SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A
For Registration of Certain Classes of Securities
Pursuant to Section 12(b) or 12(g) of the
Securities Exchange Act of 1934
FEDERATED DEPARTMENT STORES, INC.
(Exact Name of Registrant as Specified in Its Charter)
Delaware 13-3324058
(State of Incorporation (I.R.S. Employer
or Organization) Identification No.)
7 West Seventh Street, Cincinnati, Ohio 45202
and
1440 Broadway, New York, New York 10018
(Address of Principal Executive Offices)
If this Form relates to the registration of a class of debt
securities and is effective upon filing pursuant to General
Instruction A.(c)(1), please check the following box.
[ ]
If this Form relates to the registration of a class of debt
securities and is to become effective simultaneously with
the effectiveness of a concurrent registration statement
under the Securities Act of 1933 pursuant to General
Instructions A.(c)(2), please check the following box. [ ]
Securities to be registered pursuant to Section 12(b) of the
Act:
Title of Each Class Name of Each Exchange on Which
to be so Registered Each Class is to be Registered
5% Convertible Notes New York Stock Exchange,
due 2003 Inc.
Securities to be registered pursuant to Section 12(g) of the
Act:
None.
- ------------------------------------------------------------
INFORMATION REQUIRED IN
REGISTRATION STATEMENT
Item 1. Description of Registrant's Securities to be
Registered.
The description of the securities to be registered
hereby is included in a prospectus filed by the Registrant
pursuant to Rule 424(b) under the Securities Act of 1933, as
amended (the "Securities Act"), in connection with the
registration of such securities under the Securities Act
pursuant to a Registration Statement on Form S-3
(Registration No. 33-59691). Such prospectus is
incorporated herein by reference.
Item 2. Exhibits.
4.1 Indenture, dated as of December 15, 1994, between
the Registrant and The First National Bank of
Boston, as Trustee (filed as Exhibit 4.1 to the
Registrant's Registration Statement on Form S-3
(File No. 33-88328), filed with the Commission on
January 9, 1995, and incorporated herein by
reference).
4.2 Fourth Supplemental Indenture, dated as of
September 27, 1995, between Federated Department
Stores, Inc. and State Street Bank and Trust
Company (successor to The First National Bank of
Boston), as Trustee.
4.3 Form of Note (included in the Fourth Supplemental
Indenture filed as Exhibit 4.2 hereto).
4.4 Third Supplemental Indenture, dated as of January
23, 1995, between the Registrant and The First
National Bank of Boston, as Trustee (filed as
Exhibit 4.4.1 to the Registrant's Annual Report on
Form 10-K for the fiscal year ended January 28,
1995, and incorporated herein by reference).
4.5 Fifth Supplemental Indenture, dated as of October
6, 1995, between the Registrant and The First
National Bank of Boston, as Trustee (filed as
Exhibit 2 to the Registrant's Registration
Statement on Form 8-A dated October 4, 1995, and
incorporated herein by reference).
10.1 Credit Agreement, dated as of December 19, 1994,
between the Registrant, the Initial Lenders named
therein, Citibank, N.A., as Administrative Agent,
Chemical Bank, N.A., as Agent, Citicorp
Securities, Inc., as Arranger, and Chemical
Securities, Inc., as Co-Arranger (filed as Exhibit
4 to the Registrant's Form 8-A, filed with the
Commission on January 18, 1995, and incorporated
herein by reference).
SIGNATURE
Pursuant to the requirements of Section 12 of the
Securities Exchange Act of 1934, the Registrant has duly
caused this registration statement to be signed on its
behalf by the undersigned, thereto duly authorized.
FEDERATED DEPARTMENT STORES, INC.
Date: November 29, 1995 By: \s\ Dennis J. Broderick
Name: Dennis J. Broderick
Title: Senior Vice President,
Secretary and General
Counsel
EXHIBIT INDEX
Exhibit Sequentially
Number Exhibit Numbered Page
4.1 Indenture, dated as of December N/A
15, 1994, between the Registrant
and The First National Bank of
Boston, as Trustee (filed as Exhibit
4.1 to the Registrant's Registration
Statement on Form S-3 (File
No. 33-88328), filed with the
Commission on January 9, 1995, and
incorporated herein by reference).
4.2 Fourth Supplemental Indenture, dated 5
as of September 27, 1995, between
Federated Department Stores, Inc. and
State Street Bank and Trust Company
(successor to The First National Bank
of Boston), as Trustee.
4.3 Form of Note (included in the Fourth N/A
Supplemental Indenture filed as
Exhibit 2 hereto).
4.4 Third Supplemental Indenture, dated as N/A
of January 23, 1995, between the
Registrant and The First National Bank
of Boston, as Trustee (filed as Exhibit
4.4.1 to the Registrant's Annual Report
on Form 10-K for the fiscal year ended
January 28, 1995, and incorporated herein
by reference).
4.5 Fifth Supplemental Indenture, dated as N/A
of October 6, 1995, between the
Registrant and The First National
Bank of Boston, as Trustee (filed as
Exhibit 2 to the Registrant's
Registration Statement on Form 8-A
dated October 4, 1995, and incorporated
herein by reference).
10.1 Credit Agreement, dated as of December N/A
19, 1994, between the Registrant, the
Initial Lenders named therein, Citibank,
N.A., as Administrative Agent, Chemical
Bank, N.A., as Agent, Citicorp Securities,
Inc., as Arranger, and Chemical
Securities, Inc., as Co-Arranger (filed as
Exhibit 4 to the Registrant's Form 8-A,
filed with the Commission on January 18,
1995, and incorporated herein by
reference).
Federated Department Stores, Inc.
and
The First National Bank of Boston,
Trustee
Fourth Supplemental Trust Indenture
Dated as of September 27, 1995
Supplementing that certain
Indenture
Dated as of December 15, 1994
Authorizing the Issuance and Delivery of
Debt Securities
consisting of $350,000,000 aggregate principal amount of
5% Convertible Subordinated Notes due 2003
TABLE OF CONTENTS
Page
Recitals 1
[Form of Face of Security] 2
[Form of Reverse of Security] 3
ARTICLE I. ISSUANCE OF NOTES. 10
Section 1.1. Issuance of Notes; Principal Amount;
Maturity. 10
Section 1.2. Interest on the Notes; Payment of
Interest. 10
ARTICLE II. CERTAIN DEFINITIONS. 11
Section 2.1. Certain Definitions. 11
ARTICLE III. CERTAIN COVENANTS. 14
Section 3.1. Registration and Listing. 15
ARTICLE IV. REDEMPTION OF SECURITIES 15
Section 4.1. Right of Redemption. 15
ARTICLE V. CONVERSION OF SECURITIES 15
Section 5.1. Conversion Privilege and
Conversion Rate. 15
Section 5.2. Exercise of Conversion Privilege. 16
Section 5.3. Fractions of Shares. 17
Section 5.4. Adjustment of Conversion Rate. 17
Section 5.5. Notice of Adjustments of
Conversion Rate. 22
Section 5.6. Notice of Certain Corporate
Action. 23
Section 5.7. Company to Reserve Common Stock. 24
Section 5.8. Taxes on Conversions. 24
Section 5.9. Agreements as to Common Stock. 25
Section 5.10. Cancellation of Converted
Securities. 25
Section 5.11. Provision in Case of Consolidation,
Merger or Conveyance of Assets. 25
Section 5.12. Responsibility of Trustee for Conversion
Provisions. 26
ARTICLE VI. SUBORDINATION. 27
Section 6.1. Securities Subordinated to Senior
Debt. 27
Section 6.2. Payment Over of Proceeds Upon
Dissolution, Etc. 27
Section 6.3. No Payment When Senior Debt in
Default. 28
Section 6.4. Payment Permitted If No Default. 29
Section 6.5. Subrogation to Rights of Holders of
Senior Debt. 30
Section 6.6. Provisions Solely to Define
Relative Rights. 30
Section 6.7. Trustee to Effectuate
Subordination. 31
Section 6.8. No Waiver of Subordination
Provisions. 31
Section 6.9. Notice to Trustee. 31
Section 6.10. Reliance on Judicial Order or Certificate
of Liquidating Agent. 32
Section 6.11. Trustee Not Fiduciary for Holders of
Senior Debt. 33
Section 6.12. Rights of Trustee as Holder of Senior
Debt; Preservation of Trustee's Rights. 33
Section 6.13. Article Applicable to Paying
Agents. 33
Section 6.14. Certain Conversions Deemed
Payment. 33
ARTICLE VII. REPURCHASE OF SECURITIES AT THE OPTION OF
THE HOLDER UPON A CHANGE OF CONTROL. 34
Section 7.1. Right to Require Repurchase. 34
Section 7.2. Notices; Method of Exercising Repurchase
Right, Etc. 35
Section 7.3. Certain Definitions. 36
ARTICLE VIII. MISCELLANEOUS. 38
Section 8.1. Reference to and Effect on the
Indenture. 38
Section 8.2. Waiver of Certain Covenants. 38
Section 8.3. Fourth Supplemental Indenture May be
Executed In Counterparts. 38
Section 8.4. Effect of Headings. 38
Fourth Supplemental Indenture, dated as of September
27, 1995 (the "Fourth Supplemental Indenture"), between Federated
Department Stores, Inc., a corporation duly organized and
existing under the laws of the State of Delaware (the "Company"),
and The First National Bank of Boston, a national banking
association organized and existing under the laws of the United
States of America, as Trustee (the "Trustee"), supplementing that
certain Indenture, dated as of December 15, 1994, between the
Company and the Trustee (the "Indenture").
