixed and attested, all as of the day and year first above written.
TECH DATA CORPORATION
By _______________________________
Name: Jeffery P. Howells
Title: Executive Vice President
and Chief Financial
Officer
Attest:
- ------------------------------
Name: David R. Vetter
Title: Assistant Secretary
THE FIRST NATIONAL BANK
OF CHICAGO,
Trustee
By ______________________________
Name:
Title:
Attest:
- -------------------------------
Name:
Title:
-70-
<PAGE> 78
STATE OF ________ )
) : ss.:
COUNTY OF _____ )
On the __th day of June, 1998, before me personally came Jeffery P.
Howells, to me known, who, being by me duly sworn, did depose and say that he
is Executive Vice President and Chief Financial Officer of Tech Data
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 of Directors of said corporation; and that [s]he signed
his name thereto by like authority.
------------------------------
Notary Public
STATE OF )
) : ss.:
COUNTY OF )
On the th day of , 1998, before me personally came ,
to me known, who, being by me duly sworn, did depose and say that [s]he is
of , a described in and which executed the foregoing
instrument; that she knows the seal of said ;
that the seal affixed to said instrument is such corporate seal; that it was so
affixed pursuant to the bylaws of said ; and
that [s]he signed her name thereto by like authority.
------------------------------
Notary Public
-71-
<PAGE> 1
EXHIBIT 5
SCHIFINO & FLEISCHER, P.A.
ATTORNEYS AT LAW
WILLIAM J. SCHIFINO TELEPHONE:(813)223-1535 ONE TAMPA CITY CENTER
FRANK N. FLEISCHER TELECOPIER:(813)223-3070 201 NORTH FRANKLIN STREET
LINA ANGELICI INTERNET: S [email protected] SUITE 2700
AMY LETTELLER TAMPA, FLORIDA 33602
September 14, 1998
Tech Data Corporation
5350 Tech Data Drive
Clearwater, Florida 34620
Gentlemen:
The following opinion is furnished by us in connection with the issuance
by Tech Data Corporation, a Florida corporation (the "Company"), of (i)
2,195,945 shares of Common Stock, $.0015 par value, (the "Shares"), (ii)
$300,000,000 of the Company's 5% Convertible Subordinated Notes due July 1,
2003 (the "Convertible Notes") and (iii) up to 5,333,100 shares of Common
Stock, $.0015 par value, proposed to be issued in the event of the conversion
of the Convertible Notes into shares of Common Stock, $.0015 par value (the
"Underlying Shares") covered by a Registration Statement filed with the
Securities and Exchange Commission on Form S-3 (the "Registration Statement)
and proposed to be sold from time to time by Klockner & Co. AG (the "Selling
Holder").
We have examined and are familiar with the Certificate of Incorporation
and By-Laws, and amendments thereto, of the Company and the proceedings of the
Board of Directors of the Company in connection with or respect to the proposed
issuance and sale of the securities described herein, and we have likewise
examined such other records and documents and have made such examination of
law as we have deemed appropriate.
Based on such examination and our familiarity with such procedure, it is
our opinion that:
1. The Company is a duly incorporated and validly existing corporation
in good standing under the laws of the State of Florida with an authorized
capital stock of 200,226,500 shares, composed of 226,500 shares of Preferred
Stock having a par value of $.02 per share and 200,000,000 shares of Common
Stock having a par value of $.0015 per share, of which 50,868,646 shares of
Common Stock and 226,500 shares of Preferred Stock have been duly authorized
and legally issued and are fully paid and non-assessable.
2. The 2,195,945 Shares have been duly authorized, legally issued, fully
paid, and non-assessable and any or all of the 5,333,100 shares to be issued
upon any conversion of the Convertible Notes have been duly authorized and will
be, when and if issued, legally issued, fully paid and non-assessable.
3. There are no restrictions upon the Company's surplus by reason of the
excess of the Preferred Stock's liquidation preference over its par value, and
no remedies will be available to holders of the Company's capital stock before
or after the payment of any dividend that would reduce surplus to an amount
less than the amount of such excess.
<PAGE> 2
4. The Indenture dated as of July 1, 1998 between the Company, as Issuer
and The First National Bank of Chicago, as trustee (the "Indenture") has been
duly authorized, executed and delivered by the parties thereto, and constitutes
a valid and legally binding instrument, enforceable in accordance with its
terms, subject, as to enforcement, to bankruptcy, insolvency, reorganization and
other laws of general applicability relating to or affecting creditors' rights
and to general equity principles.
5. The Convertible Notes have been duly authorized, executed,
authenticated, issued and delivered and constitute valid and legally binding
obligations of the Company entitled to the benefits provided by the Indenture,
subject, as to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or affecting creditors' rights and to
general equity principles.