Recitals
A. The Company has duly authorized the execution
and delivery of the Indenture to provide for the issuance from time
to time of its unsecured debentures, notes, or other evidences of
indebtedness (the "Securities") to be issued in one or more
series as provided for in the Indenture.
B. The Indenture provides that the Securities of
each series shall be in substantially the form set forth in the
Indenture, or in such other form as may be established by or
pursuant to a Board Resolution or in one or more indentures
supplemental thereto, in each case with such appropriate
insertions, omissions, substitutions, and other variations as are
required or permitted by the Indenture, and may have such
letters, numbers, or other marks of identification and such
legends or endorsements placed thereon as may be required to
comply with the rules of any securities exchange or as may,
consistently herewith, be determined to be required by the
officers executing such Securities, as evidenced by their
execution thereof.
C. The Company and the Trustee have agreed that the
Company shall issue and deliver, and the Trustee shall
authenticate, Securities denominated "5% Convertible Subordinated
Notes due 2003" (the "Notes") pursuant to the terms of this
Fourth Supplemental Indenture and substantially in the form set
forth below, in each case with such appropriate insertions,
omissions, substitutions, and other variations as are required or
permitted by the Indenture and this Fourth Supplemental
Indenture, and with 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 such Securities.
[Form of Face of Security]
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
transferred to, or registered or exchanged for Securities
registered in the name of, any Person other than the Depositary
or a nominee thereof, and no such transfer may be registered,
except in the limited circumstances described in the Indenture.
Every Security authenticated and delivered upon registration of
transfer of, or in exchange for or in lieu of, this Security
shall be a Global Security subject to the foregoing, except in
such limited circumstances.
Federated Department Stores, Inc.
5% Convertible Subordinated Note due October 1, 2003
No. R- ________ $________
Federated Department Stores, Inc., a corporation duly
organized and existing under the laws of the State of Delaware
(hereinafter called the "Company", which term includes any
successor Person under the Indenture hereinafter referred to),
for value received, hereby promises to pay to Cede & Co., or
registered assigns, the principal sum of $_______ on October 1,
20__, and to pay interest thereon from September 27, 1995 or from
the most recent Interest Payment Date to which interest has been
paid or duly provided for, semiannually on October 1 and April 1
of each year, commencing on April 1, 1996 at the rate of 5% per
annum, until the principal hereof is paid or made available for
payment. The interest so payable, and punctually paid or duly
provided for, on any Interest Payment Date shall, as provided in
said 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 the September 15 or March 15 (whether or not a
Business Day), as the case may be, next preceding such Interest
Payment Date. Any such interest not so punctually paid or duly
provided for shall 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
Trustee, notice whereof shall be given to Holders of Securities
of this series not less than 10 calendar 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 of this series may be listed,
and upon such notice as may be required by such exchange, all as
more fully provided in said Indenture.
Payment of the principal of and any such interest on
this Security shall be made at the office or agency of the
Company maintained for the purpose in New York, New York, in such
coin or currency of the United States of America as at the time
of payment is legal tender for payment of public and private
debts; provided, however, that at the option of the Company
payment of interest may be made by check mailed to the address of
the Person entitled thereto as such address appears in the
Security Register.
REFERENCE IS HEREBY MADE TO THE FURTHER PROVISIONS SET
FORTH ON THE REVERSE HEREOF. SUCH PROVISIONS SHALL FOR ALL
PURPOSES HAVE THE SAME EFFECT AS THOUGH FULLY SET FORTH IN THIS
PLACE.
This Security shall not be valid or become obligatory
for any purpose until the certificate of authentication herein
has been signed manually by the Trustee under said Indenture.
In Witness Whereof, this instrument has been duly
executed in accordance with the Indenture.
Federated Department Stores, Inc.
Date Issued:__________ By:______________________________
Attest:
By:___________________
[Form of Reverse of Security]
Federated Department Stores, Inc.
This Security is one of a duly authorized issue of
securities of the Company (herein called the "Securities") issued
and to be issued in one or more series under an Indenture, dated
as of December 15, 1994 (herein called the "Indenture"), between
the Company and The First National Bank of Boston, as Trustee
(herein called the "Trustee," which term includes any successor
trustee under the Indenture), to which Indenture and all
indentures supplemental thereto reference is hereby made for a
statement of the respective rights, limitations of rights,
duties, and immunities thereunder of the Company, the Trustee,
and the Holders of the Securities and of the terms upon which the
Securities are, and are to be, authenticated and delivered. This
Security is one of the series designated on the face hereof,
limited in aggregate principal amount to $350,000,000.
No sinking fund is provided for the Securities. The
Securities are subject to redemption at the option of the Company
on or after October 1, 1998, in whole but not in part, upon not
more than 60 nor less than 30 days' notice to the Holders prior
to the Redemption Date.
The Redemption Prices (expressed as a percentage of
principal amount) are as follows for the 12-month period
beginning on October 1 of the following years:
Year Redemption Price
1998 103.125%
1999 102.500%
2000 101.875%
2001 101.250%
2002 100.625%
In each case together with accrued and unpaid interest to the
date of redemption.
In the event of the repurchase of this Security in part
only, a new Security or Securities of this series and of like
tenor for the portion hereof not so repurchased shall be issued
in the name of the Holder hereof upon the cancellation hereof.
Subject to and upon compliance with the provisions of
the Indenture, the Holder of this Security is entitled, at his
option, at any time, and on or before the close of business on
September 30, 2003, or in case this Security is called for
redemption or the Holder hereof has exercised his right to
require the Company to repurchase this Security, then in respect
of this Security 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
business day next preceding 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 U.S.$1,000 or any
integral multiple of U.S.$1,000 in excess thereof, provided the
unconverted portion of such principal amount is also U.S.$1,000
or any integral multiple of U.S.$1,000 in excess thereof) into
newly issued, fully paid and nonassessable shares of Common Stock
of the Company at an initial Conversion Rate equal to 29.2547
shares of Common Stock per U.S.$1,000 principal amount of
Securities (or at the current adjusted Conversion 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 and, in case such surrender shall be made
during 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 (unless this
Security or the portion thereof being converted has been called
for redemption on a Redemption Date, or is to be repurchased on a
Repurchase Date, that occurs within such period), also
accompanied by payment in New York Clearing House or other funds
acceptable to the Company of an amount equal to the interest
payable on such Interest Payment Date on the principal amount of
this Security then being converted, and also the conversion
notice hereon duly executed, to the Company at the Corporate
Trust Office of the Trustee, or at such other office or agency of
the Company as may be designated by it for such purpose in The
City of New York, or at such other offices or agencies as the
Company may designate (each a "Conversion Agent"). Subject to
the aforesaid requirement for payment and, in the case of a
conversion after the Regular Record Date next preceding any
Interest Payment Date and on or before such Interest Payment
Date, to the right of the Holder of this Security (or any
Predecessor Security) of record at such Regular Record Date to
receive an installment of interest (with certain exceptions
provided in the Indenture), no cash payment or adjustment is to
be made on conversion if the date of conversion is not an
Interest Payment Date, for interest accrued hereon from the
Interest Payment Date next preceding the date of conversion, or
for dividends on the Common Stock issued on conversion hereof.
The Company shall thereafter deliver to the Holder the fixed
number of shares of Common Stock (together with any cash
adjustment, as provided in the Indenture) into which this
Security is convertible and such delivery will be deemed to
satisfy the Company's obligation to pay the principal amount of
this Security. No fractions of shares or scrip representing
fractions of shares will be issued on conversion, but instead of
any fractional interest (calculated to the nearest 1/100th of a
share) the Company shall pay a cash adjustment as provided in the
Indenture. The Conversion Rate is subject to adjustment as
provided in the Indenture. In addition, the Indenture 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 property and assets of the
Company, the Indenture shall be amended, without the consent of
any Holders of Securities, so that this Security, if then Out
standing, 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 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. 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 (as defined in the Indenture)
occurs, the Holder of this Security 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 equal to U.S.$1,000 or any integral
multiple of $1,000 in excess thereof, provided the unrepurchased
portion of such principal amount is U.S.$1,000 or any integral
multiple of $1,000 in excess thereof) for cash at a Repurchase
Price equal to 100% of the principal amount plus accrued and
unpaid interest to 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 in those provisions
of this Security when such express mention is not made.
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.
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 amounts then due on all Senior Debt of the Company. 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 with respect to Securities of
this series shall occur and be continuing, the principal of the
Securities of this series may be declared due and payable in the
manner and with the effect provided in the Indenture.
The Indenture permits, with certain exceptions as
therein provided, the amendment thereof and the modification of
the rights and obligations of the Company and the rights of the
Holders of the Securities of each series to be affected under the
Indenture at any time by the Company and the Trustee with the
consent of the Holders of a majority in principal amount of the
Securities at the time Outstanding of each series to be affected.
The Indenture also contains provisions permitting the Holders of
specified percentages in principal amount of the Securities of
each series at the time Outstanding, on behalf of the Holders of
all Securities of such series, to waive compliance by the Company
with certain 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 upon the
registration of transfer hereof or in exchange hereof or in lieu
hereof, whether or not notation of such consent or waiver is made
upon this Security.
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 of this series, the Holders of not less
than 25% in principal amount of the Securities of this series 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 of this series at the
time Outstanding a direction inconsistent with such request and
shall have failed to institute such proceeding for 60 calendar
days after receipt of such notice, request, and offer of
indemnity. The foregoing shall apply to any suit instituted by
the Holder of this Security for the enforcement of any payment of
principal hereof or any premium or interest hereon on or after
the respective due dates expressed herein.
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 and any premium and interest on this
Security at the times, place, and rate, and in the coin or
currency, herein prescribed.
As provided in the Indenture and subject to certain
limitations therein set forth, the transfer of this Security is
registerable in the Security Register, upon surrender of this
Security for registration of transfer at the office or agency of
the Company in any place where the principal of and any premium
and interest on this Security are payable, duly endorsed by, or
accompanied by a written instrument of transfer in form
satisfactory to the Company and the Security Registrar duly
executed by, the Holder hereof or his attorney duly authorized in
writing, and thereupon one or more new Securities of this series
and of like tenor, of authorized denominations and for the same
aggregate principal amount, shall be issued to the designated
transferee or transferees.
The Securities of this series are issuable only in
registered form without coupons in denominations of $1,000 and
integral multiples thereof. As provided in the Indenture and
subject to certain limitations therein set forth, Securities of
this series are exchangeable for a like aggregate principal
amount of Securities of this series and of like tenor of a
different authorized denomination, as requested by the Holder
surrendering the same.
No service charge shall be made for any such
registration of transfer or exchange, but the Company may require
payment of a sum sufficient to cover any tax or other
governmental charge payable in connection therewith.
Prior to due presentment of this Security for
registration of transfer, the Company, the Trustee, and any agent
of the Company or the Trustee may treat the Person in whose name
this Security is registered as the owner hereof for all purposes,
whether or not this Security shall be overdue, and neither the
Company, the Trustee, nor any such agent shall be affected by
notice to the contrary.
Unless this Security is presented by an authorized
representative of The Depository Trust Company (55 Water Street,
New York, New York) to the Company or its agent for registration
of transfer, exchange, or payment, and any Security issued upon
registration of transfer of, or in exchange for or in lieu of,
this Security is registered in the name of Cede & Co. or such
other name as requested by an authorized representative of The
Depository Trust Company and payment hereon is made to Cede &
Co., ANY TRANSFER, PLEDGE, OR OTHER USE HEREOF FOR VALUE OR
OTHERWISE BY OR TO ANY PERSON IS WRONGFUL because the registered
owner hereof, Cede & Co., has an interest herein.
All terms used in this Security that are defined in the
Indenture shall have the respective meanings assigned to them in
the Indenture.
ELECTION OF HOLDER TO REQUIRE REPURCHASE
1. Pursuant to the Indenture, the undersigned hereby
elects to have this Security repurchased by the Company.
2. The undersigned hereby directs the Trustee or
Paying Agent to pay it or __________________ an amount in cash
equal to 100% of the principal amount hereof plus accrued and
unpaid interest to the Repurchase Date.
Dated: _______________________ ________________________
Signature
________________________
Signature Guaranteed
Principal amount to be repurchased: ________________
Remaining principal amount following such repurchase: __________
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.
D. The Trustee's certificate of authentication shall be in
substantially the following form:
Trustee's Certificate of Authentication
This is one of the Securities of the series designated
therein referred to in the within-mentioned Indenture.
The First National Bank of
Boston, as Trustee
By:___________________________
Authorized Officer
E. All acts and things necessary to make the Notes,
when the Notes have been executed by the Company and authenticated by
the Trustee and delivered as provided in the Indenture and this
Fourth Supplemental Indenture, the valid, binding, and legal
obligations of the Company and to constitute these presents a
valid indenture and agreement according to its terms, have been
done and performed, and the execution and delivery by the Company
of the Indenture and this Fourth Supplemental Indenture and the
issue hereunder of the Notes have in all respects been duly
authorized; and the Company, in the exercise of legal right and
power in it vested, is executing and delivering the Indenture and
this Fourth Supplemental Indenture and proposes to make, execute,
issue, and deliver the Notes.
Now, Therefore, this Fourth Supplemental Indenture Witnesseth:
In order to declare the terms and conditions upon which
the Notes are authenticated, issued, and delivered, and in
consideration of the premises and of the purchase and acceptance
of the Notes by the Holders thereof, it is mutually agreed, for
the equal and proportionate benefit of the respective Holders
from time to time of the Notes, as follows:
I. ISSUANCE OF NOTES.
1. Issuance of Notes; Principal Amount;
Maturity.
(a) On September 27, 1995, the Company shall issue
and deliver to the Trustee, and the Trustee shall authenticate, Notes
substantially in the form set forth above, in each case with such
appropriate insertions, omissions, substitutions, and other
variations as are required or permitted by the Indenture and this
Fourth Supplemental Indenture, and with 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 Notes, as evidenced by
their execution of such Notes.
(b) The Notes shall be issued in the aggregate
principal amount of $350,000,000 and shall mature on October 1,
2003.