We hereby consent to this opinion being filed as an Exhibit to the
Registration Statement and we further consent to the use of our name in the
Registration Statement under the caption "Legal Matters". In giving such
consent we do not admit that we are in the category of persons whose consent is
required under Section 7 of the Securities Act of 1933, as amended.
Very truly yours,
SCHIFINO & FLEISCHER,P.A.
Frank N. Fleischer
For the Association
<PAGE> 1
EXHIBIT 23-B
CONSENT OF INDEPENDENT CERTIFIED PUBLIC ACCOUNTANTS
We hereby consent to incorporation by reference in the registration statement on
Form S-3 (No. 333-36997) of our report dated March 18, 1998, appearing on page
16 of Tech Data Corporation's Annual Report on Form 10-K for the year ending
January 31, 1998. We also consent to the incorporation by reference of our
report on the Financial Statement Schedule included under Item 14 of such Form
10-K.
PricewaterhouseCoopers LLP
Tampa, Florida
September 10, 1998
<PAGE> 1
EXHIBIT 23-C
CONSENT OF ARTHUR ANDERSEN LLP
As independent certified public accountants, we hereby consent to the
incorporation by reference in this Tech Data Corporation Form S-3 Registration
Statement of our report dated December 16, 1996 with respect to the September
30, 1996 consolidated financial statements of AmeriQuest Technologies, Inc. and
to all references to our Firm included in this Registration Statement.
Arthur Andersen LLP
Los Angeles, California
September 10, 1998
<PAGE> 1
EXHIBIT 23-D
CONSENT OF INDEPENDENT ACCOUNTANTS
To the Board of Directors of
Computer 2000 Aktiengesellschaft
We consent to the incorporation by reference in the registration statement (No.
333-36997) on Form S-3 of Tech Data Corporation of our report dated December 12,
1997, with respect to the consolidated balance sheets of Computer 2000
Aktiengesellschaft and subsidiaries as of September 30, 1997 and 1996, and the
related consolidated statements of operations and cash flows for each of the
years then ended, which report appears in the Form 8-K/A of Tech Data
Corporation dated September 14, 1998,
KPMG Hartkopf + Rentrop KG AWT Allegmeine Wirtschaftstreuhand GmbH
Cologne and Munich,
September 10, 1998
<PAGE> 1
EXHIBIT 25
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM T-1
STATEMENT OF ELIGIBILITY
UNDER THE TRUST INDENTURE ACT OF 1939
OF A CORPORATION DESIGNATED TO ACT AS TRUSTEE
CHECK IF AN APPLICATION TO DETERMINE ELIGIBILITY
OF A TRUSTEE PURSUANT TO SECTION 305(b)(2)_______
-----------------------
THE FIRST NATIONAL BANK OF CHICAGO
(EXACT NAME OF TRUSTEE AS SPECIFIED IN ITS CHARTER)
A NATIONAL BANKING ASSOCIATION 36-0899825
(I.R.S. EMPLOYER
IDENTIFICATION NUMBER)
ONE FIRST NATIONAL PLAZA, CHICAGO, ILLINOIS 60670-0126
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
THE FIRST NATIONAL BANK OF CHICAGO
ONE FIRST NATIONAL PLAZA, SUITE 0286
CHICAGO, ILLINOIS 60670-0286
ATTN: LYNN A. GOLDSTEIN, LAW DEPARTMENT (312) 732-6919
(NAME, ADDRESS AND TELEPHONE NUMBER OF AGENT FOR SERVICE)
-----------------------
TECH DATA CORPORATION
(EXACT NAME OF OBLIGOR AS SPECIFIED IN ITS CHARTER)
FLORIDA 59-1578329
(STATE OR OTHER JURISDICTION OF (I.R.S. EMPLOYER
INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
5350 TECH DATA DRIVE
CLEARWATER, FLORIDA 34620
(ADDRESS OF PRINCIPAL EXECUTIVE OFFICES) (ZIP CODE)
DEBT SECURITIES
(TITLE OF INDENTURE SECURITIES)
<PAGE> 2
ITEM 1. GENERAL INFORMATION. FURNISH THE FOLLOWING
INFORMATION AS TO THE TRUSTEE:
(a) NAME AND ADDRESS OF EACH EXAMINING OR
SUPERVISING AUTHORITY TO WHICH IT IS SUBJECT.
Comptroller of the Currency, Washington, D.C.; Federal
Deposit Insurance Corporation, Washington, D.C.; and The
Board of Governors of the Federal Reserve System, Washington
D.C.
(b) WHETHER IT IS AUTHORIZED TO EXERCISE
CORPORATE TRUST POWERS.
The trustee is authorized to exercise corporate trust powers.