2. Interest on the Notes; Payment of Interest.
(a) The Notes shall bear interest at the rate of
5% per annum from September 27, 1995, except in the case of Notes
delivered pursuant to Sections 2.05 or 2.07 of the Indenture,
which shall bear interest from the last Interest Payment Date
through which interest has been paid.
(b) The interest so payable, and punctually paid or
duly provided for, on any Interest Payment Date shall, as provided in
such Indenture, be paid to the Person in whose name a Note is
registered at the close of business on the Regular Record Date
for such interest, which shall be the September 15, or March 15
(whether or not a Business Day), as the case may be, next
preceding such Interest Payment Date. Any such interest not so
punctually paid or duly provided for shall forthwith cease to be
payable to the Holder on such Regular Record Date and may either
be paid to the Person in whose name the Note is registered at the
close of business on a Special Record Date for the payment of
such Defaulted Interest to be fixed by the Trustee, notice
whereof shall be given to Holders of Securities of this series
not less than 10 calendar 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 of this series may be listed, and upon such
notice as may be required by such exchange, all as more fully
provided in the Indenture.
(c) Payment of the principal of (and premium, if
any) and any such interest on the Notes shall be made at the office
or agency of the Company maintained for the purpose in New York,
New York, in such coin or currency of the United States of
America as at the time of payment is legal tender for payment of
public and private debts; provided, however, that at the option
of the Company payment of interest may be made by check mailed to
the address of the Person entitled thereto as such address
appears in the Security Register.
II. CERTAIN DEFINITIONS.
1. Certain Definitions.
The terms defined in this Section 2.1 (except as herein
otherwise expressly provided or unless the context of this Fourth
Supplemental Indenture otherwise requires) for all purposes of
this Fourth Supplemental Indenture and of any indenture
supplemental hereto have the respective meanings specified in
this Section 2.1. All accounting terms not otherwise defined
herein have the meanings assigned to them in accordance with
GAAP. All other terms used in this Fourth Supplemental Indenture
that are defined in the Indenture or the Trust Indenture Act,
either directly or by reference therein (except as herein
otherwise expressly provided or unless the context of this Fourth
Supplemental Indenture otherwise requires), have the respective
meanings assigned to such terms in the Indenture or the Trust
Indenture Act, as the case may be, as in force at the date of
this Fourth Supplemental Indenture as originally executed.
"Change of Control" has the meaning specified in
Section 7.3 of this Fourth Supplemental Indenture.
"Closing Price Per Share" means, with respect to the
Common Stock of the Company, for any day, the reported last sales
price regular way per share or, in case no such reported sale
takes place on such day, the average of the reported closing bid
and asked prices regular way, in either case (i) on the New York
Stock Exchange as reported in The Wall Street Journal (or other
similar newspaper) for New York Stock Exchange Composite
Transactions or, if the Common Stock is not listed or admitted to
trading on such Exchange, on the principal (as determined by the
Company's Board of Directors) national securities exchange on
which the Common Stock is listed or admitted to trading or (ii)
if not listed or admitted to trading on any national securities
exchange, on the Nasdaq National Market, or, if the Common Stock
is not listed or admitted to trading on any national securities
exchange or quoted on the Nasdaq National Market, the average of
the closing bid and asked prices in the over-the-counter market
as furnished by any New York Stock Exchange member firm selected
from time to time by the Company for that purpose. If no such
prices are available, the Closing Price Per Share shall be the
fair value of a share as determined by the Board of Directors of
the Company.
"Common Stock" means the Common Stock, par value $.01
per share, of the Company authorized at the date of this
instrument as originally executed. Subject to the provisions of
Section 5.11, shares issuable on conversion 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 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.
"Constituent Person" has the meaning specified in
Section 5.11 of this Fourth Supplemental Indenture.
"Conversion Agent" means any Person authorized by the
Company to convert Securities in accordance with Article VI of
this Fourth Supplemental Indenture.
"Conversion Price" has the meaning specified in
Section 7.3 of this Fourth Supplemental Indenture.
"Conversion Rate" has the meaning specified in Section
5.1 of this Fourth Supplemental Indenture.
"Non-electing Share" has the meaning specified in
Section 5.11 of this Fourth Supplemental Indenture.
"Permitted Holder of Senior Debt" means any duly
authorized representative of a holder of Senior Debt.
"Proceeding" has the meaning specified in Section 6.2
of this Fourth Supplemental Indenture.
"Quoted Price" has the meaning specified in Section 7.3
of this Fourth Supplemental Indenture.
"Redemption Date", when used with respect to any
Security to be redeemed, means the date fixed for such redemption
by or pursuant to this Fourth Supplemental 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 Fourth Supplemental Indenture.
"Repurchase Date" has the meaning specified in Section
7.1 of this Fourth Supplemental Indenture.
"Repurchase Price" has the meaning specified in Sec
tion 7.1 of this Fourth Supplemental Indenture.
"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
payable in connection with, the following, whether absolute or
contingent, secured or unsecured, due or to become due,
outstanding on the date of this Fourth Supplemental Indenture or
thereafter created, incurred or assumed: (a) indebtedness of the
Company to banks, insurance companies and other financial
institutions evidenced by credit agreements, notes or other
written obligations, (b) all other indebtedness of the Company
which is (i) for money borrowed (including obligations of the
Company in respect of overdrafts, foreign exchange contracts and
currency exchange agreements, letters of credit, bankers'
acceptances, interest rate protection agreements, and any loans
or advances from banks, whether or not evidenced by notes or
similar instruments) or (ii) evidenced by a note or similar
instrument given in connection with an acquisition of any
businesses, properties or assets of any kind (other than any
account payable or other accrued current liability or obligation
incurred in the ordinary course of business in connection with
the obtaining of materials or services ("Trade Accounts")), (c)
obligations of the Company as lessee under leases required to be
capitalized on the balance sheet of the lessee under generally
accepted accounting principles, (d) all obligations of the
Company issued or assumed as the deferred purchase price of
property (except Trade Accounts), all conditional sale
obligations of the Company and all obligations of the Company
under any title retention agreements, (e) all indebtedness and
obligations of other Persons of the types described in clauses
(a) through (d) for the payment of which the Company is
responsible or liable as obligor or guarantor, including, without
limitation, obligations (contingent or otherwise) to purchase or
otherwise acquire, or to assure a creditor against loss in
respect of, any such indebtedness or obligation, and any such
indebtedness or obligation secured by a lien on any asset of the
Company, whether or not such indebtedness or obligation is
assumed by the Company and (f) amendments, renewals, extensions,
modifications and refundings of any such indebtedness or
obligation described in clauses (a) through (e), unless in any
case in the instrument creating or evidencing any such
indebtedness or obligation or pursuant to which the same is
outstanding it is provided that such indebtedness or obligation
is not superior in right of payment to the Securities.
"Senior Nonmonetary Default" has the meaning specified
in Section 6.3 of this Fourth Supplemental Indenture.
"Senior Payment Default" has the meaning specified in
Section 6.3 of this Fourth Supplemental Indenture.
"Trading Days" means (i) if the Common Stock is listed
or admitted for trading on any national securities exchange, days
on which such national securities exchange is open for business
or (ii) if the Common Stock is quoted on the Nasdaq National
Market or any similar system of automated dissemination of
quotations of securities prices, days on which trades may be made
on such system or (iii) if the Common Stock is not listed or
admitted to trading on any national securities exchange or quoted
on the Nasdaq National Market or similar system, days 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.
III. CERTAIN COVENANTS.
The following covenant shall be applicable to the
Company for so long as any of the Notes are Outstanding. Nothing
in this paragraph will, however, affect the Company's obligations
under any provision of the Indenture or, except for Article III
hereof, this Fourth Supplemental Indenture.
1. 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) before the shares of Common Stock issuable upon
conversion of Securities may be lawfully issued and delivered,
and thereafter publicly traded, 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 The New York
Stock Exchange.
IV. REDEMPTION OF SECURITIES.
1. Right of Redemption.
The Securities may be redeemed in accordance with the
provisions of the form of Securities set forth herein.
V. CONVERSION OF SECURITIES
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
may be converted into fully paid and nonassessable shares
(calculated as to each conversion to the nearest 1/100 of a
share) of Common Stock of the Company at the Conversion Rate,
determined as hereinafter provided, in effect at the time of
conversion. Such conversion right shall commence immediately and
expire at the close of business on September 30, 2003, subject,
in the case of the conversion of any Global Security, to any
applicable book-entry procedures of the Depositary therefor. In
case a Security 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 shall expire at the close of business on
the business day next preceding the Redemption Date or the
Repurchase Date (as defined in Article VII), 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 book entry procedures).
The rate at which shares of Common Stock shall be
delivered upon conversion (herein called the "Conversion Rate")
shall be initially 29.2547 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 V.
2. Exercise of Conversion Privilege.
In order to exercise the conversion privilege, the
Holder of any Security to be converted shall surrender such
Security in blank at any office or agency of the Company
maintained for that purpose pursuant to Section 6.02 of the
Indenture, accompanied by a duly signed conversion notice
substantially in the form attached to the form of Security
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. Each Security surrendered
for conversion (in whole or in part) during the period from the
close of business on any Regular Record Date next preceding any
Interest Payment Date to the opening of business on such Interest
Payment Date shall (except in the case of any Security or portion
thereof which has been called for redemption on a Redemption
Date, or repurchased on a Repurchase Date, occurring within such
period) be accompanied by payment in New York Clearing House
funds or other funds acceptable to the Company of an amount equal
to the interest payable on such Interest Payment Date on the
principal amount of such Security (or part thereof, as the case
may be) being surrendered for conversion. The interest so
payable on such Interest Payment Date in respect of such Security
(or portion thereof, as the case may be) surrendered for
conversion shall be paid to the Holder of such Security as of
such Regular Record Date. Interest payable in respect of any
Security surrendered for conversion on or after an Interest
Payment Date shall be paid to the Holder of such Security as of
the next preceding Regular Record Date, notwithstanding the
exercise of the right of conversion. Except as provided in this
paragraph, no cash payment or adjustment shall be made upon any
conversion on account of, if the date of conversion is not an
Interest Payment Date, 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. The Company's delivery to the
Holder of the fixed number of shares of Common Stock (or a cash
adjustment, as provided in this Indenture) into which a Security
is convertible will be deemed to satisfy the Company's obligation
to pay the principal amount of the Security.
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 5.3.
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. A Security may be converted in part, but only if
(i) such Security is of a denomination larger than U.S.$1,000 and
(ii) the principal amount of such Security both to be converted
and to remain Outstanding after such conversion is equal to
U.S.$1,000 or any integral multiple of $1,000 in excess thereof.
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 so surrendered.
Instead of any fractional share of Common Stock which would
otherwise be issuable upon conversion of any Security or
Securities, the Company shall calculate and pay a cash adjustment
in respect of such fraction (calculated to the nearest one-100th
of a share) in an amount equal to the same fraction of the
current market price per share of Common Stock (calculated in
accordance with Section 5.4(8) below) at the close of business on
the day of conversion.
4. Adjustment of Conversion Rate.
The Conversion Rate shall be subject to adjustment from
time to time as follows:
(1) In case at any time after the date hereof, the
Company shall pay or make a dividend or other distribution on all
of the shares of any class of capital stock of the Company in
shares of its Common Stock, the Conversion Rate in effect at the
opening of business on the day following the date fixed for the
determination of shareholders entitled to receive such dividend
or other distribution shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination and the
denominator shall be the sum of such number of shares and the
total number of shares constituting such dividend or other
distribution, such increase to become effective immediately after
the opening of business on the day following the date fixed for
such determination. For the purposes of this paragraph (1), the
number of shares of Common Stock at any time outstanding shall
not include shares held in the treasury of the Company but shall
include shares issuable in respect of scrip certificates issued
in lieu of fractions of shares of Common Stock.
(2) In case at any time after the date hereof, the
Company shall issue rights or warrants to all holders of its
Common Stock (not being available on an equivalent basis to
Holders of the Securities upon conversion) entitling them to
subscribe for or purchase shares of Common Stock at a price per
share less than the current market price per share (determined as
provided in paragraph (8) of this Section 5.4) of the Common
Stock on the date fixed for the determination of shareholders
entitled to receive such rights or warrants (other than pursuant
to a dividend reinvestment plan), the Conversion Rate in effect
at the opening of business on the day following the date fixed
for such determination shall be increased by dividing such
Conversion Rate by a fraction of which the numerator shall be the
number of shares of Common Stock outstanding at the close of
business on the date fixed for such determination plus the number
of shares of Common Stock which the aggregate of the offering
price of the total number of shares of Common Stock so offered
for subscription or purchase would purchase at such current
market price and the denominator shall be the number of shares of
Common Stock outstanding at the close of business on the date
fixed for such determination plus the number of shares of Common
Stock so offered for subscription or purchase, such increase to
become effective immediately after the opening of business on the
day following the date fixed for such determination. For the
purposes of this paragraph (2), the number of shares of Common
Stock at any time outstanding shall not include shares held in
the treasury of the Company but will include shares issuable in
respect of scrip certificates issued in lieu of fractions of
shares of Common Stock.
(3) In case at any time after the date hereof, the
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 at any time
after the date hereof, 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) In case at any time after the date hereof the
Company shall, by dividend or otherwise, distribute to all
holders of its Common Stock evidences of its indebtedness or
assets (including stock or other securities of the Company or any
other issuer, but excluding any rights or warrants referred to in
paragraph (2) of this Section 5.4, any dividend or distribution
paid exclusively in cash and any dividend or distribution
referred to in paragraph (1) of this Section 5.4), 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 date fixed for the
determination of shareholders entitled to receive such
distribution by a fraction of which the numerator shall be the
current market price per share (determined as provided in
paragraph (8) of this Section 5.4) of the Common Stock on the
date fixed for such determination less the then fair market value
(each reference to "fair market value" in this Section 5.4 shall
mean the fair market value as determined by the Board of
Directors, whose determination shall be conclusive and described
in a Board Resolution filed with the Trustee) of the portion of
the assets or evidences of indebtedness so distributed applicable
to one share of Common Stock and the denominator shall be such
current market price per share of the Common Stock, such adjust
ment to become effective immediately prior to the opening of
business on the day following the date fixed for the
determination of shareholders entitled to receive such
distribution.
(5) In case (A) the Company shall, by dividend or
otherwise, other than regular, periodic or other dividends
declared or paid in accordance with the Company's practice as
established from time to time, distribute to all holders of its
Common Stock cash (excluding any cash that is distributed upon a
merger or consolidation to which Section 5.11 applies or as part
of a distribution referred to in paragraph (4) of this
Section 5.4) and (B)(I) the total of (x) the aggregate amount of
such cash distribution, (y) the aggregate amount of any other
distributions to all holders of its Common Stock made exclusively
in cash within the 12 months preceding the date of payment of
such distribution and in respect of which no adjustment pursuant
to this paragraph (5) or paragraph (6) of this Section 5.4 has
been made (other than regular, periodic or other dividends
declared or paid in accordance with the Company's practice as
established from time to time) and (z) the aggregate of any cash
plus the fair market value of other consideration payable in
respect of any tender offers by the Company or any of its
Subsidiaries for all or any portion of the Common Stock concluded
within the 12 months preceding the date of payment of such
distribution and in respect of which no adjustment pursuant to
this paragraph (5) or paragraph (6) of this Section 5.4 has been
made, exceeds (II) 12.5% of the product of the current market
price per share (determined as provided in paragraph (8) of this
Section 5.4) of the Common Stock on the date for the
determination of holders of shares of Common Stock entitled to
receive such distribution times the number of shares of Common
Stock outstanding on such date, then, and in each such case,
immediately after the close of business on such date for
determination, the Conversion Rate shall be increased 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
date fixed for determination of the shareholders entitled to
receive such distribution by a fraction (i) the numerator of
which shall be equal to such current market price per share on
the date fixed for such determination less an amount equal to the
quotient of (X) the sum of (I) the total of the amounts referred
to in subclauses (B)(I)(x) and (y) of this paragraph (5) and (II)
the aggregate of the excess of the amount referred to in
subclause (B)(I)(z) of this paragraph (5) for each tender offer
so referred to over the aggregate current market price of the
shares of Common Stock purchased in such tender offer as of the
Expiration Time (as hereinafter defined) for such tender offer
divided by (Y) the number of shares of Common Stock outstanding
on such date for determination and (ii) the denominator of which
shall be equal to such current market price per share on such
date for determination.