ITEM 2. AFFILIATIONS WITH THE OBLIGOR. IF THE OBLIGOR
IS AN AFFILIATE OF THE TRUSTEE, DESCRIBE EACH
SUCH AFFILIATION.
No such affiliation exists with the trustee.
ITEM 16. LIST OF EXHIBITS. LIST BELOW ALL EXHIBITS FILED AS A PART
OF THIS STATEMENT OF ELIGIBILITY.
1. A copy of the articles of association of the
trustee now in effect.*
2. A copy of the certificates of authority of the trustee to
commence business.*
3. A copy of the authorization of the trustee to exercise
corporate trust powers.*
4. A copy of the existing by-laws of the trustee.*
5. Not Applicable.
6. The consent of the trustee required by Section 321(b) of
the Act.
<PAGE> 3
7. A copy of the latest report of condition of the trustee
published pursuant to law or the requirements of its
supervising or examining authority.
8. Not Applicable.
9. Not Applicable.
Pursuant to the requirements of the Trust Indenture Act of 1939, as
amended, the trustee, The First National Bank of Chicago, a national
banking association organized and existing under the laws of the
United States of America, has duly caused this Statement of
Eligibility to be signed on its behalf by the undersigned, thereunto
duly authorized, all in the City of Chicago and State of Illinois, on
the 3rd day of August, 1998.
THE FIRST NATIONAL BANK OF CHICAGO,
TRUSTEE
BY /s/ Sandra L. Caruba
-------------------------------
SANDRA L. CARUBA
VICE PRESIDENT
* EXHIBIT 1, 2, 3 AND 4 ARE HEREIN INCORPORATED BY REFERENCE TO EXHIBITS
BEARING IDENTICAL NUMBERS IN ITEM 16 OF THE FORM T-1 OF THE FIRST NATIONAL BANK
OF CHICAGO, FILED AS EXHIBIT 25.1 TO THE REGISTRATION STATEMENT ON FORM S-3 OF
SUNAMERICA INC., FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER
2, 1996 (REGISTRATION NO. 333-14201).
<PAGE> 4
EXHIBIT 6
THE CONSENT OF THE TRUSTEE REQUIRED
BY SECTION 321(b) OF THE ACT
August 3, 1998
Securities and Exchange Commission
Washington, D.C. 20549
Ladies and Gentlemen:
In connection with the qualification of the indenture between Tech Data
Corporation and The First National Bank of Chicago, as Trustee, the
undersigned, in accordance with Section 321(b) of the Trust Indenture Act of
1939, as amended, hereby consents that the reports of examinations of the
undersigned, made by Federal or State authorities authorized to make such
examinations, may be furnished by such authorities to the Securities and
Exchange Commission upon its request therefor.
Very truly yours,
THE FIRST NATIONAL BANK OF CHICAGO
BY: /s/ Sandra L. Caruba
-----------------------------
SANDRA L. CARUBA
VICE PRESIDENT
4
<PAGE> 5
EXHIBIT 7
Legal Title of Bank: The First National Bank of Chicago
Call Date: 03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-1
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
CONSOLIDATED REPORT OF CONDITION FOR INSURED COMMERCIAL
AND STATE-CHARTERED SAVINGS BANKS FOR MARCH 31, 1998
All schedules are to be reported in thousands of dollars. Unless otherwise
indicated, report the amount outstanding of the last business day of the
quarter.
SCHEDULE RC--BALANCE SHEET
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
RCFD BIL MIL THOU C400
----
<S> <C> <C> <C>
ASSETS
1. Cash and balances due from depository institutions (from Schedule
RC-A): RCFD
----
a. Noninterest-bearing balances and currency and coin(1) ........ 0081 4,141,168 1.a
b. Interest-bearing balances(2) ................................. 0071 5,142,787 1.b
2. Securities
a. Held-to-maturity securities(from Schedule RC-B, column A) .... 1754 0 2.a
b. Available-for-sale securities (from Schedule RC-B, column D) . 1773 7,819,811 2.b
3 Federal funds sold and securities purchased under agreements to
resell .......................................................... 1350 5,619,157 3.
4. Loans and lease financing receivables:
a. Loans and leases, net of unearned income (from Schedule RCFD
----
RC-C) ........................................................ 2122 26,140,376 4.a
b. LESS: Allowance for loan and lease losses .................... 3123 417,371 4.b
c. LESS: Allocated transfer risk reserve ........................ 3128 0 4.c
d. Loans and leases, net of unearned income, allowance, and RCFD
----
reserve (item 4.a minus 4.b and 4.c) ......................... 2125 25,723,005 4.d
5. Trading assets (from Schedule RD-D) ............................. 3545 5,795,159 5.
6. Premises and fixed assets (including capitalized leases) ........ 2145 757,033 6.
7. Other real estate owned (from Schedule RC-M) .................... 2150 6,547 7.
8. Investments in unconsolidated subsidiaries and associated
companies (from Schedule RC-M) .................................. 2130 135,327 8.