(6) In case (A) a tender offer made by the Company or
any Subsidiary for all or any portion of the Common Stock shall
expire and (B)(I) the total of (x) the fair market value of the
aggregate consideration required to be paid pursuant to such
tender offer (as amended upon the expiration thereof) to
shareholders (based on the acceptance (up to any maximum
specified in the terms of the tender offer) of Purchased Shares
(as defined below)), (y) the aggregate of the cash plus the fair
market value, as of the expiration of such tender offer, of
consideration payable in respect of any other tender offer, by
the Company or any Subsidiary for all or any portion of the
Common Stock expiring within the 12 months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this paragraph (6) or paragraph (5) of
this Section 5.4 has been made and (z) the aggregate amount of
any distributions to all holders of the Company's Common Stock
made exclusively in cash within 12 months preceding the
expiration of such tender offer and in respect of which no
adjustment pursuant to this paragraph (6) or paragraph (5) of
this Section 5.4 has been made (other than regular, periodic or
other dividends declared or paid in accordance with the Company's
practice as established from time to time), exceeds (II) 12.5% of
the product of the current market price per share of the Common
Stock (determined as provided in paragraph (8) of this
Section 5.4) on the date of the last time (the "Expiration Time")
tenders could have been made pursuant to such tender offer (as it
may be amended) times the number of shares of Common Stock
outstanding (including any tendered shares) on the Expiration
Time, then, and in each such case, immediately prior to the
opening of business on the day after the date of the Expiration
Time, the Conversion Rate shall be adjusted so that the same
shall equal the price determined by dividing the Conversion Rate
immediately prior to the close of business on the date of the
Expiration Time by a fraction (i) the numerator of which shall be
equal to (a) the product of (I) such current market price per
share on the date of the Expiration Time and (II) the number of
shares of Common Stock outstanding (including any tendered
shares) as of the Expiration Time less (b) the total of the
amounts referred to in Clause (B)(I) of this paragraph (6), and
(ii) the denominator of which shall be equal to the product of
(a) such current market price per share on the date of the
Expiration Time and (b) the number of shares of Common Stock
outstanding (including any tendered shares) as of the Expiration
Time less the number of all shares validly tendered and not
withdrawn as of the Expiration Time (the shares deemed so
accepted up to any such maximum, being referred to as the
"Purchased Shares").
(7) The reclassification of Common Stock into
securities including other than Common Stock (other than any
reclassification upon a consolidation or merger to which
Section 5.11 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 date fixed for the
determination of shareholders entitled to receive such
distribution" and "the date fixed for such determination" within
the meaning of paragraph (4) of this Section 5.4), 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 5.4).
(8) For the purpose of any computation under
paragraphs (2), (4), (5) or (6) of this Section 5.4, 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 Per Share 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 on the applicable
securities exchange or in the applicable securities market
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-thousandth 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 5.4, 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 or for any other reasons. The Company
shall have the power to resolve any ambiguity or correct any
error in this paragraph (10) and its actions in so doing shall be
final and conclusive.
5. Notice of Adjustments of Conversion Rate.
Whenever the Conversion Rate is adjusted as herein
provided:
(1) the Company shall compute the adjusted Conversion
Rate in accordance with Section 5.4 and shall prepare a
certificate signed by the Chief Financial Officer or
Treasurer 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 forthwith promptly be filed with the Trustee and with
each Conversion Agent; and
(2) a notice stating that the Conversion Rate has been
adjusted and setting forth the adjusted Conversion Rate
shall forthwith be required, and as soon as practicable
after it is required, such notice shall be provided by the
Company to all Holders in accordance with Section 13.03 of
the Indenture.
Neither the Trustee nor any Conversion Agent shall be under any
duty or responsibility with respect to any such certificate,
except to exhibit the same to any Holder of Securities desiring
inspection thereof at its office during normal business hours.
6. Notice of Certain Corporate Action.
In case:
(1) the Company shall declare a dividend (or any other
distribution) on its Common Stock payable otherwise than in
cash out of its earned surplus; or
(2) the Company shall authorize the granting to all
holders of its Common Stock of rights or warrants to
subscribe for or purchase any shares of capital stock of any
class or of any other rights (other than any rights that are
substantially similar to the rights issued under the Rights
Agreement, dated as of December 19, 1994, between the
Company and The Bank of New York, as rights agent); or
(3) (a) of any reclassification of the Common Stock of
the Company, or (b) 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
(c) of any tender offer by the Company or any Subsidiary for
all or any portion of the Common Stock, or (d) of the
conveyance, transfer, sale or lease of all or substantially
all of the assets of the Company; or
(4) of the voluntary or involuntary dissolution,
liquidation or winding up of the Company;
then the Company shall cause to be filed at each office or agency
maintained for the purpose of conversion of Securities pursuant
to Section 6.02 of the Indenture, and shall cause to be provided
to all Holders in accordance with Section 13.03 of the Indenture,
at least 20 days (or 10 days in any case specified in clause (1),
(2) or (3)(c) above) prior to the applicable record, expiration
or effective date hereinafter specified, a notice stating (x) the
date on which a record is to be taken for the purpose of such
dividend, distribution, or grant of rights or warrants, or, if a
record is not to be taken, the effective date as of which the
holders of Common Stock of record to be entitled to such
dividend, distribution, rights or warrants are to be determined,
(y) the date on which the right to make tenders under such tender
offer is originally scheduled to expire or (z) the date on which
such reclassification, consolidation, merger, share exchange,
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, share exchange,
conveyance, transfer, sale, lease, dissolution, liquidation or
winding up. Neither the failure to give such 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 (1) through (4) of this Section 5.6. If at
the time the Trustee shall not be the conversion agent, a copy of
such notice and any notice referred to in the following paragraph
shall also forthwith be filed by the Company with the Trustee.
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 6.02 of the Indenture, and shall
cause to be provided to all Holders in accordance with Section
13.03 of the Indenture, 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.
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.
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. A Holder delivering a
Security for conversion will 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.
9. Agreements 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, except as provided in
Section 5.8, the Company will pay all taxes, liens and charges
with respect to the issue thereof.
10. Cancellation of Converted Securities.
All Securities delivered for conversion shall be
delivered to the Trustee, which shall dispose of the same as
provided in Section 2.08 of the Indenture.
11. Provision in Case of Consolidation, Merger or
Conveyance of Assets.
In case of any consolidation of the Company with, or
merger of the Company into, any other Person, any merger of
another Person into the Company (other than a merger which does
not result in any reclassification, conversion, exchange or
cancellation of outstanding shares of Common Stock of the
Company) or any conveyance, transfer, sale 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 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 5.1, to convert such
Security only into the kind and amount of securities, cash and
other property receivable upon such consolidation, merger,
conveyance, transfer, sale or lease 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, transfer, sale or lease,
assuming such holder of Common Stock of the Company (i) is not a
Person with which the Company consolidated or into which the
Company merged or which merged into the Company or to which such
conveyance, transfer, sale or lease was made, as the case may be
("Constituent Person"), or an Affiliate of a Constituent Person
and (ii) failed to exercise his rights of election, if any, as to
the kind or amount of securities, cash and other property
receivable upon such consolidation, merger, conveyance, transfer,
sale or lease (provided that if the kind or amount of securities,
cash and other property receivable upon such consolidation,
merger, conveyance, transfer, sale or lease is not the same for
each share of Common Stock of the Company held immediately prior
to such consolidation, merger, conveyance, transfer, sale 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 5.11 the kind and amount of securities, cash and
other property receivable upon such consolidation, merger,
conveyance, transfer, sale 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).
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 5.11 shall similarly apply to
successive consolidations, mergers, conveyances, transfers, sales
or leases.
Neither the Trustee, any Paying Agent nor any
Conversion 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 of Securities 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 protected in relying upon, an Opinion of Counsel
with respect thereto, which the Company shall cause to be
furnished to the Trustee upon request.
12. Responsibility of Trustee for Conversion
Provisions.
The Trustee, subject to the provisions of Section 9.01
of the Indenture, and any Conversion Agent shall not at any time
be under any duty or responsibility to any Holder of Securities
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. Neither the
Trustee, subject to the provisions of Section 9.01 of the
Indenture, nor any Conversion Agent shall 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. Neither the Trustee, subject to the
provisions of Section 9.01 of the Indenture, nor any Conversion
Agent shall 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, subject to the
provisions of Section 9.01 of the Indenture, and any Conversion
Agent shall not be responsible for any failure of the Company to
comply with any of the covenants of the Company contained in this
Article.
VI. SUBORDINATION.
1. Securities Subordinated 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, the payment of the principal of and
interest on each and all of the Securities are hereby expressly
made subordinate and subject in right of payment to the prior
payment in full of all Senior Debt.
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 specified
in (a), (b) or (c) above (each such event, if any, herein
sometimes referred to as a "Proceeding") 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, or
provision shall be made for such payment in cash or cash
equivalents or otherwise in a manner satisfactory to the holders
of Senior Debt, before the Holders of the Securities are entitled
to receive any payment or distribution of any kind or character,
whether in cash, property or securities, on account of principal
of or interest on the Securities or on account of any purchase or
other acquisition of Securities by the Company or any Subsidiary
of the Company (all such payments, distributions, purchases and
acquisitions herein referred to, individually and collectively,
as a "Securities Payment"), and to that end the holders of all
Senior Debt shall be entitled to receive, for application to the
payment thereof, any Securities Payment which may be payable or
deliverable in respect of the Securities in any such Proceeding.
In the event that, notwithstanding the foregoing
provisions of this Section, the Trustee or the Holder of any
Security shall have received any Securities Payment before all
Senior Debt is paid in full or payment thereof provided for in
cash or cash equivalents or otherwise in a manner satisfactory to
the holders of Senior Debt, and if such fact shall, at or prior
to the time of such Securities Payment, have been made known to
the Trustee or, as the case may be, such Holder, then and in such
event such Securities Payment 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.
For purposes of this Article only, the words "any
payment or distribution of any kind or character, whether in
cash, property or securities" shall not be deemed to include a
payment or distribution of stock or securities of the Company
provided for by a plan of reorganization or readjustment
authorized by an order or decree of a court of competent
jurisdiction in a reorganization proceeding under any applicable
bankruptcy law or of any other corporation provided for by such
plan of reorganization or readjustment which stock or securities
are subordinated in right of payment to all then outstanding
Senior Debt to substantially the same extent as 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, transfer, sale or lease of all
or substantially all of its properties and assets to another
Person upon the terms and conditions set forth in Article XI of
the Indenture shall not be deemed a Proceeding for the purposes
of this Section if the Person formed by such consolidation or
into which the Company is merged or the Person which acquires by
conveyance, transfer, sale or lease such properties and assets,
as the case may be, shall, as a part of such consolidation,
merger, conveyance, transfer, sale or lease comply with the
conditions set forth in Article XI of the Indenture.
3. No Payment When Senior Debt in Default.
In the event that any Senior Payment Default (as
defined below) shall have occurred and be continuing, then no
Securities Payment shall be made unless and until such Senior
Payment Default shall have been cured or waived or shall have
ceased to exist or all amounts then due and payable in respect of
Senior Debt to which such Senior Payment Default relates shall
have been paid in full, or provision shall have been made for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt. "Senior Payment
Default" means any default in the payment of principal of or
premium, if any, or interest on any Senior Debt.
In the event that any Senior Nonmonetary Default (as
defined below) shall have occurred and be continuing, then, from
and after the sixtieth day after the receipt by the Company and
the Trustee of written notice of such Senior Nonmonetary Default
from any Permitted Holder of Senior Debt, no Securities Payment
shall be made until such Senior Nonmonetary Default shall have
been cured or waived or shall have ceased to exist and any
acceleration of Senior Debt shall have been rescinded or annulled
or the Senior Debt to which such Senior Nonmonetary Default
relates shall have been discharged. "Senior Nonmonetary Default"
means the occurrence or existence and continuance of any event of
default, or of any event which, after notice or lapse of time (or
both), would become an event of default, under the terms of any
instrument pursuant to which any Senior Debt is outstanding,
permitting (whether immediately or after notice or lapse of time
or both) one or more holders of such Senior Debt (or a trustee or
agent on behalf of the holders thereof) to declare such Senior
Debt due and payable prior to the date on which it would
otherwise become due and payable, other than a Senior Payment
Default.
In the event that, notwithstanding the foregoing, the
Company shall make any Securities Payment to the Trustee or any
Holder prohibited by the foregoing provisions of this Section,
and if such fact shall, at or prior to the time of such
Securities Payment, have been made known to the Trustee or, as
the case may be, such Holder, then and in such event such
Securities Payment shall be paid over and delivered forthwith to
the Company.
The provisions of this Section shall not apply to any
Securities Payment with respect to which Section 6.2 would be
applicable.
4. Payment Permitted If No Default.
Nothing contained in this Article or in any of the
Securities insofar as they incorporate the provisions of this
Article shall prevent (a) the Company, at any time except during
the pendency of any Proceeding referred to in Section 6.2 or
under the conditions described in Section 6.3, from making
Securities Payments, or (b) the application by the Trustee of any
money deposited with it hereunder to Securities Payments or the
retention of such Securities Payment by the Holders, if, at the
time of such application by the Trustee, the Trustee did not have
knowledge that such Securities Payment would have been prohibited
by the provisions of this Article.
5. Subrogation to Rights of Holders of Senior
Debt.
Subject to the payment in full of all amounts due or to
become due on or in respect of Senior Debt, or the provision for
such payment in cash or cash equivalents or otherwise in a manner
satisfactory to the holders of Senior Debt, the Holders of the
Securities shall be subrogated 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 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.
6. 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 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
(and which, subject to the rights under this Article of the
holders of Senior Debt, is intended to rank equally with all
other general obligations of the Company), to pay to the Holders
of the Securities the principal of 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.
7. 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.
8. 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, or by any noncompliance
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 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) 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.
9. 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 Fourth Supplemental 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 the
Trustee shall have received written notice thereof from the
Company or a holder of Senior Debt or from any trustee therefor
or representative thereof; and, prior to the receipt of any such
written notice, the Trustee, subject to the provisions of Section
9.01 of the Indenture, 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
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.
Subject to the provisions of Section 9.01 of the
Indenture, the Trustee shall be entitled to 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 or representative
thereof) to establish that such notice has been given by a holder
of Senior Debt (or a trustee therefor or representative thereof).
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.
10. 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, subject to the
provisions of Section 9.01 of the Indenture, and the Holders of
the Securities shall be entitled to rely upon any order or decree
entered by any court of competent jurisdiction in which such
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.
11. 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.
With respect to the holders of Senior Debt, the Trustee
undertakes to perform or to observe only such of its covenants or
obligations as are specifically set forth in this Article and no
implied covenants or obligations with respect to holders of
Senior Debt shall be read into this Indenture against the
Trustee.
12. 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.
13. 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 6.12 shall
not apply to the Company or any Affiliate of the Company if it or
such Affiliate acts as Paying Agent.
14. Certain Conversions 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 V shall not be deemed to constitute a
Securities Payment 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 a
Securities Payment. For the purposes of this Section, the term
"junior securities" means shares of any common stock. Nothing
contained in this Article or elsewhere in this Fourth
Supplemental 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 V.