9. Customers' liability to this bank on acceptances outstanding .... 2155 512,763 9.
10. Intangible assets (from Schedule RC-M) .......................... 2143 261,456 10.
11. Other assets (from Schedule RC-F) ............................... 2160 2,223,495 11.
12. Total assets (sum of items 1 through 11) ........................ 2170 58,137,708 12.
</TABLE>
- -------
(1) Includes cash items in process of collection and unposted debits.
(2) Includes time certificates of deposit not held for trading.
5
<PAGE> 6
Legal Title of Bank: The First National Bank of Chicago
Call Date: 03/31/98 ST-BK: 17-1630 FFIEC 031
Address: One First National Plaza, Ste 0460 Page RC-2
City, State Zip: Chicago, IL 60670
FDIC Certificate No.: 0/3/6/1/8
SCHEDULE RC-CONTINUED
<TABLE>
<CAPTION>
DOLLAR AMOUNTS IN
THOUSANDS
-----------------
<S> <C> <C> <C>
LIABILITIES
13. Deposits:
a. In domestic offices (sum of totals of columns A and C RCON
----
from Schedule RC-E, part 1).................................................... 2200 21,551,932 13.a
(1) Noninterest-bearing(1)..................................................... 6631 9,361,049 13.a1
(2) Interest-bearing........................................................... 6636 12,190,883 13.a2
b. In foreign offices, Edge and Agreement subsidiaries, and RCFN
----
IBFs (from Schedule RC-E, part II)............................................. 2200 14,511,110 13.b
(1) Noninterest bearing........................................................ 6631 604,859 13.b1
(2) Interest-bearing........................................................... 6636 13,906,251 13.b2
14. Federal funds purchased and securities sold under agreements
to repurchase:.................................................................... RCFD 2800 3.887,022 14
15. a. Demand notes issued to the U.S. Treasury....................................... RCON 2840 63,092 15.a
b. Trading Liabilities(from Sechedule RC-D)....................................... RCFD 3548 5,918,194 15.b
16. Other borrowed money: RCFD
----
a. With original maturity of one year or less..................................... 2332 3,134,696 16.a
b. With original maturity of more than one year................................... A547 381,681 16.b
c. With original maturity of more than three years................................ A548 326,551 16.c
17. Not applicable
18. Bank's liability on acceptance executed and outstanding........................... 2920 512,763 18.
19. Subordinated notes and debentures................................................. 3200 2,000,000 19.
20. Other liabilities (from Schedule RC-G)............................................ 2930 1,163,747 20.
21. Total liabilities (sum of items 13 through 20).................................... 2948 53,450,788 21.
22. Not applicable....................................................................
EQUITY CAPITAL
23. Perpetual preferred stock and related surplus..................................... 3838 0 23.
24. Common stock...................................................................... 3230 200,858 24.
25. Surplus (exclude all surplus related to preferred stock).......................... 3839 3,107,585 25.
26. a. Undivided profits and capital reserves......................................... 3632 1,359,598 26.a
b. Net unrealized holding gains (losses) on available-for-sale
securities..................................................................... 8434 18,975 26.b
27. Cumulative foreign currency translation adjustments............................... 3284 (96) 27.
28. Total equity capital (sum of items 23 through 27)................................. 3210 4,686,920 28.
29. Total liabilities, limited-life preferred stock, and equity
capital (sum of items 21, 22, and 28)............................................. 3300 58,137,708 29.
Memorandum
To be reported only with the March Report of Condition.
1. Indicate in the box at the right the number of the statement
below that best describes the most comprehensive level of auditing
work performed for the bank by independent external auditors 2 Number
as of any date during 1996 ..................................................... .RCFD 6724 M.1.
</TABLE>
.
1 = Independent audit of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm which submits a report on the bank
2 = Independent audit of the bank's parent holding company
conducted in accordance with generally accepted auditing
standards by a certified public accounting firm which
submits a report on the consolidated holding company
(but not on the bank separately)
3 = Directors' examination of the bank conducted in accordance
with generally accepted auditing standards by a certified
public accounting firm (may be required by state chartering
authority)
4.= Directors' examination of the bank performed by other
external auditors (may be required by state chartering
authority)
5 = Review of the bank's financial statements by external
auditors
6 = Compilation of the bank's financial statements by external
auditors
7 = Other audit procedures (excluding tax preparation work)
8 = No external audit work
- ------------
(1) Includes total demand deposits and noninterest-bearing time
and savings deposits.