VII. REPURCHASE OF SECURITIES AT THE OPTION OF THE
HOLDER UPON A CHANGE
OF CONTROL.
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
the 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 an integral multiple of U.S.$1,000
(provided that no single Security may be repurchased in part
unless the portion of the principal amount of such Security to be
Outstanding after such repurchase is equal to U.S.$1,000 or
integral multiples of U.S.$1,000 in excess thereof), on the date
(the "Repurchase Date") that is 45 days after the date of the
Company Notice (as defined in Section 7.2) for cash in Dollars at
a purchase price equal to 100% of the principal amount plus
interest accrued to the Repurchase Date (the "Repurchase Price");
provided 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 registered as such on the
relevant Record Date according to their terms and the provisions
of Section 2.09 of the Indenture. Such right to require the
repurchase of the Securities shall not continue after a discharge
of the Company from its obligations with respect to the
Securities in accordance with Article XI of the Indenture, unless
a Change of Control shall have occurred prior to such discharge.
Whenever in this Indenture 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.
2. 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 in Control, the
Company or, at the request of the Company on or before the 15th
day after such occurrence, the Trustee, shall give to all Holders
of Securities, in the manner provided in Section 13.03 of the
Indenture notice (the "Company Notice") of the occurrence of the
Change in 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 the amount of accrued
and unpaid interest to the Repurchase Date, if any,
(4) a description of the procedure which a Holder must
follow to exercise a repurchase right,
(5) that on the Repurchase Date the Repurchase Price,
and the amount of accrued and unpaid interest to the
Repurchase Date, 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,
(6) the Conversion Rate, the date on which the right
to convert the Securities to be repurchased will terminate
and the places where such Securities may be surrendered for
conversion, and
(7) the place or places where such Securities are to
be surrendered for payment of the Repurchase Price and
accrued interest, if any.
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 are inconsistent with applicable law, such law
shall govern.
(b) To exercise a repurchase right, a Holder shall
deliver to the Trustee or any Paying Agent on or before the 30th
day after the date of the Company Notice (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 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 (ii) the Securities
with respect to which the repurchase right is being exercised.
(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 or the Paying Agent the
Repurchase Price in cash, for payment to the Holder on the
Repurchase Date, 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 (subject to the
provisions of Section 7.1).
(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 from the Repurchase
Date at the rate of 5% per annum, 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 (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,
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.
3. Certain Definitions.
For purposes of this Article VII,
(a) the term "beneficial owner" shall be determined in
accordance with Rule 13d-3 promulgated by the Commission pursuant
to the Exchange Act, as in effect on the date of the execution of
this Fourth Supplemental Indenture;
(b) 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, as in effect on the date of the
original execution of this Fourth Supplemental Indenture;
(c) the term "Quoted Price" of the Common Stock on any
Trading Day shall mean the Closing Price Per Share of the Common
Stock on such Trading Day;
(d) a "Change of Control" shall be deemed to have
occurred at such time as:
(i) any Person (other than the
Company, any Subsidiary of the Company or any
employee benefit plan of the Company or any such
Subsidiary) is or becomes the beneficial owner,
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; or
(ii) there occurs any consolidation
of the Company with, or merger of the Company
into, any other Person, any merger of another
Person into the Company, or any sale or transfer
of all or substantially all of the assets of the
Company to another Person (other than (a) any such
transaction pursuant to which the holders of the
Common Stock immediately prior to such transaction
have, directly or indirectly, at least a majority
of the common equity of the continuing or
surviving corporation immediately after such
transaction and (b) any merger (x) which does not
result in any reclassification, conversion,
exchange or cancellation of outstanding shares of
Common Stock or (y) 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 with respect to the
Securities shall not be deemed to have occurred if either (A) the
Quoted Price on any five Trading Days during the 10 Trading Day
period immediately preceding the date of the Change of Control
shall equal or exceed 105% of the Conversion Price in effect on
each such Trading Day or (B) with respect to clause (ii) above,
all the consideration (excluding cash payments for fractional
shares) in the transaction or transactions constituting the
Change of Control consists of shares of common stock traded on a
national securities exchange or quoted on the Nasdaq National
Market and as a result of such transaction or transactions the
Securities become convertible solely into such common stock. The
"Conversion Price" shall equal U.S.$1,000 divided by the
Conversion Rate.
VIII. MISCELLANEOUS.
1. Reference to and Effect on the Indenture.
This Fourth Supplemental Indenture shall be construed
as supplemental to the Indenture and all the terms and conditions
of this Fourth Supplemental Indenture shall be deemed to be part
of the terms and conditions of the Indenture. Except as set
forth herein, the Indenture heretofore executed and delivered is
hereby (i) incorporated by reference in this Fourth Supplemental
Indenture and (ii) ratified, approved and confirmed.
2. Waiver of Certain Covenants.
The Company may omit in any particular instance to
comply with any term, provision, or condition set forth in
Article III hereof if the Holders of a majority in principal
amount of the Outstanding Notes shall, by Act of such Holders,
either waive such compliance in such instance or generally waive
compliance with such term, provision or condition, but no such
waiver shall extend to or affect such term, provision, 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
term, provision, or condition shall remain in full force and
effect.
3. Fourth Supplemental Indenture May be Executed In
Counterparts.
This instrument may be executed in any number of
counterparts, each of which shall be an original; but such
counterparts shall together constitute but one and the same
instrument.
4. Effect of Headings.
The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
In Witness Whereof, the parties hereto have caused this
Fourth Supplemental 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.
[Seal] Federated Department Stores, Inc.
By: \s\ Ronald W. Tysoe
Name: Ronald W. Tysoe
Title: Vice Chairman & CFO
Attest:
\s\ Dennis J. Broderick
Name: Dennis J. Broderick
Title: Secretary
The First National Bank of Boston,
as Trustee
By: \s\ Ronald S. Gutsafsen
Name: Ronald S. Gutsafsen
Title: Senior Account Manager
Attest:
\s\ Kelly K. Caldwell
Name: Kelly K. Caldwell
Title: Assistant Cashier
STATE OF OHIO )
) ss.:
COUNTY OF HAMILTON )
On this 27th day of September, 1995, before me
personally came Ronald W. Tysoe, to me known, who, being by me duly
sworn, did depose and say that he/she is a Vice Chairman of
Federated Department Stores, Inc., one of the entities described
in and which executed the above instrument; that he/she knows the
seal of said entity; that the seal or a facsimile thereof affixed
to said instrument is such seal; that it was so affixed by
authority of the Board of Directors of said entity, and that
he/she signed his/her name thereto by like authority.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
\s\ Richard E. Winkler
Notary Public
Richard E. Winkler
Notary Public, State of Ohio
My Commission Expires May 1, 1997
COMMONWEALTH OF MASSACHUSETTS )
) ss.:
COUNTY OF NORFOLK )
On this 27th day of September, 1995, before me
personally came Ronald S. Gutsafsen, to me known, who, being by me
duly sworn, did depose and say that he/she is a Senior Account Manager
of The First National Bank of Boston, one of the entities
described in and which executed the above instrument; that he/she
knows the seal of said entity; that the seal or a facsimile
thereof affixed to said instrument is such seal; that it was so
affixed by authority of the Board of Directors of said entity,
and that he/she signed his/her name thereto by like authority.
In Witness Whereof, I have hereunto set my hand and
affixed my official seal the day and year in this certificate
first above written.
\s\ Ralph E. Jones
Notary Public
Ralph E. Jones
My Commission Expires January 18, 2002
Schedule I
Particular Terms of Notes
Maturity: The Notes will mature on October 1, 2003.
Interest: The interest rate per annum on the Notes
shall be 5%.
Redemption: The Notes will be redeemable at the option of the
Company prior to maturity at the Redemption Prices
(expressed as a percentage of the principal
amount) for the 12-month period beginning on
October 1 of the following years:
Year Redemption Price
1998 103.125%
1999 102.500%
2000 101.875%
2001 101.250%
2002 100.625%
In each case together with accrued and unpaid interest to the
date of redemption.
